March 28, 1975

The Honorable Ben Z. Grant Chairman, Judiciary Committee House ofRepresentatives P. 0. Box 2910 Austin, Texas 78767 Dear Chairman Grant: Opinion No. H- 568 Re: The abolition ofthe office of county school superintendent onalocal option bas,is.

You have asked three questions concernirg the abolition ofthe 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, &heoffice 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 ofthe Texas Constitution, andtherefore void.

Your first question asks-howthe abolition of such offices may be accomplished ina constitutional manner. Specifically, you ask whether the desired result may be reached by means of abill of general application which contains alocal option clause.

We answer your first-quest.ion intlu: affirmative: a statute of general application which makes the abolition ofthe office of county.school superintendent alocal 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), 53Tex. Jur. 2d, Statutes 539. Section 17.64 ofthe Education Code which provides for abolition ofthese 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 inthe files for business purposes inthe county judge’s office and which records are to be transferred to the independent~~school district? Section 4 ofarticle 2.6881-L V. T. C.S., provides:

All school records ofthe original independent and/or common school district shall be transferred to the control and custody ofthe independent school district

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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 inthe hands ofthe county board of education shall be transferred by the county treasurer andthe county judge tothe County Independent School District’s Administration account. This statute is applicable to a county inwhich 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. Ifthe preceding and all other requirements ofthe statut.e are met, section 4provides-that the original financial records ofthe~(former) school district are to remain inthe hands ofthe county treasurer; all other school records ar,eto be transferred to the control and custody ofthe independent school district office.

Itis our opinion, therefore, that ifa county falls within the provisions ofarticle 2688i~-1, then section 4 ofthat 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]sitpermissible for a duly elected County School Superintendent to resign and close the office when all audits ,are completed~ and all records have been filed inthe’proper order and approved by~the Texas Education Agency, the,~County Judge, and the Independent School Board Superintendent? Article 16, section 17ofthe Texas Constitution provides that I([a]11 officers within this State shall continue to perform the duties oftheir 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 inoffice and is not released~ from its duties and responsibilities until his successor is appointed or chosen and qualifiers. Jones v. City ofJefferson, 1S. 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, nowrit); and Plains Common Consol. School Dist. No. 1of Yoakum County v. Hayhurst, lr

322 (Tex. Civ. App. -- Amarillo 1938, nowrit). See also, Attorney

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

Itis clear that article 16, section 17ofthe 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 inthe negative. SUMMARY The Texas Constitution permits a statute of general application which provides for the abolition ofthe office of county school superintendent on alocal option basis. Section 17.64 ofthe Education Code is an example of such a statute. For those counties towhich itapplies, art. 2686i-1, V.T.C.S., governs where school records are to be stored andtransferred. A county school superintendent may not resign his position and terminate the operation ofhis office. Very truly yours,

APPROVED:

C

. ROBERT HEATH, Chairman Opinion Committee jwb

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