Hon. J. W. Edgar                     Opinion No. C- 708
Commissioner of Education
Texas Education Agency               Re:   When, under Section 2(b)
Austin, Texas                              of Article 2688~, Vernon's
                                           Civil Statutes, the abolish-
                                           ment of the office of County
                                           Superintendent becomes ef-
                                           fective, do Articles 2701
                                           and 3888, Vernon's Civil
                                           Statutes, apply: 1. To
                                           constitute the County Judge
                                           as ex-officio County Super-
                                           intendent and related ques-
Dear Dr. Edgar:                            tions.
          By recent letter you have requested an opinion in
regard to the above stated matter. We quote from your letter
as follows:
          11
            . . .
          "Presently, we are concerned with Section
     2(b), Article 2688L, (H.B. 412, 59th Legislature,
     R.S., 1965) which by bracketing applies to Childress
     County. The Office of County Superintendent is
     abolished by that section, effective upon the
     expiration of the present county superintendent's
     term of office--which is December 31, 1966, no
     vacancy occurring.
          II
            . . .
          'In the county preparation and necessary
     approval by this Agency of the 1966-67 County
     Administration budget for Childress Count
     (financed by State Available School Funds7 ,
     we need to know and would appreciate receiving
     an opinion from your Office on the following:
          "When, under Section 2(b) of Article 26881.
     the abolishment of the office of county superin-
     tendent becomes effective, do Articles 2701 and
     3888 apply:
                            -3418-
Hon. J. W. Edgar, page 2                      (C-708)


          "1 . TO constitute the county judge as
               ex-officio county superintendent.
          "2.   To determine salary of the ex-officio
                county, and an assistant ex-officio
                superintendent, if any.
          "3. To determine an office and travel ex-
              pense allowance for ex-officio county
              superintendent.
          "4. Or: Shall the county judge alone serve
              as ex-officio county superintendent
              without salary and without office and
              travel expense allowance, as such-l'
          Section 2(b) of Article 2688L, Vernon's Civil Statutes,
is quoted as follows:
          "(b) The office of county superintendent
     in all counties having a po ulation of not less
     than 8,399 nor more than 8,t 22 according to the
     last Federal Census is abolished. The office
     shall be abolished upon the expiration of the
     present county superintendent's term of office."
          Standing alone, all this Section does is abolish the
office of County Superintendent in Childress County, at the ex-
piration of the present incumbent's term. However, Section 3 of
Article 2688~, Vernon's Civil Statutes, should be taken into con-
sideration, and is quoted as follows:
                 ._-L._   -..---I..L--A--L-             L-T>>_-   -nn,--
          "The counr;ysuperlntanoents nololng o111ce
     in the counties included in this Act on the ef-
     fective date of this Act shall serve until the
     expiration of the term for which they were
     elected. However, if a vacancy occurs before
     the explratlon of the term, the office of county
     superintendent shall cease to exist and the
     duties of the office shall be performed by the
     county judge as ex-officio county superintendent
     after that time." (Emphasis added)
          Clearly, this Section provides for the duties of the
county superintendent to be placed upon the county judge in the
counties covered by the act, including Childress County, if a
vacancy occurs before the expiration of the present term. Under
the prior law if a vacancy occurred another individual was elected
by the voters to fill out the unexpired term. Attorney General's
                                              -3419-
       .     .




Hon. J. W. Edgar, page 3    (C-708)


Opinion No. C-321 (1964) discusses this problem.
          Additional facts submitted by your office, and from
the County Attorney of Childress County, Hon. Clarence L. Darter,
show that Childress County has no common school districts and
has one county-wide independent school district. Article 2688~,
the article in question, abolished the office of County School
Superintendent, but nothing is said concerning the County School
Board in Childress County.
          In the same session of the Legislature (1965), Article
26881-1, Vernon's Civil Statutes, was enacted and is quoted, in
part, as follows:
           "Section 1.   This Act applies to a county
          "(1) if the office of county superin-
     tendent and the county school board has been
     abolished in the county, and
                              -
          "(2) if the county has one county-wide
     independent school district and no common
     school district.
          "Sec. 2. The office of ex-officio county
     superintendent is abolished upon the effective
     date of this Act."
          In order for the above statute to apply to any county,
four conditions must be met. (1) The office of county superin-
tendent must be abolished by the Legislature, or the voters.
i;)thyvo;z;;ty School Board must be abolished by the Legislature,
                (3) The county must have no common school districts.
(4) The county must have one county-wide independent school district.
          Childress County has met conditions (l), (3) and (4),
but the County School Board is still legally in existence, there-
fore, it is our opinion that Article 26881-l does not apply to
Chlldress County.
          Article 2701, Vernon's Civil Statutes, provides for
an ex-officio superintendent in counties which do not have a
county superintendent, Article 2701, Vernon's Civil Statutes,
is quoted, In part, as follows:
          'In each county having no school superin-
     tendent, the county judge shall be ex-officio
     county superintendent and shall perform all the

                            -3420-
                                                 .      .




Hon. J. W. Edgar, page 4 (C-708)


     duties required of the county superintendent in
     this chapter. . . .The county board shall name
     or appoint an assistant to the ex-officio county
     superintendent, . .The salary of the ex-officio
     superintendent . . .the salary of the assistant
     . . -and the office and traveling expenses .
     in all counties in Texas shall be from and after
     September 1, 1947, paid from the State and County
     Available School Fund. . . .' (Emphasis added)
          It is our opinion, based upon the language of Article
2701 and the relevant sections of Article 2688L (quoted above),
that it was the Intent of the Legislature to constitute the County
Judge of Chlldress County as ex-officio county superintendent
when the present county superintendent's term expires, or sooner,
if a vacancy occurs. Obviously the Le islature was aware of
Article 2701 when it enacted Article 2f88L. The Legislature in
enacting, amending, or repealing a statute, may be presumed to
have known or was familiar with existing statutes. Cain v.
State, 20 Tex. 55 (1857); Cole v. State, 106 Tex. 472,
s.w.1036 (19143 .
           Question number 1 (above) must therefore be answered
in the affirmative. An analysis of Article 3888, Vernon's
Civil Statutes, must be made in order to answer the second and
third questions.
          Article 3888, Vernon's Civil Statutes, Is quoted, in
part, as follows:
          'In a county where the county judge acts
     as ex-officio county superintendent . . .he
     shall receive . . .in addition to all other
     compensation . , .not more than two thousand
     six hundred ($2,600.00) dollars a year . . .
     In such a county an ex-officio assistant super-
     intendent . . .shall receive,not more than two
     thousand, six hundred ($2,600:00) dollars a year
     as the county board of school trustees . . .may
     provide.
          "The county judge while acting as ex-officio
     county superintendent , . .for office and traveling
     expenses may receive an amount not to exceed one
     thousand, fifty ($1,050.00) dollars a year, as
     the county board of trustees :. .may provide."
          Article 3888 has been held by this office to apply to
Section l(b) of Article 2688e, Vernon's Civil Statutes, where
                           -3421-
Hon. J. W. Ed&ar, page 5   (C-708)


the Legislature did not specifically set out the salary, etc.,
for an ex-officio county superintendent, once the office of
county superintendent had been abolished b' the voters of a
county. Attorney General's Opinion No. C-i 1 (1963).
          This office has also held that it is permissive rather
than mandatory for a county school board to name or appoint an
assistant ex-officio superintendent, under the terms of Article
2701 or Article 3888, Vernon's Civil Statutes. Attorney Gsneral's
Opinion No. v-382 (1947).
          Based upon an analysis of Article 3888 and the above
prior opinions, it is our opinion that the salary of the ex-
officio superintendent and his assistant, if one is appointed
by the county board of school trustees, is controlled by Article
3888. It is our further opinion that Article 3888 controls the
amount of office and travel expense of the ex-officio superintendent.
          The final question listed above (4) need not be answered
in light of the above stated opinions.
                     SUMMARY    -
          Articles 2701 and 3888, Vernon's Civil Statutes,
     apply to Section 2(b) of Article 2688~, when the
     abolishment of the office of county superintendent
     becomes effective.
                            Very truly yours,
                            WAGGONER CARR
                            Attorney General



JCMcC:mkh
APPROVED:
OPINION COMMITTEE
w . v. Geppert, Chairman
John Reeves
Robert iQower8
Phillip Crawford
Gordon Cass
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
                           -3422-
