                     February 8~, 1962

Honorable H. F. Grindstaff
County Attorney
Fisher County
Roby, Texas                      Opinion No. WW-1255
                                 Re:     Whether Fisher County
                                         may hold a special
                                         election in accordance
                                         with Article 2688e,
                                         Vernon’s Civil Statutes,
                                         to abolish the ex
                                         officio county school
                                         superintendent and
                                         county school board in
                                         the regular election
                                         year ofthe county
Dear Sir:                                judge.
          In a recent letter you requested our opinion on
whether Fisher County could hold a special election in accor-
dance with Article 2688e, Vernon’s Civil Statutes, to abolish
the ex officio county superintendent and county school board
in the regular election year of the county judge.
            The pertinent facts are that the office of county
school superintendent was abolished last ear (December 30,
1961)   under the provisions of Rrticle 268is
                                            e, Vernon’s civil
Statutes. The resent superintendent has this year remaining
in office (1962 P . This year is also the election year of
the county judge, and the question is, can there also be
a s ecial election this year under the provisions of Article
268f; e to abolish the ex officio county superintendent and
county school board.
          Section l(a) of Article 2688e    of Vernon’s Civil
Statutes provides:
          “Section 1. (a) Upon a petition of”.
     twenty-five per cent (25%) of the qualified
     voters who cast a vote in the Governor*s
     race at the preceding General Election in
     counties of less than one hundred thousand
     (100,000) populatlon’according to the last
     Federal Census; or upon a petition of twenty
     per cent (20%) of the qualified voters who
Honorable H. F. Grindstaff, page 2 (WW-1255)


     cast a vote In the Governor's race at the
     preceding General Election in counties
     of one hundred thousand (100,000) or more
     population according to the last Federal
     Census, the county judge shall within
     ninety (90) days of the receipt of such
     petition call an election to determine
     by majority vote whether the office of
     county superintendent (or ex officio
     county superintendent and the county
     school board in counties having an ex
     officio county superintendent) shall
     be abolished. . . ."
          The limiting section of Article 2688e is Section
2 which provides:
          "Sec.2 Provided that not more than
     one such election may be called during any
     term of office of the incumbent county
     superintendent or ex officio county super-
     intendent and that not during the year
     that a regular election for the office is
     being held."                         <~
            In Attorney General's Opinion O-3839 (1942)   it
was held:
         “The courts have held that the power
    to create the office of count??school suoer-
    intendent is purely a legislakve power.'~
    Stanfield v. State, 83 Tex. 317. The same
    authority, further holds that the power to
    abolish or discontinue that office-is also
    a legislative power, and that in order for
    the people or the commissioners* court to
    exercise the power of abolishing or dis-
    continuing that office, such action must
    be pursuance of a law of the Legislature."
          It would also seem mandatory that in abolishing
the ex officio county superintendent and county school board
there be statutory compliance.
          It is our opinion that the provision in the latter
part of Section 2 of this act, "AND THAT NOT DURING THE YEAR
THAT A REGULAR ELECTION FOR THE OFFICE IS BEING HELD,"
(emphasis added) prevents a special election this year since
Honorable H. F. Grindstaff, page 3 (WW-1255)


this is the year of the regular election of the county judge.
True, at this time, the county judge is not the ex officio
county superintendent. Section l(b) of Article 2688e pro-
vides :
         "Where the majority of the qualified
    electors approve the abolition of the office
    of county superintendent the duties of such
    abolished office as may still be required
    by law shall vest in the county judge in ex
    officio capacity UPON EXPIRATION OF THE
    CURRENT TERM OF THAT OFFICE." (Emphasis added)
But it is also true that at this time the candidates who
will seek the office of county judge will be offering them-
selves both for the oounty judge and ex officio county
superintendent. This Is to say that as matters now stand,
the regular election for the county judge will also determine
who is the ex officio county school superintendent. As
such; it Is the opinion of this office that this is the year
that a "regular election for the office is being held,"
and Section 2 prohibits a special election to abolish the
ex officio county school superintendent in the same year.

                      SUMMARY

          Section 2 of Article 2688e, Vernon's
          Civil Statutes, prohibits a special
          election to abolish the ex officio
          county school superintendent and
          school board in the same year of'the
          regular election of county judge.
                                 Very truly yours,
                                 WILL WILSON
                                 Attorney General of Texas

                                 &P+-+*
                            By   John H. Hofmann
                                 Assistant
JHH:oa:mkh
    Honorable~H. F. Grindstaff, page .4 (W-1255,)


.
    APPROVED:
    OPINION COMMITTEE
    W. V. Geppert, Chairman
    Joe Osborn
    Robt. T. Lewis
    Grady Chandler
    W. 0. Shultz
    REVIEWED FOR THE ATTORNEY GENERAL
    BY: Houghton Brownlee, Jr.
