   WVILL   WILSON           AusTIN "' TExas
ATroRNEY      GENERAI.   December 13, 1962


     Dr. J. W. Edgar               Opinion No. WW-1495
     Commissioner of Education
     Texas Education Agency        Re:   In either of the abolishment
     Austin, Texas                       situations stated, whether
                                         the county judges are entitled
                                         to have,'anassistant as pro-
                                         vided in Article 3888, Ver-
                                         non's Civil Statutes, for ex
                                         officio school superintendents
     Dear Dr. Edgar:                     and related question.
               In your request for an opinion from this office you
     ask a question which is substantially as follows:
               Whether a county judge of a county subject to the
     provisions of Section 1 of Article 2688e, Vernon's Civil Statutes,
     or a county judge of a county which elects to abolish the office
     of county superintendent or ex officio county superintendent under
     the provisions of Section la of Article 2688h, Vernon's Civil
     Statutes, is authorized to have an assistant, an office and travel
     expense account as prescribed for ex officio county judges in
     Article 3888, Vernon's Civil Statutes, as amended.
               The office of ex officio county superintendent is es-
     tablished by Article 2701, Vernon's Civil Statutes, as amended,
     1953. This Article provides in part as follows:
                "In each county having no school superintendent,
           the county judge shall be ex-officio county superin-
           tendent and shall perform all the duties required of
           the county superintendent in this chapter. . .,. The
           county board shall name or appoint an assistant to
           the ex-officio county superintendent and shall pro-
           vide for office and traveling of the ex-officio super-
           inctendent. The salary of the ex-officio superintendent
           of public instruction, the salary of the assistant ex-
           officio superintendent of public instruction and the
           office and traveling expenses for the office of the ex-
           officio superintendent in all counties in Texas shall
           be from and after September 1, 1947, paid from the
           State and County Available'School Fund, and shall be
           received and retained in addition to all other compen-
           sation provided by law whether the county judge is
Dr. J. W. Edgar, page 2 (WW-1495)


    compensated on a fee or salary basis."
          The compensation of ex officio county superintendents
and assistant ex officio county superintendents is provided for
in Article 3888, Vernon's Civil Statutes, as amended, 1953. The
pertinent provisions of this Article are quoted as follows:
         "In a county where the county judge acts as
    an ex-officio county superintendent of public in-
    struction, he shall receive and retain in addition
    to all other compensation provided by law not more
    than Two Thousand, Six Hundred ($2,600.00) Dollars
    a year, as the county board of school trustees .of
    the respective counties may provide, whether he is
    compensated on a fee or salary basis. In such a
    county an ex-officio assistant superintendent of
    public instruction shall receive not more than
    Two Thousand, Six Hundred ($2,600.00) Dollars a
    year, as the county board of school trustees of
    the respective counties may provide.
         "The county judge while acting as ex-officio
    county superintendent of public instruction, 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 school trustees of
    the respective counties may provide. . . .'
          Senate Bill No. 192, 57th Leg., Regular Session, 1961,
codified as Article 2688e, Vernon's Civil Statutes, was written
in order to provide a more adequate procedure for the abolish-
ment of the office of county superintendent authorized under
the provisions of Article 2688, Vernon's Civil Statutes, as
amended. Our attention is directed to Section 1 of Article
2688e, Vernon's Civil Statutes. The provisions of Section 1 most
important to our discussion, are as follows:
         "Section 1.   a) Upon a petition of twenty-
    five per cent (25%I of the qualified voters who
    cast a vote in the Governor's race at the prece-
    ding General Election in counties of less than one
    hundred thousand (100,000) population according
    to the last Federal Census; or upon a petition of
    twenty per cent (20%) of the qualified voters who
    cast a vote in the Governor's race at the preceding
    General Election in counties of one hundred thousand
    (100,000) or more population according to the last
Dr. J. W. Edgar, page 3 (WW-l&95'):-
                                   .':
                                     i



    Federal Census, the zounty judge shall within.,
    ninety (90) days of the receipt of such petition
    call an election to determine by majority vote
    whether the office o,f cownty.superintendent (or
    ex-officio county sype~rintendent and the county
    school board in counties, having an..ex-officio
    county superintendent) shall be abolished.    . . .

         "(c) Where the majority of the qualified
    electors approve the abolition of the office of
    the ex-officio county superintendent and county
    school board, the duties of such abolished offices
    as may still be required by law shall be and be-
    come the dutiesof   the office of county judge of
    said ~county upon the expiration of the current
    term of office of the ex-officio,countv sunerin-,~..
    tendent, and said county judge shall not be en-
    titled to nor receive any additional compensation
    as a result o:f these additional'duties.  . . .".   "
    ‘(Emphasis added)

          In view of the fact that the office of county super-
intendent and the county school board in certain countries had
few or no duties to perform because the common school.districts
had largely become independent school districts outside the
jurisdiction of the county superintendent, Senate Bill No. 100,
57th Legislature, Third Called Session, 1962, codified by Ver-
non's as Article 2688h, was enacted to abolish the office of
county school superintendent and the county school board in such
counties. We quote from Section l(a) of Article 2688h, as
follows:

         "Section 1. (a) From and after the effective
    date of this Act the office of the county board of
    school trustees and the office of county superin-
    tendent shall cease to exist in any county in this
    State having a population of not less than seventy
    five thousand (75,000) and not more than one hundred
    twenty-five thousand (125,000) according to the last
    preceding Federal Census which has not more than one
    (1) common school district and whose county ad valorem
    evaluation is in excess of One Hundred Forty Million
    Dollars ($140,000,000); provided, however, that the
    county superintendents in such counties who have
    been heretofore elected or appointed to the office
    of county superintendent shall serve until the ex-
    piration of the term for which they were elected or
    appointed.  The duties now performed 'by the board
Dr. J. W. Edgar, page 4 (w-w-1495)


     of school trustees and county superintendents in
     such counties shall be performed by the county
     judges of such counties; provided further that
     said county judges shall not be entitled to nor
     receive any additional compensation as a result
     of these additional dutie9.l . . ."
          The clear and unambiguous language employed In
each of the abolishment statutes, supra, Is that a county
judge is not entitled to receive any additional compensation
as a result of any additional duties which may be imposed.
          Therefore, it is our opinion that neither a County
Judge of a county subject to the provisions of Section 1 of
Article 2688e, Vernon's Civil Statutes, nor a County Judge of
a county which abolishes the office of County Superintendent
or ex officio county superintendent under the provisions of
Section l(a) of Article 2688h, Vernon's Civil Statutes, is
authorized to have an assistant or receive any compensation
under the provisions of Article 3888 of Vernon's Civil Statutes,
as amended.

ADramria, Galveston and Wichita Counties are presently affected
by the provisions of this Section.

                      SUMMARY
          The provisions of Article 3888, Vernon's Civil
     Statutes, as amended, are not applicable to County
     Judges of certain counties.
                                Sincerely,
                                WILL WILSON




1RW:mkh
Dr. J. W. Edgar, Page 5 @W-1$95)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Grundy Williams
Albert Pruitt
Ogden Bass
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
