          THE       ATBXBRNEY          GENERAL
                             TEXAS




Hon. Cecil M. Pruett                  Opinion No. M- 1237
Hutchinson County Attorney
630 North Deahl Street                Re:   Whether the office of
Borger, Texas 79007                         Hutchinson County
                                            Superintendent of
                                            Schools was abolished
                                            by Article 2688aa,
                                            Vernon's Civil Statutes,
Dear Mr.. Pruett:                           and related question

          Your recent letter requesting the opinion of this
office concerning the referenced matter states as follows:


          "Our County School Board has requested that
     I secure an opinion from you as to the status of
     the Office of County Superintendent of Schools in
     Hutchinson County.

           "In 1970 C. J. Jackson was elected to and
     thereafter duly qualified for such office for the
     four year term beginning January 1, 1971, and
     ending December 31, 1974. The 62nd Legislature
     in 1971 passed H.B. No. 645 (Acts of the Legisla-
     ture, Page 1554) codified as R. S. Art. 2688aa..
     in part as follows:

           'Section 1. In all counties having a popu-
     lation of not less than 34,103 nor more than
     35,310, and all counties having a population of
     not less than 24,400 nor more than 24,600, accord-
     ing to the last preceding Federal Census, the
     Office of County Superintendent of Schools is
     abolished.   The duties of the Office shall be
     performed by the County Judge as Ex-Officio
     County Superintendent.'


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Hon. Cecil M. Pruett, page 2, (M-1237)



          'Sec. 2. As used in this Act, "the last
    preceding Federal Census" means the 1970 census
    or any future decennial federal census. This is
    despite any legislation that has been or may be
    enacted during any session of the 62nd Legislature
    delaying the effectiveness of the 1970 census for
    general state and local governmental purposes.'

         'Sec. 3. The effective date of this Act shall
    be December 31, 1971.'

            "Such Act was approved by the Governor May 26,
    1971.

         "The 1970 Federal Census shows Hutchinson
    County population as 24,443 and therefore the
    County is included in the population limitations
    set out in the Act.

          "Under date of September 23, 1971, C. J.
    Jackson tendered to the Commissioner's Court his
    written resignation as County Superintendent of
    Schools, effective immediately, and on September
    27, 1971, the Commissioners accepted his resigna-
    tion. The Court did not make an appointment to
    fill the vacancy but permitted the duties of the
    office for the remainder of 1971 to be administered
    by Jackie Campbell, the assistant to C. J. Jackson,
    under the provisions of R. S. Art. 6252-l.

         "By letter dated September 27, 1971, Norman
    Coffee, County Judge, .makes inquiry of Dr. J. W.
    Edgar, Commissioner of Education, as to said H. B.
    No. 645, which inquiry was answered by Chester E.
    Ollison, Legal Counselor, by letter dated October
    4, 1971, the last paragraph of which is as follows:

          'We believe this law would operate to make
    House Bill 645, referred to in your letter, to
    abolish the office of elective county superintendent


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Hon. Cecil M. Pruett, page 3, (M-1237)



     as provided in Section 3 thereof . . . on December
     31, 1971.'

          "Norman Coffee, County Judge, qualified as
     Bx-Officio County Superintendent of Schools and
     assumed the office on January 1, 1972, and is now
     serving as such.

          "Question No. 1. Was the office of County
     Superintendent of Schools abolished in Hutchinson
     County by such HiB. No. 6451

          "Question No. 2. If such office was abolished
     by such H.B. No. 645, was it abolished,
          (a) As of December 31, 1971, as set out in the
               Bill? or
          (b) As of December 31, 1974, at the end of the
               four year term."

          It is our opinion that Article 2688aa, Vernon's
Civil Statutes, as narrowly restricted in its application to
only two Texas counties, is unconstitutional, for the reason
that it is a local or special law regulating the management
of public schools in contravention of Section 56 of Article
III of the Constitution of Texas. In Miller v. County of
El Paso, 136 Tex. 370, 150 S.W.2d 1000 (19411, the Supreme
Court of Texas stated the rule regarding this type of legis-
lation as follows:

          "Notwithstanding the above constitutional
    provision (Section 56 of Article III), 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 or, 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



                           -6062-
Hon.   Cecil   M.   PrUett,   page 4, (M-1237)



       designated in the Act, and the classification must
       be broad enough to include a substantial class
       and must be based on characteristics 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 be a substantial reason for the legislation.
       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. City
       of Fort Worth v. Bobbitt, 121 Texas 14, 36 S. W.
       (2d) 470, 41 S. W. (2d) 228; Bexar County v. Tynan,
       128 Texas 223, 97 S. W. (2d) 467; Clark v. Finley,
       Comptroller, 93 Texas 171, 178; 54 S. W. 343,
       Supreme Lodge United Benevolent Assn. v. Johnson,
       98 Texas 1, 18 S. W. 18; Smith v. State, 120 Texas
       Crim. Rep. 431, 49 S. W. (2d) 739; Randolph v.
       State, 36 S. W. (2d) 484; Fritter v. West, 65
       S. W. (2d) 414 (writ refused): State v. Hall, 76
       S. W. (2d) 880; Wood v. Marfa Ind. School Dist.,
       123 S. W. (2d) 429 . . . ." 136 Tex. at 374, 150
       S.W.2d at 1001-1002.

See, also, Attorney General's Opinions Nos. M-1200 (1972),
M-745 (1970), M-488 (1969). C-481 (1965). and C-244 (1964).

          In view of the foregoing, you are advised that, be-
cause of its constitutional infirmity, Article 2688aa does not
operate to abolish the office of county school superintendent
in Hutchinson County.

           It is not necessary for us to answer your second
question, inasmuch as that question was predicated on an
affirmative answer to your first question.



            Article 2688aa, Vernon's Civil Statutes, is
       unconstitutional and therefore does not operate



                                   -6063-
    I



        ‘   .
1




                Hon. Cecil M. Pruett, page 5,    (M-1237)




                     to abolish the office of county school superintendent
                     in Hutchinson County.

                                                Ver)r/pruly yours,




                                                Att&ey      General of Texas

                Prepared by Austin C. Bray, Jr.
                Assistant Attorney General

                APPROVED:
                OPINION COMMITTEE

                Kerns Taylor, Chairman
                W. E. Allen, Co-Chairman

                Jim Swearingen
                Gordon Cass
                Scott Garrison
                Bill Flanary

                SAMUEL D. MCDANIEL
                Staff Legal Assistant

                ALFRED WALKER
                Executive Assistant

                NOLA WHITE
                First Assistant




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