                                     GENERAL




Honorable J. W. Edgar          Opinion No. M-935
Commissioner of Education
Texas Education Agency         Re:   Whether H.B. 625, Acts 62nd
201 East 11th Street                             Ch. 625, page
Austin, Texas                        t.Z%'(&$ij , codified as
                                     Article 2688y, V.C.S.,
                                     abolishes the office of
                                     county superintendent in
Dear Dr. Edgar:                      Matagorda County.
          We quote'from your letter requesting an opinion from
this office, In part, as follows:
         'House Bill 625 (Acts 62nd Legislature,
    R.S., 1971, p. 1186, ap roved May 19, 1971;
    .Article 2688~ In V.C.S.P reads as follows:
          "Section 1. The office of county superin-
     tendent is abolished in all counties having a
     population of not less than 27,800 nor more than
     28,800 according to the last preceding federal
     census. In each of those counties, the county
     judge shall be the ex officio county superin-
     tendent and may receive no additional compensa-
     tion for these additional duties.
          "Only Matagorda County having a 1970 de-
     cennial census population of 27,913 is covered
     in the 27,800-28,800 bracket requirement.
          "Within the 1960 census period, in 1965 a
     similar statute, then applicable only to
     Matagorda County, was enacted. Article 2688n,
     V.C.S. The validlty of that law was challenged.
     In Opinion M-745 (December, 1970), it was ruled
     that the elective office of county superintendent
     in Matagorda County continues to exist."
In addition, you have advised us that the current scholastic
population of Matagorda County is in excess of 3,000.

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lUr.J. W. Edgar, page 2       (M-935)


         With regard to the foregoing, you ask whether H.B.
625, Acts 62nd Leg., R.S., Ch. 625, page 1186 (1971) codified
as Article 2688y, V.C.S., abolishes the office of county
superintendent in Matagorda County.
          We quote from Attorney General's Opinion M-745
(1970) referred to in your letter, in part, as follows:
         "You have pointed out that Article 2688n,
    Vernon's Civil Statutes, provides that the
    office of County School Superintendent Is
    abolished in all counties having a population
    of not less than 25,750 nor more than 28,000
    according to the last preceding Federal census,
    and further advised us that whereas the 1960
    census reported a population of 25,744 for
    Matagorda County, the figures released to
    date place the 1970 population at 27,630.
    You inquire whether, in view of the provisions
    of Article 2688n and the 1970 population
    figures for Matagorda County, the office of
    County School Superintendent for that county
    is abolished; and if so, the effective date.
         '*Inour opinion the office of County School
     Superintendent continues to exist in Matagorda
     County,. . .
         "The current scholastic population of
    Matagorda County being over 3,000 the election
    of a County Superintendent to serve a four
    year term is made mandatory by the provisions
    of Article 17.41(a) of the Texas Education Code.
          'In view of the office having been once
     created in the county and the scholastic popula-
     tion remaining over 3,000, it appears that the
     only statutory provision for abolishing the
     office is provided by Article 17.64 of the
     Texas Education Code. See Attorney General's
     Opinion No. M-733 (1970). Apparently the pro-
     cedure provided In Article 17.64 has not been
     followed in Matagorda County. . . .
          "In our dpinion, Article 2688n as narrowly
     restricted in its application to certain counties,
     Is unconstitutional for the reason that it is a
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Dr. J. W. Edgar, page 3        (M-935)


     local or special law regulating the management of
     public schools in contravention of Article III,
     Section 56, Constitution of Texas. ~The Supreme
     Court of Texas, In Miller v. El Paso County,
     136 Tex. 370, 150 S.W.2d 1000 (1941) has well
     stated the prevailing rule with ,regaidto this
     type of legislation:
         "'Notwithstanding the above constitutional
    provision, the courts recognize in the Legislature
    a rather broad power to make classifications for
    legislative purposes and to enact laws for the
    regulation thereof, even though such legislation
    may be applicable only to a particular class or,
    in fact, affect only the inhabitants of a par-
    ticular locality; but such~l,e,gis,lation
                                           must beg
    intended to apply uniformly to all who may come
    within the classification designated in the Act,
    and the classification must be broad enough to
    include a substantial class and must be based
    on characteristics legitimately distinguishing
    such class from others with respect to the
    public purpose sought to be accomplished by
    the proposed legislation. In other words, there'
    must be a substantial reason for the classifica- ',
    tion. It must not be a mere arbitrary device
    resorted to for the purpose of giving what Is,
    in fact, a local law the appearance of a general
    law.' (at p. 1001-1002). See also thecases
    there cited.
         "In our opinion Article 2688n would create
    a class of counties without substantial basis
    and without sufficient legal distinguishing
    features and is therefore proscribed as a
    local or special law by Article'III, Section
    56, of the Texas Constitution. That being
    true, the statute does not operate to abolish
    in Matagorda County the office of County
    School Superintendent. See Attorney General's
    Opinions No. c-244 (q64), No. c-481 (1965),
    and No. ~-488 (1969).
          On the basis of the reasoning and holding in Attorney
General's Opinion M-745 (1970) and authorities therein cited, it
is our opinion that H.B. 625 is unconstitutional and void and
consequently the office of county school superintendent continues
to exist in Matagorda County.
                             -4561-
Dr. J. W. Edgar, page 4            (U-935)



                      SUMMARY

         House Bill 625, Acts 62nd Leg., R.S., 1971,
    Ch. 625, page 1186, codified as Articles2688y,
    V.C.S., Is unconstitutional and void, and con-
    sequently the office of county school superin-
    tendent continues to exist n Matagorda County.
                              A
                                truly yours,




Prepared by Ivan R, Williams, Jr!
Assistant Attorney General
APPROVEDr
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Roland Allen
Harriet Burke
William Craig
Max.Hamilton
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA NHITE
First As~sistant




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