The opinion
ACCEPTED
03-15-00313-CV
6015790
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/10/2015 11:56:19 AM
JEFFREY D. KYLE
CLERK
CASE NO. 03-15-00313-CV
_______________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
7/10/2015 11:56:19 AM
_____________________________ JEFFREY D. KYLE
Clerk
HERMENIA JENKINS ,
Appellant
v.
CROSBY INDEPENDENT SCHOOL DISTRICT, and
MICHAEL L. WILLIAMS, COMMISSIONER OF EDUCATION,
Appellees
_______________________________________
Appealed from the 200th Judicial District of Travis County, Texas
Cause No. D-1-GN-14-000619
Jenkins v. Crosby Indep. Sch. Dist. and Michael L. Williams
The Honorable Amy Clark Meachum presiding
_______________________________________
APPELLANT’S BRIEF
____________________________________
Kevin F. Lungwitz State Bar No. 12698790
Elizabeth Poole State Bar No. 24051201
The Lungwitz Law Firm, P.C.
3005 S. Lamar Blvd.
Box D-109-362
Austin, Texas 78704-4785
P. 512.461.0188
F. 866.739.7138
Kevin@LungwitzLaw.com
Elizabeth@LungwitzLaw.com
Attorneys for Appellant Hermenia Jenkins
ORAL ARGUMENT REQUESTED July 10, 2015
I. IDENTITIES OF PARTIES AND ATTORNEYS
Appellant/Plaintiff
Hermenia Jenkins
Attorney in District Court and Court of Appeals:
Kevin Lungwitz
State Bar No. 12698790
Elizabeth Poole
State Bar No. 24051201
THE LUNGWITZ LAW FIRM, P.C.
3005 S. Lamar Blvd.
Box D-109-362
Austin TX 78704
Phone: 512.461.0188
Fax: 866.739.7138
Kevin@LungwitzLaw.com
Elizabeth@LungwitzLaw.com
Appellee/Defendant:
Crosby Independent School District
Attorneys in District Court and Court of Appeals:
David B. Hodgins
Rebecca R. Weimer
THOMPSON & HORTON, L.L.P.
3200 Southwest Freeway, Suite 2000
Houston TX 77027
Tel: 713.554.6745
Fax: 713.583.8245
DHodgins@thompsonhorton.com
RWeimer@thompsonhorton.com
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 2
Appellee/Defendant:
Michael L. Williams, Commissioner of Education
Attorneys in District Court and Court of Appeals:
Andrew Lutostanski
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
Administrative Law Division
Andrew.Lutostanski@texasattorneygeneral.com
Ken Paxton/Greg Abbott, Attorney General of Texas
Charles E. Roy/Daniel T. Hodge, First Assistant Attorney General of Texas
James E. Davis/David C. Mattax, Dep. Attorney General for Defense Litigation
David A. Talbot, Jr., Chief - Administrative Law Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4200
Facsimile: (512) 457-4680
_______________________________________________________________________________________
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND ATTORNEYS ......................................................... 2
TABLE OF CONTENTS ............................................................................................ 4
TABLE OF APPENDICES ........................................................................................ 5
INDEX OF AUTHORITIES ...................................................................................... 6
STATEMENT OF THE CASE .................................................................................. 8
STATEMENT REGARDING ORAL ARGUMENT ................................................ 8
STANDARD OF REVIEW ........................................................................................ 9
ISSUES PRESENTED ............................................................................................... 10
STATEMENT OF FACTS .......................................................................................... 11
SUMMARY OF THE ARGUMENT .......................................................................... 12
ARGUMENT .............................................................................................................. 14
1. Texas law requires a principal to be employed in the “same professional
capacity” from year to year, unless the school board nonrenews her
contract. Here, Jenkins was employed as principal for eight years, then
involuntarily reassigned to assistant principal without receiving the quasi-
due-process protections of the contract nonrenewal process. Is principal
in the “same professional capacity” as assistant principal? .............................. 14
A. Texas Education Code §21.201(1) defines “professional capacity”
in §21.206. ............................................................................................. 14
B. A principal’s job is not comparable to an assistant principal’s job. ...... 20
2. School districts must employ each educator under a contract with a
legitimate professional capacity. Jenkins was a principal, but her contract
says she was an “Employee” which is not a legitimate professional
capacity. The commissioner found that Jenkins was an “administrator,” a
term not found in her contract or defined in law, but broad enough to
encompass her reassignment from principal to assistant principal. Did the
commissioner correctly interpret the contract? ................................................ 24
CONCLUSION ........................................................................................................... 29
PRAYER .................................................................................................................... 30
CERTIFICATE OF COMPLIANCE ......................................................................... 31
CERTIFICATE OF SERVICE ................................................................................... 32
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TABLE OF APPENDICES
1. Jenkins v. Crosby Indep. Sch. Dist.,
Docket No. 043-R10-1211 (Tex. Comm’r Educ. 2013)
2. Final Judgment - Jenkins v. Crosby Indep. Sch. Dist., No. D-1-GN-14-
000619 (200th Dist. Ct., Travis County, Tex. Feb. 26, 2015)
3. Texas Education Code Chapter 21, Subchapter E §§21.201-21.213
4. Texas Education Code §11.201 and §11.202
5. Jenkins’ Employment Contract 2011-2013
6. Barich v. San Felipe-Del Rio Cons. Indep. Sch. Dist.,
Docket No. 117-R1a-484 (Tex. Comm’r Educ. 1985)
7. Perales v. Robstown Indep. Sch. Dist.,
Docket Nos. 053-R10-104; 084-R3-604 (Tex. Comm’r Educ. 2006)
8. Carpenter v. Wichita Falls Indep. Sch. Dist.,
Docket No. 247-R3-491 (Tex. Comm’r Educ. 1993)
9. Lehr v. Ector County Indep. Sch. Dist.,
Docket No. 003-R3-0908 (Tex. Comm’r Educ. 2011)
10. Young v. Leggett Indep. Sch. Dist.,
Docket No. 175-R3-898 (Tex. Comm’r Educ. 1998)
11. Wheeler v. Austin Indep. Sch. Dist.,
Docket No. 008-R3-1108 (Tex. Comm’r Educ. 2011)
12. Tuck v. Alief Indep. Sch. Dist.,
Docket No. 008-R10-1007 (Tex. Comm’r Educ. 2012)
13. Chart of reassignment decisions from the commissioner (From the
commissioner’s brief filed in Travis County District Court.)
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INDEX OF AUTHORITIES
Texas Cases:
Evergreen Nat. Indem. Com. v. Tan It All, Inc., 111 S.W. 3d 669
(Tex. App. - Austin 2003, no pet.) ...................................................... 28
Kelley-Coppedge, Inc. v. Highlands Ins. Co.,
980 S.W.2d 462 (Tex. 1998) ............................................................... 28
Montgomery Independent School District v. Davis, 34 S.W.3d 559, 566
(Tex. 2000) ............................................................................................ 9
Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443
(Tex. App. – Austin 2011, no pet.) ....................................................... 9
Commissioner’s Decisions:
Barich v. San Felipe-Del Rio Cons. Indep. Sch. Dist.,
Docket No. 117-R1a-484 (Tex. Comm’r Educ. 1985) ..... 16, 17, 19, 20
Carpenter v. Wichita Falls Indep. Sch. Dist.,
Docket No. 247-R3-491 (Tex. Comm’r Educ. 1993) ................... 16, 26
Jenkins v. Crosby Indep. Sch. Dist.,
Docket No. 043-R10-1211 (Tex. Comm’r Educ. 2013) ........... 8, 18, 24
Lehr v. Ector County Indep. Sch. Dist.,
Docket No. 003-R3-0908, p. 13 (Tex. Comm’r Educ. 2011) ....... 15, 19
Martinez v. San Antonio Indep. Sch. Dist.,
Docket No. 219-R3-589 (Tex. Comm’r Educ. 1989) ........................ 17
Perales v. Robstown Indep. Sch. Dist.,
Docket No. 053-R10-104; 084-R3-604 (Tex. Comm’r Educ. 2006)..16
Ramos v. El Paso Indep. Sch. Dist.,
Docket No. 002-R10-900 (Tex. Comm’r Educ. 2002) ...................... 17
Tuck v. Alief Indep. Sch. Dist.,
Docket No. 008-R10-1007 (Tex. Comm’r Educ. 2012)
..................................................................................... 15, 19, 20, 25, 28
Wheeler v. Austin Indep. Sch. Dist.,
Docket No. 008-R3-1108 (Tex. Comm’r Educ. 2011) ........... 18, 25, 28
Young v. Leggett Indep. Sch. Dist.,
Docket No. 175-R3-898 (Tex. Comm’r Educ. 1998) ........................ 25
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Texas Statutes and Administrative Code:
Texas Education Code §7.057(d) ................................................................... 9
Texas Education Code §11.201 and 11.202 .................................................. 21
Texas Education Code §11.253..................................................................... 21
Texas Education Code §11.253(h) ................................................................ 22
Texas Education Code Chapter 21 ................................................................ 14
Texas Education Code §21.002..................................................................... 27
Texas Education Code §21.201................................................... 12, 13, 16, 26
Texas Education Code §21.201(1) ...................... 12, 14, 15, 16, 18, 19, 20, 29
Texas Education Code §21.206....................................... 12, 14, 15, 16, 19, 20
Texas Education Code §21.206(b) .................................................... 14, 15, 18
Texas Education Code §21.210(c) ................................................................ 16
Texas Education Code §21.212..................................................................... 15
Texas Education Code §21.212(b) ................................................................ 15
Texas Education Code §21.354..................................................................... 23
Texas Education Code §21.3541................................................................... 23
Texas Education Code §21.357..................................................................... 22
Texas Education Code §39.107(b) ................................................................ 22
Texas Govt. Code §2001.174 .......................................................................... 9
Texas Govt. Code Chapter 2001, subchapters F and G .................................. 8
19 Texas Admin Code Chapters 241 and 242 ............................................... 23
19 Texas Admin Code §232.2(b) .................................................................. 23
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STATEMENT OF THE CASE
Nature of the This is a public educator employment and contract case.
case The case is procedurally governed by Texas Education
Code §7.057(d), which gives this court jurisdiction; and
Texas Government Code Chapter 2001, subchapters F
and G.
Jenkins pursued an employment grievance. (R. 287-289;
R. 327-336) The Crosby ISD school board denied the
grievance on October 24, 2011. (R. 324)
The Jenkins timely appealed to the Commissioner of
Commissioner Education who affirmed the school board on December
of Education 19, 2013. Jenkins v. Crosby Indep. Sch. Dist., Docket
No. 043-R10-1211 (Tex. Comm’r Educ. 2013) (Appx.
1, R. 5-30).
Trial Court Jenkins timely appealed the Commissioner’s Decision to
Judge, district, the 200th Judicial District Court of Travis County,
county and Texas. Jenkins v. Crosby Indep. Sch. Dist. and Michael
disposition L. Williams, Cause No. D-1-GN-14-000619.
On February 26, 2015, the Honorable Amy Clark
Meachum signed the Final Judgment affirming the
Commissioner’s Decision. (Appx. 3) Jenkins timely
filed a motion for new trial on March 23, 2015, which
was overruled by operation of law.
Third Court of Jenkins filed a Notice of Appeal on May 22, 2015.
Appeals
STATEMENT REGARDING ORAL ARGUMENT
Oral argument would aid in the Court’s decision on the novel issues
presented. The likely presence of amici curiae indicates a broad interest in the
issues among affected members of the school law community. All of the attorneys
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in this case have experience in the narrow field of school law, providing the Court
the opportunity to inquire about matters that the briefs may not fully resolve.
STANDARD OF REVIEW
This Court has jurisdiction pursuant to §7.057(d) of the Texas Education
Code. Judicial review of the commissioner’s decision is governed by a substantial
evidence review, as set forth in §2001.174 of the Texas Administrative Procedure
Act. Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443 (Tex. App. – Austin
2011, no pet.). Under the substantial evidence rule, this Court reviews issues of
law de novo. Tex. Gov. Code §2001.174. This appeal involves pure issues of law.
This Court must confine its review to the record of the proceedings before
the commissioner. In reviewing the commissioner's decision, this Court must
determine whether there is "more than a mere scintilla" of evidence to support the
commissioner's decision. Whether the commissioner's decision meets that standard
is a question of law. Montgomery Independent School District v. Davis, 34 S.W.3d
559, 566 (Tex. 2000).
Substantial evidence does not exist to support the commissioner’s decision
and the commissioner’s conclusions of law are in violation of statute, in excess of
the agency’s statutory authority, or are otherwise erroneous. Tex. Gov. Code
§2001.174.
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ISSUES PRESENTED
1. Texas law requires a principal to be employed in the “same
professional capacity” from year to year, unless the school board
nonrenews her contract. Here, Jenkins was employed as principal for
eight years, then she was involuntarily reassigned to assistant
principal without receiving the quasi-due-process protections of the
contract nonrenewal process. Is principal in the “same professional
capacity” as assistant principal?
2. School districts must employ each educator under a contract with a
legitimate professional capacity. Jenkins was a principal, but her
contract says she was an “Employee” which is not a legitimate
professional capacity. The commissioner found that Jenkins was an
“administrator,” a term not found in her contract or defined in law, but
broad enough to encompass her reassignment from principal to
assistant principal. Did the commissioner correctly interpret the
contract?
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STATEMENT OF FACTS1
Jenkins served as campus principal of Charles R. Drew Intermediate School
from 2003 through June 2011. (R. 258, grievance transcript) She was employed
by Defendant Crosby Independent School District (CISD) under a term contract for
the school years 2011 - 2013, which she signed on March 2, 2011. (Appx. 5; R.
294 ex. 4) The contract is silent regarding her job placement or employment
classification. (e.g. principal, teacher, administrator, counselor, etc.) The contract
merely refers to Jenkins as “Employee.” (Appx. 5)
The superintendent informed her by memo dated June 28, 2011 that he was
reassigning Jenkins from campus principal of Charles R. Drew Intermediate to
assistant principal at Crosby High School for the 2011-12 school year. No
performance reason was given for the reassignment. (R. 291) At the time, Jenkins
had worked in CISD for 16 years, the previous eight years as principal.
Jenkins objected to the reassignment by pursuing an employment grievance
under school board policy DGBA. The school board denied the grievance. (R.
287-322; R. 324) Policy DGBA does not provide for a due process hearing; only a
“stop, look and listen” hearing. (R. 327)
1
“R.” stands for administrative record, and is followed by the administrative record page
number. The administrative record is part of the reporter’s record.
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SUMMARY OF THE ARGUMENT
THE FIRST ISSUE: Principal and assistant principal are not in the “same
professional capacity” in Texas Education Code §21.206. Texas Education Code
§21.201(1) defines “teacher” as “superintendent, principal, supervisor, classroom
teacher, counselor, or other full-time professional employee who is required to
hold a certificate …, or a nurse.” (Appx. 3, emphasis added) Applying the law to
the facts, §21.206 requires that Jenkins - a principal - be employed in the “same
professional capacity” from year to year, unless the school board invokes the
statutory, contract nonrenewal process. (Appx. 3) Jenkins lost her job as principal
without receiving the protections of the quasi-due-process contract nonrenewal
process because CISD and the commissioner erroneously construed principal and
assistant principal to be in the same professional capacity.
For years the commissioner has opined that the positions listed in §21.201,
including superintendent, classroom teacher, counselor, librarian and nurse are all
distinct professional capacities - except for principal.
Instead of looking to the list of professional capacities in §21.201 to decide
this case, the commissioner first looked to the job title in the contract. Here, the
contract was too vague to determine professional capacity, so the commissioner
purportedly reviewed the authority, duties and salaries of the positions before and
after the reassignment to determine whether they fell within the same professional
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capacity. Even by this standard, it is clear that principal is not in the same
professional capacity as assistant principal. By law, a principal is the sole, campus
instructional leader and state law largely defines the authority and duties.
Conversely, state law does not define what an assistant principal does. An
assistant principal serves at the pleasure of the principal, subject to a local job
description. Also, the job descriptions in this case prove that principal and
assistant principal are not in the same professional capacity.
THE SECOND ISSUE: A school district must employ each educator under a
contract with a legitimate professional capacity. Though Jenkins had been
employed as principal for the preceding eight years, Jenkins’ contract with CISD
said she was a generic “employee,” which the commissioner has said is not a
legitimate professional capacity. To resolve this contractual ambiguity, the
commissioner erroneously held that Jenkins was an “administrator,” another
generic term broad enough to encompass her reassignment to assistant principal.
But “administrator” does not appear anywhere in Jenkins’ contract or in §21.201,
and it is not defined in relevant state law. Since the contract did not state a
legitimate professional capacity, the commissioner should have construed it
narrowly against the author, CISD, as a contract for the position of “principal,”
thereby invalidating Jenkins’ reassignment to assistant principal.
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ARGUMENT
1. Texas law requires a principal to be employed in the “same
professional capacity” from year to year, unless the school
board nonrenews her contract. Here, Jenkins was employed as
principal for eight years, then involuntarily reassigned to
assistant principal without receiving the quasi-due-process
protections of the contract nonrenewal process. Is principal in
the “same professional capacity” as assistant principal?
A. TEXAS EDUCATION CODE §21.201(1) DEFINES
“PROFESSIONAL CAPACITY” IN §21.206.
Chapter 21 of the Texas Education Code governs the contractual relationship
between the professional, certified employee and the school district. Texas
Education Code §21.201(1) defines teacher as:
A superintendent, principal, supervisor, classroom teacher, counselor,
or other full-time professional employee who is required to hold a
certificate issued under Subchapter B, or a nurse.
(Appx. 3, emphasis added)
One of the greatest statutory protections teachers have is the right to be employed
from year to year, under contract, in the same professional capacity unless the
school district invokes the statutory, contract nonrenewal process. Texas
Education Code §21.206(b) states, “The board’s failure to give [timely, written
notice of proposed, contract nonrenewal] … constitutes an election to employ the
teacher in the same professional capacity for the following school year.”
(Brackets and emphases added) (Appx. 3) The commissioner has described this
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passage in §21.206 as “a central plank” in an educator’s statutory contract rights.
Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007, p. 5 (Tex. Comm’r
Educ. 2012) (Appx. 12).
Since the term “teacher” specifically includes principal, as applied in this case
§21.206(b) says, “The board’s failure to give [statutory written notice of proposed,
contract nonrenewal] … constitutes an election to employ the principal in the same
professional capacity for the following school year.” (Brackets and emphases
added; “principal” substituted for “teacher”) (Appx. 3) Principal is one of several
“professional capacities” specifically identified in §21.201(1).2
If a school board seeks to nonrenew a principal’s contract at the end of the
school year, the statutory nonrenewal process in §21.206 requires the board to give
a principal timely written notice and reasons for the proposed nonrenewal, and an
opportunity for a formal hearing to challenge the reasons. At the hearing, the
principal has the right to be represented, to hear the evidence against her, to cross-
examine adverse witnesses, and to present supporting evidence. Tex. Educ. Code
2
Superintendents are not included in the definition of “teacher” in §21.206. Superintendents are
protected by §21.212, the only other place in the Education Code where the term “same
professional capacity” is used. While the contract nonrenewal procedures for superintendents
are slightly different than for principals, supervisors, classroom teachers, and counselors,
§21.212(b) still requires a school board to “employ the superintendent in the same professional
capacity for the following school year” if the board fails to timely invoke the contract
nonrenewal process. (Appx. 3) It is undisputed that superintendent is a “professional capacity”
and that a school board cannot reassign a superintendent without following the contract
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§21.210 (c). These protections are best described as due process or “quasi-due-
process” protections.3 Here, Jenkins lost her principal job without ever receiving
these protections. She was only allowed to pursue a grievance with a “stop, look,
and listen” review by the school board. (R. 327; 287-289)
There are no reported Texas court cases on whether §21.201 defines some or
all of the “professional capacities” referred to in §21.206.4 Barich v. San Felipe-
Del Rio Cons. Indep. Sch. Dist., Tex. Educ. Agency Docket No. 117-R1a-484
(Tex. Comm’r Educ. 1985) (Appx. 6), is the commissioner’s watershed decision on
reassignments. In Barich, the issue was whether an ROTC instructor had to be
reassigned to the same ROTC position (for which he may not have been properly
certified by the U.S. Air Force), or another teaching position for which he was
certified by the Texas Education Agency. The commissioner explained that the
nonrenewal process. Lehr v. Ector County Indep. Sch. Dist., Tex. Educ. Agency Docket No.
003-R3-0908, p. 12 (Tex. Comm’r Educ. 2011) (Appx. 9)
3
While these protections include the traditional components of due process, the legislature has
declared that, “A teacher does not have a property interest in a contract beyond its term.” Tex.
Educ. Code §21.204 (e). Whether this declaration formally undercuts a claim to due process in
light of these traditional due process rights, is beyond the scope of this case. Suffice it to say that
the contract nonrenewal protections are at the very least “quasi-due-process” in nature.
4
The commissioner has confronted this argument before. Perales v. Robstown Indep. Sch. Dist.,
Docket Nos. 053-R10-104; 084-R3-604 (Tex. Comm’r Educ. 2006) (Appx. 7) “Same
professional capacity,” as used in Texas Education Code section 21.206, is not limited to the
individual classifications used in Texas Education Code section 21.201(1).” Carpenter v.
Wichita Falls Indep. Sch. Dist., Docket No. 247-R3-491 (Tex. Comm’r Educ. 1993) (Appx. 8)
“Appellant would have the commissioner … hold that the phrase "same professional capacity"
… is … defined … by the definition of "teacher" found in §21.201(1) of that Act. … [T]his
phrase is … undefined … and … is a matter for interpretation by the commissioner, in the first
instance, and by the courts.”
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legislature used the phrase “same professional capacity” rather than “exact same
position,” thereby giving districts flexibility in personnel assignments “while
discouraging the abuse of the district’s inherent or contractual reassignment
authority.” Barich, pp. 7-8 (Appx. 6)
Jenkins agrees that an employee is not entitled to the exact same position
from year to year. “Same professional capacity” lies somewhere between, on the
one hand, the “exact same position,” and on the other hand, the school district’s
unfettered authority to reassign employees. The elementary principal of Campus A
may be reassigned as elementary principal of Campus B as in Martinez v. San
Antonio Indep. Sch. Dist., Tex. Educ. Agency Docket No. 219-R3-589 (Tex.
Comm’r Educ. 1989) (Appx. 8). A high school principal may be reassigned as an
elementary school principal as in Ramos v. El Paso Indep. Sch. Dist., Tex. Educ.
Agency Docket No. 002-R10-900 (Tex. Comm’r Educ. 2002) (Appx. 9).
However, since principal is its own professional capacity, CISD cannot reassign
Jenkins from principal to assistant principal without giving her the protections of
the contract nonrenewal process.
The commissioner recently described the competing interests that exist in
reassignments:
T h e district is given some flexibility to reassign employees in order
to manage staff to cover school needs, while employees are assured of
due process to protect against decisions that effectively demote them or
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fundamentally alter their existing contractual relationships with and
duties to the employing district.
Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3-1108, p. 3 (Tex. Comm’r
Educ. 2011) (Appx. 11). Though the commissioner speaks as if he tries to balance
the different interests, the scales are always tipped against administrators. For 30
years prior to this case, the commissioner has never rejected a reassignment from
one administrator position to another. (Appx. 13) Jenkins was effectively
demoted from the unique position of campus principal to one of several assistant
principals at a different campus, fundamentally altering her contractual relationship
with the district, without any quasi-due-process protection that the commissioner
promised to protect.
The commissioner opined in this case, “The positions described in the first
sentence of Texas Education Code section 21.201(1) may or may not be
professional capacities for purposes of Texas Education Code section 21.206(b).”
Jenkins v. Crosby Indep. Sch. Dist., Tex. Educ. Agency Docket No. 043-R10-1211
(Tex. Comm’r Educ. 2013) (Appx. 1, p. 24 emphasis added). This indecisiveness
is an acknowledgement by the commissioner that he has recognized as professional
capacities many of the positions listed in §21.201(1), but not principal.
An administrator … may not be placed in the capacity of a classroom
teacher; a classroom teacher may not be placed in the capacity of a
counselor; a counselor may not be placed in the capacity of a nurse; a
nurse may not be placed in the capacity of a librarian; etc.
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Barich, p. 8 (Appx. 6); See Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-
1007, p. 6 (Tex. Comm’r Educ. 2012) (Appx. 12). Thus, the commissioner has
conceded that §21.201(1) defines “professional capacity” as to superintendent,
classroom teacher, counselor, nurse, and librarian.5 However, without any
rationale, the commissioner has failed to include principal in that group, even
though it is also specifically identified in §21.201(1).
Defendants will argue that superintendents have statutory authority to
reassign staff and that the employment contract also grants reassignment authority.
There is a kernel of truth to that, but “same professional capacity” in §21.206 has
always tempered the school district’s authority to reassign professional staff.
Section §21.206 also trumps any contract language that says an employee may be
reassigned. This is the tension that the commissioner accurately described in
Barich that exists between “exact same position” and the district’s “abuse” of its
right to reassign. The commissioner said it best:
It would be odd for districts to believe just because contracts referred
to employees as ‘professional employees’ that they could reassign
such employees to any other professional position. If that were the
case, superintendents could be reassigned as librarians and school
nurses.
5
Superintendents may not be reassigned out of their professional capacity. Lehr v. Ector County Indep.
Sch. Dist., Docket No. 003-R3-0908, p. 13 (Tex. Comm’r Educ. 2011) (Appx. 9)
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Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007, p. 11 (Tex. Comm’r
Educ. 2012) (Appx. 12). If this Court finds that principal is its own professional
capacity like superintendent, classroom teacher, counselor, librarian and nurse,
Jenkins can still be reassigned to another campus as principal. Jenkins could agree
to a reassignment to another professional capacity. But the district could not
involuntarily reassign her to a position other than principal without giving her the
quasi-due-process protections of the contract nonrenewal process. Employing a
principal as an “employee,” then claiming an unchecked right to reassign her, is an
“abuse of the district’s inherent or contractual reassignment authority,” the very
thing the commissioner promised to guard against in Barich. Barich, pp. 7-8
(Appx. 6).
B. A PRINCIPAL’S JOB IS NOT COMPARABLE TO AN
ASSISTANT PRINCIPAL’S JOB
Assuming arguendo that §21.201(1) does not define “professional capacity”
in §21.206, principal and assistant principal are still not in the same professional
capacity. The commissioner has stated that he will review “differences in
authority, duties, and salary” to determine if two jobs are in the same professional
capacity. Barich p. 8. (Appx. 6.) He has declared that the test is “fact-intensive.”
Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007, p. 11 (Tex. Comm’r
Educ. 2012) (Appx. 12). But, once the employee is declared to be an
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“administrator,” the commissioner’s test has proven to be a legal fiction. No
matter how different the authority, duties and salary, the result for administrators
is always the same: The commissioner has approved all administrator-to-
administrator reassignments for the last 30 years. (Appx. 13)
An objective comparison of the authority and duties between principal and
assistant principal prove that the positions are fundamentally different and are not
in the same professional capacity. Like a superintendent, and unlike any other
position in the public schools, a principal receives her authority and duties directly
from state law. Tex. Educ. Code §§11.201, 11.202 (Appx. 4). A school district or
superintendent may not alter the authority granted to a principal under state law.
Pursuant to Texas Education Code §11.202 the principal has these powers:
a. The principal of a school is the instructional leader of the
school and shall be provided with adequate training and
personnel assistance to assume that role.
b. Each principal shall:
1. Except as provided by Subsection (d), approve all teacher
and staff appointments for that principal's campus from a
pool of applicants selected by the district or of applicants
who meet the hiring requirements established by the
district, based on criteria developed by the principal after
informal consultation with the faculty;
2. Set specific education objectives for the principal's
campus, through the planning process under Section
11.253;
3. Develop budgets for the principal's campus;
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4. Assume the administrative responsibility and
instructional leadership, under the supervision of the
superintendent, for discipline at the campus;
5. Assign, evaluate, and promote personnel assigned to the
campus;
6. Recommend to the superintendent the termination or
suspension of an employee assigned to the campus or the
nonrenewal of the term contract of an employee assigned
to the campus; and
7. Perform other duties assigned by the superintendent
pursuant to the policy of the board of trustees.
c. The board of trustees of a school district shall adopt a policy for
the selection of a campus principal that includes qualifications
required for that position.
d. The superintendent … has final placement authority for a
teacher transferred because of enrollment shifts or program
changes …
A principal shall regularly consult a committee of community stakeholders in
the “planning, operation, supervision, and evaluation of the campus educational
program.” Tex. Educ. Code §11.253(h). That a principal is granted authority
directly from state law portends that the state also holds her accountable for the
success or failure of the campus. A principal may not be retained at a campus
deemed “unacceptable” for two years unless by permission of a statutory campus
intervention team. Tex. Educ. Code §39.107(b). Conversely, a principal may
receive a financial performance incentive for success. Tex. Educ. Code §21.357.
State law requires specific guidelines for the appraisals of principals that are
distinct from the appraisals of other administrators, including assistant principals.
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Tex. Educ. Code §21.354 and Tex. Educ. Code §21.3541.
There are only two categories of administrator certificates in Texas:
superintendent and principal. Title 19 Tex. Admin. Code Chap. 241 and 242.6
Not only does state law enunciate a principal’s legal duties and authority, state
regulation makes it clear that, like superintendents, principals are one-of-a-kind.7
A principal is a community figure and the spokesperson for the school. When
a campus principal is removed or demoted, it makes the news, even in large cities.
In contrast, an assistant principal’s authority and duties come from the
principal or other supervisors. There is no state law defining the authority and
duties of an assistant principal. Whereas the principal is the chief instructional
leader of the campus, an assistant principal serves at the pleasure of the principal
and a local job description. Whereas a principal’s statutory duties may not be
altered by the school district, an assistant principal’s duties may be altered at any
time by her supervisors. Here, the CISD’s job description vaguely says that the
assistant principal shall:
Provide students with appropriate learning activities and experience
designed to fulfill their potential for intellectual, emotional, physical
6
19 Tex. Admin. Code §232.2(b): Classes of certificates include the following: 1.
Superintendent; 2. Principal; 3. Classroom teacher; 4. Instructional educator other than classroom
teacher, including reading specialist; 5. Master teacher; 6. School librarian; 7. School counselor;
8. Educational diagnostician; and 9. Educational aide.
7
According to the commissioner, a superintendent is “sui generis,” or one-of-a-kind, and may
not be reassigned. Lehr v. Ector County Indep. Sch. Dist., Docket No. 003-R3-0908, p. 13 (Tex.
Comm’r Educ. 2011) (Appx. 9)
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and social growth.
(R. 293) There is no comparison between the statutory authority and duties of
Jenkins as principal, and the authority and duties delineated in her assistant
principal job description.
The commissioner erroneously stated, “The local record does not indicate
with specificity what [Jenkins’] duties as assistant principal at Crosby High School
are.” Jenkins v. Crosby Indep. Sch. Dist., Tex. Educ. Agency Docket No. 043-
R10-1211 (Tex. Comm’r Educ. 2013) (Appx. 1, p. 2, finding of fact #4.). Had the
commissioner compared Jenkins’ statutory duties as principal with the actual job
description of assistant principal in the record (R. 293), he would have had no
option but to declare them as wholly different professional capacities.
2. School districts must employ each educator under a contract
with a legitimate professional capacity. Jenkins was a principal,
but her contract says she was an “Employee” which is not a
legitimate professional capacity. The commissioner found that
Jenkins was an “administrator,” a term not found in her
contract or defined in law, but broad enough to encompass her
reassignment from principal to assistant principal. Did the
commissioner correctly interpret the contract?
This issue is more fact-specific than the first. The commissioner has
approached reassignment cases by first looking to the job title stated in the
contract. The commissioner asks: “Is the contractual job title a legitimate
professional capacity? Are both jobs encompassed by the contractual job title?” If
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yes to both questions, then the two positions are probably within the same
professional capacity. Young v. Leggett Indep. Sch. Dist., Docket No. 175-R3-898
(Tex. Comm’r Educ. 1998) (Appx. 10)
What if the contract does not state a legitimate professional capacity and the
answer to the first question is “no”? That is the case here. Jenkins was employed
under a contract with Crosby ISD as an “employee.” According to the
commissioner in two recent cases, “professional employee” is not a legitimate
professional capacity. Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3-
1108 (Tex. Comm’r Educ. 2011) (Appx. 11). Tuck v. Alief Indep. Sch. Dist.,
Docket No. 008-R10-1007, p. 11 (Tex. Comm’r Educ. 2012) (Appx. 12). The
commissioner has described “professional employee” as “broad,” “undefined,” and
“of little assistance in determining [the employee’s] professional capacity;”
“vague” and “overbroad” (Wheeler, pp. 5-6); “broad” and “improper” (Tuck, pp.
7-8); and “not a legitimate professional capacity.” (Wheeler, p. 5; Tuck p. 7)
Here the commissioner ignored the fact that Jenkins was employed as an
ambiguous “employee.” There is no way to discern from reading the contract what
Jenkins’ position was, therefore, the contractual job title should be replaced with
Jenkins’ actual position. In this case, the contractual job title, “employee,” should
have been replaced with “principal,” the job Jenkins had held for the previous eight
years when she signed the contract. Without any legal reasoning, the commissioner
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found, sua sponte, that Jenkins’ professional capacity under the contract was
“administrator,” thus repairing the illegitimate contract term to the benefit of the
school district.
“Administrator” is not a term found in §21.201, and it does not appear in
Jenkins’ employment contract authored by CISD. The commissioner does not
explain where he got the term or why he inserted it into the contract. The
commissioner has held that “administrator” is a legitimate professional capacity,
but even the commissioner concedes the term is “generic.” Carpenter v. Wichita
Falls Indep. Sch. Dist., Docket No. 0247-R3-491 (Tex. Comm’r Educ. 1993)
(Appx. 8).
“Administrator” is a contractual black hole, pulling any and all
administrative positions into it. These positions may or may not require educator
certification, and may or may not be recognized in law. They might include
principal, assistant principal, assistant superintendent, athletic director, attendance
coordinator, science support specialist, director of Even Start, a generic central
office position, textbook coordinator, and other supervisory positions, limited only
by the school district’s creativity. (See Appx. 13) Though the differences in these
positions are often vast, the commissioner has painted them with the same broad
brush, declaring them to all reside in the same “administrator” professional
capacity. If the contract says “administrator,” the commissioner has never
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overruled a reassignment from one administrator position to another for 30 years
prior to this case. (Appx. 13)
State law says, “A school district shall employ each classroom teacher,
principal, librarian, nurse, or school counselor under a … contract.” Tex. Educ.
Code §21.002. This law would have no meaning if a principal could be hired as an
“employee” or “administrator” then immediately reassigned to another position
without quasi-due-process contract protection. Each principal is entitled to a
contract. The law says nothing about employing each administrator or employee
under a contract, and indeed, does not require it.
Here, this Court does not need to decide whether it is appropriate for a
school district to employ a principal under an “administrator” contract. What this
Court must decide is whether the commissioner erred when he unilaterally inserted
that term into her contract. Jenkins objects that the commissioner altered the
contract with the generic “administrator” to cure the more ambiguous “employee”
designation. The commissioner should have inserted the more accurate term -
“principal.” Each principal is entitled to a contract. Tex. Educ. Code. §21.002.
Jenkins was employed as the statutorily designated and authorized campus
principal - the campus instructional leader - for eight years preceding and during
the execution of the contract in question. (R. 287-89; R. 213) She was not an
ambiguous “employee” and she was not a generic “administrator.”
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Under the doctrine of contra proferentem, an ambiguous contract should be
interpreted against its author. Evergreen Nat. Indem. Com. v. Tan It All, Inc., 111
S.W. 3d 669 (Tex. App. - Austin 2003, no pet.). Whether a contact is ambiguous
is a question of law for the court to decide. Kelley-Coppedge, Inc. v. Highlands
Ins. Co., 980 S.W.2d 462 (Tex. 1998). In other cases, the commissioner has
declared contracts like Jenkins’ to be ambiguous, describing “professional
employee” as “overbroad,” “vague,” and “improper.” Tuck at pp. 7-8; Wheeler at
pp. 5-6. Though her contract is ambiguous as a matter of law, here, the
commissioner failed to interpret the ambiguity against the author as required.
Jenkins was employed as a principal, and her contract should reflect that,
especially since the CISD used an ambiguous and illegitimate term to define her
professional capacity. This is the only reasonable and lawful interpretation that
one can impose on the contract, which was signed at the same time that Jenkins
was employed as a campus principal. (R. 294) When Jenkins’ contract is
construed against CISD on the question of her professional capacity, it must be
concluded that she cannot be reassigned from principal to assistant principal
without receiving the protections of the contract nonrenewal process.
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CONCLUSION
This case does not affect the superintendent’s authority to reassign any
personnel other than a principal. The school’s ability to reassign classroom
teachers, counselors, librarians, nurses and other administrators is unaffected.
Jenkins only advocates for the inclusion of principals among the specific list of
professional capacities defined by §21.201(1).
A principal is not comparable to assistant principal. Principals and
superintendents derive their authority directly from state law and state certification.
Assistant principals derive their authority only through their supervisors and a local
job description. The position of campus principal is not a generic administrator
position. As principal, Jenkins was the instructional leader, community figure,
spokesperson, and chief supervisor of the campus. As assistant principal, she is
one of several, operating in a supporting role, and serving at the pleasure of the
principal.
The school district may reassign the principal to a different campus. The
district may negotiate a reassignment of the principal to a different professional
capacity. If a principal is underperforming, the district may work to remediate her
performance, negotiate a peaceful resolution of the employment relationship, or
seek to dismiss the principal. The principal would be entitled to written reasons for
dismissal, and an opportunity to challenge the reasons in a hearing. These
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approaches respect the principal’s rights for quasi-due-process, and reasonably
temper the district’s unfettered authority to reassign principals.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, JENKINS respectfully
requests that she be granted the following relief:
A. That this Court reverse the trial court and the decision of the
commissioner and render for Jenkins;
B. That this Court finds that CISD breached Jenkins’ contract and/or
violated Jenkins’ statutory rights;
C. That this Court order CISD to immediately reinstate Jenkins to her
former position as principal;
D. That Jenkins be awarded such other and further relief to which she
may show herself to be justly entitled.
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Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
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Respectfully submitted,
/s/ Kevin F. Lungwitz
Kevin F. Lungwitz
State Bar No. 12698790
Elizabeth Poole
State Bar No. 24051201
The Lungwitz Law Firm, P.C.
3005 S. Lamar Blvd.
Suite D-109-362
Austin, Texas 78704-4785
P. 512.461.0188
F. 866.739.7138
Kevin@LungwitzLaw.com
Elizabeth@LungwitzLaw.com
ATTORNEYS FOR APPELLANT
HERMENIA JENKINS
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. PROC. 9.4(I)(3)
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the
number of words in this brief, excluding those matters listed in Rule 9.4(i)(1) is
4580.
/s/ Kevin F. Lungwitz
Kevin F. Lungwitz
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 31
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document was
served on:
David B. Hodgins
THOMPSON & HORTON, L.L.P.
3200 Southwest freeway, Suite 2000
Houston TX 77027
Telephone: (713) 554-6745
Telecopy: (713) 583-8245
dhodgins@thompsonhorton.com
FOR APPELLEE CROSBY ISD
Andrew Lutostanski
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
Administrative Law Division
P.O. Box 12548, Capitol Station
Austin TX 78711-2548
Phone: (512) 475-4200
Fax: (512) 320-0167
andrew.lutostanski@texasattorneygeneral.gov
FOR APPELLEE COMMISSIONER OF EDUCATION
Via e-file and courtesy email on July 10, 2015.
/s/ Kevin F. Lungwitz
Kevin F. Lungwitz
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
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APPENDIX 1
Jenkins v. Crosby Indep. Sch. Dist.,
Docket No. 043-R10-1211
(Tex. Comm’r Educ. 2013)
DOCKET NO. 043-Rl0-1211
HERMENIA JENKINS § BEFORE THE
§
§
v. § COMMISSIONER OF EDUCA Tl ON
§
CROSBY §
INDEPENDENT SCHOOL DISTRICT § THE ST ATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioner, Hermenia Jenkins, appeals the denial of her grievance by Respondent,
Crosby Independent School District. Christopher Maska is the Administrative Law Judge
appointed by the Commissioner of Education to preside over this cause. Petitioner is
represented by Kevin F. Lungwitz, Attorney at Law, Austin, Texas. Respondent is
represented by David B. Hodgins, Attorney at Law, Houston, Texas'.
The Administrative Law Judge issued a Proposal for Decision recommending that
Petitioner's appeal be denied in part and dismissed in patt. Exceptions and replies were
timely filed and considered.
The central issue in this case is whether a principal serving under a term contract
can be reassigned to an assistant principal position in the year after the principal' s
contract has been renewed. By statute, such a reassignment must be in "same
professional capacity." Petitioner contends that a bright line rule should be established so
that a principal may only be reassigned to another principal position. For the
Commissioner to so rule would require the Commissioner to overrule a string of cases
going back to the Commissioner's earliest decisions under the Term Contract
Nonrenewal Act. Further, such a ruling is not consistent with the intention of the
Legislature which passed the statute in question. The Legislature did not create the
purposed bright line rule, but instead used language that allows the Commissioner to
1
The Texas Association of School Board's Legal Assistance Fund filed a Bricfof Amicus Curiae.
043-RI0-1211
Appx. 1
H. Jenkins v. Crosby ISD
TEA #: 000005
exercise his broad experience in education to determine just what is the "same
professional capacity" in each individual case.
Findings of Fact
After due consideration of the record and matters officially noticed, it is
concluded that the following Findings of Fact are supported by substantial evidence and
are the Findings of Fact that best support Respondent's decision 2 •
l. In March 2011, Petitioner and Respondent signed a contract that provides
in relevant part:
I. The Board hereby agrees to employ the Employee and the
Employee agrees to serve the Board by engaging in duties as
assigned by the Superintendent of the Crosby Independent School
District for the school years 2011-2013 with beginning and ending
dates as set by the Board.
3. It is understood and agreed by the parties to this Contract that the
Superintendent of the Crosby Independent School District shall have the
right to assign such duties to the Employee as the Superintendent shall
deem proper, and since the Employee is not employed to fill a specific
position or assignment, the Superintendent may assign or reassign the
Employee to other or additional duties for which he or she is
professionally certified or otherwise qualified to perform
2. Petitioner served as the principal of Charles R. Drew Intermediate School
from 2003 to the end of the 20I0-2011 school year.
3. On June 28, 201 l, Petitioner was reassigned from the position of principal
at Charles R. Drew Intermediate to the position of assistant principal at Crosby High
School.
4. The local record does not indicate with specificity what Petitioner's duties
as assistant principal at Crosby High School are.
'See 19 TFX. ADM JN. Corne § 157.1073(h); Bosworth v. East Central Independent School District. Docket
No. 090-Rl-803 (Comm'r Educ. 2003).
043-RI0-1211 2
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Discussion
Petitioner asserts that Respondent improperly reassigned her. Respondent denies
this claim. In particular, Petitioner alleges that Respondent's actions violated Texas
Education Code section I 1.202, which designates a principal as the instructional leader of
a campus; section 11.20 l, which grants supervisory rights to superintendents, and section
2 l.206(b) which requires a school board that does not timely give notice of proposed
nonrcncwal to hire the teacher in the same professional capacity for the following school
year. Petitioner also alleges that Respondent violated I 9 TEX. ADMIN. CODE § 150.1021,
which concerns the Commissioner's Recommended Appraisal process for administrators
and policy DN(LOCAL). Respondent denies these claims.
Rights
Petitioner claims her reassignment violated her rights under Texas Education
Code section 11.202, 19 TEX. ADM IN. CODE § 150.1021, and policy DN(LOCAL). Texas
Education Code section I 1.202 is entitled "Principals." It provides that a principal is the
instructional leader of a school. It lists seven duties of a principal. It requires school
boards to adopt a policy for selecting principals. It gives a superintendent or designee
final authority to assign teachers transferred due to enrollment shifts or program changes.
Texas Education Code section 11.202 does not give Petitioner the right to a principal
position. Likewise, 19 TEX. ADMIN. CODE§ 150.1021, and policy DN(LOCAL) do not
give Petitioner a right to a principal position. However, if Petitioner were entitled to a
principal position, she would be entitled to the rights provided by this statute and rule, but
not local policy. Under Texas Education Code section 7.057(a)(2)(A), the Commissioner
lacks jurisdiction over violations of school district policies. Reeves v. Aledo lndepende/1/
School District, Docket No. 106-Rl 0-496 (Comm'r Educ. 1999)
TEX. EDUC. CODE § 11.20 l
Texas Education Code 11.201 (d)(2) provides that superintendents have
responsibility for most assignments. Petitioner contends that Respondent's
043-RI0-121 I 3
H. Jenkins v. Crosby ISD
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superintendent reassigned her in an arbitrary and capricious manner and, hence, the
reassignment is invalid. However, a superintendent does not violate Texas Education
Code l l.20l(d) when a superintendent poorly exercises an authority granted by this
section. The Commissioner has held that:
The provisions in question do not require this responsibility to be exercised fairly
or wisely. The provisions also do not prohibit a district from taking action against
superintendents who act rashly or unfairly.
S.R.S. v Groesbeck Independent School District, Docket No. 025-R5-105 (Comm'r Educ.
2006). Texas Education Code l l.20l(d) could only be violated by a refusal to exercise
the statutory grant of authority.
A board's decision may be overturned for being arbitrary and capricious.
However, this is only the case when the board's decision itself is arbitrary and capricious.
That a superintendent's action was arbitrary and capricious does not make a school
board's decision arbitrary and capricious. If any action of a superintendent that was
alleged to be was arbitrary and capricious could be appealed to the Commissioner, the
Commissioner's docket would greatly expand. This would be contrary to the intention of
the Legislature of limiting the Commissioner's jurisdiction, which can be seen by
comparing Texas Education Code section 7.057 to the prior jurisdictional statute, Texas
Education Code section 11.13. The Commissioner lacks jurisdiction under Texas
Education Code section 7.057(a)(2)(A) over a claim Respondent's superintendent
arbitrarily and capriciously reassigned her.
Same Professional Capacity
Petitioner contends that her reassignment is not proper because the positions of
principal and assistant principal arc not in the same professional capacity. The phrase
"same professional capacity" occurs twice in the Texas Education Code. In Texas
Education Code section 21.206 provides:
043-RI0-1211 4
H. Jenkins v. Crosby ISD
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(a) Not later than the 10th day before the last day of instruction in a school year, the
board of trustees shall notify in writing each teacher whose contract is about to expire
whether the board proposes to renew or not renew the contract. The notice must be
delivered personally by hand delivery to the teacher on the campus at which the
teacher is employed, except that if the teacher is not present on the campus on the
date that hand delivery is attempted, the notice must be mailed by prepaid certified
mail or delivered by express delivery service to the teacher's address of record with
the district. Notice that is postmarked on or before the I 0th day before the last day of
instruction is considered timely given under this subsection.
(b) The board's failure to give the notice required by Subsection (a) within the time
specified constitutes an election to employ the teacher in the same professional
capacity for the following school year.
(c) This section does not apply to a term contract with a superintendent.
If a school district fails to timely give a teacher notice of proposed nonrenewal when the
teacher's contract is about lo expire, the school district is required to employ the teacher
in the "same professional capacity" for the following school year. A requirement to
employ a teacher in the "same professional capacity" is triggered only when a contract is
about to expire and timely notice of proposed nonrenewal is not given. The other time
the phrase "same professional capacity" is used in the Texas Education Code is found al
Texas Education Code section 21.212. This provision is very similar to Texas Education
Code section 21.206. The major distinction is that it applies exclusively lo
superintendents.
In the present case, it would seem that no violation of Texas Education Code
section 21.206 could occur because when Petitioner was reassigned her contract was not
about to expire. Petitioner's contract will not expire until the end of the 2012-2013
school year. Petitioner's claim concerning Texas Education Code section 21.206 would
not appear to be ripe. However, Petitioner points out that she was employed by
Respondent as a principal just prior to her signing her 2011-2013 contract. Hence, during
the 2011-2012 school year, Respondent was required to employ Petitioner in the same
professional capacity as Petitioner held during the 2010-2011 school year. However, if
043-Rl0-1211 5
H. Jenkins v. Crosby ISD
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Petitioner were to prevail on this claim, she would only be entitled to be employed in the
same professional capacity for the 2011-2012 school year and not for the 2012-2013
school year. While this may be viewed as a result that does not favor teachers, some
implications of multiple year term contracts favor teachers.
As the Commissioner pointed out in Smithwick v. Castleberry Independent School
District. Docket No. 085-R 1-0711 n. 2 (Comm 'r Educ. 2011 ), multiple year contracts can
also benefit teachers. A multiple year contract may only be nonrcnewed when it is about
to expire. A school district that wishes to end a multiple year contract at the end of the
list contract year must proceed by the more difficult process of termination as opposed to
nonrenewal. In such a case, the district is required to prove good cause and the case is
heard by an independent hearing examiner. TEX. EDUC. CODE§§ 21.211, 21.251 et seq.
Must Principals Remain Principals?
Petitioner argues that the Commissioner should overturn precedent and conclude
that ifa principal's contract is not nonrenewed, a school district is limited to reassigning a
principal to another principal position for the next school year. Petitioner argues that the
only position that is in the same professional capacity of a principal is the position of
principal. Precedent should not be lightly overturned. Teachers and school districts base
important decisions in reliance on Commissioner's Decisions. But the fundamental
principle of statutory construction is to give effect to the intention of the Legislature. If
the Commissioner's long standing interpretation of the statute is in conflict with the
intention of the Legislature, the Commissioner's interpretation should change.
The Term Contract Nonrenewal Act3 ("TCNA") was passed by the 67 111
Legislature in 198!'1• Term Contract Nonrenewal Act, 67' 11 Leg., R.S., ch. 765, 1981 Tex.
'Section I of SB 341 itself provided that "this act shall be known as "The Term Contract Nonrenewal
Act."
-t The TCNA became effective on August 31, 1981. However, because most contracts for the 1981-1982
school year had already been signed by that date, the TCNA really became operational for the 1982-1983
043-RI0-1211 6
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Gen Laws 2847. This law fundamentally changed teacher 5 contracts. Before the TCNA
many districts hired teachers and administrators on one-year contracts. When the
contract term expired, the district was not required to offer a contract for the new school
year. Seifert v. Linglevi/le Jndep. Sch. Dist., 692 S.W.2d 461, 462 (Tex. 1985). Prior to
the passage of the TCNA, school districts were not required to establish policy reasons
for ending a contractual relationship, to give teachers the reasons why ending the
contractual relationship was proposed, and to provide teachers with the opportunity for a
hearing where the administration had the burden of proof to show that the teacher's
contract should be nonrenewed. A key passage of the original TCNA, then numbered as
Texas Education Code section 21.204, required a district that did not nonrenew a
teacher's contract to hire the teacher for the next school year:
Notice
(a) In the event the board of trustees receives a recommendation for nonrenewal,
the board after consideration of written evaluations required by Section
21.202 of this subchapter and the reasons for the recommendation, shall in its
sole discretion, either reject the recommendation or shall give the teacher
written notice of the proposed nonrenewal on or before April I proceeding the
end of the employment fixed in the contract.
(b) In the event offailure to give such notice of proposed nonrenewal within the
time herein specified, the board shall thereby elect to employ such employee
in the same professional capacity/or the succeeding school year.
(c) The notice of proposed nonrenewal required in this section shall contain a
statement of all the reasons for such proposed action.
(Emphasis added). If a teacher's contract was not noticed for nonrencwal, the school
board was not only required to hire the teacher for the next school year but also to
employ the teacher in the same professional capacity for the next school year. The
fundamental dispute in this case is over the meaning of the phrase "same professional
capacity.·•
school year. That makes the 1984-1985 school year, the first time the issue of whether a teacher was
rehired in the same professional capacity could actually be raised.
5
From the beginning, the TCNA has used an expansive definition of"teacher" that includes many who arc
not normally referred lo as teachers.
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Legislative History
The legislative history of the TCNA 6 sheds some light on the meaning of the
phrase "same professional capacity." Senate Bill 341 created the TCNA. As originally
filed. SB 341 was far more ambitious than the TCNA which became law. Under SB 341
as filed, a term or continuing contract could only be ended for 'just cause." The contract
could only be ended aller the teacher was given written notice of deficiencies, assistance,
and reasonable time for improvement. Evidence against a teacher could only be used if it
was promptly brought to the teacher's attention. The hearing was to be held before an
attorney selected by both parties. The hearing examiner's decision was final in that there
was no appeal to the board or the Commissioner, but the hearing examiner's decision was
appealablc to district court under the Administrative Procedures and Texas Register Act.
More to the point of the current controversy, SB 341 as filed defined "demotion"
in an expansive manner:
an involuntary reduction of a teacher to a position of lesser rank,
responsibility, or compensation, or the reassignment of a teacher outside the scope
of the teacher's teaching certificate or major or minor field of study.
Any loss of rank, responsibility, or compensation constituted a demotion. All of the
procedures for ending a contract described in the preceding paragraph also applied when
a teacher was proposed for demotion. Demotion could only occur after just cause was
proved at a hearing. Demotion would apply to a change in professional capacity as well
as many more situations. SB 341 made it through the Senate in substantially the same
form as it was filed.
In the House, SB 341 became the TCNA. The House Education Committee
passed its substitute for SB 341 with the following language in section 21.204(b).
"The relevant legislative history may be found at the website for the Legislative Reference Library of
Texas. http://www.lrl.state.tx.us/index.cfm.
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In the event of failure to give such notice of proposed nonrenewal within the time
herein specified, the board of trustees shall thereby elect to employ such
employee in the same capacity for the succeeding school year.
The meaning of the phrase "same capacity" is not defined in the Committee Substitute.
"Same capacity" could perhaps be interpreted broadly to mean in a particular case: the
fifth grade English teacher at Davis Elementary School. It could perhaps be interpreted
strictly to mean any classroom teaching position. When SB 341 was heard by the House
on Second Reading an amendment was made to include the word "professional" between
the words "same" and "capacity." No definition was added for the phrase "same
professional capacity."
The Commissioner has on numerous occasions ruled on the issue of whether a
particular assignment was in the same professional capacity. There being no statutory
delinition of ··same professional capacity," the Commissioner has described the meaning
of the term. The seminal case as to the meaning of the phrase "same professional
capacity" is Barich v. San Felipe-Del Rio Consolidated Independent School District,
Docket No. 117-Rla-484 (Comm'r Educ. 1985):
Petitioner argues that he did not receive an offer of employment in the
"same professional capacity," because he was never offered the same position he
had held during the 1982-83 school year; i.e., ROTC teacher. It would not be
reasonable, however, to conclude that the legislature intended that every teacher
who does not receive notice of his or her proposed nonrenewal by April 1 is
entitled to be employed in the exact same position the following school year.
Such a holding would require a school district to actually begin nonrenewal
proceedings by April 1 against every teacher it might conceivably wish to assign
to a different position the following year, or face a nonrenewal claim with any
reassignment effected after April I.
It is more reasonable to conclude that the legislature. by using the term
"same pr<Jfi:ssional capacity" (instead of "the exact same position''). intended to
allow school districts to be flexible in their personnel assignments while
discouraging the abuse of the district's inherent or contractual reassignment
authority. In other the district may place a teacher whose employment has
been renewed by operation of law in a position diflerent fi'om that to which the
teacher \HIS assigned !he previous year. as long as the posilion is one lo which the
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dislricl could have reassigned lhe leacher had lhe parties voluniw·ily entered into
a contract for the following year. Jn some instances, the validity of a particular
placement will he clear. For example, an administrator who does not receive the
required notice by April 1 may not be placed in the capacily of' a classroom
teacher; a classroom leacher may not be placed in lhe capacity of' a counselor; a
counselor may not be placed in the capacity of a nurse; a nurse may not be placed
in the capacity of a librarian; etc.
In other instances, the validity of a particular placemen/ might not be so
clear. For example, a placement might be to another position within the same
prc!f'essional calegmy (e.g., adminislra/or), but neverlheless, be invalid (e.g., fiwn
superintendenl 10 assislant elemen101y school principal). Factors to be
considered in determining the validity of such a placement include, but are not
necessarily limited to, differences in authority, dlllies, and salmy.
In the present case, Petitioner was employed during the 1982-83 school
year as an ROTC teacher. The district's offers of employment ranged from the
general (i.e., a statement that the district would comply with the Commissioner's
Order and that Petitioner should "report to work" at once) to the relatively - -
though not completely - - specific (i.e., references to teaching an elementary
grade, eighth grade social science, high school psychology, or high school
industrial arts). Nevertheless, it is clear - - and Petitioner concedes (Tr. 77-79) - -
that, although the district at no time offered to reinstate Petitioner as ROTC
teacher, it did offer to place him in a teaching position of some sort. Further, the
uncontested testimony is that Petitioner would not suffer any loss of salary due to
the placement. (See Finding of Fact No. 4). In his Post-Hearing Brief, Petitioner
asserts that the other positions "are substantially different, involve different
responsibilities, and require different skills." (p. 3). However, Petitioner
introduced no evidence which would support this contention. More importantly,
no evidence was introduced which would support a holding that it would be
improper to reassign an ROTC teacher to one of the positions referred to by the
district.
Under the circumstances, it is concluded that the school district
unconditionally offered Petitioner a position in the "same professional capacity"
for the 1983-84 school year and that Petitioner rejected that offer. Petitioner was,
therefore, not employed by the district during the I 983-84 school year by choice,
and he has no cognizable claim against the district for correctly noting, on March
28, 1983, that he was not then employed by the district, and for advising him that
it did not intend to employ him during the 1984-85 school year.
(Emphasis added)
As shown above, the Commissioner's interpretation of the Legislature's intent is
supported by the legislative history. As the bill went through the Legislature more
flexibility was granted to school districts. The Commissioner held that the first question
to be asked to determine whether a reassignment is in the same professional capacity is
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whether the district could have contracted with the teacher for that position. This results
in several conclusions. An administrator cannot be reassigned as a classroom teacher. A
classroom teacher cannot be reassigned as a counselor. A counselor cannot be reassigned
as a nurse. A nurse cannot be reassigned as a librarian. It should be noted that as the
TCNA then read, classroom teacher and counselor were listed as such in the definition of
"teacher" found at Texas Education Code section 21.201(1):
·'Teacher" means a superintendent, principal, supervisor, classroom teacher,
counselor or other full-time professional employee, except paraprofessional
personnel, who is required to hold a valid certificate or permit.
Administrator, nurse, and librarian were not listed as such in the definition of "teacher"
found at Texas Education Code section 21.20 I (I). From the first substantive decision
made in the first year the issue could be addressed by the Commissioner, the named
positions found at Texas Education Code section 21.20 I (I) were not held to be
professional capacities as the Commissioner used the term "administrator" that is not
listed to include superintendents and assistant principals.
The Commissioner goes on to find that employing one in the same professional
category is not sufficient to constitute same professional capacity in some instances.
While a superintendent and an assistant elementary school principal might be in the same
prolcssional category of administrator they are not in the same professional capacity
because of major distinctions in authority, duties, and salary. The Commissioner
acknowledges that other factors could be considered. As to the issue directly presented in
Barich, it was found that reassigning an ROTC teacher to another teaching position was
valid because the positions were in the same professional capacity.
Decided just months after Barich, Hester v. Canadian Independent School
District, Docket No. 106-Rl-585 (Comm'r Educ. 1985) further sets out what is meant by
"same professional capacity." Hester was employed under contract for the position
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teacher/coach. The Commissioner found that Hester was employed in the professional
capacity of teacher/coach and that since there was not substantial evidence to support the
nonrenewal of his contract that Respondent was required to employ Hester in the same
professional of teacher/coach for the next school year. It should be noted that coach was
not listed as such in the definition of "teacher" found at Texas Education Code section
21.201 ( 1). Nonetheless, the Commissioner found that by contract the district had made
teacher/coach Hester's professional capacity. How a teacher's contract defines the
teacher's professional capacity is significant but not necessarily dispositive. Carpenter v.
Wichita Falls Independent School District, Docket No. 247-R3-49l (Comm'r Educ.
1991 ). The Commissioner has held in several cases that a school district is bound by
professional capacities such as teacher/coach and teacher/dean that it creates in its
contractual relationships. If a school district hires a teacher under a term contract in a
particular capacity, even if such capacity is not specifically listed in the definition of
"teacher" in the TCNA, the district must rehire the teacher in that capacity for the next
school year if the district does not nonrenew the teacher's contract.
Progeny of Barich
Through the years since 1985, the Commissioner has consistently applied the
principles enunciated in Barich. Contracted to be a teacher or a coach, the district
properly reassigned the employee from the position of middle school teacher and high
school coach to the position of physical education teacher with scheduling and budgeting
responsibilities. Lieberman v. Eagle Mountain-Saginaw Independent School District,
Docket No. 192-R3-785 (Comm'r Educ. 1985). Contracted to be Teacher/Coach
Football (Head football coach), the district improperly reassigned the employee to a
teaching position. Grounds v. Tolar Independent School District, Docket No. 340-R3-
786 (Comm'r Educ. 1986). Contracted to be a teacher and head coach for duties as
assigned, the district properly reassigned the employee from teacher and head coach for
football, basketball, and track to the position of teacher and head coach for boys'
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basketball. Reyes v. Culberson County Independent School District, Docket No. 229-R3-
787 (Comm'r Educ. 1987). Contracted to be a teacher/coach, the district properly
reassigned the employee from being a teacher and football coach to being a teacher and
baseball coach. Satcher v. Florence Independent School District, Docket No. 363-R3-
786 (Comm 'r Educ. 1987). Contracted to be teachers/deans, the district improperly
reassigned the employees from teacher/dean positions to teacher positions. Abba/I et al.
v. Ector County Independent School District, Docket No. 081-R3-1287, 105-R3-288
(Comm'r Educ. 1991 ). Contracted for 220 duty days, the district properly reduced duty
days to 188 days for the following school year. Marshall v. Seguin Independent School
District. Docket No. 177-R 1-690 (Comm'r Educ. 1991 ). Contracted as an administrator,
the district properly reassigned the employee from the district wide position of Science
Support Specialist to the position of high school assistant principal. Carpenter v. Wichita
Falls Independent School District, Docket No. 247-R3-491 (Comm'r Educ. 1991). The
district properly reassigned employee from the position of high school assistant principal
to the position of middle school assistant principal. Andrews v. Houston Independent
School District, Docket No. 236-Rl-897 (Comm'r Educ. 1997). Contracted as a
professional employee 7, the district properly reassigned the employee from the position
of athletic director to the position of teacher/assistant principal. Keith v. Tarkington
Independent School District, Docket No. 459-R3-89l(Comm'r Educ. 1992). Contracted
as teachers, the district's reduction in salary by itself did not place the teachers in
different professional capacities. Goedeke v. Smyer Independent School District, Docket
No. l l l-R3-l 292 (Comm'r Educ. 1997). Contracted as teacher/assistant band director,
the district improperly reassigned the employee to a teaching position. Salinas v. Roma
Independent School District, Docket No. 058-R3-l l 96 (Comm'r Educ. 1997).
Contracted as an administrator, the district properly reassigned the employee from
7
Keith docs not discuss whether "professional employee" is a legitimate professional capacity. It does not
conclude that because the two positions at issue were professional that the reassignment is allowable. Keith
simply mentions what the contract at issue states.
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principal of an independent middle school campus to the position of principal or assistant
principal for grades 7 to 9 at a unified junior high/high school campus. Underwood v.
Rusk Independent School District, Docket No. 062-R3-198 (Comm'r Educ. 1998).
Contracted as a teacher/coach, the district properly reassigned the employee from the
position of varsity coach and teacher to the position of junior high school coach and
teacher. Young v. Leggett Independent School District, Docket No. l 75-R3-898
(Comm 'r Educ. 1999). Contracted as an administrator, the district properly reassigned
the employee from the district wide position of attendance coordinator to the position of
middle school assistant principal. Veliz v. Donna Independent School District, Docket
No. Ol l-R3-999 (Comm'r Educ. 2000). The district properly transferred the employee
from one principal position to another. Yturralde v. El Paso Independent School District,
Docket No. 001-RI0-900 (Comm'r Educ. 2002). The district properly transferred the
employee from the position of high school principal to the position of elementary
principal. Ramos v. El Paso Independent School District, Docket No. 002-RI0-900
(Comm'r Educ. 2002). Contracted as an administrator, the district properly reassigned
the employee from the position of high school principal to the position of middle school
assistant principal. Pasqua v. Fort Stockton Independent School District, Docket No.
Ol 1-R3-1102 (Comm'r Educ. 2004). Contracted as an administrator, the district properly
reassigned the employee from a district-wide Director of Even Start to the position
middle school assistant principal. Perales v. Robstown Independent School District,
Docket Nos. 052-Rl 0-104, 084-R3-604 (Comm'r Educ. 2006). Contracted as an
administrator, the district properly reassigned the employee from a central office position
to an assistant principal position. Sanchez v. Donna Independent School District, Docket
No. 075-RI0-605 (Comm'r Educ. 2007). Contracted as an administrator, the district
properly reassigned the employees from a central office position to an assistant principal
position. Gonzalez v. Donna Independent School District, Docket No. 074-RI0-605
(Comm'r Educ. 2007). Contracted as an administrator, the district properly reassigned
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the employee from a central office position to an assistant principal position. Perez v.
Donna Independent School District, Docket No. 086-Rl-705 (Comm'r Educ. 2007).
Contracted as an administrator, the district properly reassigned the employee from the
position of Executive Director of Special Education to the position of elementary school
assistant principal. Lehr v. Ector County Independent School District, Docket No. 003-
R3-0908 (Comm'r Educ. 2011). Contracted as professional employee, the district
improperly reassigned the employee from the position of assistant principal to the
position of classroom teacher. Wheeler v. Austin Independent School District, Docket
No. 008-R3-l 108 (Comm'r Educ. 2011). Contracted as a professional employee, the
district properly reassigned the employee from the position of middle school principal to
the position of Human Resources Coordinator. Murillo v. Laredo Independent School
District, Docket No. 027-R3-0108 (Comm'r Educ. 2012). The district properly
reassigned the employee from the position of elementary school principal to the position
of Program Specialist II. Montgon1e1y v. Richardson Independent School District,
Docket No. 007-RIO-l 008 (Comm'r Educ. 2012). Contracted as a professional
employee, the district improperly reassigned the employee from the position of Career
Specialist to the position of teacher. Tuck v. Alief Independent School District, Docket
No. 008-Rl0-1007 (Comm'r Educ. 2012). Contracted as an administrator, the district
properly reassigned the employee from the position of principal to the position of
assistant principal. McCoy v. Kermit Independent School District, Docket No. 004-R3-
0908 (Comm'r Educ. 2012).
Administrators
As can be seen from the above, a great many of the same professional capacity
cases involved administrators. In Carpenter v. Wichita Falls Independent School
District, Docket No. 247-R3-491 (Comm'r Educ. 1991) the Commissioner held:
The question presented by this appeal is the scope and reach of the Term Contract
Nonrenewal Act, Texas Education Code section 21.204(b), in the context of the
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reassignment of those school district personnel coming under its protections.
Petitioner would have the Commissioner of Education hold that the phrase "same
professional capacity" as used in the TCNA is either defined by or in some way
informed by the definition of"teacher" found in§ 21.201(1) of that Act. I do not
believe the statutory language can permit of such an interpretation. Rather, this
phrase is left undefined by the statute, and therefore its meaning is a matter for
interpretation by the Commissioner, in the first instance, and by the courts. The
decisions of the Commissioner (and the courts) have consistently looked to the
language of the employment contract itself and attempted to give the parties the
benefit of their bargain. In this case, the contract between the parties provides that
the position to which Petitioner was entitled was that of a generic "administrator."
Petitioner has not proven that hers was a contract of adhesion, which would
clearly change the result in this case. It is true that the Commissioner has held that
§ 2 l.204(b) limits the right of the district lo transfer a term contract teacher.
Barich v. San Felipe-De/ Rio C.l.S.D., Docket No. l l 7-Rla-484 (Comm'r Educ.
May 1985). It is possible to imagine situations where the transfer clause of an
employment contract would be held to be unenforceable under § 2 l.204(b) 8•
However, this is not such a case. It has been the consistent view of the
Commissioner that the TCNA balanced its grant of limited tenure rights against
the considerable personnel management problems it might cause if imposed
inflexibly. Districts have responded to this law by creating broad classes within
which transfers do not implicate the TCNA. If taken to extremes, this tactic
would be against public policy as expressed in the TCNA, but I cannot make such
a finding in this case. The need for flexibility in making personnel changes is
strongest, and the argument for a rigid tenure system weakest, at the
administrative level. In short, I find the generic "administrator" position before
me consistent with the policies of the TCNA.
Administrators can often be reassigned to different administrator positions, but that does
not mean that they may be assigned to any administrator positions. Districts can by
contract establish broad professional capacities. However, professional capacities that
arc too broad will not be allowed. Tuck v. A lief Independent School District, Docket No.
008-RJ0-1007 (Comm'r Educ. 2012).
Deference
If the Commissioner were to decide to issue a new interpretation of "same
professional capacity" it would seem to be because his long standing interpretation was
incorrect. To determine whether the Commissioner's interpretation is correct, some
'The old Texas Education Code section 21.204 is the predecessor of the current Texas Education Code
section 21.206.
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cannons of statutory interpretation will be considered. The standards for deferring to an
agency's interpretation have been set by the Texas Supreme Court:
If there is vagueness, ambiguity, or room for policy determinations in a statute or
regulation, as there is here, we normally defer to the agency's interpretation unless
it is plainly erroneous or inconsistent with the language of the statute, regulation,
or rule. See Pub. Uti/. Comm'n v. Gulf States Utils. Co., 809 S.W.2d 201, 207
(Tex. 1991); Stanfordv. Butler, 142 Tex. 692, 181S.W.2d269, 273 (Tex. 1944).
TGS-NOPEC Geophysical v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). There is
ambiguity about what the phrase "same professional capacity" means. The phrase is not
defined in statute and is susceptible to multiple interpretations. The Commissioner's
interpretation should be deferred to.
Further, as the Commissioner's interpretation is a long standing interpretation, the
doctrine of legislative acquiescence applies:
If an ambiguous statute that has been interpreted by a court of last resort or given
a longstanding construction by a proper administrative officer is re-enacted
without substantial change, the Legislature is presumed to have been familiar with
that interpretation and to have adopted it. See Grapevine Excavation, Inc. v. Md.
Lloyds Ins. Co., 35 S.WJd 1, 5, 43 Tex. Sup. Ct. J. 1086 (Tex. 2000) (Once the
Texas Supreme Court and courts of appeals "construe a statute and the Legislature
re-enacts or codifies that statute without substantial change, we presume that the
Legislature has adopted the judicial interpretation."); Sharp v. House of Lloyd,
Inc., 815 S.W.2d 245, 248, 34 Tex. Sup. Ct. J. 652 (Tex. 1991) ('"[A] statute of
doubtful meaning that has been construed by the proper administrative officers,
when re-enacted without any substantial change in verbiage, will ordinarily
receive the same construction.' This rule is only applicable where there has been
an affirmative long-standing administrative policy.") (quoting Humble Oil & Ref
Co. v. Calvert, 414 S.W.2d 172, 180, 10 Tex. Sup. Ct. J. 254 (Tex. 1967)); Tex.
Employers' Ins. Ass'n v. Holmes, 145 Tex. 158, 196 S.W.2d 390, 395 (Tex. 1946)
("There is another well-settled rule to guide us in the construction of a statute
which is uncertain and ambiguous ... : 'Where a statute which has been construed,
either by a court of last resort or by executive officers, is re-enacted without any
substantial change of verbiage, it will continue to receive the same construction."')
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Tex. Dept. of Protective & Regulat01y Services v. Mage Child Care, 145 S.W.3d 170,
175 (Tex. 2004 ). The Commissioner's interpretation is long standing. It goes back over
one-quarter century. It has been repeatedly affirmed.
The statute at issue has been amended multiple times since the Commissioner has
issued his interpretation. The TCNA has been amended by the Legislature in 1990, 1995,
2003, and 2011. Term Contract Nonrenewal Act, 71" Leg. 6111 C.S., ch. 1 § 3.14, 1990
Tex. Gen. Laws 1 (allowing the hearing to be heard by a board designated impartial
hearing officer); Term Contract Nonrenewal Act, 74111 Leg. R.S., ch. 260 ch. 21 subch. E
and F, 1995 Tex. Gen. Law 2207 (making many changes including modifying the
definition of "teacher" and allowing boards to use the Independent Hearing Examiner
Process); Term Contract Nonrenewal Act, 78 111 Leg R.S., ch. 484 § 1, 2003 Tex. Gen.
Laws 1749 (concerning distribution of district employment policies); 82 11 d Leg. 1" C.S.,
ch. 8 §§ 8-11, 2011 Tex. Gen Laws 5463 (allowing districts to hire their own hearing
examiners and making several changes concerning notice). The Legislature has
acquiesced in the Commissioner's interpretation of the phrase "same professional
capacity."
Must Principal be a Professional Capacity?
Petitioner contends that her theory that a principal may only be reassigned to
another principal position is compatible with Barich although she does recognize that it
would require overruling other Commissioner's Decisions. Petitioner's theory rests on
the premise that because the definition of "teacher" found in the TCNA references the
position "principal" that "principal" is a professional capacity.
Petitioner's theory is not compatible with Barich. Under Barich, the first question
is could the teacher contract for the position at issue. A principal can contract for an
assistant principal position as a principal certificate is needed for either a principal or
assistant principal position. 19 TEX. ADMIN. CODE§ 24l(d). The next question is that
even if the position could be contracted for are differences in authority, duties, salary and
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other factors so great that the reassignment is actually in another professional capacity.
This second consideration is set out right after the issue of reassigning a superintendent to
the position of assistant elementary principal is raised. Texas Education Code section
21.201 (I) in the original TCNA read as follows:
"Teacher" means a superintendent, principal, supervisor, classroom teacher,
counselor or other full-time professional employee, except paraprofessional
personnel, who is required to hold a valid certificate or permit.
If Petitioner's theory was compatible with Barich, the Commissioner would have said the
determination of whether a superintendent may be reassigned to the position of
elementary school assistant principal is a simple issue, not an issue that is "not . . . so
clear." Under Petitioner's theory, since "superintendent" is found in the definition of
21.20 I (I), "superintendent" is a professional capacity. The result would be that a
superintendent cannot be reassigned to any position that is not a superintendent position.
There would be no reason to apply the standards set out in Barich to determine whether a
superintendent could be reassigned to an assistant principal position.
Petitioner's theory does have the virtue of simplicity. If a position is named in the
definition of "teacher" any reassignment would have to be in that same position.
However, it would be just as simple to apply the rule that if one holds an administrator's
position one can be reassigned to any administrator's position. The Commissioner's
solution is more complex than Petitioner's theory, but is more faithful to the statute at
issue. l r the Legislature intended "same professional capacity" to mean any position
listed in the definition of "teacher," the Legislature would have said so. Instead, the
Legislature used an undefined phrase that it intended the Commissioner to interpret using
his experience in how schools operate. The Commissioner has consistently done so since
the first opportunity lo interpret the phrase at issue.
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Like a Superintendent?
There are no Commissioner's Decisions that directly address whether a
superintendent may be reassigned to another position. There is no Commissioner's
Decision that finds that a superintendent was improperly reassigned. While Barich holds
that a superintendent cannot be reassigned to the position of assistant elementary school
principal, Barich was not a superintendent and was not reassigned to an assistant
principal position. There is a pre-TCNA case, Board of Trustees of Crystal Cily
Independent School Dislrict v. Briggs, 486 S.W.2d 829 (Tex. App. Beaumont I 972, writ
ref d n.r.e ). which determined that a reassignment from superintendent to teacher was not
allowed:
Briggs was hired as superintendent of the public schools; under the statute, it is
clear that there is a vast difference in the position of superintendent of a district
answerable only to the Board of Trustees and that of a teacher in the schools. §§
16.07, I 6.08 Education Code.
The court in Briggs found the fact that a superintendent was only answerable to the board
of trustees to be highly significant.
In the recent case of Lehr v. Ector County Independent School District, Docket
No. 003-R3-0908 (Comm'r Educ. 2011), the issue was raised whether it was appropriate
to reassign the Executive Director of Special Education to the position of assistant
principal. The Commissioner held:
The change in pos1t10ns is unlike the move from superintendent to
assistant principal described in Barich. A superintendent according to statute is
"the educational leader and chief executive officer of the school district." TEX.
EDUC. CODE § l l.20I(a). The position of superintendent is sui generis. There is
no administrator position that compares to it. The position of Executive Director
of Special Education is not mentioned in the Texas Education Code. In fact, the
certification mentioned in the job description for the position is
"midmanagement/supervisor" is no longer awarded. 9 Currently, the only
'' Hence, it is a good thing that the job description allows for alternative qualifications. While those who
received midmanagement and supervisor certifications retain them, it is not perhaps \Vise to li1nit
employment to those who have achieved a certification that is no longer issued.
043-RI0-1211 20
H. Jenkins v. Crosby ISD
TEA #: 000024
certifications for administrator are superintendent and principal. 10 There is no
certification that an Executive Director of Special Education is required to hold
under the Texas Education Code or the rules adopted under the code.
Here like in Briggs, the Commissioner noted that the position of superintendent is unique.
A superintendent is the chief executive officer of a school district. It almost goes without
saying that a superintendent is answerable only to the board of trustees. Only the board
of trustees has the authority to direct a superintendent. It is not the fact that the Texas
Education Code specifies many of the superintendent's duties and creates unique
procedures to nonrenew a superintendent's contract that makes the superintendent's role
sui generis. TEX. EDUC. CODE§§ 11.201, 21.212. It is instead the fact the superintendent
is only answerable to the school board as the chief executive officer of the school district
that makes the office of superintendent sui generis.
Petitioner is correct that principals have many duties spelled out in the Texas
Education Code. This does not make the position of principal sui generis. That the
Texas Education Code defines many duties of a principal makes the principal position a
well defined species. It does not make the principal position a genus all to itself. A
principal is answerable to the superintendent and often to other high administrators such
as deputy and assistant superintendents. A principal is answerable to the school board as
the school board can nonrenewal or terminate a principal's contract.
Further, while there is a principal certification, it is required for both being a
principal and an assistant principal. 19 TEX. ADMIN. CODE§ 24J(d). That the same
training is required to be either a principal or an assistant principal is a further indication
that the position of principal is not sui generis. It is true that one who holds a
superintendent's certificate also is qualified to hold the positions of principal and
assistant principal. 19 TEX. ADMIN. CODE § 242.1 (d). It is not surprising that the training
required to be a superintendent would also prepare one to a principal or an assistant
principal. But a superintendent is required to have more than a principal's certificate.
0
' 19 TEX. /\DMIN. CODE ch. 241 and 242. All other administrator certifications were not issued after 2000.
043-RI0-1211 21
H. Jenkins v. Crosby ISD
TEA #: 000025
One who holds only a principal's certificate is not qualified to be a superintendent. A
superintendent's certificate requires significantly more training than a principal's
certificate. When a principal is reassigned, a school district is not limited to assigning the
principal to another principal position. Underwood v. Rusk Independent School District,
Docket No. 062-R3-198 (Comm'r Educ. 1998), Pasqua v. Fort S1ock1on lndependenl
School Districl, Docket No. 011-R3-l 102 (Comm'r Educ. 2004), Murillo v. Laredo
Independent School District, Docket No. 027-R3-0108 (Comm'r Educ. 2012),
A4onlgomery v. Richardson Independent School District, Docket No. 007-Rl 0-1008
(Comm 'r Educ. 2012), and McCoy v. Kermit Independent School District, Docket No.
004-R3-0908 (Comm'r Educ. 2012).
Present Reassignment
In the present case, Petitioner was reassigned from the position of principal of an
intermediate school to the position of assistant principal of a high school. There is little
in the record that indicates what duties Petitioner had at those two positions. The record
does not demonstrate that applying the Commissioner's precedent as to what is the "same
professional capacity" results in a conclusion that the two positions were in different
professional capacities. However, Petitioner has not raised this issue. Petitioner's claim
is not that in her particular circumstance, comparing authority, duties, compensation and
other relevant factors, the two positions were in separate professional capacities.
Petitioner's claim is that a principal may only be reassigned to another principal position.
This is not the law. As the two positions are not shown to be in different professional
capacities, Respondent did not violate Texas Education Code section 21.206.
Possible Consequences
Petitioner contends that if the Commissioner does not to change his interpretation
of "same professional capacity" this could lead to a situation where a school district could
reassign a principal to a position that does not require a chapter 21 contract and then
make the principal an at-will employee for the following school year. It should be noted
043-Rl0-1211 22
H. Jenkins v. Crosby ISD
TEA #: 000026
that this is not the situation the Commissioner is presented with in this case. After her
reassignment Petitioner retains a chapter 21 contract.
But assuming without finding that this issue was properly raised, there are at least
two major problems with this claim. Petitioner chose not to contest her reassignment
under Commissioner's precedent but instead to solely argue that she could only be
reassigned to a principal's position. Whether or not Respondent reassignment meets the
Commissioner's standards has not been contested or ruled upon. Not contesting a
reassignment based on the standards previously established by the Commissioner could
result in not receiving a Chapter 21 contract, but the fault would not be with the
Commissioner's interpretation of Chapter 21.
Further, the case Petitioner relies on Harris v. Royse City Jndependenl School
District, Docket No. 057-Rl-0506 (Comm. Educ. 2009) had a very different fact
situation. Harris began his employment with Royse City Independent School District by
signing a contract for a non-certified administrator position that provided for renewal or
nonrcncwal under chapter 21 of the Texas Education Code. This is not the type of
contract that Petitioner holds. Petitioner in her original assignment and her reassignment
was required to hold a principal's certificate.
Conclusion
The Petition for Review should be dismissed in part and denied in part. In many
cases, principals may be assigned to other administrative positions. In the present case, it
is determined that Petitioner was properly reassigned in the same professional capacity.
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing
Findings of Fact, in my capacity as Commissioner of Education, I make the following
Conclusions of Law:
1. The Commissioner, under Texas Education Code section 7.057(a)(2)(A),
has jurisdiction over the claims that Respondent violated Texas Education Code section
043-Rl0-1211 23
H. Jenkins v. Crosby ISD
TEA #: 000027
2 l.206(b) and based on such a violation also violated Texas Education Code section
11.20 and 19 TEX. ADMIN. CODE § 150.1021.
2. The Commissioner, under Texas Education Code section 7.057(a)(2)(A),
lacks jurisdiction over violations of school district policies.
3. The Commissioner, under Texas Education Code section 7.057(a)(2)(A),
lacks jurisdiction over the claim Respondent violated its policy FN(LOCAL).
4. A superintendent does not violate Texas Education Code 1 l.20l(d) when
a superintendent poorly exercises an authority granted by this section.
5. The Commissioner lacks jurisdiction over the claim that Respondent's
superintendent arbitrarily and capriciously reassigned her in violation of Texas Education
Code section l 1.20l(d) TEX. EDUC. CODE§ 7.057(a)(2)(A).
6. If a school district fails to timely give a teacher notice of proposed
nonrcnewal when the teacher's contract is about to expire, the school district is required
to employ the teacher in the "same professional capacity" for the following school year.
A requirement to employ a teacher in the "same professional capacity" for the following
school year is triggered only when a contract is about to expire and timely notice of
proposed nonrenewal is not given. TEX. EDUC. CODE § 2 l.206(b ).
7. Petitioner's claim that Respondent failed to employ her m the same
professional capacity is ripe only as to the 2011-2012 school year.
8. One can be entitled to the protections of Texas Education Code Chapter
21, subchapter E based solely on a contract or district policy. One does not need to hold
a position described in the first sentence of Texas Education Code section 21.201(1) to be
entitled to a Chapter 21 term contract.
9. The positions described in the first sentence of Texas Education Code
section 21.201 (I) may or may not be professional capacities for purposes of Texas
Education Code section 2 l.206(b ).
043-RI0-1211 24
H. Jenkins v. Crosby ISD
TEA #: 000028
10. The fact that the position of "principal" is listed in the first sentence of
Texas Education Code section 21.201(1) does not mean that if one is employed by a
school district as a principal under a term contract that one is employed under the
professional capacity of principal. TEX. EDUC. CODE§ 21.206(b).
11. A contract can establish a teacher's professional capacity under Texas
Education Code section 21.206(b) if the professional capacity is not impermissibly broad.
Whether a professional capacity is impermissibly broad is determined by comparing
differences in authority, duties, and salary and other relevant factors. In many cases, a
professional capacity of "administrator" will not be impem1issibly broad for a
reassignment.
12. Petitioner's professional capacity under Texas Education Code section
2 I .206(b) is administrator.
13. As Petitioner did not contest that her contractual professional capacity of
administrator is impcrmissibly broad under the standards set out in Conclusion of Law
No. 11, Petitioner has not raised this issue.
14. As the fact that a term contract employee is employed in a principal
position docs not make the employee's professional capacity "principal," Respondent did
not improperly reassign Petitioner to a non-principal position in violation of Texas
Education Code section 21.206(b ).
15. Respondent did not reassign Petitioner in violation of Texas Education
Code section 2 l.206(b)
16. The Petition for Review should be denied in part and dismissed in part.
043-RI0-1211 25
H. Jenkins v. Crosby ISD
TEA #: 000029
•
After due consideration of the record, matters officially noticed and the foregoing
Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Edcuation,
it is hereby
ORDERED that the Petitioner's appeal be, and is hereby, denied in part and
dismissed in part. (1
SIGNED AND ISSUED this _i± .ay , 2013.
043-RI0-1211 26
H. Jenkins v. Crosby ISD
TEA #: 000030
APPENDIX 2
Final Judgment
Jenkins v. Crosby Indep. Sch. Dist., No. D-1-GN-14-
000619 (200th Dist. Ct., Travis County, Tex. Feb. 26, 2015)
Appx. 2
APPENDIX 3
Texas Education Code
Chapter 21
Subchapter E §§21.201-21.213
Texas Education Code Chapter 21, Subchapter E §§21.201-21.213
SUBCHAPTER E. TERM CONTRACTS
Sec. 21.201. DEFINITIONS. In this subchapter:
(1) "Teacher" means a superintendent, principal, supervisor, classroom teacher, school
counselor, or other full-time professional employee who is required to hold a certificate issued under
Subchapter B or a nurse. The term does not include a person who is not entitled to a probationary, continuing,
or term contract under Section 21.002, an existing contract, or district policy.
(2) "School district" means any public school district in this state.
(3) "Term contract" means any contract of employment for a fixed term between a school
district and a teacher.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 443 (S.B. 715), Sec. 10, eff. June 14, 2013.
Sec. 21.202. PROBATIONARY CONTRACT REQUIRED. (a) Except as provided by Subsection
(b), before a teacher may be employed under a term contract, the teacher must be employed under a
probationary contract for the period provided by Subchapter C.
(b) A school district may employ a person as a principal or classroom teacher under a term contract if
the person has experience as a public school principal or classroom teacher, respectively, regardless of whether
the person is being employed by the school district for the first time or whether a probationary contract would
otherwise be required under Section 21.102.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch.
1232, Sec. 2, eff. Sept. 1, 2003.
Sec. 21.203. EMPLOYMENT POLICIES. (a) Except as provided by Section 21.352(c), the
employment policies adopted by a board of trustees must require a written evaluation of each teacher at annual
or more frequent intervals. The board must consider the most recent evaluations before making a decision not
to renew a teacher's contract if the evaluations are relevant to the reason for the board's action.
(b) The employment policies must include reasons for not renewing a teacher's contract at the end of
a school year.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch. 244,
Sec. 1, eff. June 18, 2003.
Sec. 21.204. TERM CONTRACT. (a) A term contract must be in writing and must include the
terms of employment prescribed by this subchapter.
(b) The board of trustees may include in the contract other provisions that are consistent with this
subchapter.
(c) Each contract under this subchapter is subject to approval by the board of trustees.
(d) The board of trustees shall provide each teacher with a copy of the teacher's contract with the
school district and, on the teacher's request, a copy of the board's employment policies. If the district has an
Internet website, the district shall place the board's employment policies on that website. At each school in the
district, the board shall make a copy of the board's employment policies available for inspection at a reasonable
time on request.
(e) A teacher does not have a property interest in a contract beyond its term.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch. 484,
Sec. 1, eff. Sept. 1, 2003.
Appx. 3
Sec. 21.205. TERM OF CONTRACT. Once a teacher has completed the probationary contract
period, the term of a contract under this subchapter may not exceed five school years.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Sec. 21.206. NOTICE OF CONTRACT RENEWAL OR NONRENEWAL. (a) Not later than the
10th day before the last day of instruction in a school year, the board of trustees shall notify in writing each
teacher whose contract is about to expire whether the board proposes to renew or not renew the contract. The
notice must be delivered personally by hand delivery to the teacher on the campus at which the teacher is
employed, except that if the teacher is not present on the campus on the date that hand delivery is attempted, the
notice must be mailed by prepaid certified mail or delivered by express delivery service to the teacher's address
of record with the district. Notice that is postmarked on or before the 10th day before the last day of instruction
is considered timely given under this subsection.
(b) The board's failure to give the notice required by Subsection (a) within the time specified
constitutes an election to employ the teacher in the same professional capacity for the following school year.
(c) This section does not apply to a term contract with a superintendent.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Amended by:
Acts 2011, 82nd Leg., 1st C.S., Ch. 8 (S.B. 8), Sec. 9, eff. September 28, 2011.
Sec. 21.207. HEARING UNDER TERM CONTRACT. (a) If the teacher desires a hearing after
receiving notice of the proposed nonrenewal, the teacher shall notify the board of trustees in writing not later
than the 15th day after the date the teacher receives hand delivery of the notice of the proposed action, or if the
notice is mailed by prepaid certified mail or delivered by express delivery service, not later than the 15th day
after the date the notice is delivered to the teacher's address of record with the district. The board shall provide
for a hearing to be held not later than the 15th day after the date the board receives the request for a hearing
unless the parties agree in writing to a different date. The hearing must be closed unless the teacher requests an
open hearing.
(b) The hearing must be conducted in accordance with rules adopted by the board. The board may
use the process established under Subchapter F.
(b-1) Notwithstanding any other provision of this code, this subsection applies only to a school
district with an enrollment of at least 5,000 students. The board of trustees may designate an attorney licensed
to practice law in this state to hold the hearing on behalf of the board, to create a hearing record for the board's
consideration and action, and to recommend an action to the board. The attorney serving as the board's
designee may not be employed by a school district and neither the designee nor a law firm with which the
designee is associated may be serving as an agent or representative of a school district, of a teacher in a dispute
between a district and a teacher, or of an organization of school employees, school administrators, or school
boards of trustees. Not later than the 15th day after the completion of the hearing under this subsection, the
board's designee shall provide to the board a record of the hearing and the designee's recommendation of
whether the contract should be renewed or not renewed. The board shall consider the record of the hearing and
the designee's recommendation at the first board meeting for which notice can be posted in compliance with
Chapter 551, Government Code, following the receipt of the record and recommendation from the board's
designee, unless the parties agree in writing to a different date. At the meeting, the board shall consider the
hearing record and the designee's recommendation and allow each party to present an oral argument to the
board. The board by written policy may limit the amount of time for oral argument. The policy must provide
equal time for each party. The board may obtain advice concerning legal matters from an attorney who has not
been involved in the proceedings. The board may accept, reject, or modify the designee's recommendation.
The board shall notify the teacher in writing of the board's decision not later than the 15th day after the date of
the meeting.
(c) At the hearing before the board or the board's designee, the teacher may:
(1) be represented by a representative of the teacher's choice;
(2) hear the evidence supporting the reason for nonrenewal;
(3) cross-examine adverse witnesses; and
(4) present evidence.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Amended by:
Acts 2011, 82nd Leg., 1st C.S., Ch. 8 (S.B. 8), Sec. 10, eff. September 28, 2011.
Sec. 21.208. DECISION OF BOARD. (a) If the teacher does not request a hearing, the board of
trustees shall:
(1) take the appropriate action to renew or not renew the teacher's contract; and
(2) notify the teacher in writing of that action not later than the 30th day after the date the
notice of proposed nonrenewal was sent to the teacher.
(b) If the teacher requests a hearing, following the hearing the board of trustees shall:
(1) take the appropriate action to renew or not renew the teacher's contract; and
(2) notify the teacher in writing of that action not later than the 15th day after the date on
which the hearing is concluded.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Sec. 21.209. APPEAL. A teacher who is aggrieved by a decision of a board of trustees on the
nonrenewal of the teacher's term contract may appeal to the commissioner for a review of the decision of the
board of trustees in accordance with the provisions of Subchapter G. The commissioner may not substitute the
commissioner's judgment for that of the board of trustees unless the board's decision was arbitrary, capricious,
unlawful, or not supported by substantial evidence.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Sec. 21.210. RESIGNATION UNDER TERM CONTRACT. (a) A teacher employed under a term
contract with a school district may relinquish the teaching position and leave the employment of the district at
the end of a school year without penalty by filing a written resignation with the board of trustees or the board's
designee not later than the 45th day before the first day of instruction of the following school year. A written
resignation mailed by prepaid certified or registered mail to the president of the board of trustees or the board's
designee at the post office address of the district is considered filed at the time of mailing.
(b) A teacher employed under a term contract may resign, with the consent of the board of trustees or
the board's designee, at any other time.
(c) On written complaint by the employing district, the State Board for Educator Certification may
impose sanctions against a teacher who is employed under a term contract that obligates the district to employ
the person for the following school year and who:
(1) resigns;
(2) fails without good cause to comply with Subsection (a) or (b); and
(3) fails to perform the contract.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Sec. 21.211. TERMINATION OR SUSPENSION. (a) The board of trustees may terminate a term
contract and discharge a teacher at any time for:
(1) good cause as determined by the board; or
(2) a financial exigency that requires a reduction in personnel.
(b) For a good cause, as determined by the board, the board of trustees may suspend a teacher without
pay for a period not to extend beyond the end of the school year:
(1) pending discharge of the teacher; or
(2) in lieu of terminating the teacher.
(c) A teacher who is not discharged after being suspended without pay pending discharge is entitled
to back pay for the period of suspension.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Sec. 21.212. APPLICABILITY OF SUBCHAPTER TO SUPERINTENDENTS. (a) The board of
trustees of a school district may choose to not renew the employment of a superintendent employed under a
term contract, effective at the end of the contract period. If a majority of the board of trustees determines that
the term contract of the superintendent should be considered for nonrenewal, the board shall give the
superintendent written notice, containing reasonable notice of the reason for the proposed nonrenewal, not later
than the 30th day before the last day of the contract term.
(b) If the board of trustees fails to give notice of the proposed nonrenewal within the time specified
by Subsection (a), the board of trustees shall employ the superintendent in the same professional capacity for
the following school year.
(c) If the superintendent, not later than the 15th day after receiving notice of the board's proposed
action, does not request a hearing with the board of trustees under Section 21.207, the board of trustees shall:
(1) take the appropriate action; and
(2) notify the superintendent in writing of the action not later than the 30th day after the date
the board sends the notice of the proposed nonrenewal.
(d) The board of trustees shall adopt policies that establish reasons for nonrenewal. This section does
not prohibit a board of trustees from discharging a superintendent for good cause during the term of a contract.
(e) A superintendent employed under a term contract may leave the employment of the district at the
end of a school year without penalty by filing a written resignation with the board of trustees. The resignation
must be addressed to the board and filed not later than the 45th day before the first day of instruction of the
following school year. A superintendent may resign, with the consent of the board of trustees, at any other
time.
(f) On the basis of a financial exigency declared under Section 44.011 that requires a reduction in
personnel, the board of trustees of a school district may choose to amend the terms of the contract of a
superintendent employed under a term contract. A superintendent whose contract is amended under this
subsection may resign without penalty by providing reasonable notice to the board and may continue
employment for that notice period under the prior contract.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Amended by:
Acts 2011, 82nd Leg., 1st C.S., Ch. 8 (S.B. 8), Sec. 11, eff. September 28, 2011.
Sec. 21.213. NONAPPLICABILITY OF SUBCHAPTER. Except as provided by Section 21.202,
this subchapter does not apply to a teacher employed under a probationary contract in accordance with
Subchapter C or a continuing contract in accordance with Subchapter D.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
APPENDIX 4
Texas Education Code
§11.201 and §11.202
Texas Education Code §11.201 and 11.202
Sec. 11.201. SUPERINTENDENTS. (a) The superintendent is the educational leader and the chief
executive officer of the school district.
(b) The board of trustees of an independent school district may employ by contract a superintendent
for a term not to exceed five years.
(c) For purposes of this subsection, "severance payment" means any amount paid by the board of
trustees of an independent school district to or in behalf of a superintendent on early termination of the
superintendent's contract that exceeds the amount earned by the superintendent under the contract as of the date
of termination, including any amount that exceeds the amount of earned standard salary and benefits that is paid
as a condition of early termination of the contract. The board of trustees that makes a severance payment to a
superintendent shall report the terms of the severance payment to the commissioner. The commissioner shall
reduce the district's Foundation School Program funds by any amount that the amount of the severance payment
to the superintendent exceeds an amount equal to one year's salary and benefits under the superintendent's
terminated contract. The commissioner may adopt rules as necessary to administer this subsection.
(d) The duties of the superintendent include:
(1) assuming administrative responsibility and leadership for the planning, organization,
operation, supervision, and evaluation of the education programs, services, and facilities of the district and for
the annual performance appraisal of the district's staff;
(2) except as provided by Section 11.202, assuming administrative authority and
responsibility for the assignment, supervision, and evaluation of all personnel of the district other than the
superintendent;
(3) overseeing compliance with the standards for school facilities established by the
commissioner under Section 46.008;
(4) initiating the termination or suspension of an employee or the nonrenewal of an
employee's term contract;
(5) managing the day-to-day operations of the district as its administrative manager,
including implementing and monitoring plans, procedures, programs, and systems to achieve clearly defined
and desired results in major areas of district operations;
(6) preparing and submitting to the board of trustees a proposed budget as provided by
Section 44.002 and rules adopted under that section, and administering the budget;
(7) preparing recommendations for policies to be adopted by the board of trustees and
overseeing the implementation of adopted policies;
(8) developing or causing to be developed appropriate administrative regulations to
implement policies established by the board of trustees;
(9) providing leadership for the attainment and, if necessary, improvement of student
performance in the district based on the indicators adopted under Sections 39.053 and 39.301 and other
indicators adopted by the commissioner or the district's board of trustees;
(10) organizing the district's central administration;
(11) consulting with the district-level committee as required under Section 11.252(f);
(12) ensuring:
(A) adoption of a student code of conduct as required under Section 37.001 and
enforcement of that code of conduct; and
(B) adoption and enforcement of other student disciplinary rules and procedures as
necessary;
(13) submitting reports as required by state or federal law, rule, or regulation;
(14) providing joint leadership with the board of trustees to ensure that the responsibilities of
the board and superintendent team are carried out; and
(15) performing any other duties assigned by action of the board of trustees.
(e) The superintendent of a school district may not receive any financial benefit for personal services
performed by the superintendent for any business entity that conducts or solicits business with the district. Any
Appx. 4
financial benefit received by the superintendent for performing personal services for any other entity, including
a school district, open-enrollment charter school, regional education service center, or public or private
institution of higher education, must be approved by the board of trustees on a case-by-case basis in an open
meeting. For purposes of this subsection, the receipt of reimbursement for a reasonable expense is not
considered a financial benefit.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 955,
Sec. 1, eff. Sept. 1, 2001.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 90 (H.B. 189), Sec. 1, eff. May 15, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1244 (H.B. 2563), Sec. 6, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 895 (H.B. 3), Sec. 8, eff. June 19, 2009.
Sec. 11.202. PRINCIPALS. (a) The principal of a school is the instructional leader of the school and
shall be provided with adequate training and personnel assistance to assume that role.
(b) Each principal shall:
(1) except as provided by Subsection (d), approve all teacher and staff appointments for that
principal's campus from a pool of applicants selected by the district or of applicants who meet the hiring
requirements established by the district, based on criteria developed by the principal after informal consultation
with the faculty;
(2) set specific education objectives for the principal's campus, through the planning process
under Section 11.253;
(3) develop budgets for the principal's campus;
(4) assume the administrative responsibility and instructional leadership, under the
supervision of the superintendent, for discipline at the campus;
(5) assign, evaluate, and promote personnel assigned to the campus;
(6) recommend to the superintendent the termination or suspension of an employee assigned
to the campus or the nonrenewal of the term contract of an employee assigned to the campus; and
(7) perform other duties assigned by the superintendent pursuant to the policy of the board of
trustees.
(c) The board of trustees of a school district shall adopt a policy for the selection of a campus
principal that includes qualifications required for that position.
(d) The superintendent or the person designated by the superintendent has final placement authority
for a teacher transferred because of enrollment shifts or program changes in the district.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
APPENDIX 5
Jenkins’ Employment Contract 2011-2013
CROSBY INDEPENDENT SCHOOL DISTRICT
TWO-YEAR TERM CONTRACT
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.2,
•Bl'OM t6 terVc- Ibo &Inf by c::aaaP>a la d:l!Ia u u:dp&! hy thti
Supc:ria!mdtnt a( lbil Crosh;r' lndopcnd:sll School D:lctrlct for Ibo Jeboal yain wltb begilmbg lll1d. t:zMiins da1eJ u te: by the
Tllo Board '8l"CCI lo pay tho Bmplaycir for tbcllCr'Vic=s nm.dcred m s:uuW sn1u)' aaxrd!os to Ebe c:arnpc:mzufcm plm Ddepted by Uu! 9mrd. Tbt
Bmployai wuilinwW and isrw: thor Ct1ly tha Bet.rd b authodrnd to c:atahU1b JJ1 trl%lud
rcgudla,gu.lary b of no oll'te md 1bll.ll 11DI be roll=! upon.
any nprt.set1tailtn:11 nu.do by IUl)' 111ht:r pctMlll
3. I! ls un.dml®dand agreed by thepu'f!es 1n fhls0:111trad thltlbsSlljlCrintmd11111 of'lhc cm.by lcd:pcndart School Dfl#fct dall flsv6 lht risbl
.. &al8" °""'
dudet IO lb Employ" u Wll docm pmpa; llld- Ibo 11mjJJ"'° b nol oo>ployed IO llll • rpooillo pool.... at
""'l' aui8" amudgn lho Bmp!Ol"" IO clbcrcr aldlllmd dwla fbt1'hlcb he or w b pof=loallly =<lfted ct
•""'""" '!"'Riied .,pcm.... t..lada4ucllvodu,t,.will ba ow!cwllbtho ..,...,..1 oftho llc.W.
-4. 81Jppfa:ntt1tal dlll.fl!l may be aulgn:d to lh.o :Bmployeo far\Vhftb • IDIJ)' or rMYnot be pd4. No propor1ytfght lo tt1ntlllued cmployml!tll
a:Wta lfl IWl:b mpplcme:at:d dttdmi repnllor• crwh.rtbcr dlpeadl m pcld, and sumi dutlcs m:ay bo tennloafad fot my rwoa ct fot M rcucn. Gt th:
wWi Iha Soard approval.
S, It b: mi agrud that if tho Emp!oyeti lr snrplll)i!d la mDtc 1ba:c. Cll'lc petition IUdl. u leAdi..a'loou.b or dirc:dcr, tho
Empfoyt0'• P«fonnntco will be In 111:.b tnfsnmanl, am!. tllll wua!Ulidory perl'nmwtt:e ta el!hct wlgrum:r1 comdtutes srcunds fot
nOUl'tlltWlll or lcmhulloo or tbfg Ca111ta.at. The employee cur.ot JC1ian ctlb pc.riiioo wilhwt both un1:M 'Wilh tho iipprut/ll cf the
15. 1' ls uxukntocd md aamd by th& pe:n!ea: mthls C.amnd tha.l lb4Elnpl0)12c:1 w.tl cazry Ollf hb crhtr dut!ai to Um bctt orbb or hcr•kfll and
ahtllly "'1Wll dhdwgn lb""""'"'!'""' by lho r..t.nt )&"•by 1t!ocl 11.. otlhia ..... ..i bylbh Dblmt. Tho Coo1na ii ap>o!Jtcotly nt;!d
fD nttsal.d n.ailladam oClb Dbtrfct whlch 1n1 In afrc:tndlil time. aay may
hen:s&rbc allcu:d oracywhkb may bcadoplal dwiaa Iha cum uClblt Co:Q1nz1t.
alb .. ......,...,,... by lhc D!Jtri<t. A• tho t.-atlhi• ....,.lhU c.-.
1, 'Ihil Ccatraa1 b r:.uudllfantd oo tha Pmploya:i pnrt!dl:oa th aeocuuy c:eni&atlan and cxpcrlmmii reccsnls. lnbdlcet toi:onh, cutb of offi=o and
""'-"""...,a... tho Emt>•Ol"" "!""IJJ"11f '111"' 1a
.Uaott 1c • """" or hh "' bar "'1101>d crlmlmt hli""Y .....t - · (NClltll) if raiu&td by lhc Dlslrlcl. TBA, "' SBl!C. N>y
mbnp--to"'1•tlb<oc.....t.ahdl bo....,...twdm-·r...,1cymm,
a. kl;/ e.Qloo -oc GYal lhal Uui Bee.rd d&tmhrcl cn1SU1 a limmW. m.la=oy wt 1 Ctl!tl ID n:duco rcr mtb u. but not
l&nlt:d tu. dccll!itt fa tmrD!lm=I or w. rcductlous le l\mdblg. or changa 1:1rprap.m. lhaU ootiJlftutc cn.uso nit lc:mlim1lmz llL mJ 1lmff
durilJJ Jhc t=n Dflhlr CoUnct.
"
redutic= Gfsuch fimd!ng C®St!Jut= good CIWO filrtumb:Wlan e( diir c:omrm,
10. Tho Boo.rd otTxuat:ca a1W! cotlfy In 11/f'ithri, DOI bn:r than the dly l>efvn! tha lU1 day oflmuw:tl.on In !he scli.ool year
by lhl1 Ccatn..c4 whethtlt lrlale:ldtto n:nn ornoit'DlleW Ilia CcmfmL Rt:mwal
..... wW bo Jn a.ccbnftnc& with tht Bnlld pol"°J a:i.d sum
l1, ThaBaudhunotAdcptedanypallcy, ralr.,rc;p1lJllioo, fm tmura. No risfttortr::mim lsd'Clltd byth11 Coatnct. Tu1s
Cantr&t shaU not gm1 or cn=ut m'J ccnbiu:tual er ether apcdclr:-t orCODtmaed a:c;iloyma:il arolaim or tmldemc:ot io tWplD)'mtct boyottd IM
tam Cftbo Comca:t.
tl. oun.a Iba Imm •flhb ""°"'"'Iba Employ.....,. b a - lbtsce.t ..... u .r....m...t by Iba !loud, fi....i.J =laocoy lhol "'!Uh>s•
rcductiua la nr &r MY roaJoa natal mBolU'd poUcy lbC' thlt Omtnat. 1ba Soud mq r111plmll l!mplO)'l!.tl wffbow: psy lbt aood ctulf 11
dd.crmhtcd hy1hc Botrd lbra pc:rlDd not.ID attnd bnynnd thctlld or ywcown:d 1r& tblr CUllb'IUlf)lcudiurdbdmtp ctDmpkJ;yc= ar in
llm orwmfmi.tfan.
13. h ltur.dentDod alld qtocd by Iha Board mid !he Eciplayu; tfw nflhb Caub'ac;t by lit; limp1nyee, all prevtous coatram cf
the Boan! am mpmcded wt ltmtluaLodflnd m or no .&:tr= nnd cffc;:t. •"'
14. Tho Pluy lbr lb fut ttlOclb: or the ltnn of th!t Wll be piyabtc only upon ru:dpt from tbt: l!qllo)loo or 111! Olitrltil p-ope.rty.
"""""°' -.. am! """" """"""by "''Diltdot. /.
1,-. 'I'he E.mp{oytl'l W.Y rutsa 11 Ibo md orth11c:hr.o1 yw caYC"Cd by tbla Ccnlm::t b)' l1Ung 11 wrlttcn JeSlgoatioD wilb t!ia lq u the
writt= niti&nadon l& 6lcd &y the 43i111 dt.y baJlm ifre 1ln:i *J ot tho fdl!trwas ICboal :ycu. A wrltt= \i:dgmtlo:i malled by pnpUd t:t:rd&d cir
lO rhc PtmldcnJ aflb Boanl 11 the polt oM=i add:m: cl'th11 Dlsnicl fl filed 1U lM dma of malHag. lr da
..acmpu to r=lgn It any otha lfmCi the Bmplayee will lie roltucd liooi tttb Oxttmd Cl1ly wi1b Ibo Vtdttca. cam:t:Dt or tbo Bori Ir the !loud doc:a
" " _ , . , la llllmae Ibo Bmoloyco mid tho Bm,loyco ""'"''"" ahon4col lb c..m.cr, lho D!Jlrit< ""!' lilt ,
,....., tho Empt.,.... wt!h Iba SblaBoud ror-Cudl!<olloo.
...,,w.u
KO!dca ""6,..
16'. hm:ll4lty of'll\T portfois ortbb Ccmnr:t 1tt1dc Iha le.1111 of'tbc Srato or Tow or or di.II Unftod Stiles &haU cat cfti:ct tbc wlld:fly er the
"""""l:r.ClbC.."'1. .
17. 'lbll otrtr or an;ilO)'DJUlt oxplzu lf lhh Comnct ta not tlancd w! rGturacd ta Iha Bupo:U:uimdatt. by tho l!mplayce r:a or bctoni
Hatch 31 20.Y:,__,
II
(
Appx. 5
H. Jenkins v. Crosby ISD
TEA #: 000294
APPENDIX 6
Barich v. San Felipe-Del Rio Cons. Indep. Sch. Dist.,
Docket No. 117-R1a-484
(Tex. Comm’r Educ. 1985)
DOCKET NO. 117-R1a-484
SAMUEL BARICH ß BEFORE THE STATE
ß
ß
V. ß COMMISSIONER OF EDUCATION
ß
SAN FELIPE-DEL RIO CON- ß
SOLIDATED INDEPENDENT ß
SCHOOL DISTRICT ß THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Samuel Barich, Petitioner, brings this appeal concerning his employment
relationship with San Felipe-Del Rio Consolidated Independent School District,
Respondent. A hearing on this matter was conducted on September 24, 1984 before
Mark W. Robinett, the Hearing Officer appointed by the Commissioner of
Education. Petitioner is represented by Dean A. Pinkert and Leonard J.
Schwartz, Attorneys at Law, Austin, Texas. Respondent is represented by William
C. Bednar, Attorney at Law, Austin, Texas, and Haygood Gulley, Attorney at Law,
Del Rio, Texas.
On February 25, 1985, the Hearing Officer issued a Proposal for Decision
recommending to the State Commissioner of Education that Petitioner's appeal be
denied. Our records reflect that a copy of the Proposal for Decision was
received by both parties. Petitioner filed Exceptions to the Proposal for
Decision on March 25, 1985. No reply to the exceptions was filed.
Findings of Fact
After due consideration of the evidence and matters officially noticed, in my
capacity as State Commissioner of Education, I make the following Findings of
Fact:
1. In a previous case between the same parties, Barich v. San Felipe-Del Rio
Consolidated ISD, No. 086-R1a-483 (Comm. Educ., May 1983), the Commissioner
held, in Conclusion of Law No. 2, that the school district had, pursuant to Tex.
Educ. Code Ann. ß21.204, "elected to employ Petitioner in his current
professional capacity for the 1983-84 school year."
2. The Commissioner's Decision was affirmed by the State Board of Education on
September 10, 1983. A Motion for Rehearing was not filed by either party.
3. It is uncontested that, during the 1982-83 school year, Petitioner served
the district as an ROTC teacher. (Pet. Ex. 15).
4. After the State Board of Education had entered its decision, the school
district's attorney, Mr. Gulley, called Petitioner's attorney, Mr. Schwartz.
Mr. Gulley represented that Petitioner could not be reinstated as ROTC teacher,
because the school district did not believe that he could be certified by the
Air Force in that position, inasmuch as Petitioner was past retirement age and
had already received the maximum one year extension of his certification. (Tr.
41-42). Mr. Gulley further stated that reinstatement in another position would
be at the salary of an ROTC teacher. (Tr. 52). Petitioner's attorney replied
that he wanted his client to return to work in the exact same position he had
held during the 1982-83 school year. (Tr. 41-42).
5. On October 3, 1983, Petitioner's attorney sent a letter to the school
district's attorney, which reads, in pertinent part, as follows:
Appx. 6
1
Thank you for offering to settle the above-referenced case. However, while we
appreciate your offer of immediate reinstatement, we must reject it as it is, in
our opinion, incomplete.
Mr. Barich has authorized us to extend to you the following counteroffer. Mr.
Barich will report to school and undertake his duties if the district will
comply with the following:
1. Mr. Barich must be assigned in the "same professional capacity," Tex.
Education Code subsection 21.204(b), as he was previously employed; i.e., as the
head of the R.O.T.C.;
2. Mr. Barich must be made whole for all lost salary and benefits for the
period that he has been unemployed;
3. Mr. Barich must be paid his attorneys' fees and court costs. The fees are
currently, at our normal billing rate, $9,337.50, while costs are $2,644.84. We
think that $10,000 is a reasonable compromise of attorneys' fees and costs. Of
course, this offer on attorneys' fees is only if this settlement offer is
accepted within the next thirty (30) days; and
4. All references in Mr. Barich's personnel files to the wrongful breach of his
employment contract must be expunged.
(Pet. Ex. 1).
6. On October 21, 1983, Michael C. Boyle, attorney at law, San Antonio, Texas,
sent a letter to Petitioner's attorney, which reads, in pertinent part, as
follows:
This firm will be working as co-counsel with Mr. Haygood Gulley in the above
matter. In that regard, as attorneys for the School District, I would like to
reiterate what Mr. Gulley expressed to you in your telephone conversation of
September 26, 1983. The School District is quite willing to abide by the Order
of the Commissioner that Mr. Barich be retained in his same professional
capacity for the present school year. As you know, that Order is now final; no
appeal has been taken to the District Court by either party. Mr. Gulley's
conversation with you of September 26, 1983, is not an offer of settlement as
you seem to
This text is long and has been trimmed here. Open the source document for the complete record.