Mr. Fred P. Holub 

County Attorney 

Matagorda County 

Bay City, Texas 77414 

Opinion No. M-745 

R0: Whether the office of County 

School Superintendent exists 

in Matagorda County. 

Dear Mr. Holub: 

Your recent letter requests the opinion of this 

office as to whether the office of County School Superintendent exists in Matagorda County. YOU have supplied us with 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 would be elected at 

the general election in November of 1970 for a four year term. 

An eligible candidate announced for the office in the Democratic 

primary and ran unopposed in the primary and was elected to the 

office at the general election in November, 3.970. 

You have pointed out that Article 2688n, Vernon's 

Civil Statutes, provides that the office of County School Superintendent is abolished in all 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 that whereas 

the 1960 census reported a population of 25,744 for Matagorda 

County, the figures released to date place the 1970 population 

at 27,630. You inquire whether, in view of the provisions of 

Article 2688n and the 1970 population figures for Matagorda 

County, the office of County School Superintendent for that 

county is abolished: and if so, the effective date. 

In our opinion the office of County School Superintendent continues to exist in Matagorda County, and the person 

elected to that office in the general election in November, 1970, 

is entitled to take office on January 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 is made mandatory by the provisions of 

Article 17.41(a) of the Texas Education Code. 

In view 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 is provided by Article 17.64 of the Texas Education Code. 

See Attorney General's Opinion No. M-733 (1970). Apparently 

the procedure provided in Article 17.64 has not been followed 

in Matagorda County. Further, under this Article, the office 

could not be abolished in 1970. the year that a regular election 

for the office is held in the county. 

In our opinion, Article 2688n as narrowly restricted 

in its application to certain counties, is unconstitutional for 

the reason that it is a local or special law regulating the management of public schools in contravention of Article III, Section 56, 

Constitution of Texas. The Supreme Court of Texas, in Miller v. 

El Paso Countv, 136 Tex. 370, 150 S.W.2d 1000 (1941), has well 

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 to make 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 all who may come 

within the'classification designated in the Act, 

and the classification must be broad enough to 

include a substantial class and must be based 

on characteriatica,.legitimately distinguishing 

such class from others with respect to the 

public purpose sought to be accomplished by the 

proposed legislation. In other words, there must 

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

be a subatantial,reason for the classification.. 

It must not be a mere arbitrary device resorted 

to for the purpose of giving what is, in fact, a 

local 'law the appearance of a general law.* 

(at p. 1001-1002). See also the cases there cited. 

In our opinion Article 2688n would create a class of 

counties without substantial basis and without sufficient legal 

distinguishing features and is therefore proscribed as a local 

or special law by Article III, Section 56, of the Texas Constitution. That being true, the statute does not operate to abolish 

in Matagorda County the office of County 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 

in November of 1970 for the four year term beginning January 1, 

1971, is not eligible to take office and assume the duties of 

that office until January 1, 1971. Authority for this holding 

is found in Ex carte Sanders, 147 Tex. 248, 215 S.W.2d 325 (1949). 

SUMMARY 

Under the given fact situation the office of 

County School Superintendent of Matagorda County 

continues to exist. The current scholastic population of the county being Over 3,000, the election 

of a County Superintendent at the November, 1970, 

general election for a four year term is mandatory. 

Article 17.41(a), Texas Education Code. 

The scholastic population remaining over 3,000, 

it appears that the only statutory provision for 

abolishing the office is provided by Article 17.64 

of the Texas Education Code. 

Article 2688n is unconstitutional 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 in November of 1970 to the four year 

term beginning on January 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 

Rex White 

MF,ADE F. GRIFFIN 

Staff Legal Assistant 

ALFREDWALKER 

Executive Assistant 

NOLAWKITR 

First Assistant 

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