 .     .




              THEA~TORNEY       GENERAL
                       OF TElxAs




Hon. Johu Stapleton                  Opinion Ro. O-1254
County Attorney                      Re: Did the office of county super-
Floyd County                         intendent of public instruction of
Floydada, Texas                      Floyd County terminate when the schol-
                                     astic population fell below 3000 in
Dear Sir:                            19381 And related questions.

          Your request for an opinion on the questions as are herein stated
has been received by this department:

          "Did the office of county superintendent of public instruction
of Floyd County terminate when the scholastic population of Floyd County
fell below 3000 in 19387 If such office did terminate, are Mr. Travis
and Mr. Wfie   entitled to the monies they have received as salary foI;
their cervices in that capacity since January 1, 19391

          "If it should be held that Floyd County has a valid office of
county superintendent of public instruction, does the appointment of the
Commissioners' Court of Mr. Guffie, as set out above, continue merely
until the next biennial election, or does it continue until the next
general election atwhich~ a county superintendent would normally be
elected?~ In either instance does Mr. Guffie's term for which he was ap-
pointed cease as Soon after the general election as the elected official
qualifies?

           "If the population of Floyd County falls below 10,000 according
 to'the 1940 Federal Census, will the office of Assessor and Collector
,of Taxes as a separate office in Floyd County, terminate?"

            Your letter reads in part as follows:
                                         .,.
          "At the June Term, 1924, of the,X!ommissioners'Court of Floyd
County, the attention of such court was called to the fact that Flayd
County had a scholastic population of 3101 according to the scholastic
census of that year. At that meeting the court appointed a county super-
intendent of public instruction and provided for the election of a county
superintendent at the 1924 general election. Prior to that .timethe county
judge has served as ex-officio superintendent. From that tine to the
present Floyd County has had,.anoffice of county superintendent of public
instruction., The office was not created by a vote of the people atefan '~
election held for that purpose.

          "The 1938 scholastic population of Floyd County, as determined
by the scholastic census taken that year, vas 2,758. Walter Travis was
                                                                     -     .




eon. John Stapleton, page 2 (O-1254)



a candidate for the office of county superintendent of public instruction
of Floyd County in the 1938 general election and received a majority of
til the VOteE cast for that office in such election.   Mr. Travis qualified
and YBBissued a commlseion by the governori he served in the office from
January 1, 1939, to July 1, 1939, at which latter date he resigned. The
Commiesioner’s Court of Floyd County appointed Clarence Guffie to serve
Mr. Travis’e unexpired term. Mr. Guffie haa served in euch office since
July 1, 1939, and at the present time is atill serving in such office
and receiving pay therefor.”

          Adfcls   2688, Revired Civil Statutes,   as amended, reada ae fol-
10x8:

            ‘“Phe Commimslonerr’Court of every county having three thoueend
(3,000) echolartlc population or more ae rhown by the precedlng echolartic
cezwu8, rhall at a Oeneral Election provide for the election of e County
Superinto~bent to lerve for a term of four (4) yeare, who ohall be a per-
#on of educational attalnmente, good moral character, and executive ability,
@nd who rhell be provided by the Cwmlrrlcmrr~ Court with BIIoffice in
tha courthoure, end with aecerrary orfics furniture and fixturer.     He
Ehall ba the holder of e teachart    firrt grade certlflcate  or teacher’@
   maoAt certificate.     In every county that rhall attain three thoueend
4”3,000) rcholartk populatlti or more the Commi@#ioneretCourt ohs11 ap-
polat ruch Superintendent who ah811 perform the duticr of ouch office
until the election end qualification    of hia euccoeeor’. In countlee having
10~ than three thousand (3,000) echolartic population whenever more than
twmlty-rive por cent (25%) of the qualified votore of Said county an ehown
by the rots for Governor at the preceding Goneral Election ohall petition
the Commlrmlonerr~Court thorefor, mid Court rhall order BII election
for mid county to determine whether or not tho office of County Superin-
tendent rhallbe created in maid county1 and, if a majority of the quali-
fied property taxpaying votarta voting at eeld election ehall vote for
the creation of the office of County Superintendent la maid county, the
Comirelonerrl Court, at ite next regular term after the holding of raid
election, #hall create the office of County Superintendent, and name a
County Suporinteadant who ehell qualify under Chic Chapter and hold euch
office until the next General Election.     Provided, that in all countlea
having a population in exce~e of three hundred and fifty thoueand (350,000)
@habitants according to the last available Federal Conme the County
Euperintondent shall be appointed by the County Board of Education and
ahall hold office for two (2) years, provided further, that this provi-
rioa rhall not operate 60 ar to deprive any elected Superintendent of
hlr offica prior to the expiration of the term for which he has been
electedi provided further that in countiea having a acholaatlc population
of between three thouaend (3,000) and five thousand (5,000) scholastica,
wherein the office of County Superintendent hae not been created and a
Superintendent elected, then in such countier the quo&ion of whether
or not much office la eetabliehed nhallbe determined by the qualified
voter6 of said county in B epecial election called therefor by the Com-
miesioners~ Court of eald county, upon petition therefor 88 hereinabove
epecif led.”
Eon. John Stapleton, page 3 (O-1254)



          The case of Marfa Independent School District vs. Davis, County
Judge, et al, 102 SU 2nd 283, construing Article 2688, Revised Civil Stat-
utes, 8s amended, holds in effect that the purpose of amendment relating
to establleiua8ntof office of County Superintendent in counties having
8 certain scholastic population is to provide a method whereby voters may
determine whether the office is created when Comnissioners' Courts fail
to act and not to make existence of euch offices in those counties having
or attaining the designated scholastic population dependent'upon election
being called and that the office of County Superintendent is held to exist
in a county having a scholastic population of three thousand end eighty
where the Commissioners' Court called an election for such office end
superintendent was elected, notwithstanding question of whether such of-
fice should be created was not determined at an election under statute.
(Referring to Art. 2688)

          The case of Miller vs. Brown, 216 SW 452, was a case in which
the facts are very similar to the facts presented in your inquiry and
this case holds in effect that the office of County Superintendent of
Public Instruction depends for its existence, under article 2750 (now
Article 2688) based on the condition of the scholastic census at each
general election, no election to such office being valid in a county hav-
ing a scholastic population of less than three thousand as shown by the
preceding census, except in counties where the office has been created
by 8n election held for that purpose. Since it was not the purpose of
this article, to create the office of County Superintendent of Public
Instruction, nor authorize the election to the same, in counties having
a scholastic population of less than three thousand as shown by the pre-
ceding census, except in counties where such office ha8 been created by
an election held for that purpose, and that one elected to such office
in a county having a scholastic population of less than three thousand,
where such office was not created by an election held for that purpose,
even if termed 8 de facto officer, is not entitled to the emoluments of
the office for the term for which elected.

          The year of 1938 was a year for the election of a County Super-
intendent of Public Instruction in Floyd County and the scholastic popu-
lation of Floyd County fell below three thousand in 1938.

          In view of the foregoing authorities, you are respectfully ad-
vised that it is the opinion of this department that the office of County
Superintendent of Public Instruction terminated in Floyd County when the
scholastic population of such county fell below three thousand in 1938
and that the office of County Superintendent of Public Instruction has
had no existence, potential or otherwise, since January 1, 1939. You
are further advised that it is our opinion that neither Mr. Travis nor
Mr. Guffie are entitled to the emoluments of the office since January
1, 1939 and that the Commiesioners1 Court of Floyd County cannot appoint
Mr. Guffie to an office that did not exist at the time of his appointment.
Hon. John Stapleton, page 4 (O-1254)



          Answering your question 88 we have, it is not necessary to answer
your second question as above quoted.

          The third question submitted in your inquiry has been answered
in our opinion No. o-1105; therefore, we enclose a copy of this opinion
herewith.

           Trusting that the foregoing fully ensvera your inquiries, we
remain

                                                    Yours very truly

                                               A'JKCORNEXGENERALOFTE+7

                                               By   /a/ Ardell Willi.amS
                                                        Ardell Williams
                                                              Assistant

AW:AW:IM

NNCLCNRE


                          APPROVED SEP 19, 1939

                          IS/ Gerald c. Msn!

                         ATJ?OPdEYGENERALOFTEXAS



                                                APPROVED
                                                OPINION
                                               COMMITTEE
                                               BY /a/ B.W.B.
                                                  CHAIRMAN
