March 28, 1975 

The Honorable Ben Z. Grant 

Chairman, Judiciary Committee 

House of Representatives 

P. 0. Box 2910 

Austin, Texas 78767 

Dear Chairman Grant: 

Opinion No. H- 568 

Re: The abolition of the office 

of county school superintendent 

on a local option bas,is. 

You have asked three questions concernirg the abolition of the office 

of county school sqerintendent. As, you noted, A-ttorney General Opinions 

No. M-1280 (1972);.M~-1237 .(1972); H-52 (1973). a&H-545 (197:5) all held that 

statutes which purport to abolish, &he office of county school superintendent in 

a single or limited number of aunties were local or special laws pertaining 

to school districts; as such they were in contravention of article 3, section 56 

of the Texas Constitution, and therefore void. 

Your first question asks-howthe abolition of such offices may be 

accomplished in a constitutional manner. Specifically, you ask whether the 

desired result may be reached by means of a bill of general application which 

contains a local option clause. 

We answer your first-quest.ion in tlu: affirmative: a statute of general 

application which makes the abolition of the office of county.school superintendent a local option could pass constitutional muster. Stanfield v. State, 18 

S. W. 577 (Tex. Sup. 1892),; Trimmier v. Carleton, 296 S. W., 1070, 1080 (Tex. 

Sup. 1927), 53 Tex. Jur. 2d, Statutes 5 39. Section 17.64 of the Education 

Code which provides for abolition of these offices is an example of such a 

statute. 

Your second question asks: 

[W] hen such offices are aboli.shed, is art. 2~6881-1, 

sets. 1-4, V. T. C. S. applicable in determining 

which records are to remain in the files for business 

purposes in the county judge’s office and which records 

are to be transferred to the independent~~school district? 

Section 4 of article 2.6881-L V. T. C. S. , provides: 

All school records of the original independent and/or 

common school district shall be transferred to the 

control and custody of the independent school district 

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The Honorable Ben Z. Grant - Page 2 (H-568) 

office, save and except the original financial records 

which shall be retained by the county treasurer, and 

thereafter the county judge shall be required to make no 

records or reports but said reports shall be made by 

the superintendent of such independent school district; 

that as soon as practicable after the effective date of 

this Act, all remaining state funds in the hands of the 

county board of education shall be transferred by the county 

treasurer and the county judge to the County Independent 

School District’s Administration account. 

This statute is applicable to a county in which the office of county 

school superintsndent and the county school board have been abolished. In 

addition, there mu& be in existence a single county-w,ide independent school 

district and no commoa school districts. If the preceding and all other requirements of the statut.e are met, section 4 provides-that the original financial 

records of the~(former) school district are to remain in the hands of the county 

treasurer; all other school records ar,e to be transferred to the control and 

custody of the independent school district office. 

It is our opinion, therefore, that if a county falls within the provisions 

of article 2688i~-1, then section 4 of that statute would govern the storage and 

transfer of school records~which were created during the period when there 

was a county school superintendent and a county school board. 

Your third qti stion asks: 

[ I] s it permissible for a duly elected County School 

Superintendent to resign and close the office when 

all audits ,are completed~ and all records have been 

filed in the’proper order and approved by ~the 

Texas Education Agency, the,~County Judge, and the 

Independent School Board Superintendent? 

Article 16, section 17 of the Texas Constitution provides that I([ a] 11 

officers within this State shall continue to perform the duties of their offices 

until their successors shall be duly qualified. ‘I This.provisidn has been 

consistentlyinterpr,eted as meaning that an officer whose resignation has been 

tendered to and accepted by proper authorities continues in office and is not 

released~ from its duties and responsibilities until his successor is appointed 

or chosen and qualifiers. Jones v. City of Jefferson, 1 S. W. 903 (Tex. Sup. 

1686); Keen v. Featherston, 69 S. W. 983 (Tex. Civ. App. 1902, writ ref’d); 

McGhee v. Dickey, 2.3S.W.~ 404~(Tex. Civ. App. 1893, no writ); and Plains 

Common Consol. School Dist. No. 1 of Yoakum County v. Hayhurst, lr 

322 (Tex. Civ. App. -- Amarillo 1938, no writ). See also, Attorney 

.p.. 2547 
The Honorable Ben Z. Grant - Page 3 (H-568) 

General Opinions V-760 (1949); O-410 (1939), O-789 (1939). 

It is clear that article 16, section 17 of the Texas Constitution 

compels the conclusion that a duly elected county school superintendent 

may not resign the position and close the office; rather, that officer must 

continue to fulfill his duties until a successor has been duly qualified. 

We therefore answer your third question in the negative. 

SUMMARY 

The Texas Constitution permits a statute of general 

application which provides for the abolition of the office 

of county school superintendent on a local option basis. 

Section 17.64 of the Education Code is an example of 

such a statute. 

For those counties to which it applies, art. 2686i-1, 

V.T.C.S., governs where school records are to be 

stored and transferred. 

A county school superintendent may not resign his 

position and terminate the operation of his office. 

Very truly yours, 

APPROVED: 

C . ROBERT HEATH, Chairman 

Opinion Committee 

jwb 

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