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 aboliah-
ment 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 Coun-
ty Schdol Superintendent,    and that since that time there
hats been elected every four years a County Superinten-
dent.    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 con-
stitutional    delegation  of such authority,     it follows
that neither the qualified      voters nor the Commiaalon-
era* 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 Opin-
ion No. O-3 f;39.
           Since, as reported,    there were only 2,890
(less than 3,000) In Donley County when the County vot-
ed 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       popula-
     tion whenever more then . . . twenty-five
     per cent (25%) of the qualified       voters of
     said county aa shown by the vote for Gov-
     ernor at the preceding General Election
     shall petition    th4 Commissioners’ Court
     thereof,    said Court shall order an dlec-
     tlon for said county to determine wheth-
     er OF not the office     of County Superinten-
     dent shell be created in said County; and,
     if a majority of . . . voters . . . shall
     vote for the creation     of the office    of
     County Superintendent      . . . the Commiaaion-
     era’ 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&g-
ialature,   R. S., Chap. 208, provides for the aboliah-
wnt 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 abollah-
ment . Opinion No. O-335  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 here-
      after having the office       of County Super-
      intendent where the scholastic        population
      according to the last scholastic         census
      is leas than three thou and ( 000) but
      more than two thouaend 92,000 ? the office
      of County Supepintendont shall continue
      unless agd u2lltll a rjority       of the quali-
      fied taxpaylng voters of said county, vot-
      ing at an election       hold to determine wheth-
      er 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 Com-
     mlaaionera’ Court upon petition   tffere-
     for as hereinafter  apetifled.  a .
           Under this quoted provision,      all counties haQ-
lng the office     of County Superintendent    (whether said
office  wao created by virtue of the fact that the coun-
ty contained 3,000 OF more scholastics       and In accordance
with the provisions     set out in the first    sentence of Art-
icle 2688, as amended, OP whether it, having less then
3,000 scholastics,     was created b anelection       held un-
der that provision     of Article  265 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.      Un-
til such office     la aboliahed in the menner set out there-
in 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 ter-
minated 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 acholaa-
tic population   is about 1700, leas then 2,000.   Accord-
ingly, 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 Superin-
tendent 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 unreatrict-
ed, abolish it.     Ford Q. Board of State Herbor Comlra.
(Cal. Sup. 1889) 22 Pac. 278; Hartfie d County (W. Va.
1919 92 S.W. 245; Rivers v. Harley, t Ga. Sup, 1945) 33
S.W. t 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 leg-
islative   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 1g 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 Legislatureintended that the
county no longer has such powel?.
                          SUMMARY

             Under the facts aubacltted,the office
     or County Superintendentexlatlng as stated
     in Donloy County may not be abolished OP
     diacontlnued,    thora bslng no pro84nt atat-
     utory authorizationfor 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



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