Hon. Charles H. Jungmichel        Opinion No.   M-1231
House of Representatives
Austin, Texas 78711               Re:   Salaries of assistant
                                        school superintendents
                                        and whether Article 2700e-16,
                                        V.C.S., is repealed by
                                        Section 17.52, Texas Edu-
Dear Representative Jungmichel:         cation Code.

          1n your recent opinion request you asked whether Chapter
487, Acts of the 62nd Legislature, Regular Session 1971, (Article
2700e-16, Vernon's Civil Statutes) was repealed by Section 1 of
Chapter 778, Acts of the 62nd Legislature, Regular Session 1971,
(Subsection (a) of Section 17.52, Texas Education Code).

          Chapter 487, Acts 62nd Leg., R.S. 1971, or Article
2700e-16 (passed May 20, 1971, effective August 30, 1971), re-
lates to the salaries of the assistants to the county school
superintendent in certain counties and reads in part as follows:

          "Section 1. In all counties having a popu-
     lation of not less than 19,500 nor more than
     19,680 or not less than 36,100 nor more than
     36,700, according to the last preceding federal
     census, the first assistant to the county school
     superintendent is entitled to receive an annual
     salary of not more than $11,000."

Section 1 of Chapter 778 (Acts 62nd Leg., R.S. 1971, Ch. 778,
P. 2431, passed May 26, 1971, effective August 30, 1971) or Sub-
section (a) of Section 17.52 of the Texas Education Code, reads:

          "Section 1. Subsection (a), Section 17.52,
     Texas Education Code, is amended to read as follows:

          "'(a) The office budget for an appointive or
     elective county superintendent may include the
     following items:

          "'(1) Employment of a competent assistant with
     approval and confirmation of the county school

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Hon. Charles H. Jungmichel, page 2     (M-1231)



    trustees or county board of education.  In counties
    with a total population equaling or fewer than
    100,000, according to the last federal census,
    the annual salary of such assistant shall not exceed
    $6,000. In counties with a total population greater
    than 100,000, according to the last federal census,
    the annual salary of such assistant shall not exceed
    $6,500.

         "'(2) Employment of such other assistants as
    may be necessary, provided that the total sum of
    all assistants to the county superintendent does
    not exceed annually $13,000 in counties having a
    total population equaling or fewer than 100,000, nor
    $13,500 in counties having a total population greater
    than 100,000."'

          It is our opinion that Chapter 487 was not repealed by
Section 1 of Chapter 778. We first observe that Chapter 487, or
Article 2700e-16, Vernon's Civil Statutes, is a local law and is
thus unconstitutional.   It is restricted in its application to
only one of Texas' 254 counties in each of the specified popu-
lation brackets.   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 pre-
vailing 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
     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 designated in the Act, and the
     classification must be broad enough to include
     a substantial class and must be based on char-
     acteristics legitimately distinguishing such class
     from others with respect to the public purpose
     sought to be accomplished by the proposed legis-
     lation. 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

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    Hon. Charles H. Jungmichel, page 3    (M-1231)



         of giving what is, in fact, a local law the ap-
         pearance of a general law."

               In our opinion Article 2700e-16 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. See Attorney General's Opinions C-244 (1964), C-481
    (1965), M-488 (1969), M-745 (1970), and M-1200 (1972).

              You are therefore advised that Article 2700e-16,
    Vernon's Civil Statutes, is unconstitutional.  However, regard-
    less of this, since Article 2700e-16 was passed on May 20,
    1971, and Subsection (a) of Section 17.52 of the Texas Education
    Code was passed on May 26, 1971, the later statute controls and
    repeals Article 2700e-16,  In construing acts passed at the
    same session of the Legislature which do not have an express
    repeal and which have an irreconcilable conflict between them,
    the one passing the last House of the Legislature later in time
    will control and be the effective act, regardless of when it
    was approved or signed or to become effective.  Townsend v.
    Terrell, 118 Tex. 463, 16 S.W.Zd 1063 (1929); Wright v. Broeter,
    145 Tex. 142, 196 S.W.2d 82 (1946); Ex parte Maria de Jesus de
    la 0, 227 S.W.2d 212 (1950). Your question is therefore answered
    in the affirmative.

                             SUMMARY

              Chapter 487, Acts 62nd Leg., R.S. 1971 (codi-
         fied by Vernon as Art. 2700e-16, V.C.S.), is a
         local law, restricted in its application to only
         one county out of Texas' 254 counties in each of
         the specified population brackets, and is unconsti-
         tutional.  In any event, being prior in time of
         passage, it is repealed by Section 17.52, Subsection
         (a) of the Texas Education Code. ~




    Prepared by Linda Neeley
    Assistant Attorney General


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Hon. Charles H. Jungmichel, page 4   (M-1231)



APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jim Maxwell
Harriet Burke
James Hackney
Jim Swearingen

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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