June 8, 1967

Honorable J. W. Commissionerof Texas Education Austin, Texas

Dear Dr. Edgar: Edgar Opinion No. M-86

Education Agency Re: Whether Sections 3 and 4 of Article 26881-l supersede and have application, in lieu of Section l(c) of Article 26aae, to counties (otherthan Gollad)which have abolished the elective county superintendent,and thereafterabolished the office of ex officio county superintendentand county schoolboard under Article 2688e, and related questions.

In connqctlonwith your first question,you have advised
us that Stephens County, on June 26, 1965, by an electionheld In that county, abolished the office of county school superintendent. On April 1, 1967,by an electionheld in Stephens County, the office of ex officio county school superintendentand the county school boardwere abolished. Your essential question Iswhich of two possible statutesapply to the actions takenby Stephens County: Article 2688e,Vernon’s Civil Statutes, or Article 26881-1, Vernon’s Civil Statutes. 26801-i : In this connectionwe quote a portion of Article

‘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 lndependent schooldistrict and no common schooldistrlct.

“Sec. 2. The office of ex officio county superintendent is abolishedupon the effectivedate of this Act.”

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Dr. J. W. Edgar, page 2 (M-86)

It Is apparent from Section 2, supra, that the primary purpose of Article 26881-lwas to effect the abolishment of the office of ex officio county superintendent In certain counties. Inasmuch as the county here involvedabolished the county school board and the ex officio county superintendentat the same time, It Is the view of this office that the requirements of Article 26881-l were nevermet, and that Stephens County remainedwithin the scope of Article 2688e. This would also be true of all other counties Involved In abolishment situationswhich do not come wlthln the precise terms of Section 1, Article 26881-1, quoted, In part, supra. It therefore follows that those countieswhich do not fall within the terms of Article 268814 must continue to follow the procedures established in Article 2688e. In answer to your specific question,you are advised that Sections 3 and 4 of Article 26881-l do not supersedeand have application, in lieu of Section l(c) of Article 2688e, to counties (otherthan Gollad) which have abolished the elective county superintendent,and thereafter abolished the office of ex officio county superintendentand county schoolboard under Article 2688e.

Dependent upon the answer to your first question,you have asked the following:

When should the county judge's services and additional compensationas ex officio county superintendent In Stephens County cease.

In connectionwith this question,we quoteArticle 2688e, Section l(c),Vernon's Civil Statutes:

"(c) Where themajority of the qualified electors approve the abolition of the office of the ex officio county superintendentand county schoolboard, the duties of such abolished offices
asmay stillbe required by law shallbe and become the duties of the office of county judge of said county upon the expiration of the current term of office of the ex officio county superintendent,and said county judge shallnot be entitled to nor receive any additional comEensatlonas a result of these additional duties.

It Is our view that the plain terms of the statute operate to transfer the duties of ex officio county superintendentto the county judge only upon the expiration of the current term of office of the ex officio county superintendent. The net effect Is that the county judge (whoacts as the ex officio county superintendent)receives remuneration for acting as ex officio county -391-Dr. J. w. Edgar, Page 3 (M-86)

superintendentup until the time of the expiration of his current term of office, at which time he Is required to perform the same dutieswithout remuneration.

SUMMARY
Sections 3 and 4 of Article 26881-1, V.C.S. do not supersedeand have application, in lieu of Section l(c) of Article 2688e, V.C.S., to counties (other than Gollad)which have abolished the elective county superintendent,and thereafter abolished the office of ex offlclo county superlntendent and county schoolboard under Article 2688e.

Where the office of ex officio county superlntendent has been abolished under Article 2688e, V.C.S., the abolishment takes effect upon the expiration of the current term of the ex officio county superintendent,at which time the duties devolve upon the county judge,who shallperform these dutles without additional compensation.

V 2@ truly yours,

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Preparedby Malcolm L. Quick ' Assistant Attorney General

APPROVED: OPINION COMMITTEE
Hawthorne Phillips, Chairman W. V. Geppert, Co-Chairman John Banks John Fainter Kerns Taylor Alan Minter

STAFF LEGAL ASSISTANT A. J. Carubbi, Jr.

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