Hon. J. W. Edgar Opinion No. C- 708 

Commissioner of Education 

Texas Education Agency Re: When, under Section 2(b) 

Austin, Texas of Article 2688~, Vernon's 

Civil Statutes, the abolishment of the office of County 

Superintendent becomes effective, do Articles 2701 

and 3888, Vernon's Civil 

Statutes, apply: 1. To 

constitute the County Judge 

as ex-officio County Superintendent and related quesDear Dr. Edgar: tions. 

By recent letter you have requested an opinion in 

regard to the above stated matter. We quote from your letter 

as follows: 

11 

. . . 

"Presently, we are concerned with 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, effective upon the 

expiration of the present county superintendent's 

term of office--which is December 31, 1966, no 

vacancy occurring. 

II 

. . . 

'In the county preparation and necessary 

approval by this Agency of the 1966-67 County 

Administration budget for Childress Count 

(financed by State Available School Funds 7 , 

we need to know and would appreciate receiving 

an opinion from your Office on the following: 

"When, under Section 2(b) of Article 26881. 

the abolishment of the office of county superintendent becomes effective, do Articles 2701 and 

3888 apply: 

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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, t 22 according to the 

last Federal Census is abolished. The office 

shall be abolished upon the expiration of the 

present county superintendent's term 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's term. However, Section 3 of 

Article 2688~, Vernon's Civil Statutes, should be taken into consideration, and is quoted as follows: 

._-L._ -..---I..L--A--L- L-T>>_- -nn,-- "The counr;y superlntanoents nololng o111ce 

in the counties included in this Act on the effective date of this Act shall serve until 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." (Emphasis added) 

Clearly, this Section provides for the duties of the 

county superintendent to be placed upon the county judge in the 

counties covered by the act, including Childress County, if a 

vacancy occurs before the expiration of the present term. Under 

the prior law if a vacancy occurred another individual was elected 

by the voters to fill out the unexpired term. Attorney General's 

-3419- 
. . 

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

Opinion No. C-321 (1964) discusses this problem. 

Additional facts submitted by your office, and from 

the County Attorney of Childress County, Hon. Clarence L. Darter, 

show that Childress County has no common school districts and 

has one county-wide independent school district. 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 school board has been 

abolished in the county, and - 

"(2) if the county has one county-wide 

independent school district and no common 

school district. 

"Sec. 2. The office of ex-officio county 

superintendent is abolished upon the effective 

date of this Act." 

In order for the above statute to apply to any county, 

four conditions must be met. (1) The office of county superintendent must be abolished by the Legislature, or the voters. 

i;)thyvo;z;;ty School Board must be abolished by the Legislature, 

(3) The county must have no common school districts. 

(4) The county must have one county-wide independent school district. 

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 counties which 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 shall be ex-officio 

county superintendent and 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 shall name 

or appoint an assistant to the ex-officio county 

superintendent, . .The salary of the ex-officio 

superintendent . . .the salary of the assistant 

. . -and the office and traveling expenses . 

in all counties in Texas shall be from and after 

September 1, 1947, paid from the State and County 

Available School Fund. . . .' (Emphasis added) 

It is our opinion, based upon the language of Article 

2701 and the relevant sections of Article 2688L (quoted above), 

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's term expires, or sooner, 

if a vacancy occurs. Obviously the Le 

f 

islature was 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 3 

55 (1857); Cole v. State, 106 Tex. 472, 

. 

Question number 1 (above) must therefore be answered 

in the affirmative. An analysis of Article 3888, Vernon's 

Civil Statutes, must be made in order to answer the second and 

third questions. 

Article 3888, Vernon's Civil Statutes, Is quoted, in 

part, as follows: 

'In a county where the county judge acts 

as ex-officio county superintendent . . .he 

shall receive . . .in addition to all other 

compensation . , .not more than two thousand 

six hundred ($2,600.00) dollars a year . . . 

In such a county an ex-officio assistant superintendent . . . shall receive,not more than two 

thousand, six hundred ($2,600:00) dollars a year 

as the county board of school trustees . . .may 

provide. 

"The county judge while acting as ex-officio 

county superintendent , . .for office and traveling 

expenses may receive an amount not to exceed one 

thousand, fifty ($1,050.00) dollars a year, as 

the county board of trustees :. .may provide." 

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 Legislature did not specifically set out the salary, etc., 

for an ex-officio county superintendent, once the office of 

county superintendent had been abolished b' the voters of a 

county. Attorney General's Opinion No. C- i 1 (1963). 

This office has also held that it is permissive rather 

than mandatory for a county school board 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 superintendent and his assistant, if one is appointed 

by the county board of school trustees, is controlled by 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 

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