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                              The Attorney             General of Texas
                                                 September       27,    1979

MARK WHITE
Attorney        General

                          Honorable Warren G. Harding                  Opinion No. m-99
                          State Treasurer
                          P. 0. Box 12608, Capitol Station             Re: Whether the office of county
                          Austin, Texas 787R                           treasurer can be abolished.

70,c4mm,ca.
         sunezoo          Dear Mr. Harding:
mha.TX.
      75202
214,742-8@44
                                 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




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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.




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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

JOHNW. PAINTER,JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assiitant Attorney General

Prepared by David B. Brooks
Assistant Attorney General

APPROVED:
OPINIONCOMMITTEE                  ‘.

C. Robert Heath, Chairman
David B. Brooks
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood




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