Hon. J. W. Edgar OpinionNo. C- 708

Commissioner of Education Texas EducationAgency Re: When, under Section 2(b) Austin, Texas of Article 2688~,Vernon's Civil Statutes, the abolishment of the office of County Superintendentbecomes effective,do Articles 2701 and 3888, Vernon's Civil Statutes,apply: 1. To constitute the County Judge as ex-officio County Superintendentand related quesDear Dr. Edgar: tions.

By recent letteryou have requested an opinion in regard to the above statedmatter. We quote from your letter as follows:

11

. . . "Presently,we are concernedwith Section 2(b), Article 2688L, (H.B. 412, 59th Legislature, R.S., 1965) which by bracketing applies to Childress County. The Office of County Superintendent is abolished by that section, effectiveupon the expiration of the present county superintendent's term of office--which is December 31, 1966, no vacancy occurring. II

. . . 'In the countypreparation and necessary approval by this Agency of the 1966-67 County Administrationbudget for Childress Count (financedby State Available School Funds7, we need to know and would appreciatereceiving an opinion from your Office on the following: "When,under Section 2(b) of Article 26881. the abolishment of the office of county superintendentbecomes effective,do Articles 2701 and 3888 apply: -3418-Hon. J. W. Edgar, page 2 (C-708)

"1
. TO constitute the county judge as ex-officio county superintendent.
"2. To determine salary of the ex-officio county,and an assistant ex-officio superintendent, if any. "3. To determine an office and travel expense allowance for ex-officio county superintendent. "4. Or: Shall the county judge alone serve as ex-officio county superintendent without salary and without office and travel expense allowance, as such-l' Section 2(b) of Article 2688L,Vernon's Civil Statutes, is quoted as follows:

"(b) The office of county superintendent in all counties having a po ulation of not less than 8,399 nor more than 8,t22 according to the last Federal Census is abolished. The office shallbe abolishedupon the expiration of the present county superintendent'sterm of office." Standing alone, all this Section does is abolish the office of County Superintendent in Childress County, at the expiration of the present incumbent'sterm. However, Section 3 of Article 2688~,Vernon's Civil Statutes, shouldbe taken into consideration,and is quoted as follows:

._-L._ -..---I..L--A--L- L-T>>_- -nn,-- "The counr;ysuperlntanoentsnololng o111ce in the counties included in this Act on the effective date of this Act shall serveuntil the expiration of the term for which they were elected. However, if a vacancy occurs before the explratlon of the term, the office of county superintendent shall cease to exist and the duties of the office shall be performed by the county judge as ex-officio county superintendent after that time." (Emphasisadded) Clearly, this Sectionprovides for the duties of the county superintendentto be placed upon the county judge in the counties coveredby the act, includingChildress County, if a vacancy occursbefore the expiration of the present term. Under the prior law if a vacancy occurred another individualwas elected by the voters to fill out the unexpired term. Attorney General's -3419-. .

Hon. J. W. Edgar, page 3 (C-708)

OpinionNo. C-321 (1964)discusses this problem.

Additional facts submittedby your office, and from the County Attorney of Childress County,Hon. Clarence L. Darter, show that Childress County has no common schooldistricts and has one county-wide independent schooldistrict. Article 2688~, the article in question, abolished the office of County School Superintendent,but nothing is said concerning the County School Board in Childress County.

In the same session of the Legislature (1965),Article 26881-1,Vernon's Civil Statutes,was enacted and is quoted, in part, as follows:

"Section 1. This Act applies to a county "(1) if the office of county superintendent and the county schoolboard has been abolished in the county, and - "(2) if the countyhas one county-wide independent schooldistrict and no common school district. "Sec. 2. The office of ex-officio county superintendent is abolishedupon the effective date of this Act." In order for the above statute to apply to any county, four conditionsmust be met. (1) The office of county superintendentmust be abolished by the Legislature, or the voters. i;)thyvo;z;;ty SchoolBoard must be abolishedby the Legislature,

(3) The countymust have no common schooldistricts. (4) The countymust have one county-wide independent schooldistrict.

Childress County has met conditions (l), (3) and (4), but the County School Board is still legally in existence, therefore, it is our opinion that Article 26881-l does not apply to Chlldress County.

Article 2701,Vernon's Civil Statutes,provides for an ex-officio superintendent in countieswhich do not have a county superintendent, Article 2701,Vernon's Civil Statutes, is quoted, In part, as follows:

'In each county having no school superintendent, the county judge shallbe ex-officio county superintendentand shall perform all the
-3420-. .

Hon. J. W. Edgar, page 4 (C-708)

duties required of the county superintendent in this chapter.
. . .The county board shallname or appoint an assistant to the ex-officio county superintendent,

. .The salary of the ex-officio superintendent

. . .the salary of the assistant

. . -andthe office and traveling expenses . in all counties in Texas shallbe from and after September 1, 1947,paid from the State and County Available School Fund.
. . .' (Emphasisadded)
It is our opinion,based upon the language of Article 2701 and the relevant sections of Article 2688L (quotedabove), that it was the Intent of the Legislature to constitute the County Judge of Chlldress County as ex-officio county superintendent when the present county superintendent'sterm expires, or sooner, if a vacancy occurs. Obviously the Lefislaturewas aware of Article 2701 when it enacted Article 2 88L. The Legislature in enacting, amending, or repealing a statute,may be presumed to have known or was familiar with existing statutes. Cain v. State, 20 Tex. s.w.1036 (1914

355 (1857);Cole v. State, 106 Tex. 472,

. Questionnumber 1 (above)must thereforebe answered in the affirmative. An analysis of Article 3888,Vernon's Civil Statutes, must be made in order to answer the secondand third questions.

Article 3888,Vernon's Civil Statutes, Is quoted, in part, as follows:

'Ina countywhere the county judge acts as ex-officio county superintendent

. . .he shall receive

. . .inaddition to all other compensation

. , .notmore than two thousand six hundred ($2,600.00)dollars a year . . . In such a county an ex-officio assistant superintendent

. . .

shall receive,notmore than two thousand, six hundred ($2,600:00)dollars a year as the county board of school trustees
. . .may provide. "The county judgewhile acting as ex-officio county superintendent , . .foroffice and traveling expensesmay receive an amount not to exceed one thousand, fifty ($1,050.00)dollars a year, as the county board of trustees :. .mayprovide." Article 3888 has been held by this office to apply to Section l(b) of Article 2688e,Vernon's Civil Statutes,where -3421-Hon. J. W. Ed&ar, page 5 (C-708)

the Legislaturedid not specifically set out the salary,etc., for an ex-officio county superintendent,once the office of county superintendenthad been abolishedb' the voters of a county. Attorney General's OpinionNo. i C- 1 (1963). This office has also held that it is permissiverather thanmandatory for a county schoolboard to name or appoint an assistant ex-officio superintendent,under the terms of Article 2701 or Article 3888, Vernon's Civil Statutes. Attorney Gsneral's Opinion No. v-382 (1947).

Based upon an analysis of Article 3888 and the above prior opinions, it is our opinion that the salary of the exofficio superintendentand his assistant, if one is appointed by the county board of school trustees, is controlledby Article 3888. It is our further opinion that Article 3888 controls the amount of office and travel expense of the ex-officio superintendent.

The final question listed above (4)need not be answered in light of the above stated opinions. SUMMARY - Articles 2701 and 3888,Vernon's Civil Statutes, apply to Section 2(b) of Article 2688~, when the abolishment of the office of county superintendent becomes effective. Very truly yours, WAGGONER CARR Attorney General

JCMcC:mkh APPROVED: OPINION COMMITTEE

w.v. Geppert, Chairman John Reeves Robert iQower8 Phillip Crawford Gordon Cass APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright -3422-