                   The Attorney        General of Texas
                                   December 12, 1977
JOHN L.HlLL
Attorney
       General

                 Honorable Wm. J. Benardino         Opinion No. H-1103
                 County Attorney
                 Montgomery County Courthouse       Re: Effect of Education
                 Conroe, Texas 77301                Code section 17.95 on
                                                    the county school board
                 Dear Mr. Benardino:                of Montgomery County.

                      You have asked us to determine the effect section
                 17.95 of the Texas Education Code will have on the county
                 school board in Montgomery County, which operates under
                 Chapter 17 of the Code, when the statute takes effect
                 January 1, 1979. Section 17.95 reads:

                             On December 31, 1978, all offices
                           of county school superintendent and
                           ex officio county school superinten-
                           dent and all county boards of school
                           trustees and county school boards in
                           counties with no common school dis-
                           tricts, rural high school districts,
                           or independent districts with less
                           than one hundred fifty (150) ADA
                           which are not supported by ad valorem
                           tax revenue generated under the pro-
                           visions of Chapter 18 of this code or
                           by voluntary local contract in accor-
                           dance with Section 17.98 are abolished.

                 Also important in this context is section 17.94:

                             After December 31, 1978, no state
                           funds shall be used to support the
                           offices of county school superinten-
                           dent or ex officio county school
                           superintendent or a board of county
                           school trustees or a county school
                           board in counties with no common
                           school districts, rural high school
                           districts, or independent districts
                           with less than one hundred fifty (150)




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.    .




    Honorable Wm. J. Benardino      - Page.2   (H-1103)



              ADA, but the offices and boards may be
              supported by ad valorem tax revenue
              generated in accordance with the pro-
              visions of Chapter 18 of this code, or
              by funds provided by the school drstricts
              in accordance with the provisions of a
              voluntary contract as provided in Section
              17.98 of this Chapter.

    (Emphasis added).

         Chapter 18 of the Texas Education Code provides a method
    whereby the voters of a county may create an additional county-
    wide school district to exercise a taxing power for all school
    districts in the county and equalize distribution of the tax
    proceeds without affecting the operation of any existing school
    district.  The arrangement is termed "the county unit system."
    You advise that the county school board in Montgomery County
    is supported by taxes levied pursuant to the county unit sys-
    tem of taxation authorized by the Code. -See Educ. Code
    SS 18.01 - 18.31.

         It is clear that section 17.95 intends to abolish certain
    county school offices only if they "are not supported by ad
    valorem tax revenue generated under the provisions of Chapter
    18 of this code or by voluntary local contract . . . ." Since
    the county school board of Montgomery County does not fall
    within this class, it will not be abolished by section 17.95
    of the Education Code when it takes effect January 1, 1979.

         You also ask if the county school board may continue to
    operate under Chapter 17 of the Education Code after December 31,
    1978, and if the board and county school officers may continue
    to receive salaries from county school tax funds. If they may,
    you ask about the proper procedure for paying salaries.

         Inasmuch as Chapter 17 of the Education Code continues
    to apply to those school boards and officers to whom it pre-
    viously applied except for those abolished by section 17.95,
    the county school board of Montgomery County will continue
    to operate under it as amended.

         We think the salaries of school officers constitute fiscal
    "support", within the meaning of section 17.94, for the offices
    they occupy. We are informed that Montgomery County has no
    common school districts, no rural high school districts, and no
    independent districts with an average daily student attendance
    of fewer than 150 students. Note, therefore, that new section




                                 p. 4520
Honorable Wm. J. Benardino       - Page 3   (H-1103)



17.94 will prohibit the use of state funds for the support of
Montgomery County school offices after December 31, 1978. The
application of this provision will necessarily alter the
application to Montgomery County of some provisions of Chapter
17 after it becomes effective. -See Educ. Code SS 17.09; 17.51 -
17.54; 17.92.

     Already the salary of the County Superintendent and all
expenses of his office are required by section 18.30 of the
Texas Education Code to be paid out of funds realized from the
collection of taxes levied pursuant to the county unit system
of taxation. With respect to the salaries of other county
school officers, we believe the same procedure used for com-
plying with that law should be used after December 31, 1978,
to comply with similar requirements under section 17.94, unless
the "voluntary contract" provisions of section 17.98 are uti-
lized.

                       SUMMARY

          Section 17.95 of the Texas Education Code
          is inapplicable to Montgomery County,
          which supports county school offices with
          revenue generated by ad valorem revenue
          generated under Chapter 18 of the Code.
          After December 31, 1978, other provisions
          of Chapter 17 of the Code will continue
          to be applicable to Montgomery County as
          modified by section 17.94. The salaries
          of county school officers will thereafter
          be paid entirely from local funds.

                                 Very truly yours,




                                 Attorney General of Texas




C. ROBERT HEATH. Chairman
Opinion Committee

jst

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