Gerald    C. Mann




         Hon. Louis FI. Crump           This Opinion Modifies Opinion
         County attorney                0-765 due to amendment of Law.
          oleman County                 See also V-1051
         Eoleman, Texas
                                        Opinion No. O-4595
                                        Re:   Employment of school        super-
                                        intendent  by consolidated        common
         Dear Sir:                      school district.

                      We have received   your   letter    of   May 12,   1942,    which
         we quote    in part as follows:

                     "In January 1942 the board of trustees          in a
              common consolidated       school   district    in Coleman
              County, Texaq, entered        into a contract     with the
              school    superintendent    employing     him to continue
              in such capacity      for the school year 1942-43.
              TYO new trustees      were elected      in A pril 1942 and
              have duly qualified       as such jlithin    the time pre-
              scribed    by law.    Up to the present      time this con-
              tract   has not been presented        to the County Super-
              intendent    for his approval.

                    "IS this contract  valid and binding  against
              the board of trustees   in view of the fact that two
              new members have been elected   and taken office
              since the date of such contract?"

                     In your letter     you cite ,Rrticle 2750a-1,        Vernon's
         Annotated   Civil  Statutes,    which reads as follows:

                     "That trustees       of any Common School District
              or Consolidated         Common School District      shall
              have authority         to make contracts    for a period    of
              time not in excess         of two (2) years with princi-
              pals     superintendents,       and teachers    of said Com-
              mon Achool Districts         or Consolidated     Common School
              Districts,       provided   that such contracts      shall be
              approved by the County Superintendent.
              tract    may be signed bv the Trustee s of,=-
              School Districts         or Common Consolidated      Schzol Di.s-
              ms         until    the newly elected    trustees    have aual$,-
              fied and taken the oath of office.              Acts 1941,
Hon. Louis    M. Crump, page 2



      47th Leg.,     S.B.   #126,   1 1.    (Emphasis    supplied)

            This department held in opinion      No* 0-765 (confer-
ence opinion    No. 3069) that a provision    of Article   2750a
(Acts 1937, 45th Leg.,     Ch. 267, I 11, similar    to the one un-
derscored   above, was unconstitutional    because of the defect-
Ive caption   of the act.    The 47th Legislature    apparently   to
remedy this defect    passed Senate Bill   126. (Article     2750a-1)

           You wish to know whether the provisions    of Article
2750a-1 affect  the validity  of the contract  under considera-
tion.   We are of the opinion  that this question   should be
answered in the negative.

              The language used by the Legislature              in Article
2750a-1 very plainly         indicates     that the feature       sought to be
remedied was the practice           whereby defeated       school   trustees
would join with a minority           of the new board in signing           con-
tracts    before    the Qewly elected”         trustee   could qualify.         HOW-
ever,   it is obvious       that there can be no “new elected”             trus-
tee until     after    the election    on the first      Saturday in ,April
in each year as provided          in Article      2745.    The contract      in
question    was entered      into in January;       therefore,     there were
no “newly elected”        trustees.      It follows     that this provision
of Rrticle     2750a-1 is not applicable.             Opinion No. O-04.

             You state in your letter         that the contract       has not
been presented       tQ the county superintendent          for his approval.
Articles    2750a and 2750a-1 authorize          contracts     of this nature,
and provide     “that such contracts       shall be approved by the
County Superintendent       .I’ No time limit       is specified     as to when
such contracts       should be presented      to the county superintend-
ent.     Apparently,    a reasonable    time was intended,        and we do
not believe     that such reasonable       time has passed,       especially
fn view of the fact that the time covered              by the contract       does
not start    to run until      the school year 1942-1943.

             We quote the following   from the opinion  of the court
in Mller     et al. v. Smiley et al.,    65 S.W.(2d) 417 (W.E.Ref.1:
            I,. . . But we cannot bring ourselves          to believe
      that a mere fortuitous     change in the membership of the
      board, prior    to the formal approval      by the county super-
      intendent   of the lawful   contracts    theretofore    made by
      the board    permits  such contracts     to be arbitrarily      re-
      voked by Ihe new board and the county superintendent
      without   any charge of fraud,     imposition,     or mutual mis-
      take, and with no hearing      given the teachers      of such
      intended   revocation  of their    contracts.
Hon. Louis    M. Grump, page 3



              "It seems to us that to hold otherwise         would
       be to violate     the plainest   principles    of fairness
       and justice,     and to acquiesce    in arbitrary    and
       dictatorial     powers not conferred      by our statutes
       upon the boards of school       trustees,    or county su-
       perintendents."

             In view of the foregoing        you are respectfully      ad-
vised that a contract        between the board of trustees        of a
common school district        or consolidated     common school    district
and a school    superintendent      entered   into prior  to the election
of trustees    under Articles      2745 and 2750a-1 is not of itself
invalid   even though the contract        has not at the time of such
election    or qualification      of such new trustees    been approved
by the county superintendent.

             This opinion  is   expressly      limited    to the fact   situa-
tion   as disclosed   in your   letter    of   request.

                                           Very truly      yours

                                           ATTORNEYGENERALOF TEXAS

                                           By /s/    George W. Sparks
                                           George    W. Sparks, Assistant

APPROVEDMAY 26, 1942
/s/ Gerald C. Mann
ATTORNEYGENERALOF TEXAS

APPROVED: OPINION COMMITTEE
BY:       BWB, CHAIRMAN

GWS:mtiwb
