Untitled Texas Attorney General Opinion ( 1972 )

Hon. J. W. Edgar ,Opinion No. M-1200
Commissioner of Education
201 East 11th Street Re: Whether Article 2688v, V.C.S.,
Austin, Texas 78701 operates to abolish the offices
of county superintendent, ex-
officio county superintendent,
and the county school board in
Caldwell County, and related
Dear Dr. Edgar: questions.
You have requested the opinion of this office on the
following questions:
(1) Does Article 2688v*, Vernon's Civil Statutes,
operate to abolish in Caldwell County the offices of
county superintendent, and the offices of ex-officio
county superintendent (non-existent) and county
school board?
(2) If (1) is answered in the affirmative,
what officer or office is charged with the ~perform-
ante of the duties of the office(s),abolished?
In addition, you have supplied us with the following
pertinent information:
"At the November 1966 election, a county super-
intendent was elected.for a four-year term to expire
December 31, 1970. Since there was talk within that
interim of abolishing the office, no one ran or was
elected in November 1970 for a four-year term to
*Acts 62nd Leg., R.S. 1971, ch. 167, p. 957.
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Hon. J. W. Edgar, page 2 (M-1200)
begin January 1, 1971. In lieu thereof, the same
county superintendent (now serving) was appointed
to serve until such time, presumably, when the
office was expected to be abolished prior to a
next election. Article 2355, V.C.S."
Article 2688v, Vernon's Civil Statutes, states:
"In all counties having a population of not less
than 21,000 nor more than 22,000, according to the
last preceding federal census, the offices of county
superintendent and ex officio county superintendent,
and the county school board are abolished effective
September 1, 1972."
It is our opinion that Article 2688~ is unconstitutional
in that it is restricted in its application to only one out of
Texas' 254 counties. It is a local or special law which attempts
to regulate the management of public schools in contravention of
Article III, Section 56, of the Texas Constitution. The Supreme
Court of Texas, in Miller v. El Paso County, 136 Tex. 370, 150
S.W.2d 1000 (1941), at pp. 1001 and 1002, has stated the prevail-
ing rule regarding this type of legislation:
"Notwithstanding the above constitutional pro-
vision, the courts recognize in the Legislature a
rather broad power to make classifications for
legislative purposes and to enact laws for the regu-
lation thereof, even though such legislation may be
applicable only to a particular classor, in fact,
affect only the inhabitants of a particular locality;
but such legislation must be intended to apply uni-
formly 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 characteristics legitimately dis-
tinguishing such class from others with respect
to the public purpose sought to be accomplished by
the proposed legislation. In other words, there
must be a substantial 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."
In our opinion Article 2688~ would create a class of
counties without substantial basis and without sufficient legal
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Hon. J. W. Edgar,'page'3 (M-1200)
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 Caldwell
County the office of county school superintendent or the offices
of ex-officio county superintendent and county school board. See
Attorney General's Opinions C-244 (1964), C-481 (1965), M-488
(1969) and M-745 (1970).
Article XVI, Section 17 of the Texas Constitution reads:
"All officers within this State shall continue to perform the
duties of their offices until their successors shall be duly
qualified." Therefore from the additional information you have
furnished us, the county superintendent duly elected in the
November, 1966 election, and presently still serving in that
capacity, even though his four-year term of office has expired,
must perform the duties of that office until a successor has been
lawfully selected and has qualified , or until the office has been
legally abolished. However, he might.vacate the office by quali-
fying for other public duties. State v. Valentine, 198 S.W. 1006
(Tex.Civ.App. 1917, error ref.);100 A.L.R. 1162, 1180; 47 Tex.
Jur.Zd 63-64, Public Officers, Sec. 42. Also, the office might
become vacant by some other means provided in the Texas Consti-
tution.
SUMMARY
Article 2688`` Vernon's Civil Statutes, (Acts
62nd Leg., R.S. 1971, ch. 167, p. 957) is uncon-
stitutional and therefore does not abolish the
offices of county superintendent, ex-officio county
superintendent, or county school board in Caldwell
County, Texas.
V&ruly yours,
C. MARTIN
ey General of Texas
Prepared by Linda Neeley
Assistant Attorney General
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Hon. J. W. Edgar, page 4 (M-1200)
,-PROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Roland Carlson
Charles Lind
Dunk Sullivan
Rob Lemens
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant
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