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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 anopinion of this office, wehave been supplied with the.following.facts:

OnNovember 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 andthe sameis hereby created, andit is ordered that a county school superintendent be elected at each general el$ctlon hereafter the makingof this order ..~. . This order Is Court. Youhave further advised us that onJuly.13, 1970, the Commlssioners Court adopted the following resolution:

"BEIT RESOLVED

that the office of County recorded In Book 5, page 133, of the Minutes of the

School Superintendent of Johnson County, Texas, be andthe sameis hereby abolished as recommended by the Colrt onFebruary 2, 1970, effective December 31, 1970. This resolution is recorded in volume 15, page 514, of the Minutes of the Court.Wehave also been furnished a copy of aresolution of the Johnson County School Board adopted onSeptember 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 handfurnished by the Texas Education Agency indicate that the scholastic population of Johnson County for the year 1970-71 Is in excess of 10,000, andthat the scholastic population of that county has been in excess of 3,000 at all times since 1923-24. Wedo not have at handrecords going back’ far enough to showat whattime the scholastic population first exceeded 3,000.

Youhaverequested our opinion onthe following questions:

‘The authority of the Commissioners Court of Johnson County, if any, to abolish the office of elective County Superintendent in Johnson County.” Bysupplementary letter you have requested our opinion upon the following additional questlon#

“Wherethe county school board also goes on record as favoring the abolishment of office of elective county school superintendent, effective at the endof its present term (December 31, X970), and the county judge agrees to serve thereafter as an ex officio county superintendent without pay, maythe 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. ” Weare 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 1887and 1889granting to the commissioners court In each county the power to create andthe power to abolish the office were not included in the 1925revlslon.

Thecreation andabolishment of the office is presently governed byaline of statutes beginning with Section 36, Chapter 124, page 263, Acts of the 29th Legislature, Regular Session, 1905. Underthat statute the voters of each county, at anelection called pursuant to apetition to determine the matters, elected whether the office would be created in that county. Thestatute also made provision for abolishing the office.

Section 1, Chapter 111, page 210, Acts of the 30th Legislature, 1907, amendedthe 1905 statute andmadeit mandatory that the commissioners court of every county In the state having three -3557- ’

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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, andprovided that immediately after passage of the Act the court should appoint aperson to serve In such office until a superintendent waselected andqualified. This statute provided for a twoyear term of office. Noprovision for abolishing the office remained in the statute under this amendment.

Thesubstance of the above statutes wascodified 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 whoshall perform the duties of such office until the election andqualification of his successor." UnderSection 1, Chapter 357, page 849, Acts of the 42nd Legislature, Regular Session, 1931, Article 2688 wasamendedbythe addition of aproviso relating to the appointment of aCounty Superlntendent In counties having a population In excess of 350,000.

UnderSection 1, Chapter 21, page 47, Acts of the 42nd Legislature, 3rd Called Session, 1932, Article 2688 wasagain amended to change the term of office to four years, andto adda proviso reading as follows:

"provided .further~~that.~ln counties having a scholastic population of between three thousand (3,000) andfive thousand (5,000) schalastics, wherein the office of County Superintendent has not been created andaSuperintendent 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 uponpetition 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 andsubsequently the scholastic population wasdetermined to be less than three thousand but morethan twothousand, the office would continue to exist unless abolished byamajority vote of qualified taxpaying voters. EvenIf the vote were in favor -3560-.

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 CountySuperintendent waselected or appointed. This amendmentalso increased to four years the term of superintendents In counties having apopulation In excess of 350,000.

Effective September 1, 1969, Article 2688wasrepealed andthe substance of the article was Incorporated in Articles 17.41 through 17.45 of the Texas Education Code. Theprovisions which makemandatory 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 wasprovided for by order of the Commissioners Court In 1897, before passage of the legislation which is nowcodified 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 andunder the authority of the state statute then in effect governing the creation of such office. After the Act of 1907, state lawmademandatory the creation of the office andthe appointment andelection of a superintendent. It wasnot necessary to call anelection on the question of whether the office should be created, Marfa Independent School District v. Davis, 102S.W.2d 283 (Tex.Clv.App. 1937, error ref.) Th 1 St of the enactment of the Act of 1907wasto supersedeeEE1 county order, in effect to pre-empt the field for state regulation.

In this connection note the following language from In re Lane, 58Cal.2d.99, 102, 22Cal. Reptr., 857, 372 P.2d 897- (call.sup. 1962): ~-~ ~~~ "Whenever the Legislature has seen fit to adopt, ageneral sctiemefor 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, 20Cal. 2d 366, 371, 125P.2d 482, 147A.L.R. 515. FromIn Re Lane, supra, note also the following: 'In determining whether the Legislature lntended to occupy aparticular field to the exclusion of all local regulation wemaylook to the 'whole purpose andscope of the legislative scheme' andare not required to find such an,,intent solely in the language used in the statute. citing Tolman v. Underhill, 39Cal. 2dat p. 712(6), 249P.2- -3561-. -

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

p. 283; Abbott v. City of Los Angeles, 53 Cal. 2d 674, b82, 3Ca,l.Reptr. 158, 349P.2d 974. In City of Baltimore v. Sltnlk, 255A.2d 376, a case dealing with acity ordinance, the court did not apply the prlnclple of pre-emptlon under the facts of the case, but did makethis statement:

“Labels are ofttimes misleading andone 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, 58Cal.2d 99, 22Cal.Rptr. 857, 372 Underhill, 39Ca.2d 708, v. Benson, 20 Cal.2d 366, 515 (1942); Dudley v. City of Cambridge, 347 Mass. 543, 199N.E.2d 208 (1964). Markowski v. Backstrom, 10OhioMisc. 139, 226N.E:2a 825 (1961) ‘fEl - - Inc. v. McClaln, 422P.2d 455 (Okl. 19673; even

v. City of Winston-Salem, 258N.C. 244, %%d 128 04 ( gb )* West Chicago Street R.R. Co. v. Ill., 201u!~.~5&6, 521, 26S.Ct. 518, 50L.Ed. 849 (1906). Since the office of county superintendent exists solely under the authority of state law, that office maybe abolished only pursuant to state law.

Aspointed out In our historical summaryof Article 17.41 andantecedent statutes, there wasa provision in the Act of 1905 for abolishing the office, but no such provision appears in any of the statutes that amendedor superseded that Act.

Article 2688e, Vernon's Civil Statutes, enacted as Chapter 292Acts of the 57th Legislature, Regular Session, 1961, did provide for abolishing the office of county superintendent. This article was repealed effective September 1, 1969, andIts substance codified in Article 17.64 of the Texas Education Code. Underthis latter article the office maybe abolished only upon petition of the voters andapproval by amajority of the qualified electors of the proposition that the office be abolished.

Furthermore, Section (d) of Article 17.64 expressly provides that anelection onthe proposltions of abolishing the office maynot be held during the year that aregular election for the -3562-Dr. J. W.Edgar, page 6 (M-733)

office Is being held. Weunderstand that an election for the office would normally be held in 1970.

In view of the provisions of Article 17.64, weare 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, Weare also of the opinion that the procedure provided in Article 17.64 of the Education Codefor abolishing the office Is the exclusive procedure andthat it is not available during the year 1970.

Your second question would appear to be based onthe premise that with the approval of the school board the commissioners court mayabolish 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 nolegal effect.

Article 17.47 of the Education CodeIs derived from Article 2701, Vernon’s Civil Statutes , andreads 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.” Ourattention has beendirected to Article 17.47 of the Education Code andthe pro~positlon urged~-that iffyno-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. Wedonot agree with that construction of Article 17.47. Toso construe the article would in effect permit It to provide analternative meansof abolishing the office, aprocedure explicitly provided for in Article 17.64 of the Code.

In our view Article 17.47 must be read andconstrued in the context of the subchapter of which It Is apart. 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 bydecision of the voters after apetition, 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 anddoes not exist. -3563-. . -

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

Article 17.47 is clearly not intended to facilitate abolishment of the office of county superintendent. Thelegislature has clearly andexplicitly provided for abolishing the office, andfor the county judge assuming the.dutles, in Article 17.64(a) and (b), part of the samesubchapter. TheLegislature would not Include Article 17.47 for the samepurpose.

Evenif 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 noincumbent, 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 Countyunder the governing statutes.

Anexamination of the legislative history of Article 2701 I fromwhich Article 17.47 of the Codewasderived, supports our view of its function. Theforerunner of this statute wasfirst 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 noschool superintendent the county judge shall be an exofficio county superintendent of public instruction, andshall 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 hada county superintendent , andis not a vehicle to abolish that office. This view is’ reinforced by the fact that in Section 36 of the sameAct provision is madefor abolishing the office by petitlondxection of the voters. It maybe that If that statutory provision for abolishing the office hadbeen followed the duties of county superintendent would have devolved upon the county judge by virtue of Section 42, but again wepoint out that in Johnson County the presently authorized statutory procedure for abolishing the office has not been followed.

The 1907amendmentto the statute of 1905that provided for the office of county superlntendent omitted the provision for abolishing the office that wasIncluded in the 1905 statute. The Legislature In 1961 apparently felt the need of a statutory procedure

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for abolishing the office andprovided such a procedure under Chapter 292, Acts of the 57th Legislature, Regular Session, 1961. This Act waspublished as Article 2688e in Vernon's Civil Statutes, andlater codified as Article 17.64 of the Texas Education Code. This is presently the only meansauthorized by statute for abolishing the office, and It wasnot available In Johnson County In 1970, the regular1 scheduled year for anelection 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 nowexist in Johnson County.

Thefirst is Article XVI, Section 40, which prohibits oneperson holding or exercising at the sametime morethan 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 sameperson maynot exercise the powers of that office while holding the office of County Judge. Eachoffice Is a Civil Office of emolumentandthe prohibition applies even though the person seeking to perform the duties of both offices rejects cornensation for one office. Opinion No. W-109 (1957p. Attorney General's

Theother 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 havebeen 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 andhas qualified, thus precluding the County Judge from assuming those duties. SUMMARY TheCommissioners Court of Johnson County is without authority to abolish by Its order the office of County Superintendent of Johnson County. Theoffice, even though initially created byan order of the commissioners court in 1897, nowexists by virtue of andsubject to the provisions of Article 17.41 of the Texas Education Code. The office therefore maybe abolished only pursuant to Article 17.64 of the Education Code. Set- tion (d) of that article prohlblts anelection to abolish the office in the sameyear that the office

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is due to be filled at aregular election; hence the office could not be abolished during the calendar year 1970, even under the provisions of Article 17.64. Theresolution of the county school board favoring abolishing the office has nolegal effect in view of the provisions of the cited statutes. Aslong as the office of County Supertitendent of Johnson County continues to exist, as wehave held that It does at this time, the county judge maynot 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 40of the Constitution of the State of Texas. Theprovisions of Article XVI, Section 17, also preclude the county e from assuming the duties of the county endent.

Prepared byJamesS. Swearingen I' Assistant Attorney General APPROVED3 OPINIONCOMMITTEE Kerns Taylor, Chairman W.E. Allen, Co-Chairman JamesMcCoy S. J. Aronson MaxHamilton Houghton Brownlee MEADE F. GRIFFIN Staff Legal Assistant ALFRED

WALKER Executive Assistant NOLA WHITE First Assistant -3564b-