_ -- ,.i 

-. 

MARK WHITE 

Attorney General 

70, c4mm,ca. sune zoo 

mha. TX. 75202 

214,742-8@44 

The Attorney General of Texas 

September 27, 1979 

Honorable Warren G. Harding 

State Treasurer 

P. 0. Box 12608, Capitol Station 

Austin, Texas 787R 

Opinion No. m-99 

Re: Whether the office of county 

treasurer can be abolished. 

Dear Mr. Harding: 

You request an opinion on the eotistitutionality of e PMposed merger 

of the Tarrant County treasurer’s office with the county auditor’s office 

which would thereby result in the abolition of the treasurer’s office. The 

legislature pamed House Bill 396 this year which provides the followingz 

Se&ion L The commissioners court of Tarrant 

County shall call an election to be held on 

November 6, 1979, at which the qualified voters of 

the county shall be permitted to vote for or against 

the proposition: ‘Consolidation of the offices of 

county auditor and county treasurer in this county.’ 

Sec. 2 If a majority of the qualified voters voting 

on the question vote in favor of the proposition, on 

the 30th day after the date of the electian the office 

of county treasurer ceases to exist in Tarrant County 

and all the powers, duties, snd functions of the office 

are transferred to the county auditor. The 

appointment and compensation of the county auditor 

shall continue to be governed by general law. 

Acts l979,66th Leg., ch. 130, at 25L 

If such proposition ‘pames, the treasurer’s office in Tarrant County 

would cease tog exist. Article XVI, section 44 of the Texas Constitution 

provides for a county treasurerr 

Sec. 44. The Legislature shall prescribe the duties 

and provide for the election by the qualified voters of 

each county in this State, of a County Treasurer and 

a County Surveyor, who shall have an office at the 

County Seat, and hold their office for four years, and 

P. 186 
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Honorable Warren G. Harding - page Two (m-5 9 1 

until their successors are qualified; and shall have such compensation as may 

be provided by law. 

Constitutional offices may not be abolished without constitutional authorization. 

See Cowell v. Ayers, 220 SW. 764 (Tex. 1920). It k argued that article llI, section 64 of 

~constitution permits the proposed consolidation. It provides in fullr 

Sec. 64. (a) The Legislature may by special statute provide for 

consolidation of governmental offices and functions of government 

of any one or moee political subdivisions comprising or located 

within any county. Any such statute shall require an election to be 

held within the political subdivisions affected thereby with 

approval by a majority of the voters in each of these subdivisions, 

under such terms and conditions as the Legklature may require. 

(b) The county government, or any political subdlvkionfs) 

comprising or located therein, may contract one with another for 

tbs performance of governmental functions required or authorized 

by thk Constitution or the Laws of this State, under such terms end 

caiditicns as the Legklature may prescribe. No person acting 

maier a contract made pursuant to thk Subsection (b) shall be 

deemed to hold mere then one office of honor, trust or profit or 

more than one civil office of emolument. The term ‘governmental 

fimctions,’ as it relates to counties, includes all duties, activities 

eld operations of statewide importance in which the county acts 

for the State, as well as of local importance, whether required or 

a&ho&&by thk Constitution or the Laws of thk State. 

Subsection (3 permits consolidation of offices in “political subdivisions comprking or 

located wit& any~ oounty.” It k our opinion that county entities are not treated by 

subsection (e). Modifications of county governmental functions are specifically addressed 

in sub&a&a fb). It provides fqr interlocal contracts and removes constitutional 

impediments to officials acting under such eontracts who may otherwise violate the dual 

office prohlMtlons of the constitution. 

County governments are not specifically included in subsection (a) as they are under 

(b). SubeecrM (a) permits consolidation in political subdivisions comprklng a county. 

Subsection w permits oertain contracts among political subdivisions comprklng a county 

and among camty governments. Thus we believe section 64 draws e distinction between 

“countg govssnments” and “political subdlvkions comprising a county.” -The latter does 

not include tLe former. We belleve a political subdivision comprking a county k a special 

pistrict w&b k geographically ooterminous with county boundaries but which does not 

Itself ConstUwte the’ county as a governmental entity. See, e.g., Ten. Const. art. Ix, S 4 

(county-wide hospital districts). s Attorney General Opinion V-723 &MS). &cordingly, 

abolition of * County, treasurer’s office in Tarrant County k nowhere constituticnally 

Permksible. There is no ejdence of legislative intent or judi&al construction which 

Suggests that such fundamental changes in county government were contemplated‘by the 

doptioo of saetion 64. 

P. 187 
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Honorable Warren G. Herding - Page Three (m-59) 

SUMMARY 

Article III, section 64 of the Texas Constitution does not authorize 

the legklature to abolish the constitutional office of county 

treasurer. 

eHmi 

Attorney General of Texas 

JOHN W. PAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assiitant Attorney General 

Prepared by David B. Brooks 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE ‘. 

C. Robert Heath, Chairman 

David B. Brooks 

Susan Garrison 

Rick Gilpin 

William G Reid 

Bruce Y oungblood 

p. 188