               TW~EATNBRNEYGENERAL
                         OPm:XAS
                              AUS-I'IN.     TEXAS       78711




The Honorable   M. L. Brockette                           Opinion      No.   H-   633
Commissioner    of Education
Texas Education   Agency                                  Re:    The procedure       to be
201 East Eleventh   Street                                followed   in filling the office
Austin,  Texas   78701                                    of county school superintendent
                                                          when a vacancy       in this office
                                                          occurs.

Dear   Mr.   Brockette:

         You have requested     our opi,nion as to the filling of the position                of
County School Superintendent       in Palo Pinto County where no one was                     elected
to the office at the last election.

         You inform       us that:

                   The last duly elected     County School Superintendent
                   of Palo Pinto County resigned       his position   in 1972.
                   His administrative     assistant  was appointed     to take
                   care of the office until a new superintendent         could
                   be elected.    No one ran for the office nor qualified
                   in the primaries,     so no candidate   was certified     on
                   the November      1972 or 1974 General    Ballot.     No
                   el.ection has been held in Pal.0 Pinto County to
                   abo:lish the el.ective office of county superintendent.

         You ask:

                   Does the County Judge of Palo Pinto County succeed
                   to t:he vacant position  as ex officio   county superintendent
                   - - or does 1:h.zCommissioners        Court appoint a qualified
                   person to fill the position  -- until the next general    election?

         Article    17. 47,    Texas      Education    Code     provides:

                   In any     county      in which    no county     superintendent      has been




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    The Honorable    M.   L.   Brockette   - Page    2   (H-633)




                     elected    or appointed,   the county judge shall be ex officio
                     county    superintendent    and shall perform all the duties re-
                     quired    of that office

             However,    this office has previously     held that article    17. 47 applies only
    where the office of county school superintendent           has never been created       in a
    county or where the office,      once established,      has been abolished      by an election
    held in accordance     with the procedures     established    by article   17.64, Texas Educ.
    Code.    That opinion held that where the office of superintendent            is still in ex-
    istence,   as is the case in Palo Pinto County,        the county judge may not assume
    the position   of ex officio  superintendent.     Attorney    General    Opinion M-733
    (1970).

              Accordingly,     where the office of county superintendent         is still existent,
    a vacancy     in the office   should be filled by the commissioners          court under the
    authority    of article   2355, V. T. C. S.

                                       SUMMARY

                     Where the office of county school superintendent       has
                     been created    and is still in existence,  the county judge
                     may not assume the duties of the superintendent        when
                     a vacancy   in the office occurs.     The vacancy   should be
                     filled by the commissioners      court of the county.

                                                         Very   truly   yours,




                                  alrman
    Opinion   Committee

    jad




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