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            Dr. J.' W. Edgar                               Opinion No. U-733
            Commissioner of Education
            201 East 11th Street                           Rer   Whether the Commissioners
            Austin, Texas' 78711                                 Court of Johnson County may
                                                                 by its order abolish the
                                                                 office  of County School
                                                                 Superintendent  which Is
                                                                 otherwise to be filled    at
                                                                 the General Election   in
            Dear Dr. Edgar:                                      November, 1970.
                             In connection with your recent request for an opinion                  of
            this   office,      we have been supplied with the.following.facts:
                      On November 13, 1897, thd Commissioners Court of Johnson
            County passed an order which reads, In Its relevent.portlon, as
            follows:
                          "It is ordered by the Court that the Office
                   of County School Superintendent   of Public Instruct
                   tlon be and the same is hereby created,     and it is
                   ordered that a county school superintendent     be
                   elected at each general el$ctlon   hereafter   the
                   making of this order ..~. .
            This order        Is recorded   In Book 5,     page 133,     of the Minutes of the
            Court.
                      You have further advised us that on July.13,                    1970,   the
            Commlssioners Court adopted the following resolution:

                         "BE IT RESOLVEDthat the office  of County
                   School Superintendent of Johnson County, Texas,
                   be and the same is hereby abolished as recommended
                   by the Colrt on February 2, 1970, effective  December
                   31, 1970.
            This resolution        is recorded   in volume 15,         page 514,   of the Minutes of
            the Court.
                      We have also been furnished a copy of a resolution of the
            Johnson County School Board adopted on September 25, 1970, in favor

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Dr. J. W. Edgar, page 2             (M-733)


of abolishing    the office   of County Superintendent as of December 31,
1970.   In  this  connection,   you have advised us that under normal
procedures the office      of County Superintendent   of Johnson County
would be filled    at the general election    In November, 1970.
          Records at hand furnished by the Texas Education Agency
indicate that the scholastic  population   of Johnson County for the
year 1970-71 Is in excess of 10,000, and that the scholastic    pop-
ulation of that county has been in excess of 3,000 at all times
since 1923-24.   We do not have at hand records going back’ far enough
to show at what time the scholastic    population first exceeded 3,000.
          You have requested    our opinion   on the following      questions:
            ‘The authority of the Commissioners Court of
     Johnson County, if any, to abolish the office   of
     elective   County Superintendent in Johnson County.”
          By supplementary letter   you have requested      our opinion
upon the following additional  questlon#
            “Where the county school board also goes on
     record as favoring the abolishment of office         of
     elective   county school superintendent,     effective
     at the end of its present term (December 31, X970),
     and the county judge agrees to serve thereafter         as
     an ex officio     county superintendent  without pay,
     may the county Judge legally      hold the position
     and/or serve in the capacity of county superintendent,
     ex officio    or- otherwise;~ under the circumstances    and
     laws lnvolved herein. ”
          We are of the opinion that the Commissioners Court of
Johnson County is without authority to abolish the elective    office
of County Superintendent of Johnson County.   Statutes  enacted in
1887 and 1889 granting to the commissioners court In each county
the power to create and the power to abolish the office   were not
included in the 1925 revlslon.
           The creation and abolishment of the office      is presently
governed by a line of statutes beginning with Section 36, Chapter
124, page 263, Acts of the 29th Legislature,      Regular Session,   1905.
Under that statute the voters     of each county , at an election   called
pursuant to a petition    to determine the matters, elected whether
the office  would be created in that county.      The statute also made
provision  for abolishing   the office.
          Section 1, Chapter 111, page 210, Acts of the 30th Legis-
lature, 1907, amended the 1905 statute and made it mandatory that
the commissioners court of every county In the state having three
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         Dr. J. W. Edgar, page 3            (M-733)


         thousand scholastic     population should provide for the ,electlon
         of a County Superintendent of Public Instruction       at each general
         election,    and provided that immediately after passage of the Act
         the court should appoint a person to serve In such office         until a
         superintendent    was elected and qualified.     This statute provided
         for a two year term of office.      No provision   for abolishing   the
         office    remained in the statute under this amendment.
                    The substance of the above statutes was codified as
         Article 2688, Revised Civil Statutes of Texas, 1925, with the
         added provision  that:
                    "In every county that shall attain three
              thousand scholastic   population or more, the com-
              missioners court shall appoint such superintendent
              who shall perform the duties of such office    until
              the election   and qualification of his successor."
                      Under Section 1, Chapter 357, page 849,     Acts of the 42nd
         Legislature,   Regular Session,  1931, Article  2688    was amended by the
         addition of a proviso relating    to the appointment     of a County Superln-
         tendent In counties having a population     In excess    of 350,000.
                      Under Section 1, Chapter 21, page 47, Acts of the 42nd
         Legislature,    3rd Called Session,  1932, Article 2688 was again amended
         to change the term of office     to four years, and to add a proviso
         reading as follows:
                    "provided .further~~that.~ln counties having a
              scholastic   population of between three thousand
              (3,000) and five thousand (5,000) schalastics,
              wherein the office    of County Superintendent has
              not been created and a Superintendent       elected,
              then In such counties the question of whether
              or not such office     Is established  shall be de-
              termined by the qualified      voters of said county
              In a special election     called therefor by the
              Commissioners Court of said countytl upon petition
              therefor   as hereinabove specified.
                      Under Section 1, Chapter 208, page 287, Acts of the 49th
         Legislature,    Regular Session,   1945, Article    2688 was further amended
         by providing that once a county established         the office  of county
         superintendent    and subsequently   the scholastic    population was de-
         termined to be less than three thousand but more than two thousand,
         the office    would continue to exist unless abolished by a majority
         vote of qualified     taxpaying voters.   Even If the vote were in favor

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Dr. J. W. Ed.gar, page 4            (M-733)


of abollshlng   the office,  it could not be abolished until the
expiration   of the term of,offlce   for which the County Superintendent
was elected or appointed.      This amendment also increased to four
years the term of superintendents      In counties having a population
In excess of 350,000.
          Effective   September 1, 1969, Article    2688 was repealed
and the substance of the article    was Incorporated   in Articles
17.41 through 17.45 of the Texas Education Code. The provisions
which make mandatory the appointment or election      of a county super-
intendent are codified   In Article  17.41.
             In our opinion,   although the office    of County Superintendent
of Public    Instruction  was provided for by order of the Commissioners
Court   In 1897, before passage of the legislation       which is now codified
as Article    17.41 of the Texas Education Code, at.such time as the
scholastic    population of Johnson County attained 3,000 in number,
the office    thereupon existed by virtue of and under the authority
of the state statute then in effect       governing the creation of such
office.     After the Act of 1907, state law made mandatory the creation
of the office     and the appointment and election     of a superintendent.
It was not necessary to call an election        on the question of whether
the office    should be created,     Marfa Independent School District      v.
Davis, 102 S.W.2d 283 (Tex.Clv.App.       1937 , error ref.)   Th 1     1
St        of the enactment of the Act of 1907 was to supersedee EE
county order, in effect      to pre-empt the field for state regulation.
           In this connection note the following   language from In
re Lane, 58 Cal.2d.99,   102, 22 Cal. Reptr.,  857, 372 P.2d 897 -
(call.sup. 1962):      ~-~~~~
            "Whenever the Legislature   has seen fit to
     adopt, a general sctieme for the regulation    of a
     particular   subject,   the entire control over what-
     ever phases of the subject are covered by state
     legislation   ceases so far as local legislation
     is concerned."     citing  Pipoloy v. Benson, 20 Cal.
     2d 366, 371, 125 P.2d 482, 147 A.L.R. 515.
            From In Re Lane, supra,       note also   the following:
             'In determining whether    the Legislature     ln-
      tended to occupy a particular       field to the exclu-
      sion of all local regulation      we may look to the
       'whole purpose and scope of     the legislative     scheme'
      and are not required to find      such an,,intent solely
      in the language used in the      statute.      citing Tolman
      v. Underhill,    39 Cal. 2d at   p. 712(6),    249 P.2-

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        Dr. J. W. Edgar, Page 5               (M-733)


             p. 283; Abbott v. City of Los Angeles, 53 Cal.
             2d 674, b82, 3 Ca,l .Reptr. 158, 349 P.2d 974.
                   In City of Baltimore     v. Sltnlk,  255 A.2d 376, a case
        dealing with a city ordinance,      the court did not apply the prlnclple
        of pre-emptlon under the facts      of the case, but did make this state-
        ment:
                     “Labels are ofttimes misleading and one may
             easily fall Into error by superimposing a class-
             ification    upon decisions   of a foreign jurisdiction,
             however, It would appear that in addition to New
             York, that California,      Massachusetts,  Ohio, Oklahoma,
             North Carolina a!d Illinois      have followed the pre-
             emption concept.       citing In re Lane, 58 Cal.2d
             99, 22 Cal.Rptr. 857, 372
             Underhill,     39 Ca.2d 708,
             v. Benson, 20 Cal.2d 366,
             515 (1942); Dudley v. City of Cambridge, 347 Mass.
             543, 199 N.E.2d 208 (1964).      Markowski v. Backstrom,
             10 Ohio Misc. 139, 226 N.E:2a 825 (1961) - ‘f - El even
             Inc. v. McClaln, 422 P.2d 455 (Okl. 19673;
             v. City of Winston-Salem, 258 N.C. 244, 128%%d
               04 ( gb )* West Chicago Street R.R. Co. v. Ill.,
             201 u!~.~5&6, 521, 26 S.Ct. 518, 50 L.Ed. 849 (1906).
                  Since the office  of county superintendent  exists solely
        under the authority of state law , that office  may be abolished  only
        pursuant to state law.
                    As pointed out In our historical     summary of Article 17.41
        and antecedent statutes,     there was a provision   in the Act of 1905
        for abolishing   the office,   but no such provision   appears in any of
        the statutes   that amended or superseded that Act.
                    Article   2688e, Vernon's Civil Statutes,    enacted as Chapter
        292 Acts of the 57th Legislature,      Regular Session,   1961, did provide
        for abolishing     the office of county superintendent.      This article  was
        repealed effective     September 1, 1969, and Its substance codified      in
        Article   17.64 of the Texas Education Code.       Under this latter article
        the office    may be abolished only upon petition     of the voters and ap-
        proval by a majority of the qualified      electors   of the proposition   that
        the office    be abolished.
                  Furthermore, Section (d) of Article   17.64 expressly   pro-
        vides that an election on the proposltions   of abolishing   the office
        may not be held during the year that a regular election    for the

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Dr. J. W. Edgar,     page 6          (M-733)


office    Is being held.    We understand that an election     for   the
office    would normally   be held in 1970.
           In view of the provisions      of Article  17.64, we are of
the opinion that the Commissioners Court of Johnson County Is
without authority     to abolish the office   of county superintendent
solely on its own order,       We are also of the opinion that the
procedure provided in Article 17.64 of the Education Code for
abolishing   the office   Is the exclusive   procedure and that it is
not available   during the year 1970.
           Your second question would appear to be based on the
premise that with the approval of the school board the commis-
sioners court may abolish the office    of county superintendent,
In the light of controlling   statutes discussed herein our opinion
Is to the contrary,   as the resolution  adopted by the school board
can have no legal effect.
              Article 17.47 of the Education Code Is derived from
Article     2701, Vernon’s Civil Statutes , and reads as follows:
               “In any county in which no county superin-
         tendent has been elected or appointed,   the county
         judge shall be ex officio  county superintendent
         and shall perform all the duties required of that
         0fMce.”
           Our attention   has beendirected    to Article 17.47 of the
Education Code and the pro~positlon urged~-that iffy no- personhas-been
elected  to the office   of county superintendent   for the term beginning
January 1, 1971, the county judge shall be ex-officio      county superin-
tendent.
            We do not agree with that construction      of Article  17.47.
To so construe the article    would in effect     permit It to provide
an alternative    means of abolishing   the office,   a procedure ex-
plicitly   provided for in Article    17.64 of the Code.
            In our view Article   17.47 must be read and construed in
the context of the subchapter of which It Is a part.        That sub-
chapter provides for creating or continuing      the office  of county
superintendent    under various situatlons.    Article  17.47 Is then
Included simply to provide that if the office       has never been created
either under mandatory provisions      of the chapter or by decision   of
the voters after a petition,     then, and only then, will the county
judge serve as ex-officio     superintendent.   Stated in another way,
Article   17.47 is primarily Intended to operate in a county where
the office    of county superintendent   has not been created and does
not exist.
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            Dr. J. W. Edgar,        page 7          (M-733)


                       Article 17.47  is clearly    not intended to facilitate
            abolishment of the office   of county superintendent.       The legis-
            lature has clearly  and explicitly     provided for abolishing     the
            office,  and for the county judge assuming the .dutles,      in Article
            17.64(a)  and (b), part of the same subchapter.      The Legislature
            would not Include Article   17.47   for the same purpose.
                       Even if the proposition    were urged that Article    17.47
            was enacted   to provide for assumption of the duties of county
            superintendent   by the county judge at any time there is no in-
            cumbent, nevertheless    It could not take effect   until the abollsh-
            ment of the office    of county superintendent   becomes effective.
            Attorney General’s    Opinion C-768 (1966).    That office  has not
            been abolished   in Johnson County under the governing statutes.
                         An examination of the legislative   history   of Article
            2701 I  from  which Article  17.47 of  the Code was  derived,  supports
            our view of its function.      The forerunner of this statute was first
            enacted as Section 42, Chapter 124, page 263, Acts of the 29th
            Legislature,    Regular Session, 1905.
                          Section    42 of that statute   reads as followsr

                         “In each county in this State having no school
                 superintendent    the county judge shall be an ex-
                 officio    county superintendent  of public instruction,
                 and shall perform all the duties requlsed of the
                 county superintendent     In this chapter.
                       In our view the language of this statute  Indicates that
            it is clearly  directed  to the situation where a county has never
            had a county superintendent , and is not a vehicle to abolish that
            office.
                        This view is’ reinforced     by the fact that in Section 36
            of the same Act provision       is made for abolishing       the office  by
            petitlondxection            of the voters.    It may be that If that
            statutory   provision    for abolishing    the office    had been followed
            the duties of county superintendent         would have devolved upon the
            county judge by virtue of Section 42, but again we point out that
            in Johnson County the presently authorized           statutory   procedure for
            abolishing    the office    has not been followed.
                        The 1907 amendment to the statute of         1905 that provided
            for the office   of county superlntendent  omitted        the provision  for
            abolishing   the office that was Included in the         1905 statute.   The
            Legislature   In 1961 apparently felt the need of         a statutory procedure

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Dr. J. W. Edgar,   page 8             (M-733)




for abolishing   the office    and provided such a procedure under
Chapter 292, Acts of the 57th Legislature,       Regular Session,   1961.
This Act was published as Article       2688e in Vernon's Civil Statutes,
and later codified     as Article  17.64 of the Texas Education Code.
This is presently     the only means authorized by statute for ab-
olishing  the office,    and It was not available   In Johnson County
In 1970, the regular1      scheduled year for an election   to fill   the
office.   Art. 17.64(df,    Tex. Educ. Code.
            There are two constitutional provisions which preclude
the County Judge from assuming the duties of county superintendent
as conditions   now exist in Johnson County.
            The first   is Article    XVI, Section 40, which prohibits
one person holding or exercising        at the same time more than one
civil office   of emolument except under certain conditions       not
applicable   here.    The office   of County Superintendent continues
to exist In Johnson County, hence the same person may not exercise
the powers of that office       while holding the office  of County Judge.
Each office   Is a Civil Office of emolument and the prohibition
applies even though the person seeking to perform the duties of
both offices   rejects    corn ensation for one office.   Attorney General's
Opinion No. W-109 (1957p.
            The other constitutional      provision   is Article   XVI, Section
17.   Under  that provision   all  officers    within   this State  shall con-
tinue to perform the duties of their offices          until their successors
have been duly qualified.      Therefore the incumbent In the office         of
county superintendent     is charged with performing the duties of that
office until a successor has been lawfully selected and has qualified,
thus precluding    the County Judge from assuming those duties.
                        SUMMARY
          The Commissioners Court of Johnson County is
     without authority  to abolish by Its order the office
     of County Superintendent   of Johnson County.
          The office, even though initially   created by an
     order of the commissioners court in 1897, now exists
     by virtue of and subject to the provisions    of Article
     17.41 of the Texas Education Code.
          The office  therefore  may be abolished only pur-
     suant to Article   17.64 of the Education Code.    Set -
     tion (d) of that article    prohlblts an election  to
     abolish the office    in the same year that the office

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Dr. J. W. Edgar,   page 9           (M-733)


     is due to be filled    at a regular election; hence
     the office    could not be abolished during the
     calendar year 1970, even under the provisions    of
     Article   17.64.

           The resolution of the county school board
     favoring abolishing  the office  has no legal effect
     in view of the provisions   of the cited statutes.
             As long as the office   of County Supertitendent
     of Johnson County continues to exist,         as we have
     held that It does at this time, the county judge
     may not serve also as county superintendent,         ex
     officio    or otherwise,  with or without pay, as this
     is precluded by the provisions        of Article  XVI,
     Section 40 of the Constitution        of the State of
     Texas.     The provisions   of Article   XVI, Section 17,
     also preclude the county           e from assuming the
     duties of the county               endent.




                                    I'
Prepared by James S. Swearingen
Assistant Attorney General
APPROVED3
OPINIONCOMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
James McCoy
S. J. Aronson
Max Hamilton
Houghton Brownlee
MEADEF. GRIFFIN
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLAWHITE
First Assistant
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