Gerald C. Mann

Hon. Louis FI.Crump County attorney This Opinion Modifies Opinion 0-765 due to amendment of Law. Eoleman County See also V-1051 oleman, Texas Opinion No. O-4595 Re: Employment of school superintendent by consolidated common Dear Sir: school district.

Wehave received your letter of May12, 1942, which wequote in part as follows:

"In January 1942 the board of trustees in a commonconsolidated school district in Coleman County, Texaq, entered into a contract with the school superintendent employing himto continue in such capacity for the school year 1942-43. TYOnewtrustees were elected in April 1942 and have duly qualified as suchjlithin the time prescribed bylaw. Upto the present time this contract has not been presented to the County Superintendent for his approval.
"IS this contract valid andbinding against the board of trustees in view of the fact that two newmembers have been elected andtaken office since the date of such contract?"
In your letter you cite ,Rrticle 2750a-1, Vernon's Annotated Civil Statutes, which reads as follows:

"That trustees of anyCommonSchool District or Consolidated CommonSchool District shall have authority to makecontracts for aperiod of time not in excess of two (2) years with principalsAsuperintendents, and teachers of said Common chool Districts or Consolidated CommonSchool Districts, provided that such contracts shall be approved by the County Superintendent. tract maybe signed bv the T rustee s of,=- School Districts or CommonConsolidated Schzol Di.sms until the newly elected trustees have aual$,- fied and taken the oath of office. Acts 1941,Hon. Louis M.Crump, page 2

47th Leg., S.B. #126, 11. (Emphasis supplied)
This department held in opinion No* 0-765 (conference opinion No. 3069) that aprovision of Article 2750a (Acts 1937, 45th Leg., derscored above, Ch. 267, I 11, similar to the one unwas unconstitutional because of the defectIve caption of the act. The 47th Legislature apparently to remedy this defect passed Senate Bill 

### 126. (Article 2750a-1)

Youwish to knowwhether the provisions of Article 2750a-1 affect the validity of the contract under consideration. Weare of the opinion that this question should be answered in the negative.

The language used by the Legislature in Article 2750a-1 very plainly indicates that the feature sought to be remedied was the practice whereby defeated school trustees would join with aminority of the newboard in signing contracts before the Qewly elected” trustee could qualify. HOWever, it is obvious that there can be

### no“new elected” trustee until after the election on the first Saturday in ,April in each year as provided in Article 2745. Thecontract in question was entered into in January; therefore, there were no “newly elected” trustees. It follows that this provision of Rrticle 2750a-1 is not applicable. Opinion No. O-04.

You state in your letter that the contract has not been presented tQ the county superintendent for his approval. Articles 2750a and2750a-1 authorize contracts of this nature, andprovide “that such contracts shall be approved by the County Superintendent .I’ Notime limit is specified as to when such contracts should be presented to the county superintendent. Apparently, areasonable time was intended, andwedo not believe that such reasonable time has passed, especially fn view of the fact that the time covered by the contract does not start to run until the school year 1942-1943.

Wequote the following from the opinion of the court in Mller et al. v. Smiley et al., 

### 65S.W.(2d) 

### 417(W.E.Ref.1:

I,

. . . But wecannot bring ourselves to believe that amere fortuitous change in the membership of the board, prior to the formal approval by the county superintendent of the lawful contracts theretofore madeby the board permits such contracts to be arbitrarily revoked by Ihe newboard and the county superintendent without any charge of fraud, imposition, or mutual mistake, andwith nohearing given the teachers of such intended revocation of their contracts.Hon. Louis M.Grump, page 

### 3

"It seems to us that to hold otherwise would be to violate the plainest principles of fairness andjustice, andto acquiesce in arbitrary and dictatorial powers not conferred by our statutes upon the boards of school trustees, or county superintendents."
In view of the foregoing you are respectfully advised that acontract between the board of trustees of a commonschool district or consolidated commonschool district and a school superintendent entered into prior to the election of trustees under Articles 

### 2745and 2750a-1 is not of itself invalid even though the contract has not at the time of such election or qualification of such newtrustees been approved by the county superintendent.

This opinion is expressly limited to the fact situation as disclosed in your letter of request. Very truly yours ATTORNEY

GENERAL

OFTEXAS By/s/ George W. Sparks George W. Sparks, Assistant
APPROVED

MAY26, 1942 /s/ Gerald C. Mann ATTORNEY

GENERAL

OFTEXAS
APPROVED:OPINIONCOMMITTEE BY: BWB,CHAIRMAN
GWS:mtiwb