. . - 

Education 

Dr. J.' W. Edgar 

Commissioner of 

201 East 11th Street 

Austin, Texas' 78711 

Opinion No. U-733 

Rer Whether the Commissioners 

Court of Johnson County may 

by its order abolish the 

office of County School 

Superintendent which Is 

otherwise to be filled at 

the General Election in 

Dear Dr. Edgar: November, 1970. 

In connection with your recent request for an opinion of 

this office, we have been supplied with the.following.facts: 

On November 13, 1897, thd Commissioners Court of Johnson 

County passed an order which reads, In Its relevent.portlon, as 

follows: 

"It is ordered by the Court that the Office 

of County School Superintendent of Public Instruct 

tlon be and the same is hereby created, and it is 

ordered that a county school superintendent be 

elected at each general el$ctlon hereafter the 

making of this order ..~. . 

This order Is 

Court. 

You have further advised us that on July.13, 1970, the 

Commlssioners Court adopted the following resolution: 

"BE IT RESOLVED that the office of County 

recorded In Book 5, page 133, of the Minutes of the 

School Superintendent of Johnson County, Texas, 

be and the same is hereby abolished as recommended 

by the Colrt on February 2, 1970, effective December 

31, 1970. 

This resolution is recorded in volume 15, page 514, of the Minutes of 

the Court. 

We have also been furnished a copy of a resolution of the 

Johnson County School Board adopted on September 25, 1970, in favor 

-3558- 
Dr. J. W. Edgar, page 2 (M-733) 

of abolishing the office of County Superintendent as of December 31, 

1970. In this connection, you have advised us that under normal 

procedures the office of County Superintendent of Johnson County 

would be filled at the general election In November, 1970. 

Records at hand furnished by the Texas Education Agency 

indicate that the scholastic population of Johnson County for the 

year 1970-71 Is in excess of 10,000, and that the scholastic population of that county has been in excess of 3,000 at all times 

since 1923-24. We do not have at hand records going back’ far enough 

to show at what time the scholastic population first exceeded 3,000. 

You have requested our opinion on the following questions: 

‘The authority of the Commissioners Court of 

Johnson County, if any, to abolish the office of 

elective County Superintendent in Johnson County.” 

By supplementary letter you have requested our opinion 

upon the following additional questlon# 

“Where the county school board also goes on 

record as favoring the abolishment of office of 

elective county school superintendent, effective 

at the end of its present term (December 31, X970), 

and the county judge agrees to serve thereafter as 

an ex officio county superintendent without pay, 

may the county Judge legally hold the position 

and/or serve in the capacity of county superintendent, 

ex officio or- otherwise;~ under the circumstances and 

laws lnvolved herein. ” 

We are of the opinion that the Commissioners Court of 

Johnson County is without authority to abolish the elective office 

of County Superintendent of Johnson County. Statutes enacted in 

1887 and 1889 granting to the commissioners court In each county 

the power to create and the power to abolish the office were not 

included in the 1925 revlslon. 

The creation and abolishment of the office is presently 

governed by a line of statutes beginning with Section 36, Chapter 

124, page 263, Acts of the 29th Legislature, Regular Session, 1905. 

Under that statute the voters of each county , at an election called 

pursuant to a petition to determine the matters, elected whether 

the office would be created in that county. The statute also made 

provision for abolishing the office. 

Section 1, Chapter 111, page 210, Acts of the 30th Legislature, 1907, amended the 1905 statute and made it mandatory that 

the commissioners court of every county In the state having three 

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’ . 
_. - 

Dr. J. W. Edgar, page 3 (M-733) 

thousand scholastic population should provide for the ,electlon 

of a County Superintendent of Public Instruction at each general 

election, and provided that immediately after passage of the Act 

the court should appoint a person to serve In such office until a 

superintendent was elected and qualified. This statute provided 

for a two year term of office. No provision for abolishing the 

office remained in the statute under this amendment. 

The substance of the above statutes was codified as 

Article 2688, Revised Civil Statutes of Texas, 1925, with the 

added provision that: 

"In every county that shall attain three 

thousand scholastic population or more, the commissioners court shall appoint such superintendent 

who shall perform the duties of such office until 

the election and qualification of his successor." 

Under Section 1, Chapter 357, page 849, Acts of the 42nd 

Legislature, Regular Session, 1931, Article 2688 was amended by the 

addition of a proviso relating to the appointment of a County Superlntendent In counties having a population In excess of 350,000. 

Under Section 1, Chapter 21, page 47, Acts of the 42nd 

Legislature, 3rd Called Session, 1932, Article 2688 was again amended 

to change the term of office to four years, and to add a proviso 

reading as follows: 

"provided .further~~that.~ln counties having a 

scholastic population of between three thousand 

(3,000) and five thousand (5,000) schalastics, 

wherein the office of County Superintendent has 

not been created and a Superintendent elected, 

then In such counties the question of whether 

or not such office Is established shall be determined by the qualified voters of said county 

In a special election called therefor by the 

Commissioners Court of said countytl upon petition 

therefor as hereinabove specified. 

Under Section 1, Chapter 208, page 287, Acts of the 49th 

Legislature, Regular Session, 1945, Article 2688 was further amended 

by providing that once a county established the office of county 

superintendent and subsequently the scholastic population was determined to be less than three thousand but more than two thousand, 

the office would continue to exist unless abolished by a majority 

vote of qualified taxpaying voters. Even If the vote were in favor 

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Dr. J. W. Ed.gar, page 4 (M-733) 

of abollshlng the office, it could not be abolished until the 

expiration of the term of,offlce for which the County Superintendent 

was elected or appointed. This amendment also increased to four 

years the term of superintendents In counties having a population 

In excess of 350,000. 

Effective September 1, 1969, Article 2688 was repealed 

and the substance of the article was Incorporated in Articles 

17.41 through 17.45 of the Texas Education Code. The provisions 

which make mandatory the appointment or election of a county superintendent are codified In Article 17.41. 

In our opinion, although the office of County Superintendent 

of Public Instruction was provided for by order of the Commissioners 

Court In 1897, before passage of the legislation which is now codified 

as Article 17.41 of the Texas Education Code, at.such time as the 

scholastic population of Johnson County attained 3,000 in number, 

the office thereupon existed by virtue of and under the authority 

of the state statute then in effect governing the creation of such 

office. After the Act of 1907, state law made mandatory the creation 

of the office and the appointment and election of a superintendent. 

It was not necessary to call an election on the question of whether 

the office should be created, Marfa Independent School District v. 

Davis, 102 S.W.2d 283 (Tex.Clv.App. 1937 , error ref.) Th 1 

St of the enactment of the Act of 1907 was to supersedee EE 

1 

county order, in effect to pre-empt the field for state regulation. 

In this connection note the following language from In 

re Lane, 58 Cal.2d.99, 102, 22 Cal. Reptr., 857, 372 P.2d 897 - 

(call.sup. 1962): ~-~ ~~~ 

"Whenever the Legislature has seen fit to 

adopt, a general sctieme for the regulation of a 

particular subject, the entire control over whatever phases of the subject are covered by state 

legislation ceases so far as local legislation 

is concerned." citing Pipoloy v. Benson, 20 Cal. 

2d 366, 371, 125 P.2d 482, 147 A.L.R. 515. 

From In Re Lane, supra, note also the following: 

'In determining whether the Legislature lntended to occupy a particular field to the exclusion of all local regulation we may look to the 

'whole purpose and scope of the legislative scheme' 

and are not required to find such an,,intent solely 

in the language used in the statute. citing Tolman 

v. Underhill, 39 Cal. 2d at p. 712(6), 249 P.2- 

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Dr. J. W. Edgar, Page 5 (M-733) 

p. 283; Abbott v. City of Los Angeles, 53 Cal. 

2d 674, b82, 3 Ca,l .Reptr. 158, 349 P.2d 974. 

In City of Baltimore v. Sltnlk, 255 A.2d 376, a case 

dealing with a city ordinance, the court did not apply the prlnclple 

of pre-emptlon under the facts of the case, but did make this statement: 

“Labels are ofttimes misleading and one may 

easily fall Into error by superimposing a classification upon decisions of a foreign jurisdiction, 

however, It would appear that in addition to New 

York, that California, Massachusetts, Ohio, Oklahoma, 

North Carolina a!d Illinois have followed the preemption concept. citing In re Lane, 58 Cal.2d 

99, 22 Cal.Rptr. 857, 372 

Underhill, 39 Ca.2d 708, 

v. Benson, 20 Cal.2d 366, 

515 (1942); Dudley v. City of Cambridge, 347 Mass. 

543, 199 N.E.2d 208 (1964). Markowski v. Backstrom, 

10 Ohio Misc. 139, 226 N.E:2a 825 (1961) ‘f El - - 

Inc. v. McClaln, 422 P.2d 455 (Okl. 19673; 

even 

v. City of Winston-Salem, 258 N.C. 244, 128 %%d 

04 ( gb )* West Chicago Street R.R. Co. v. Ill., 

201 u!~.~5&6, 521, 26 S.Ct. 518, 50 L.Ed. 849 (1906). 

Since the office of county superintendent exists solely 

under the authority of state law , that office may be abolished only 

pursuant to state law. 

As pointed out In our historical summary of Article 17.41 

and antecedent statutes, there was a provision in the Act of 1905 

for abolishing the office, but no such provision appears in any of 

the statutes that amended or superseded that Act. 

Article 2688e, Vernon's Civil Statutes, enacted as Chapter 

292 Acts of the 57th Legislature, Regular Session, 1961, did provide 

for abolishing the office of county superintendent. This article was 

repealed effective September 1, 1969, and Its substance codified in 

Article 17.64 of the Texas Education Code. Under this latter article 

the office may be abolished only upon petition of the voters and approval by a majority of the qualified electors of the proposition that 

the office be abolished. 

Furthermore, Section (d) of Article 17.64 expressly provides that an election on the proposltions of abolishing the office 

may not be held during the year that a regular election for the 

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Dr. J. W. Edgar, page 6 (M-733) 

office Is being held. We understand that an election for the 

office would normally be held in 1970. 

In view of the provisions of Article 17.64, we are of 

the opinion that the Commissioners Court of Johnson County Is 

without authority to abolish the office of county superintendent 

solely on its own order, We are also of the opinion that the 

procedure provided in Article 17.64 of the Education Code for 

abolishing the office Is the exclusive procedure and that it is 

not available during the year 1970. 

Your second question would appear to be based on the 

premise that with the approval of the school board the commissioners court may abolish the office of county superintendent, 

In the light of controlling statutes discussed herein our opinion 

Is to the contrary, as the resolution adopted by the school board 

can have no legal effect. 

Article 17.47 of the Education Code Is derived from 

Article 2701, Vernon’s Civil Statutes , and reads as follows: 

“In any county in which no county superintendent has been elected or appointed, the county 

judge shall be ex officio county superintendent 

and shall perform all the duties required of that 

0fMce.” 

Our attention has beendirected to Article 17.47 of the 

Education Code and the pro~positlon urged~- that iffy no- personhas-been 

elected to the office of county superintendent for the term beginning 

January 1, 1971, the county judge shall be ex-officio county superintendent. 

We do not agree with that construction of Article 17.47. 

To so construe the article would in effect permit It to provide 

an alternative means of abolishing the office, a procedure explicitly provided for in Article 17.64 of the Code. 

In our view Article 17.47 must be read and construed in 

the context of the subchapter of which It Is a part. That subchapter provides for creating or continuing the office of county 

superintendent under various situatlons. Article 17.47 Is then 

Included simply to provide that if the office has never been created 

either under mandatory provisions of the chapter or by decision of 

the voters after a petition, then, and only then, will the county 

judge serve as ex-officio superintendent. Stated in another way, 

Article 17.47 is primarily Intended to operate in a county where 

the office of county superintendent has not been created and does 

not exist. 

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. . - 

Dr. J. W. Edgar, page 7 (M-733) 

Article 17.47 is clearly not intended to facilitate 

abolishment of the office of county superintendent. The legislature has clearly and explicitly provided for abolishing the 

office, and for the county judge assuming the .dutles, in Article 

17.64(a) and (b), part of the same subchapter. The Legislature 

would not Include Article 17.47 for the same purpose. 

Even if the proposition were urged that Article 17.47 

was enacted to provide for assumption of the duties of county 

superintendent by the county judge at any time there is no incumbent, nevertheless It could not take effect until the abollshment of the office of county superintendent becomes effective. 

Attorney General’s Opinion C-768 (1966). That office has not 

been abolished in Johnson County under the governing statutes. 

An examination of the legislative history of Article 

2701 I from which Article 17.47 of the Code was derived, supports 

our view of its function. The forerunner of this statute was first 

enacted as Section 42, Chapter 124, page 263, Acts of the 29th 

Legislature, Regular Session, 1905. 

Section 42 of that statute reads as followsr 

“In each county in this State having no school 

superintendent the county judge shall be an exofficio county superintendent of public instruction, 

and shall perform all the duties requlsed of the 

county superintendent In this chapter. 

In our view the language of this statute Indicates that 

it is clearly directed to the situation where a county has never 

had a county superintendent , and is not a vehicle to abolish that 

office. 

This view is’ reinforced by the fact that in Section 36 

of the same Act provision is made for abolishing the office by 

petitlondxection of the voters. It may be that If that 

statutory provision for abolishing the office had been followed 

the duties of county superintendent would have devolved upon the 

county judge by virtue of Section 42, but again we point out that 

in Johnson County the presently authorized statutory procedure for 

abolishing the office has not been followed. 

The 1907 amendment to the statute of 1905 that provided 

for the office of county superlntendent omitted the provision for 

abolishing the office that was Included in the 1905 statute. The 

Legislature In 1961 apparently felt the need of a statutory procedure 

-3564- 
Dr. J. W. Edgar, page 8 (M-733) 

for abolishing the office and provided such a procedure under 

Chapter 292, Acts of the 57th Legislature, Regular Session, 1961. 

This Act was published as Article 2688e in Vernon's Civil Statutes, 

and later codified as Article 17.64 of the Texas Education Code. 

This is presently the only means authorized by statute for abolishing the office, and It was not available In Johnson County 

In 1970, the regular1 scheduled year for an election to fill the 

office. Art. 17.64(df, Tex. Educ. Code. 

There are two constitutional provisions which preclude 

the County Judge from assuming the duties of county superintendent 

as conditions now exist in Johnson County. 

The first is Article XVI, Section 40, which prohibits 

one person holding or exercising at the same time more than one 

civil office of emolument except under certain conditions not 

applicable here. The office of County Superintendent continues 

to exist In Johnson County, hence the same person may not exercise 

the powers of that office while holding the office of County Judge. 

Each office Is a Civil Office of emolument and the prohibition 

applies even though the person seeking to perform the duties of 

both offices rejects corn ensation for one office. 

Opinion No. W-109 (1957p. 

Attorney General's 

The other constitutional provision is Article XVI, Section 

17. Under that provision all officers within this State shall continue to perform the duties of their offices until their successors 

have been duly qualified. Therefore the incumbent In the office of 

county superintendent is charged with performing the duties of that 

office until a successor has been lawfully selected and has qualified, 

thus precluding the County Judge from assuming those duties. 

SUMMARY 

The Commissioners Court of Johnson County is 

without authority to abolish by Its order the office 

of County Superintendent of Johnson County. 

The office, even though initially created by an 

order of the commissioners court in 1897, now exists 

by virtue of and subject to the provisions of Article 

17.41 of the Texas Education Code. 

The office therefore may be abolished only pursuant to Article 17.64 of the Education Code. Set - 

tion (d) of that article prohlblts an election to 

abolish the office in the same year that the office 

-3564a- 
Dr. J. W. Edgar, page 9 (M-733) 

is due to be filled at a regular election; hence 

the office could not be abolished during the 

calendar year 1970, even under the provisions of 

Article 17.64. 

The resolution of the county school board 

favoring abolishing the office has no legal effect 

in view of the provisions of the cited statutes. 

As long as the office of County Supertitendent 

of Johnson County continues to exist, as we have 

held that It does at this time, the county judge 

may not serve also as county superintendent, ex 

officio or otherwise, w ith or without pay, as this 

is precluded by the provisions of Article XVI, 

Section 40 of the Constitution of the State of 

Texas. The provisions of Article XVI, Section 17, 

also preclude the county e from assuming the 

duties of the county endent. 

Prepared by James S. Swearingen I' 

Assistant Attorney General 

APPROVED3 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

James McCoy 

S. J. Aronson 

Max Hamilton 

Houghton Brownlee 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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