THE ATBXBRNEY GENERAL
TEXAS
Hon. Cecil M. Pruett Opinion No. M- 1237
Hutchinson County Attorney
630 North Deahl Street Re: Whether the office of
Borger, Texas 79007 Hutchinson County
Superintendent of
Schools was abolished
by Article 2688aa,
Vernon's Civil Statutes,
Dear Mr.. Pruett: and related question
Your recent letter requesting the opinion of this
office concerning the referenced matter states as follows:
"Our County School Board has requested that
I secure an opinion from you as to the status of
the Office of County Superintendent of Schools in
Hutchinson County.
"In 1970 C. J. Jackson was elected to and
thereafter duly qualified for such office for the
four year term beginning January 1, 1971, and
ending December 31, 1974. The 62nd Legislature
in 1971 passed H.B. No. 645 (Acts of the Legisla-
ture, Page 1554) codified as R. S. Art. 2688aa..
in part as follows:
'Section 1. In all counties having a popu-
lation of not less than 34,103 nor more than
35,310, and all counties having a population of
not less than 24,400 nor more than 24,600, accord-
ing to the last preceding Federal Census, the
Office of County Superintendent of Schools is
abolished. The duties of the Office shall be
performed by the County Judge as Ex-Officio
County Superintendent.'
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Hon. Cecil M. Pruett, page 2, (M-1237)
'Sec. 2. As used in this Act, "the last
preceding Federal Census" means the 1970 census
or any future decennial federal census. This is
despite any legislation that has been or may be
enacted during any session of the 62nd Legislature
delaying the effectiveness of the 1970 census for
general state and local governmental purposes.'
'Sec. 3. The effective date of this Act shall
be December 31, 1971.'
"Such Act was approved by the Governor May 26,
1971.
"The 1970 Federal Census shows Hutchinson
County population as 24,443 and therefore the
County is included in the population limitations
set out in the Act.
"Under date of September 23, 1971, C. J.
Jackson tendered to the Commissioner's Court his
written resignation as County Superintendent of
Schools, effective immediately, and on September
27, 1971, the Commissioners accepted his resigna-
tion. The Court did not make an appointment to
fill the vacancy but permitted the duties of the
office for the remainder of 1971 to be administered
by Jackie Campbell, the assistant to C. J. Jackson,
under the provisions of R. S. Art. 6252-l.
"By letter dated September 27, 1971, Norman
Coffee, County Judge, .makes inquiry of Dr. J. W.
Edgar, Commissioner of Education, as to said H. B.
No. 645, which inquiry was answered by Chester E.
Ollison, Legal Counselor, by letter dated October
4, 1971, the last paragraph of which is as follows:
'We believe this law would operate to make
House Bill 645, referred to in your letter, to
abolish the office of elective county superintendent
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Hon. Cecil M. Pruett, page 3, (M-1237)
as provided in Section 3 thereof . . . on December
31, 1971.'
"Norman Coffee, County Judge, qualified as
Bx-Officio County Superintendent of Schools and
assumed the office on January 1, 1972, and is now
serving as such.
"Question No. 1. Was the office of County
Superintendent of Schools abolished in Hutchinson
County by such HiB. No. 6451
"Question No. 2. If such office was abolished
by such H.B. No. 645, was it abolished,
(a) As of December 31, 1971, as set out in the
Bill? or
(b) As of December 31, 1974, at the end of the
four year term."
It is our opinion that Article 2688aa, Vernon's
Civil Statutes, as narrowly restricted in its application to
only two Texas counties, is unconstitutional, for the reason
that it is a local or special law regulating the management
of public schools in contravention of Section 56 of Article
III of the Constitution of Texas. In Miller v. County of
El Paso, 136 Tex. 370, 150 S.W.2d 1000 (19411, the Supreme
Court of Texas stated the rule regarding this type of legis-
lation as follows:
"Notwithstanding the above constitutional
provision (Section 56 of Article III), 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 particular locality: but such
legislation must be ,intended to apply uniformly
to all,who may come within the classification
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Hon. Cecil M. PrUett, page 4, (M-1237)
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 legislation.
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. City
of Fort Worth v. Bobbitt, 121 Texas 14, 36 S. W.
(2d) 470, 41 S. W. (2d) 228; Bexar County v. Tynan,
128 Texas 223, 97 S. W. (2d) 467; Clark v. Finley,
Comptroller, 93 Texas 171, 178; 54 S. W. 343,
Supreme Lodge United Benevolent Assn. v. Johnson,
98 Texas 1, 18 S. W. 18; Smith v. State, 120 Texas
Crim. Rep. 431, 49 S. W. (2d) 739; Randolph v.
State, 36 S. W. (2d) 484; Fritter v. West, 65
S. W. (2d) 414 (writ refused): State v. Hall, 76
S. W. (2d) 880; Wood v. Marfa Ind. School Dist.,
123 S. W. (2d) 429 . . . ." 136 Tex. at 374, 150
S.W.2d at 1001-1002.
See, also, Attorney General's Opinions Nos. M-1200 (1972),
M-745 (1970), M-488 (1969). C-481 (1965). and C-244 (1964).
In view of the foregoing, you are advised that, be-
cause of its constitutional infirmity, Article 2688aa does not
operate to abolish the office of county school superintendent
in Hutchinson County.
It is not necessary for us to answer your second
question, inasmuch as that question was predicated on an
affirmative answer to your first question.
Article 2688aa, Vernon's Civil Statutes, is
unconstitutional and therefore does not operate
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I
‘ .
1
Hon. Cecil M. Pruett, page 5, (M-1237)
to abolish the office of county school superintendent
in Hutchinson County.
Ver)r/pruly yours,
Att&ey General of Texas
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jim Swearingen
Gordon Cass
Scott Garrison
Bill Flanary
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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