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WVILL WILSON ATroRNEY GENERAI. December 13, 1962

Dr. J.W. Edgar OpinionNo. WW-1495 Commissioner of Education Texas EducationAgency Re: In either of the abolishment Austin, Texas situations stated,whether the county judges are entitled to have,'an

assistant as provided in Article 3888, Vernon's Civil Statutes, for ex officio school superintendents Dear Dr. Edgar: and related question.

In your request for an opinion from this officeyou ask a questionwhich is substantiallyas follows:

Whether a county judge of a county subject to the provisions of Section 1 of Article 2688e,Vernon's Civil Statutes, or a county judge of a countywhich elects to abolish the office of county superintendentor ex officio county superintendentunder the provisions of Section la of Article 2688h,Vernon's Civil Statutes, is authorized to have an assistant, an office and travel expense account as prescribed for ex officio county judges in Article 3888,Vernon's Civil Statutes, as amended.

The office of ex officio county superintendentis establishedby Article 2701,Vernon's Civil Statutes,as amended, 1953. This Article provides in part as follows:

"In each countyhaving no school superintendent, the county judge shallbe ex-officio county superintendentand shall perform all the duties required of the county superintendentin this chapter.

. .,.The countyboard shallname or appoint an assistant to the ex-officio county superintendentand shall provide for office and travelingof the ex-officio superinctendent.The salary of the ex-officio superintendent of public instruction, the salary of the assistant exofficio superintendentof public instructionand the office and traveling expenses for the office of the exofficio superintendentin all counties in Texas shall be from and after September 1, 1947, paid from the State and County Available' School Fund, and shallbe received and retained in addition to all other compensationprovidedby lawwhether the county judge isDr. J.W. Edgar, page 2 (WW-1495)

compensatedon a fee or salarybasis."
The compensationof ex officio county superintendents and assistant ex officio county superintendentsis provided for in Article 3888, Vernon's Civil Statutes, as amended, 1953. The pertinentprovisions of thisArticle are quoted as follows:

"In a countywhere the county judgeacts as an ex-officio county superintendentof public instruction,he shall receive and retain in addition to all other compensationprovidedby law not more than Two Thousand, Six Hundred ($2,600.00)Dollars a year, as the countyboard of school trustees .of the respective countiesmay provide,whether he is compensatedon a fee or salarybasis. In such a county an ex-officioassistant superintendentof public instruction shall receive not more than Two Thousand, Six Hundred ($2,600.00) Dollars a year, as the countyboard of school trusteesof the respective countiesmay provide.
"The county judgewhile acting as ex-officio county superintendentof public instruction,for office and traveling expensesmay receive an amount not to exceed One ThousandFifty ($1,050.00)Dollars a year, as the countyboard of school trusteesof the respective countiesmay provide.

. . .'
Senate Bill No. 192, 57th Leg., Regular Session, 1961, codified as Article 2688e, Vernon's Civil Statutes,was written in order to provide a more adequate procedure for the abolishment of the office of county superintendentauthorized under the provisionsof Article 2688, Vernon's Civil Statutes,as amended. Our attention is directed to Section 1 of Article 2688e, Vernon's Civil Statutes. The provisions of Section 1 most important to our discussion,are as follows:

"Section 1.

(25%I a) Upon a petition of twentyfive per cent of the qualifiedvoterswho cast a vote in the Governor's race at the preceding General Election in counties of less than one hundred thousand (100,000)populationaccording to the last Federal Census; or upon a petition of twentyper cent (20%)of the qualifiedvoters who cast a vote in the Governor's race at the preceding General Election in counties of one hundred thousand (100,000)or more populationaccording to the lastDr. J. W. Edgar, page 3 (WW-l&95'):- .': i

Federal Census, the zounty judge shall within., ninety (90) days of the receipt of such petition call an election to determine by majority vote whether the office o,fcownty.superintendent (or ex-officio county sype~rintendentand the county school board in counties,having an..ex-officio county superintendent) shall be abolished.

. . . "(c) Where the majority of the qualified electors approve the abolition of the office of the ex-officio county superintendent and county school board, the duties of such abolished offices as may still be required by law shall be and become the dutiesof the office of county judge of said ~countyupon the expiration of the current term of office of the ex-officio,countv sunerin-,~.. tendent, and said county judge shall not be entitled to nor receive any additional compensation as a result o:fthese additional'duties.

. . .". " ‘(Emphasisadded)

In view of the fact that the office of county superintendent and the county school board in certain countrieshad few or no duties to perform because the common school.districts had largely become independent school districts outside the jurisdiction of the county superintendent, Senate Bill No. 100, 57th Legislature, Third Called Session, 1962, codified by Vernon's as Article 2688h, was enacted to abolish the office of county school superintendent and the county school board in such counties. We quote from Section l(a) of Article 2688h, as follows:
"Section 1. (a) From and after the effective date of this Act the office of the county board of school trustees and the office of county superintendent shall cease to exist in any county in this State having a population of not less than seventy five thousand (75,000) and not more than one hundred twenty-five thousand (125,000) according to the last preceding Federal Census which has not more than one (1) common school district and whose county ad valorem evaluation is in excess of One Hundred Forty Million Dollars ($140,000,000); provided, however, that the county superintendents in such counties who have been heretofore elected or appointed to the office of county superintendent shall serve until the expiration of the term for which they were elected or appointed. The duties now performed 'bythe boardDr. J.W. Edgar, page 4 (w-w-1495)

of school trusteesand county superintendentsin such counties shallbe performedby the county judgesof such counties;provided further that said county judges shall not be entitled to nor receive any additional compensationas a result of these additionaldutie9.l

. . ."
The clear and unambiguous language employed In each of the abolishment statutes, supra, Is that a county judge is not entitled to receiveany additional compensation as a result of any additional dutieswhich may be imposed.

Therefore, it is our opinion that neither a County Judge of a county subject to the provisions of Section 1 of Article 2688e, Vernon's Civil Statutes,nor a County Judge of a countywhich abolishes the office of County Superintendent or ex officio county superintendentunder the provisions of Section l(a) of Article 2688h, Vernon's Civil Statutes, is authorized to have an assistant or receiveany compensation under the provisions of Article 3888 ofVernon's Civil Statutes, as amended.

ADramria, Galveston and Wichita Counties are presently affected by the provisions of this Section.

SUMMARY
The provisions of Article 3888, Vernon's Civil Statutes,as amended, are not applicable to County Judges of certain counties. Sincerely,

WILL WILSON

1RW:mkhDr. J. W. Edgar, Page 5 @W-1$95)

APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman GrundyWilliams Albert Pruitt OgdenBass

REVIEWED FOR THEATTORNEY GENERAL BY: Leonard Passmore