Hon. R. Y. King Opinion Ho, V-545 

county Attorney 

Donley County Re: Abolishment of office of 

Clarendon, Texas County Superintendent in 

Donley County. 

Dear Sir: 

We refer to your letter concerning the aboliahment of the office of County School Superintendent of 

Donley County. You advise that about ten or twelve 

gears ago the scholastic population of Donleg County was 

2,896; that under Article 2688, V. C. S., as amended by 

Acts 1932, 42nd Legislature, 3rd C. S., Chapter 21, then 

in force, the County voted to create the office of County Schdol Superintendent, and that since that time there 

hats been elected every four years a County Superintendent. That at present the population of Donley County 

is 1700, and the people are now anxious to abolish the 

office of County School Superintendent. You desire to 

know whether arid office may now be abolished. 

In Opinion Ro. O-3839, wherein was aubmltted 

the question whether the office of County Superintendent 

in counties of nope than 3,000 scholastic population may 

be abolished this De artment advised that since under 

the statute [Art. 2688 as amended by Acts 1932 above 

referred to) the Legiaiature has failed to devise any 

method by which either the people OF the Commissioners’ 

Court may abolish #hat office, and there being no constitutional delegation of such authority, it follows 

that neither the qualified voters nor the Commiaalonera* Courts have the power to abolish OP discontinue 

that 4pfice once St has been legally established. See 

legislative history of Article 2688, as amended, and 

cases in a\ port of this holding cited in attached Opinion No. O-3 f; 39. 

Since, as reported, there were only 2,890 

(less than 3,000) In Donley County when the County voted for the offire of County Superintendent, said office 

was created by an election held in accordance with that 

part of Article 2688, as amended by Acts 1932, which 
Hon. R. Y. King, page 2 (V-545) 

” * . . In countlea heving leas than 

three thousand (3,000) scholastic population whenever more then . . . twenty-five 

per cent (25%) of the qualified voters of 

said county aa shown by the vote for Governor at the preceding General Election 

shall petition th4 Commissioners’ Court 

thereof, said Court shall order an dlectlon for said county to determine whether OF not the office of County Superintendent shell be created in said County; and, 

if a majority of . . . voters . . . shall 

vote for the creation of the office of 

County Superintendent . . . the Commiaaionera’ Court . . . ah411 create the office of 

County Superintendent, and name a County 

Superintendsnt who shall qualify under this 

Chapter +nd hold such office until the next 

General Election . . .” 

However, Articla 2688, aa amended by Acts 1932, 

made no provisions whatsoever authorizing the abolishment 

OF discontinuance of the office of County Superintendent 

which was created in a county of leas than 3,000 by an 

election held under that part of the Act quoted above. 

Unless Article 2688, as amended by Acts 1945, 49th J&gialature, R. S., Chap. 208, provides for the aboliahwnt of said office, it would follow that neither the 

qualified voters nor the CommissIonera Court would have 

the necessary authorit to exercise the power of abollahment . Opinion No. O-3 35 39. 

Article 2688, aa amended by Acts 1945, 49th 

Legislature, contains this additional provision which 

does not aDpear in the statute as amended in 1932: 

n 

. . . In all counties now OP hereafter having the office of County Superintendent where the scholastic population 

according to the last scholastic census 

is leas than three thou and ( 000) but 

more than two thouaend 9 2,000 ? the office 

of County Supepintendont shall continue 

unless agd u2lltll a rjority of the qualified taxpaylng voters of said county, voting at an election hold to determine whether said office ahall,.bs abolished, shall 
Hon. R. Y. King, page 3 (v-545) 

vote to abolish said office, which 

election shall be ordered by the Commlaaionera’ Court upon petition tfferefor as hereinafter apetifled. a . 

Under this quoted provision, all counties haQlng the office of County Superintendent (whether said 

office wao created by virtue of the fact that the county contained 3,000 OF more scholastics and In accordance 

with the provisions set out in the first sentence of Article 2688, as amended, OP whether it, having less then 

3,000 scholastics, was created b anelection held under that provision of Article 26 5 8, above quoted) where 

the acholaatiti population la leas than 3,000 but more 

than 2,000 hea been granted the express power to abolish 

by an election the office of County Superintendent. Until such office la aboliahed in the menner set out therein it shall oontinue to exist. Prior to this amendment 

in 1945, the office of County Superintendent existing by 

virtue of a county having over 3,000 scholastics was terminated in a county when the scholastic population.of 

such county fell below 3,000. See Opinion O-1254 for 

relevant dlaeuaalon on this matter. 

Donley County, however, does not fall,withln 

this provision of Article 2688, aa~amended 1945, last 

above quoted, because, as reported, its present acholaatic population is about 1700, leas then 2,000. Accordingly, It is our opinion, and for the reasons set out in 

Opinion O-3839, that there exists no present authority 

In the qualified voters OF the Commissioners’ Court of 

Donley County to abolish the office of County Superintendent existing in said county, 

The general rule, supported by the weight of 

authority, is that where a county is empowered by the 

Legislature to create an office, It may, If unreatricted, abolish it. Ford Q. Board of State Herbor Comlra. 

(Cal. Sup. 1889) 22 Pac. 278; Hartfie d County (W. Va. 

1919 

t 

92 S.W. 245; Rivers v. Harley, t Ga. Sup, 1945) 33 

S.W. 26) 310; and annotation 4 A.L.R. 224. 

In this case, however, the legislative history 

of the Act calls for an exception to this rule. The legislative intent is of compelling importance Inasmuch as 

the office is a creature of the Legislature. At one 

tire the counties were express1 authorized to abolish 

the office in queatien. Acts 1 g 89, 21at Leg., R.S., HeBe 

452, p, 58; Acts 1905, 29th Leg., R.S., S.B. 218, P. 273; 
. 

Hon. R. Y. King, page 4 (V-545) 

Stanfield Q, State, 83 Tex. 317, 18 S.W. 577. However, 

these Acts were amended and the power to abolish the of; 

flee was omitted, and thus withdrawn. We construe that 

aotion to mean that the Legislature intended that the 

county no longer has such powel?. 

SUMMARY 

Under the facts aubacltted, the office 

or County Superintendent exlatlng as stated 

in Donloy County may not be abolished OP 

diacontlnued, thora bslng no pro84nt atatutory authorization for same. ArtAble 2688, 

aa amended by Acts 1945, 49th Legislature, 

R.S., Chap. 208; Attorney General Opinion 

No. o-3839. 

Yours very truly, 

ATTORREX GEBERAL OF TEXAS 

CEO :,mIi 

Encls. 

Cheater E, Olllaon 

Aosistant 

APPROVED: 

ATTORSIE GERBRAL