Hon. R. E. Schneider,       Jr.     Opinion Ho. V-685
Count Attorney
Live i ak County                    Re: Effective date of a
George West, Texas                      proposed election  to
                                        abolish the office  of
                                        County Superintendent
                                        In Live Oak County.

Dear Sir:
              We refer   to your recent   letter   from which we
quote,     la part:
                “Live Oek County Is a county having
         more than 2,000 but less ten 3?000 scho-
         lastic   population, and the County Super-
         intendent 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 un-
     less and until a majority of the quall-
     fled property tax paying voters of said
     county, voting et an election       held to de-
     termine whether said office       shell be abol-
     Ished, shall vote to abolish said office,
     which election   shall be ordered by the Com-
     missioners’ Court upon petition        therefor
     es hereinafter   specified,      Provided, how-
     ever, that If a majority of said voters
     voting et seld election      herelnebove pro-
     vided for, vote to abolish said office
     said election   shall not become effective
     until the expiration     of the term of of-
     fice 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 Super-
     intendent was elected will expire December
     31, 1950.   The office is now vecant.
           “Under the provisions of Article  2355
     of the Revised Civil Statutes,   the Commis-
     sioners’ Court has authority to fill   vrcan-
     CIES in the office  of the County Superin-
     tendent, such appointme to hold office
     until the next General Election.
            “It seems to be the concensu6 of opin-
     ion of the County School 3oWd that the of-
     fice of County Superintendent       Is not neces-
     sary lh the o&T,        due to the feet that due
     to recent consolldatf~ns      end annexation pro-
     ceedings there ere only two corrrm~nschool
     districts    in the county, the rest of the dis-
     tricts    ROWbeing In tvo independent school
     districts.     The County Board had In mind
     the circulation    of petitions   for the Com-
     missloners~ Court to call the election         pro-
     vided for In Article     2688 in order that
     the vote?6 vould have an opportunity       to de-
     termlne vhether or not the office       should
     be kbollshed,    and the question arose as
     to vhen the election     would become effec-
     tive la the event it carried to abolish the
     OfflCd.     The question being vhhethep or not
     ths election    would becoue effective    at the
     next General Election to be held this OQP-
     lng November, or vould the election       not be-
     come effective    until January lst,    1951."
            In Opinion V-545, this office     8dvlsed thet by
virtue of the provlsieas     of Artlcl   2688, as amended,
(quoted in your letter     hereinabove P all counties having
the office   of County Superintendent,    where the scholes-
tic 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 auth-
orlty,   Is that where a county 16 empowered by the Leg-
lslrturs   to create an office,    It may, if unr66trlcted
abolish It; but that the leglalrtlvo      history   c0nc8ralng
the Texas Act, Article     2688, calls for am exception 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 may be abolished,      it
follows that said office     may not be abolished In any
other manner.
           However, Article   2688, as amended, also pro-
vides 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 ex-
piration  of the term of office    for which the Eounty
Superintendent has been elected or apQointed.       (&@a-
sls ours)
            Since 1931, the office     of County School Super-
intendent 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 appolnt-
ment of a person to fill      a vacancy created In said of-
fice,   that offlce   is open to election    at the next Gen-
eral Election,     end the term of the appolntee'wlll     ex-
  ire on January 1st follow1 ~0~~o~~~~4~e~~~~~2~lectlon.
1 ttorney Gen6re1's Opinions

           Attorney Generalls“Cpinion  lo. 0-1833 further
advises to the effect  that the fact that It Is now too
late for e cendidate for nominee for the Democratic Per-
ty to get his name printed upon the Primary Election
ballot, or as for that matter, the failure    of the Demo-
cratic 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 may vote
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 exist-
ing In Its office  of County Superintendent,   the term of
said appointee qualifying   therefor will expire on Janu-
ary 1st following  the next General Election,   towlt, Jan-
uary 1, 1949; and If prior to General Election date, the
office  of County Superintendent Is abolished in accor-
dance 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~ent election vi11 become effective on "the
                .~

             expiration of the term of office for vhiqh the County
             Superintendenthas been . . . eppolnted, tovlt, Jenu-
,C,-_.
    _.__...
       ~'(8.;
         i'i eiv J.,1949.
 ,_.____,.,
       "...r..r-..‘.-.

                               If the Commissioners1Court of Live Oek
                          County, acting under Article 2355, V. C. S.,
                          prior to General Election day eppoints e per-
                          60~ to fill the vacancy existing in the of-
                          fice of County Superintendent,the term of
                          Said appointeevi11 expire on January lst,
                          fo11owing the next Genera1 Election. Attor-
                          ney General's Opinion6 Ros. O-6923, O-1664,
                          o-2212.
                               And if, prior to General Election dey,
                          the offlse of County SuperintendentIs abol-
                          l6hed In accordancewith Article 2688, V. C.
                          S   as 6mended, 66id abolition elwtion vi11
                          biiome effective elt"the lxplrrtien of the
                          term of office for vhiah the CountynSuper-
                          intendanthas been . . . appolnt6d.
                                                          Your6 very truly,
                                                    ATTORRRYGERRRALOF TEXAS


                     CBO:mw                         ,,wf-
                                                          Cheqter R. 01116On
                                                          A66$@t8st



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