                        June 8, 1967


Honorable J. W. Edgar                  Opinion No. M-86
Commissioner of Education
Texas Education Agency                 Re:   Whether Sections 3 and 4 of
Austin, Texas                                Article 26881-l supersede
                                             and have application, in
                                             lieu of Section l(c) of
                                             Article 26aae, to counties
                                             (other than Gollad) which
                                             have abolished the elective
                                             county superintendent, and
                                             thereafter abolished the
                                             office of ex officio county
                                             superintendent and county
                                             school board under Article
Dear Dr. Edgar:                              2688e, and related questions.
          In connqctlon with your first question, you have advised
us that Stephens County, on June 26, 1965, by an election held In
that county, abolished the office of county school superintendent.
On April 1, 1967, by an election held in Stephens County, the office
of ex officio county school superintendent and the county school
board were abolished. Your essential question Is which of two
possible statutes apply to the actions taken by Stephens County:
Article 2688e, Vernon’s Civil Statutes, or Article 26881-1, Vernon’s
Civil Statutes. In this connection we quote a portion of Article
26801-i :
          ‘Section 1.   This Act applies to a county
          “(1) If the office of county superintendent
     and the county school board has been abolished In
     the county; and
          “(2) If the county has one county-wide lnde-
     pendent school district and no common school dis-
     trlct.
            “Sec. 2. The office of ex officio county super-
     intendent is abolished upon the effective date of this
     Act. ”

                            -390-
.   .-




         Dr. J. W. Edgar, page 2 (M-86)


                   It Is apparent from Section 2, supra, that the primary
         purpose of Article 26881-l was to effect the abolishment of the
         office of ex officio county superintendent In certain counties.
         Inasmuch as the county here involved abolished the county school
         board and the ex officio county superintendent at the same time,
         It Is the view of this office that the requirements of Article
         26881-l were never met, and that Stephens County remained within
         the scope of Article 2688e. This would also be true of all other
         counties Involved In abolishment situations which do not come
         wlthln the precise terms of Section 1, Article 26881-1, quoted,
         In part, supra. It therefore follows that those counties which
         do not fall within the terms of Article 268814 must continue to
         follow the procedures established in Article 2688e. In answer to
         your specific question, you are advised that Sections 3 and 4 of
         Article 26881-l do not supersede and have application, in lieu of
         Section l(c) of Article 2688e, to counties (other than Gollad)
         which have abolished the elective county superintendent, and there-
         after abolished the office of ex officio county superintendent and
         county school board under Article 2688e.
                   Dependent upon the answer to your first question, you
         have asked the following:
                   When should the county judge's services
              and additional compensation as ex officio county
              superintendent In Stephens County cease.
         In connection with this question, we quote Article 2688e, Section
         l(c), Vernon's Civil Statutes:
                   "(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 become
              the duties of the office of county judge of said
              county upon the expiration of the current term of
              office of the ex officio county superintendent, and
              said county judge shall not be entitled to nor re-
              ceive any additional comEensatlon as a result of
              these additional duties.
         It Is our view that the plain terms of the statute operate to
         transfer the duties of ex officio county superintendent to the
         county judge only upon the expiration of the current term of
         office of the ex officio county superintendent. The net effect
         Is that the county judge (who acts as the ex officio county super-
         intendent) receives remuneration for acting as ex officio county
                                    -391-
Dr. J. w. Edgar, Page 3 (M-86)


superintendent up until the time of the expiration of his current
term of office, at which time he Is required to perform the same
duties without remuneration.
                     SUMMARY
            Sections 3 and 4 of Article 26881-1, V.C.S.
     do not supersede and have application, in lieu
     of Section l(c) of Article 2688e, V.C.S., to
     counties (other than Gollad) which have abolished
     the elective county superintendent, and thereafter
     abolished the office of ex offlclo county superln-
     tendent and county school board under Article
     2688e.
         Where the office of ex officio county superln-
    tendent has been abolished under Article 2688e,
    V.C.S., the abolishment takes effect upon the ex-
    piration of the current term of the ex officio
    county superintendent, at which time the duties
    devolve upon the county judge, who shall perform
    these dutles without additional compensation.
                            V        truly yours,
                            2@             -




Prepared by Malcolm L. Quick     '
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
John Banks
John Fainter
Kerns Taylor
Alan Minter
STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.



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