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: Werefer 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 amendedby 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 hatsbeen elected every four years a County Superintendent. That at present the population of Donley County is 1700, and the people are nowanxious to abolish the office of County School Superintendent. You desire to knowwhether arid office maynowbe 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 Deartment advised that since under the statute [Art. 2688 as amendedby Acts 1932 above referred to) the Legiaiature has failed to devise any method by which either the people OF the Commissioners’ Court mayabolish #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 39.

f; Since, as reported, there were only 2,890 (less than 3,000) In Donley County whenthe 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 amendedby Acts 1932, whichHon. 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 shownby 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 OFnot 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 namea County Superintendsnt whoshall qualify under this Chapter +nd hold such office until the next General Election

. . .” However, Articla 2688, aa amendedby Acts 1932, madeno provisions whatsoever authorizing the abolishment OFdiscontinuance 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 amendedby 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. 35 O-3 39. Article 2688, aa amendedby Acts 1945, 49th Legislature, contains this additional provision which does not aDpear in the statute as amendedin 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 9 ? more than two thouaend 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, shallHon. 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 createdby 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 8, 5 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 whenthe 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,

Thegeneral rule, supported by the weight of authority, is that where a county is empoweredby 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. 1919t 92 S.W. 245; Rivers v. Harley, tGa. 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 89, g 21at Leg., R.S., HeBe 452, p, 58; Acts 1905, 29th Leg., R.S., S.B. 218, P. 273;.



### Hon.R.Y. King,page4 (V-545)



### StanfieldQ, 

### State,83 Tex. 317, 18 S.W. 577. However, 

### theseActswereamendedand thepowertoabolishtheof; fleewas omitted,andthuswithdrawn. We construethat aotiontomeanthattheLegislatureintendedthatthe countynolonger 

### has suchpowel?.
SUMMARY 

### Underthefacts 

### aubacltted, the office 

### orCountySuperintendent exlatlngas stated in 

### DonloyCountymaynotbe abolishedOP diacontlnued, 

### thorabslngnopro84ntatatutoryauthorizationfor same. ArtAble2688, 

### aa amendedbyActs1945,49thLegislature, R.S.,Chap.208;AttorneyGeneralOpinion No.o-3839.


### Yoursverytruly, 

### ATTORREXGEBERALOFTEXAS

CEO :,mIi 

### Encls. CheaterE, 

### Olllaon Aosistant

APPROVED:

ATTORSIEGERBRAL