The opinion
Honorable J. R. Kidd, Jr.
counq Attorney
Kleberg Couuty
ICingrPlllo.Texan
Dear Sir: opinion Ro. O-3899
Rer Abolition of the offioe of
oounty ruperintendoat in
oountier of mom than 3GGO
rcholastia population.
Ik arm in reoeipt of your latter of Karoh 14, 1942, which reads
in part *a follows:
‘In Klebrrg County, Tax&r, looording to the la& oenrus
them were approximately 36GG roholaatioa within the county.
At the prerent time Klaberg County haa a County School Super-
intondent, and the question ha8 arirm a8 to whether or not,
under Artiole 2688 of the Retimed Civil Statute8 of the Stata
of Texa8, an eleotiOn oan b hold for th8 purpcre Of deteIYnining
whether or not the offior of ruoh ruperiatendent rhould be
lbolirhed.
I . . . ,
“The quertion har ocmo’up a8 to whether or not the Cm-
mistdonera* oourt of Kloberg Ceunty upon petition of the
,...
!..‘!
qualified voters, could call am oleotion for the gurpoaeof
determining whether or not the offior of said County School
Superintendent oan k abolirhod in this oounty.’
Artiole V. Sootion 18 ef the Comtitutlm of thir State givea
the ocnmi8aionera’ 00th the right to ‘oxeroire such powers and jurls-
diction over all oounty buainem, aa Is oonferred by the Constitution
and the lam of the Stat., or am my be hemafter prescribed.’ The
Conrtitution confera no power upon the ooarirrionerr’ oourt to abolirh
the office of oomty sohool ruporintondent when onoe that offloo 18
eatablirhed by tha rtatutory law of this State.
In determining rhothor ruch power I8 ocnfarred by the statutory
law of thir Stat., it ir neeerrarj to oonaidor the proddon of Artiole
2688, Rerired Citil Statutor, 1926, a8 8mended by Chapter 21, Aotr,
Third Called Session, Forty-reoond Legislature. That statute read*:
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,
I 1
Honorable J. A. Kidd, Jr., ~ga 2 o-3639
"Ttie~Commi6sioeerr~Court of every oounty having three
thousand (3,000) soholaetio popllation or more a6 shown by
preoeding soholastio oeneue, shall at a General Election
provide for the eleotion of a County Superintendent to serve
for e term of four (4) years, rho rhell be a person of educe-
Mona1 attainm6mt6, good moral oharaoter, end executive ebil-
ity, and who shall b6 provided by the Comml8sioners~ Court mi+,h
an offioe in the courthouse, and with neo666ary office fur-
niture and fixtures. He rhall be the holder of a teaoher'e
first grade oertifloats or teaoher'8 permanent oertifioats.
In every county that shall attain three thousand (3,ooO)
schola6tio population or more the Co6unissioner6~Court ‘shall
appoint suah Superintendent~who shall perform the duties of
suoh offioe until the election and qualification of hi6 SUO-
6eesor. In oounties having lees ,than three thousand (3,000)
soholastio population whenever more than twenty-five per
aent (ZS$)'of the qualified voters of said county a6 shown
by the vote for Governor at the preceding General Election
shall petition the Coreei66ioner6' Court therefor, said Court
shall order an eleotion for said oounty to determine whether
or not the offioe of County Superintendent shall be created
ia said oountyl.end, if a majority of the qualified property
taxpaying voters voting at said eleotion ahall vote for the
oreation of the offioe of County %perintendent in said
oouxtty,the Ccmmi6sioner6~ Court, at it6 next regular term
after the holding of said eleotion, shall create the offioe
of County Superintendent, and name a County Superintendent
who rhall qualify under thir Chapter and hold ruch offioa
until the next General Eleotion. Rovlded, that, in all
oountiea having a population in exoe66 of three hundred end
fifty thousand (560,000) inhabitents aooording to the last
available Federal Ce~su6 the County Superintendent shall be
appointed by the County Board of Education and shall hold
offike for two (2) years, provided further, thatthis pro-
vision rhall not operate 60 as to deprive any sleeted Super-
intendent of hi8 offioe prior to the expiration of the term
!
for ahioh he has been eleoted; provided, further that in
counties having a soholastio population of betsean three
thou8and (3,000) and five thousand (6,000)~6oho1a6tio6,
wherein the offios of County %ipsrintsndent has not been
moated and a Superintendent eleoted, then in suoh counties
the question of whether or not suoh office is establi6hed
shall be determined by the qualif&ed voters of said county
in a epaoial eleotion oalled therefor by the Commi66ionera~
Court of said oounty, upon petition +iherkforas hereinabove
specified."
Exasination of the statute disolose6 that detailed provision6
are made for the oreation of the offioe of County Superintendent, but
at the same the no method ir provided by the Legi6latur6 for the abo-
lition of the offioe when onoe established. Further examination reveals
Hononblo J. 8. Kldd, Jt., PK. 8 : o-asao
that tbe Legi6l~t~re Intended to orrato, by r+tute, the offiee 6f mty
6upWinkndmf in all eamtior whloh r&l1 ham lttalaod three thouemd
(3,000)or mom raholartl?popUlatl6n a8 rhom by the preoodiaK O-SUE.
Thur, it 16 apparent that the office of oormty SUp6rintendent
lo eo u u tir ro f r a r e th a nth r r o thousand ( a ,OOO)
r o t u p ~h r o h o la a tia
population, le ltrietly a oreaturr of the LegirlatPre, bving been
oreatod b that bedy under t& pmnr ooaferred ln Seation 1, Article 11,
fh26titUtim Of %x661 Soetioa 1, Art1010 111, id, The 6ourt6 hare held
that th0 pmr fo Oreat the Office Of OOUQty rohool Superifitendenti#
plroly a loglitlatirepower. hnnfield T. State, SS tex. ai7, Th6 6-6
authoriQ, furthor holds that thepower to abolish or df66oUtinUr that
Offi ia al60 a logis~atir0 power, and that in OrdOr for the people or
the oo6miaaioner6' 6ourt te lx e r o l6e~th e of l
power bolirhing or di6-
oontinuing that offioe, SuOh l6tioa mU6t b6 in plreyanti of a law of the
Legielaturo. Under our preront rtatutir, the Legi6laW has failed to
devise any method by whieb either the people or the ooaPlireionera~
oouti,may lboli6h that offloe; and, there being no eonrtitutlonal delo-
gatiam of ruoh authority, it follor that neither the qualifledrotera
BOr the eOIPi66iO6OrS' OOnrt baTe the poWr to lboll6h or disoontinue
that offloe on66 it has been legally l6tabli6hed. The lar 16 roll
nettled in this Stata that the Cami66ioner6' court has no power exoept
that Sp6eially oonferrod by th. ~StitutiOSI Or 6tatut.6. k,I6,,iSSio,,er#'
Court I. Hadiron colmty, (tip. Ct. 1929) 16 8,.% (2d) 536. Sea Miller
V. Brown, 216 S. 1. 462, T.C. A., 1919, B. S. 2750, 1911, where the
I court held that @o statute form1 th6 only beir for offioial aotion of
the co6deeioner6~ court. Alro, 600 R6aVOr t. hmi68iOBerS' Court Of
Racogdoohei &m&y, 146 6. H. (26) 170. (Com.App.) lS41, where the court
i held th6t the ~isefon8r6' oourt of~tht county W66 rftbout authorltf
to abolirb the ofnoe of oomaty auditor.
Thi6 0onolu6ion, is rurtkned, we think, by reason of'tho faOt
that, at one tiao, our rtatuter provided that tk oommiesioaers’ court .,
of any county rhould have the pomw to 6bolirh thlr offioi, rhea in
their judgent it-6 domed ldrlrable. (Chapter 122, Reotion S7, Ao$r,
Regular Se66io8, Twenty-third IngiSlatiS, 189s). This eemo prwirion
was inoorporated in the Revired.Civ21 Statute6 of 1896, as ktlole S930.
Then, In 1905, $ho Legirlature, in an sot, "providing for a Complete
Systm of Fubllo Free gohOol6 ia Tsx66,6 repealed &tic16 3930. and
provided that the office oould be abolished by vote of the poop10 oi the
oounty, (Seotion 36. Chapter 124. Aot6. &gulai %66iO11, Isrsnty-ninth
~g1*1atur.). In 1907, in 6aending Seotlon 36, 6Up1-6, the LegUlaturo,
omitted the prWi6iOn allowing the abolition of,the offloe by vote of
the psoplo. (L%apt.er111, hots, Rs@ar ~668i6~. Thirtl6tb LsgIrlatur6).
¶kerefore, upen oonsidering those 6t6kUte6, together with our prermt
6tatnte6, it i6 reasonable ~XJae6Ub that ~XIdr6wing OUrprOS~t 6t.atd.O
the Loglrlaturecaitted all proririons for abolishing the.offioe, with
’ the express purpose of withdrawing any pr6riou6 d6logated authority to
abolish timt offioe, either w rot0 Of the people or by the oo6mis-
rionerr* court.
Honorable J. Ii.Kidd, Jr., page 4 O-3839
In an opinion aittea uuder a former administration, and dated
February 21, 1934, we heldthat where the offioe of oouuty rohool super-
intendent had been ertablirhed in a oounty of lesa than three thousand
(3,OOG) roholastic populatiou, neither the aosuaiasioners~oourt nor the
qualified voters had authority to abolish that office. If that opiniou
is ~oorreot,and me 'believe it ia, then it follors that neither the corn-
missioners* court nor the qualified voters of the oounty have authority
to abolish that office, in counties exoeeding three thousand (3,000)
soholastlo population. Cmferenoe Opinion 100.2942.
It is our opinion, therefore, that under the present law and
Constitution, the offioe of County superintendent when onoe legally
established, cannot be disoontinued or abolished, either upon an eleotion
by the qualified voters, or by the bommissioner8' court.
We are enclosing a oopy of Conferenoe Opinion Bo. 2942.
Trusting that the foregoing will filly ansuer your inquiry, we
remain
Yours very truly
ATTORNEY GERRRAL OF TRXAS
Ry s/llalterR. Kooh
Walter R. Kooh
Assistant
By s/James Moore
Jaues Moore
JM:dbrro
Rnolosure
APPROVl3DAFfUL 8, 1942 s/ Grover Sellers FIRST ASSISTART ATTORNEY
GERERAL
Approved Opinion CosssitteeRy SRR Chairman