                                      March    28,   1975


The Honorable Ben Z. Grant                             Opinion No.      H-   568
Chairman,  Judiciary Committee
House of Representatives                               Re: The abolition of the office
P. 0. Box 2910                                         of county school superintendent
Austin, Texas    78767                                 on a local option bas,is.

Dear   Chairman     Grant:

          You have asked three questions concernirg     the abolition of the office
of county school sqerintendent.     As, you noted, A-ttorney General Opinions
No. M-1280 (1972);.M~-1237 .(1972); H-52 (1973). a&H-545      (197:5) all held that
statutes which purport to abolish, &he office of county school superintendent      in
a single or limited number of aunties     were local or special laws pertaining
to school districts; as such they were in contravention    of article 3, section 56
of the Texas Constitution,  and therefore void.

          Your first question asks-howthe   abolition of such offices may be
accomplished    in a constitutional manner.   Specifically, you ask whether the
desired result may be reached by means of a bill of general application which
contains a local option clause.

           We answer your first-quest.ion   in tlu: affirmative:    a statute of general
application which makes the abolition of the office of county.school         superinten-
dent a local option could pass constitutional    muster.     Stanfield v. State, 18
S. W. 577 (Tex. Sup. 1892),; Trimmier     v. Carleton,     296 S. W., 1070, 1080 (Tex.
Sup. 1927), 53 Tex. Jur. 2d, Statutes 5 39.       Section 17.64 of the Education
Code which provides for abolition of these offices is an example of such a
statute.

          Your    second question    asks:

                    [W] hen such offices are aboli.shed,  is art. 2~6881-1,
                    sets.  1-4, V. T. C. S. applicable in determining
                    which records are to remain in the files for business
                    purposes in the county judge’s office and which records
                    are to be transferred  to the independent~~school district?

          Section   4 of article   2.6881-L   V. T. C. S. , provides:

                    All school records of the original independent and/or
                    common school district shall be transferred   to the
                    control and custody of the independent school district


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The Honorable    Ben Z.   Grant   - Page 2    (H-568)




                  office,  save and except the original financial records
                  which shall be retained by the county treasurer,       and
                  thereafter   the county judge shall be required to make no
                  records or reports but said reports shall be made by
                  the superintendent of such independent school district;
                  that as soon as practicable     after the effective date of
                  this Act, all remaining    state funds in the hands of the
                  county board of education shall be transferred       by the county
                  treasurer   and the county judge to the County Independent
                  School District’s   Administration     account.

           This statute is applicable to a county in which the office of county
school superintsndent    and the county school board have been abolished.        In
addition, there mu& be in existence a single county-w,ide independent school
district and no commoa school districts.      If the preceding and all other require-
ments of the statut.e are met, section 4 provides-that     the original financial
records of the~(former)    school district are to remain in the hands of the county
treasurer;   all other school records ar,e to be transferred    to the control and
custody of the independent school district office.

          It is our opinion, therefore,  that if a county falls within the provisions
of article 2688i~-1, then section 4 of that statute would govern the storage and
transfer of school records~which     were created during the period when there
was a county school superintendent and a county school board.

          Your third qti stion asks:

                  [ I] s it permissible  for a duly elected County School
                  Superintendent to resign and close the office when
                  all audits ,are completed~ and all records have been
                  filed in the’proper   order and approved by ~the
                  Texas Education Agency,       the,~County Judge, and the
                  Independent School Board Superintendent?

           Article 16, section 17 of the Texas Constitution provides that I([ a] 11
officers within this State shall continue to perform the duties of their offices
until their successors      shall be duly qualified. ‘I This.provisidn     has been
 consistentlyinterpr,eted     as meaning that an officer whose resignation       has been
tendered to and accepted by proper authorities         continues in office and is not
released~ from its duties and responsibilities       until his successor    is appointed
or chosen and qualifiers.       Jones v. City of Jefferson,   1 S. W. 903 (Tex. Sup.
1686); Keen v. Featherston,        69 S. W. 983 (Tex. Civ. App. 1902, writ ref’d);
McGhee v. Dickey,        2.3S.W.~ 404~(Tex.   Civ. App. 1893, no writ); and Plains
Common Consol.        School Dist. No. 1 of Yoakum County v. Hayhurst,          lr
           322 (Tex.    Civ. App. -- Amarillo     1938, no writ).    See also, Attorney




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The Honorable    Ben Z.       Grant - Page        3      (H-568)




General   Opinions    V-760    (1949);    O-410       (1939),   O-789     (1939).

         It is clear that article 16, section 17 of the Texas Constitution
compels the conclusion that a duly elected county school superintendent
may not resign the position and close the office; rather,    that officer must
continue to fulfill his duties until a successor has been duly qualified.

          We therefore        answer     your third question            in the negative.

                                         SUMMARY

                     The Texas Constitution permits a statute of general
                     application which provides for the abolition of the office
                     of county school superintendent on a local option basis.
                     Section 17.64 of the Education Code is an example of
                     such a statute.

                     For those counties to which it applies, art. 2686i-1,
                     V.T.C.S.,   governs where school records are to be
                     stored and transferred.

                     A county school superintendent  may not resign his
                     position and terminate the operation of his office.


                                                                Very    truly yours,




APPROVED:




C . ROBERT HEATH,             Chairman
Opinion Committee


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