Eonorable William L. Ferguson             Opinion No. JM-651
District Attorney
Rusk County Courthouse                    Re: Status of office of county
Benderson, Texas   75652                  school superintendent in Rusk
                                          County after December 31, 1982

Dear Mr. Ferguson: -

     You ask about the status of the office of county school superiu-
teudent in Rusk County after December 31, 1982. We conclude that the
office has not existed since that date.

     Chapter 478. Sixty-fourth Legislature, 1975, amended chapter 17
of the Texas Education Code by adding subchapter G which terminates
state fiscal support for county school adminlatration. Effective
December 31. 1978, section 17.95 of subchapter G expressly abolished
those county school officers and boards, including the office of
county school superintendent that were not supported by ad valorem tax
revenue generated under the provisions of chapter 18 of the Education
Code or by a voluntary local contract among the independent school
districts of a county . See Bill Analysis to H.B. No. 226, 64th Leg.,
prepared for House Commit=    on Public Education, filed in Bill File
to H.B. No. 226, Legislative Reference Library. Chapter 18 of the
Education Code authorizes the voters of a county to create a county
unit system whereby an additional countywide school district exercises
taxing powers for all school districts in the county. -See Educ. Code
118.01; Attorney General Opinion H-1103 (1977).

     This office previously determined in Attorney General Opinion
E-1103 that section 17.95 abolished certain county school offices,
including county school superintendent. only if they were not
supported by ad valorem tax revenue generated under the provisions of
chapter 18 or by voluntary local contract. You advise us that Rusk
County has a county unit system of taxation. Elence, we agree with
your conclusion that the office of county school superintendent in
Rusk County was not abolished on December 31. 1978 by section 17.95.
It is our opinion, however. that the office has not existed since
December 31, 1982.

     The office of county school superintendent was created by state
statute. Chapter 111, enacted by the Thirtieth Legislature, provided
that



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Honorable William L. Ferguson - Page 2      (JM-651)




          the office of County Superintendent of public
          instruction is hereby created, and the commis-
          sioners' court of every county in the State having
          three thousand scholastic population as shown by
          the preceding scholastic census, shall provide for
          the election of a County Superintendent of public
          instruction at each general election. . . .

Acts 1907, 30th Leg., ch. 111. 51, at 210. Prior to its codification
as article 2688, Revised Civil Statutes of Texas, 1925. the substance
of that 1907 act was codified as article 2750, Revised Civil Statutes,
1911. In 1969. the pertinent part of artlcla 2688 was incorporated.
without substantive change, in the Texas Education Code as follows:

             SWCRAPTER   C.   COUNTY sDPER1BTRBDRiT

          317.41. Office Established:       Counties With 3,COO
          or More Scholastics

             (a) Except as provided by Section 17.45 of
          this code, the commissioners court of every county
          having 3,000 scholastic population or more, as
          shown by the preceding scholastic census. shall at
          a general election provide for the election of a
          county superintendent to serve for a term of four
          years.

Educ. Code 117.41 (1969) (repealed 1979). The exception provided by
section 17.45 states that in counties with a population of more than
350,000, the county superintendent shall be appointed by the county
board of education. Since Rusk County has a population of 40,691
according to the last preceding federal census, the office of county
school superintendent of Rusk County was established and filled bv the
authority-of section 17.41(a). Se; Marfa Independent School District
v. Davis, 102 S.W.2d 283 (Tex. Ci;l App. - El Paso 1937, writ ref'd)
(establishment of office of county school superintendent under article
2688, R.S. 1925); Miller V. Brown, 216 S.W..452 (Tex. Civ. App. - El
Paso 1919, writ ref'd) (creation of office of county superintendent
under article 2750, R.C.S. 1911).

     Between 1907 and the repeal of section 17.41 in 1979, state law
required the election of a person to .occupy the office of county
superintendent in a county covered by section 17.41 and its predeces-
sors, unless the office had been abolished. See Educ. Code 5917.95
(abolition of the office in many counties by statute);  17.64 (aboli-
tion of the office by voters at election held for that purpose). The
Sixty-sixth Legislature in 1979 expressly repealed section 17.41 of
the Education Code. Acts 1979, 66th Leg.. ch. 729, 59. at 1796. The
term of office of the last person elected to the office of county
school superintendent in Rusk County expired on December 31, 1982 and




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Eonorable William L. Ferguson - Page 3   (JM-651)




the office ceased to exist. But see Educ. Code 0117.03 (elections of
county school trustees and members of county boards of education);
17.45, 17.46 (provisions for appointment of county superintendent not
applicable to Rusk County). It is our opinion that the repeal of
section 17.41 does not affect the appointment of a county superin-
tendent by the county board of education in counties of more than
350,000, as provided by-section 17.45 of the Education Code.

     You point out that in spite of the repeal of section 17.41,
certain statutory duties performed by a county school superintendent
remain in unrepealed statutes that are applicable in counties that
continue to operate under the county unit system. See Educ. Code
0517.62, 18.14(e). You suggest that the county judgeshould perform
such statutory duties in Rusk County. We agree that the county judge,
serving as ex officio county superintendent, is authorized to perform
the duties that by statute are required to be performed by the office
of county superintendent.

     Section 17.47 of the Education Code provides that

          [i]n any county in .vhich no county superintendent
          has been elected or appointed. the county judge
          shall be ex officio county superintendent and
          shall perform all the duties required of that
          office. (Emphasis added).

     This office previously concluded that section 17.47 applies only
in a county where the office of county school superintendent does not
exist, either because the office was not created or because the office
was abolished. Section 17.47 was not intended to be a method of
filling a vacancy in the office of county school superintendent. See
Attorney General Opinions E-633 (1975); M-733 (1970). Since -WC
conclude,‘however, that the office of county superintendent no longer
exists in Rusk County, it is our opinion that the county judge in that
county is authorized to perform duties required by statute of an
elective county superintendent. Cf. Educ . Code 017.64(b) (where
voters approved abolition of off=       of county superintendent at
election held for that purpose under section 17.64(a). duties of such
abolished office as may still be required by law shall vest in the
county judge in ex officio capacity).

     In a county where county school trustees or a county board of
education are administering a county unit tax system pursuant to
chapter 18 of the Education Code, such school trustees or board of
education are responsible for the general management, supervision, and
control of the countywide tax district and are not precluded from
employing reasonable and necessary staff to assist with their duties
and the proper function of the county unit system. -   See Educ. Code
918.06.




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Honorable William L. Ferguson - Page 4   (33-651)




                               SUMMARY

              The office of county school superintendent in
         Rusk County is abolished by repeal of section
         17.41 of the Education Code. The county judge.
         serving as an ex officio county superintendent, is
         authorized to perform duties that by statute are
         required to be performed by the office of county
         school superintendent.




                                         Attorney General of Texas

JACK HIGRTOWRR
First Assistant Attorney General

MARYRELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General




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