**Mr. Fred**  **P. Holub**  County Attorney Matagorda County Bay City, Texas 77414 Opinion No. M-745 R0: Whether the office ofCounty School Superintendent exists inMatagorda County. Dear Mr. Holub:

Your recent letter requests the opinion of this office as towhether the office of County School Superintendent exists inMatagorda County. YOU have supplied uswith the following pertinent information.

The person holding the office died in **August,** 1969. The commissioners court has not appointed a successor. under normal procedures a County Superintendent 

## wouldbe elected at the general election inNovember of 1970 for a four year term. An eligible candidate announced for the office in theDemocratic primary and ran unopposed in **the** primary and was elected to the office at the general election inNovember, 3.970.

You have pointed out thatArticle 2688n,Vernon's Civil Statutes, provides that the office ofCounty School Superintendent isabolished inall counties having a population of not less than 25,750 nor more than 28,000 according to the last preceding Federal census, and further advised us thatwhereas the 1960 census reported a population of 25,744 forMatagorda County, the figures released to date place the 1970 population at 27,630. You inquirewhether, inview of the provisions of Article 2688n and the 1970 population figures forMatagorda County, the office ofCounty School Superintendent for that county isabolished: and if so, the effective date.

In our opinion the office of County School Superintendent continues to exist inMatagorda County, and the person elected to that **office** in the general election inNovember, 1970, isentitled to take office onJanuary 1, 1971.
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Mr. Fred P.Holub, page 2 (M-745)

The current scholastic population of **Matagorda** County being over 3,000, the election of a County Superintendent to serve a four year term ismade mandatory by the provisions of **Article 17.41(a)**  of the Texas Education Code.

Inview of the office having been once created in the county and the scholastic population remaining over 3,000, it appears that the only statutory provision for abolishing the office isprovided by Article 17.64 of the Texas Education Code. SeeAttorney General's Opinion No. M-733 (1970). Apparently the procedure provided inArticle 17.64 has not been followed inMatagorda County. Further, under thisArticle, the office could not be abolished in 1970. theyear **that a**  regular election for the office isheld in the county.

In 

### ouropinion, Article 2688n as narrowly restricted in its application to certain counties, isunconstitutional for the reason that it isa local or special lawregulating themanagement of public schools in contravention ofArticle III, Section 56, Constitution ofTexas. The Supreme Court ofTexas, inMiller v. El Paso Countv, 136 Tex. 370, 150 S.W.2d 1000 (1941),haswell stated the prevailing rule with regard to this type of legislationr "Notwithstanding the above constitutional prwision. the courts recognize in the Legislature a rather broad power tomake classifications for legislative purposes and to enact laws for the regulation thereof, even though such legislation **may**be applicable only to a particular class or4 in fact, affect only the inhabitants of a particular locality; but such legislation must be intended to apply uniformly to allwho may come within the'classification designated in theAct, and **the** classification must be broad enough to include a substantial class andmust be based on characteriatica,.legitimately distinguishing such **class** from others with respect to **the** public purpose sought tobe accomplished by the proposed legislation. In otherwords, there must

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Mr. Fred P.Holub, page 3 (M-745)

be a subatantial,reason for the classification.. Itmust notbe amere arbitrary device resorted to for the purpose of giving what is, in fact, a local 'lawthe appearance of a general law.* (atp. 1001-1002). See also the cases there cited.
In our opinion Article 2688nwould create a class of counties without substantial basis andwithout sufficient legal distinguishing features and is therefore proscribed as a local or special lawbyArticle III, Section 56, of the Texas Constitution. That being true, the statute does not operate to abolish inMatagorda County the office ofCounty School Superintendent. See Attorney General's Opinions No. C-244 (1964),No. C-481 (1965), and NO. M-488 (1969).

As we have stated in this opinion, the person elected inNovember of 1970 for the four year term beginning January 1, 1971, isnot eligible to take office and assume the duties of that office until January 1, 1971. Authority for this holding is found inEx carte Sanders, 147 Tex. 248, 215 S.W.2d 325 (1949).
SUMMARY Under the given fact situation the office of County School Superintendent ofMatagorda County continues to exist. The current scholastic population of the countybeing Over 3,000, the election of a County Superintendent at theNovember, 1970, general election for a four year term ismandatory. Article 17.41(a), Texas Education Code. The scholastic population 

### remainingover3,000, itappears that the only statutory provision for abolishing the office isprovided by Article 17.64 of the Texas Education Code. Article 2688n isunconstitutional and does not operate to abolish the office.

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I@. Fred P. Holub, page 4 (M-745)

The person elected to the office at the general election inNovember of 1970 to the fouryear term beginning onJanuary 1, 1971,may not take office or assume the duties of the office until January 1, 1971. Ex wrte Sanders, 147 Tex. 248, 215 S.W.2d 325 (1949). Ver$?truly yours,



### Att Prepared by James S. Swearingen Assistant Attorney General
APPROVRD: OPINION COKMITTRE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman James McCoy S. J.Aronson Max Hamilton RexWhite MF,ADEF. GRIFFIN Staff Legal Assistant
ALFREDWALKER Executive Assistant
NOLAWKITR First Assistant

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