Mr.   Fred   P.   Holub       Opinion No. M-745
County Attorney
Matagorda County              R0:   Whether the office of County
Bay City, Texas 77414               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 Superintend-
ent 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 Super-
intendent 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 Superin-
tendent 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 manage-
ment 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 legisla-
tionr

           "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 par-
     ticular 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 Consti-
tution. 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 popu-
     lation 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 gen-
     eral 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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