Hon. R. E. Schneider, Jr.

Count Attorney Opinion Ho. V-685
Live iak County Re: Effective date of a George West, Texas proposed election to abolish the office of County Superintendent In Live Oak County.
Dear Sir:

quote, la Werefer to your recent letter from which we

part:

more “Live Oek County Is a county having than 2,000 but less ten 3?000 scholastic population, and the County Superintendent has recently resigned.

“The statute authorizing and providing for the office of County Superintendent Is Artlole 2688 as emended by the Acts of 1945, end provides in part as follows:

“111 all counties now or hereafter having the office of county Superintendent, where the scholastic population according to the last scholestlc census 1s less than 3,000, but more than 2,000, the office of County Superintendent shall continue unless and until a majority of the quallfled property tax paying voters of said county, voting et an election held to determine whether said office shell be abolIshed, shall vote to abolish said office, which election shall be ordered by the Commissioners’ Court upon petition therefor es hereinafter specified, Provided, however, that If a majority of said voters voting et seld election herelnebove provided for, vote to abolish said office said election shall not become effective until the expiration of the term of office for which the County Supeplntendent. _

Hon. R. E. Schneider, Jr., psge 2 (V-685)

has been elected or appointed.’

‘The term for which the County Superintendent was elected will expire December 31, 1950. The office is now vecant.

“Under the provisions of Article 2355 of the Revised Civil Statutes, the Commissioners’ Court has authority to fill vrcanCIESin the office of the County Superintendent, such appointme to hold office until the next General Election.

“It seems to be the concensu6 of opinion of the County School 3oWd that the office of County Superintendent Is not necessary lh the o&T, due to the feet that due to recent consolldatf~ns end annexation proceedings there ere only two corrrm~n school districts in the county, the rest of the districts ROW

being In tvo independent school districts. The County Board had In mind the circulation of petitions for the Commissloners~ Court to 

### callthe election provided for In Article 2688 in order that the vote?6 vould have an opportunity to determlne vhether or not the office should be kbollshed, and the question arose as to vhen the election would become effective la the event it carried to abolish the OfflCd. The question being vhhethepor not ths election would becoue effective at the next General Election to be held this OQPlng November, or vould the election not become effective until January lst, 1951."
In Opinion V-545, this office 8dvlsed thet by virtue of the provlsieas of Artlcl (quoted in your letter hereinabove P 2688, as amended, all counties having the office of County Superintendent, where the scholestic population is less than 3,000 but more than 2,000, have been granted the express power to abolish by bn election the office of County Superintendent. Further, thet the general rule, supported by the weight of authorlty, Is that where a county 16 empowered by the Leglslrturs to create an office, It may, if unr66trlcted abolish It; but that the leglalrtlvo history c0nc8ralng the Texas Act, Article 2688, calls for amexception to this rule. Opinion O-3839.Hon. R. E. Schneider, Jr., page 3 (V-685)

Live Cak County, assuming that it has the scholastic population reported herein, has the express power to abolish Its office of County Superintendent in the manner set out In Article 2688, as amended. The Legislature having specifically provided the statutory procedure, applicable to Live Oak County, by which the office of County Superintendent maybe abolished, it follows that said office maynot be abolished In any other manner.

However, Article 2688, as amended, also provides that if a majority of the qualified voters vote to abolish said office of Its County Superintendent "said election shall not become effective until the expiration of the term of office for which the Eounty Superintendent has been elected or apQointed. sls ours) (&@aSince 1931, the office of County School Superintendent has been for e term of four gears. Article 2688, V. C. S. By virtue,of the provisions of Article 2355, hovever, wherever necessity requires the appolntment of a person to fill a vacancy created In said office, that offlce is open to election at the next General Election, end the term of the appolntee'wlll ex1ire on January 1st follow1 ttorney Gen6re1's Opinions ~0~~o~~~~4~e~~~~~2~lectlon.

Attorney Generalls“Cpinion lo. 0-1833 further advises to the effect that the fact that It Is nowtoo late for e cendidate for nominee for the Democratic Perty to get his nameprinted upon the Primary Election ballot, or as for that matter, the failure of the Democratic Party to select a nominee, will not affect the right of the people to elect e County Superintendent at the General Election in Rovember. The voters mayvote their choice by writing the candidate's name in the blank space provided for that purpose.

!&us, If the Commissioners' Court of Live Oak County, acting under Article 2355, appoints, prior to General Election day, a person to fill the vacancy existing In Its office of County Superintendent, the term of said appointee qualifying therefor will expire on January 1st following the next General Election, towlt, January 1, 1949; and If prior to General Election date, the office of County Superintendent Is abolished in accordance with the provisions above quoted of Article 2688, as amended, then that statute provides in effect that

### Eon.B. E. 

### Schneider,Jr., psge 4 (V-685)

.m.

. . .~ 

### seid:abolls~entelectionvi11becomeeffectiveon "the

expirationof the termof officeforvhiqh theCounty i' i ,C,-_. _ __... ~'(8.; Superintendent

hasbeen

. . . eppolnted, tovlt,Jenueiv J., 1949.

,_.____,., "...r..r-..‘.-.

If the Commissioners1 CourtofLive Oek County,actingunderArticle2355,V. C. S., 

### priortoGeneralElectionday eppointse per60~ 

### to fill thevacancyexistingin the officeof CountySuperintendent, the termof Saidappointeevi11 expireonJanuarylst, fo11owingthenextGenera1Election. AttorneyGeneral'sOpinion6Ros.O-6923,O-1664, o-2212.
And if,priorto General 

### Electiondey, 

### the offlseof CountySuperintendent Isaboll6hedInaccordancewithArticle2688, V. C. S as 

### 6mended,66id 

### abolitionelwtion vi11 biiomeeffectiveelt"the

## l xplrrtienof the termof officeforvhiah the CountynSuper

### intendanthasbeen

. . .appolnt6d.
Your6verytruly,
ATTORRRYGERRRALOF TEXAS

CBO:mw 

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