Untitled Texas Attorney General Opinion ( 1975 )

March 28, 1975
The Honorable Ben Z. Grant Opinion No. H- 568
Chairman, Judiciary Committee
House of Representatives Re: The abolition of the office
P. 0. Box 2910 of county school superintendent
Austin, Texas 78767 on a local option bas,is.
Dear Chairman Grant:
You have asked three questions concernirg the abolition of the office
of county school sqerintendent. As, you noted, A-ttorney General Opinions
No. M-1280 (1972);.M~-1237 .(1972); H-52 (1973). a&H-545 (197:5) all held that
statutes which purport to abolish, &he office of county school superintendent in
a single or limited number of aunties were local or special laws pertaining
to school districts; as such they were in contravention of article 3, section 56
of the Texas Constitution, and therefore void.
Your first question asks-howthe abolition of such offices may be
accomplished in a constitutional manner. Specifically, you ask whether the
desired result may be reached by means of a bill of general application which
contains a local option clause.
We answer your first-quest.ion in tlu: affirmative: a statute of general
application which makes the abolition of the office of county.school superinten-
dent a local option could pass constitutional muster. Stanfield v. State, 18
S. W. 577 (Tex. Sup. 1892),; Trimmier v. Carleton, 296 S. W., 1070, 1080 (Tex.
Sup. 1927), 53 Tex. Jur. 2d, Statutes 5 39. Section 17.64 of the Education
Code which provides for abolition of these offices is an example of such a
statute.
Your second question asks:
[W] hen such offices are aboli.shed, is art. 2~6881-1,
sets. 1-4, V. T. C. S. applicable in determining
which records are to remain in the files for business
purposes in the county judge’s office and which records
are to be transferred to the independent~~school district?
Section 4 of article 2.6881-L V. T. C. S. , provides:
All school records of the original independent and/or
common school district shall be transferred to the
control and custody of the independent school district
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The Honorable Ben Z. Grant - Page 2 (H-568)
office, save and except the original financial records
which shall be retained by the county treasurer, and
thereafter the county judge shall be required to make no
records or reports but said reports shall be made by
the superintendent of such independent school district;
that as soon as practicable after the effective date of
this Act, all remaining state funds in the hands of the
county board of education shall be transferred by the county
treasurer and the county judge to the County Independent
School District’s Administration account.
This statute is applicable to a county in which the office of county
school superintsndent and the county school board have been abolished. In
addition, there mu& be in existence a single county-w,ide independent school
district and no commoa school districts. If the preceding and all other require-
ments of the statut.e are met, section 4 provides-that the original financial
records of the~(former) school district are to remain in the hands of the county
treasurer; all other school records ar,e to be transferred to the control and
custody of the independent school district office.
It is our opinion, therefore, that if a county falls within the provisions
of article 2688i~-1, then section 4 of that statute would govern the storage and
transfer of school records~which were created during the period when there
was a county school superintendent and a county school board.
Your third qti stion asks:
[ I] s it permissible for a duly elected County School
Superintendent to resign and close the office when
all audits ,are completed~ and all records have been
filed in the’proper order and approved by ~the
Texas Education Agency, the,~County Judge, and the
Independent School Board Superintendent?
Article 16, section 17 of the Texas Constitution provides that I([ a] 11
officers within this State shall continue to perform the duties of their offices
until their successors shall be duly qualified. ‘I This.provisidn has been
consistentlyinterpr,eted as meaning that an officer whose resignation has been
tendered to and accepted by proper authorities continues in office and is not
released~ from its duties and responsibilities until his successor is appointed
or chosen and qualifiers. Jones v. City of Jefferson, 1 S. W. 903 (Tex. Sup.
1686); Keen v. Featherston, 69 S. W. 983 (Tex. Civ. App. 1902, writ ref’d);
McGhee v. Dickey, 2.3S.W.~ 404~(Tex. Civ. App. 1893, no writ); and Plains
Common Consol. School Dist. No. 1 of Yoakum County v. Hayhurst, lr
322 (Tex. Civ. App. -- Amarillo 1938, no writ). See also, Attorney
.p.. 2547
The Honorable Ben Z. Grant - Page 3 (H-568)
General Opinions V-760 (1949); O-410 (1939), O-789 (1939).
It is clear that article 16, section 17 of the Texas Constitution
compels the conclusion that a duly elected county school superintendent
may not resign the position and close the office; rather, that officer must
continue to fulfill his duties until a successor has been duly qualified.
We therefore answer your third question in the negative.
SUMMARY
The Texas Constitution permits a statute of general
application which provides for the abolition of the office
of county school superintendent on a local option basis.
Section 17.64 of the Education Code is an example of
such a statute.
For those counties to which it applies, art. 2686i-1,
V.T.C.S., governs where school records are to be
stored and transferred.
A county school superintendent may not resign his
position and terminate the operation of his office.
Very truly yours,
APPROVED:
C . ROBERT HEATH, Chairman
Opinion Committee
jwb
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