Hermenia Jenkins v. Crosby Independent School District and Michael L. Williams in His Official Capacity as State Commissioner of Education

ACCEPTED

03-15-00313-CV

7090671

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/24/2015 4:39:04 PM

JEFFREY D. KYLE

CLERK

CASE NO. 03-15-00313-CV

_______________________________________________________

FILED IN

IN THE COURT OF APPEALS 3rd COURT OF APPEALS

AUSTIN, TEXAS

FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN

9/24/2015 4:39:04 PM

_______________________________________________________

JEFFREY D. KYLE

Clerk

HERMENIA JENKINS,

Appellant,

v.

CROSBY INDEPENDENT SCHOOL DISTRICT, and

MICHAEL L. WILLIAMS, COMMISSIONER OF EDUCATION

Appellees.

_______________________________________________________

On Appeal from the 200th District Court of Travis County, Texas;

Cause No. D-1-GN-14-000619; The Honorable Amy Clark Meachum, presiding

_______________________________________________________

THE COMMISSIONER OF EDUCATION’S APPELLEE’S BRIEF

KEN PAXTON ANDREW LUTOSTANSKI

Attorney General of Texas State Bar No. 24072217

Assistant Attorney General

CHARLES E. ROY Administrative Law Division

First Assistant Attorney General OFFICE OF THE TEXAS ATTORNEY GENERAL

P.O. Box 12548, Capitol Station

JAMES E. DAVIS Austin, Texas 78711-2548

Deputy Attorney General for Phone: (512) 475-4200

Defense Litigation Fax: (512) 320-0167

andrew.lutostanski@texasattorneygeneral.gov

DAVID A. TALBOT, JR.

Chief, Administrative Law Attorneys for the Commissioner of Education

TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................................................... ii

INDEX OF AUTHORITIES.................................................................................iv

STATEMENT OF THE CASE.............................................................................ix

STATEMENT ABOUT ORAL ARGUMENT ....................................................ix

ISSUES PRESENTED ...........................................................................................x

STATEMENT OF FACTS ................................................................................... 1

The District Reassigns Ms. Jenkins to serve as an Assistant Principal ................ 1

The Commissioner Affirms the District’s Reassignment ...................................3

The Trial Court Affirms the Commissioner’s Decision .................................... 4

SUMMARY OF THE ARGUMENT ....................................................................5

ARGUMENT.........................................................................................................7

I. The Commissioner’s interpretation of section 21.206(b)’s phrase

“same professional capacity” is reasonable and proper............................7

A. Standard of Review ........................................................................7

B. Chapter 21 of the Texas Education Code shows that a

principal is an administrator. ......................................................... 8

C. Section 21.206 does not define “same professional capacity” ...... 10

D. Section 21.201 does not define “same professional capacity” ...... 11

ii

E. The Commissioner has reasonably and consistently interpreted

“same professional capacity,” and the legislature has accepted

the Commissioner’s interpretation and not displaced it ............... 13

F. Legislative intent further supports the Commissioner’s

interpretation of same professional capacity............................... 241

G. Ms. Jenkins’s interpretation of same professional capacity is

plausible but unconvincing. ......................................................... 24

II. The reassignment from middle school principal to high school

assistant principal with no change in compensation was permissibly

within the same professional capacity. ...................................................26

A. Standard of Review ......................................................................26

B. The reassignment was permissible. .............................................. 27

III. The Commissioner properly concluded that according to her contract

Ms. Jenkins may be assigned to serve as an assistant principal. ..............29

A. Standard of Review ......................................................................29

B. The Commissioner properly concluded that according to her

contract Ms. Jenkins may be assigned to serve as an assistant

principal. ...................................................................................... 32

CONCLUSION AND PRAYER .......................................................................... 34

CERTIFICATE OF COMPLIANCE ................................................................... 35

CERTIFICATE OF SERVICE............................................................................. 36

iii

INDEX OF AUTHORITIES

Cases

20801, Inc. v. Parker, 249 S.W.3d 392 (Tex. 2008) ................................................. 8

AEP Tex. Cent. Co. v. Pub. Util. Comm’n, 286 S.W.3d 450

(Tex. App.—Corpus Christi 2008, pet. denied) ................................................30

Bullock v. Marathon Oil Co., 798 S.W.2d 353

(Tex. App.—Austin 1990, no writ) .............................................................. 20, 21

City of Abilene v. Pub. Util. Comm’n, 146 S.W.3d 742

(Tex. App.—Austin 2004, no pet.)....................................................................30

Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) ......................................................... 28

Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587

(Tex. 1996) ....................................................................................................... 28

Dodd v. Meno, 870 S.W.2d 4 (Tex. 1994)...................................................... 7, 13, 19

Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21,

52 S.W.2d 56 (1932)........................................................................................... 21

Grounds v. Tolar Independent School District, 694 S.W.2d 241

(Tex. App.—Fort Worth 1985), rev'd on other grounds,

707 S.W.2d 889 (Tex. 1986) ........................................................................ 23, 24

Humble Oil & Ref. Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967) ......................... 20, 21

J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) .................................29

Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857 (Tex. 2000)...................29

N.E. Indep. Sch. Dist. v. Kelley, No. 03-09-00641-CV, 2010

Tex. App. LEXIS 9792, 2010 WL 5019850 at *5

(Tex. App.—Austin Dec. 9, 2010, pet. denied) .................................................29

iv

Nucor Steel-Texas v. Pub. Util. Comm’n, 363 S.W.3d 871

(Tex. App.—Austin 2012, no pet.) ......................................................................7

Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440

(Tex. App.—Austin 2011, no pet.) .......................................................... 8, 19, 25

R.R. Comm’n v. Tex. Citizens for a Safe Future & Clean Water,

336 S.W.3d 619 (Tex. 2011) .................................................................................7

Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527 (Tex. 1987) .....................................29

Seifert v. Lingleville Indep. Sch. Dist., 692 S.W.2d 461 (Tex. 1985) ......................... 21

State v. Pub. Util. Comm’n, 883 S.W.2d 190 (Tex. 1994) .......................................26

Sw. Pharmacy Solutions, Inc. v. Tex. Health & Human Servs. Comm’n,

408 S.W.3d 549 (Tex. App.—Austin 2013, pet. denied) ......................................7

Tex. Health Facilities Comm’n v. Charter Med.-Dallas, Inc.,

665 S.W.2d 446 (Tex. 1984) ........................................................................ 26, 28

Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114

(Tex. 1988) ........................................................................................................26

TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432

(Tex. 2011) ........................................................................................................ 13

Weslaco Fed'n of Teachers v. Texas Educ. Agency, 27 S.W.3d 258

(Tex. App.—Austin 2000, no pet.) ............................................................. 28, 29

Statutes

Act of June 17, 2011, 82nd Leg., R.S., ch. 1010, § 1,

sec. 21.102(a-1), 2011 Tex. Gen. Laws 1010 ....................................................... 18

Act of Sept. 28, 2011, 82nd Leg., 1st C.S., ch. 8, § 9,

sec. 21.206, 2011 Tex. Gen. Laws 5463, 5465 ..................................................... 17

v

Acts 2011, 82nd Leg., R.S., Ch. 1093 (S.B. 1383),

sec. 1, eff. June 17, 2011....................................................................................... 9

Term Contract Nonrenewal Act, 67th Leg., R.S., ch. 765,

1981 Tex. Gen. Laws 2847 ................................................................................. 21

Term Contract Nonrenewal Act, 71st Leg., 6th C.S., ch. 1, § 3.14,

1990 Tex. Gen. Laws 1 ................................................................................. 15, 20

Term Contract Nonrenewal Act, 74th Leg., R.S., ch. 260 ch. 21

subch. E and F, 1995 Tex. Gen. Law 2207 ................................................... 16, 20

Term Contract Nonrenewal Act, 78th Leg., R.S., ch. 484, § 1,

2003 Tex. Gen. Laws 1749........................................................................... 16, 20

Term Contract Nonrenewal Act, 82nd Leg., 1st C.S., ch. 8, §§ 8-11,

2011 Tex. Gen. Laws 5463 ................................................................................ 20

Tex. Educ. Code § 7.057(d) ............................................................................. vi, 25

Tex. Educ. Code § 11.201(d)(2) ............................................................................ 32

Tex. Educ. Code § 11.202 ............................................................................... 24, 27

Tex. Educ. Code § 11.202(b)(1) ............................................................................ 32

Tex. Educ. Code § 11.202(d)(2)............................................................................ 25

Tex. Educ. Code § 21.003 ................................................................................... 8, 9

Tex. Educ. Code §§ 21.033, .047, .061, .207, .252, .354, .355, .4032, .4511 ............. 8

Tex. Educ. Code § 21.0452(b)(4)(B) .................................................................... 12

Tex. Educ. Code § 21.046 ...................................................................................... 9

Tex. Educ. Code § 21.106(c)................................................................................. 12

vi

Tex. Educ. Code § 21.154(4)................................................................................. 12

Tex. Educ. Code § 21.201 ................................................................................. 8, 10

Tex. Educ. Code § 21.201(1) ...................................................................... 11, 15, 23

Tex. Educ. Code § 21.206 ..............................................................................passim

Tex. Educ. Code § 21.206(b) .........................................................................passim

Tex. Educ. Code § 21.354 ...................................................................................... 8

Tex. Educ. Code § 21.354(a-1) ............................................................................... 9

Tex. Educ. Code § 21.3541..................................................................................... 9

Tex. Educ. Code § 21.355(a) .................................................................................. 9

Tex. Educ. Code § 21.402(a) ................................................................................ 12

Tex. Educ. Code § 21.4541 ................................................................................... 12

Tex. Educ. Code §§ 37.002, .0181, .019 ................................................................ 25

Tex. Gov’t Code § 2001.174 ..................................................................... vi, 25, 28

Rules

19 Tex. Admin. Code § 157.1051(b) ...................................................................... 27

19 Tex. Admin. Code § 157.1058(a)(4).................................................................. 27

19 Tex. Admin. Code § 241.1(d) ................................................................. 9, 28, 31

19 Tex. Admin. Code § 241.25(a) ......................................................................... 10

vii

Other Authorities

67th Leg., R.S. 3522 (1981).................................................................................... 23

Tex. S.B. 341, 67th Leg., R.S. (1981) .................................................................... 22

Tex. S.B. 395, 73rd Leg., R.S. (1993) ..................................................................... 15

Commissioner's Decisions

Barich v. San Felipe-Del Rio Consolidated School District,

Docket No. 117-R1a-484 (Comm’r Educ. 1985) ..........................................passim

Carpenter v. Wichita Falls Independent School District,

Docket No. 247-R3-491 (Comm’r Educ. 1993) .............................................15, 33

Gonzalez v. Donna Indep. Sch. Dist., Docket No. 074-R10-605

(Comm’r Educ. 2007) ....................................................................................... 19

McCoy v. Kermit Indep. Sch. Dist., Docket No. 004-R3-0908

(Comm’r Educ. 2012) ................................................................................. 18, 19

Montgomery v. Richardson Indep. Sch. Dist.,

Docket No. 007-R10-1008 (Comm’r Educ. 2012).............................................. 19

Murillo v. Laredo Indep. Sch. Dist., Docket No. 027-R3-0108

(Comm’r Educ. 2012) ....................................................................................... 19

Pasqua v. Fort Stockton Indep. Sch. Dist.,

Docket No. 011-R3-1102 (Comm’r Educ. 2004) ................................................ 19

Perales v. Robstown Independent School District,

Docket No. 052-R10-104, 084-R3-604 (Comm’r Educ. 2006) ........................... 16

Underwood v. West Rusk County Consolidated Independent School

District, Docket No. 062-R3-198 (Comm’r Educ. 1998) ...............................16, 19

Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3-1108

(Comm’r Educ. 2011) ........................................................................................ 19

viii

STATEMENT OF THE CASE

Nature of the Case Ms. Jenkins worked for the Crosby Independent School

District and was reassigned from middle school principal

to high school assistant principal with no change in pay.

Ms. Jenkins filed a grievance contesting the

reassignment, which the District denied. AR 324.

Ms. Jenkins then appealed to the Commissioner who

affirmed the District’s decision. AR 5-30 (App. 1).

Ms. Jenkins then brought a suit for judicial review of the

Commissioner’s decision pursuant to section 7.057(d) of

the Texas Education Code and section 2001.174 of the

Administrative Procedure Act. CR 3-8.

Trial Court The Honorable Amy Clark Meachum, presiding in the

200th Judicial District Court, Travis County, Texas.

Trial Court Disposition The trial court affirmed the Commissioner’s decision.

CR 376-77 (App. 2).

STATEMENT ABOUT ORAL ARGUMENT

Oral argument is unnecessary because this case presents an issue of statutory

interpretation for which this Court is well equipped, an issue of substantial-

evidence review where more than a scintilla of supporting evidence is apparent, and

an issue of contract interpretation where the contract unambiguously permits the

reassignment at issue.

ix

ISSUES PRESENTED

1. Whether the Commissioner’s interpretation of section 21.206 of the Texas

Education Code is entitled to deference because it does not conflict with the

text of the statute and is a long-standing interpretation of a statute that the

Commissioner is charged with enforcing?

2. Whether substantial evidence shows that the necessary certification and the

responsibilities, duties, and compensation of the principal and assistant

principal positions are comparable and within the same professional

capacity?

3. According to her employment contract, may Ms. Jenkins be reassigned to

serve as an assistant principal?

x

STATEMENT OF FACTS

The District Reassigns Ms. Jenkins to serve as an Assistant Principal

For several years leading up to the end of the 2010-2011 school year,

Ms. Jenkins worked for the District as the principal of Charles Drew Intermediate

School. AR 258. Then in March 2011, Ms. Jenkins and the District signed an

employment contract that states:

1. 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 . . . .

....

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.

AR 294. A few months later in June 2011, the District’s superintendent Dr. Moore

reassigned Ms. Jenkins from principal at Drew Intermediate to assistant principal at

Crosby High School. AR 291.

Ms. Jenkins began employment as an assistant principal at the high school, and

also filed a grievance contesting her reassignment; she claimed that “removing

1

[her] as campus principal change[d] [her] professional capacity without due

process” and that “[t]he position of campus principal is not a generic

administrative position . . . and is unlike any other school employee position.” AR

287-88. Ms. Jenkins requested that she be assigned to a mutually agreeable position

that, in her belief, would reflect forward career progression. AR 289.

A short time later the District held a level-two grievance hearing. AR 284. After

the hearing, the District denied Ms. Jenkins’s grievance and noted that Ms. Jenkins

was merely reassigned from one administrative position to another. AR 284-86. In

particular, the superintendent explained the reassignment:

I continually examine ways to improve our school district and to

match key administrative skills with corresponding administrative

positions. After observing your previous campus and appraising your

skills and abilities, I determined . . . that Drew Intermediate would

benefit from new and fresh leadership, and that your skill set could

meet a real need at our High School. As you are aware, Crosby High

School has been deemed academically unacceptable and will require a

great deal of administrative support and focus to turn the school

around . . . and meet the needs of our students. Your previous

experiences, and skills and abilities . . . will be very valuable and

helpful in this important endeavor.

A.R. 285.

In her new assignment at the much larger high school campus Ms. Jenkins

continued to have significant duties and responsibilities, including:

• Appraising and making recommendations about staff;

2

• Training teachers and assisting in staff development;

• Providing instructional leadership;

• Implementing student discipline;

• Developing an effective campus improvement plan; and

• Working directly with parents to solve problems.

A.R. 285-86. Also Ms. Jenkins’s salary was unchanged. AR 286.

Ms. Jenkins was unsatisfied, however, so the matter proceeded to a level-three

grievance hearing before the District’s Board. AR 257. After considering the issue,

the Board voted six-to-one to deny Ms. Jenkins’s grievance. AR 267.

The Commissioner Affirms the District’s Reassignment

Ms. Jenkins appealed to the Commissioner. AR 155-58. Her petition for review

did not claim that her reassignment was inappropriate because the two jobs at issue

were actually dissimilar. AR 155-58. Nor did her briefing raise the claim that the

two jobs at issue were actually dissimilar. AR 129-52; 114-22. Ms. Jenkins wrote:

Suffice it to say, both job descriptions are lacking in detail and are not

useful to any legal analysis herein. FN2.

FN2. State law defines and provides contour to the principal’s duties,

therefore a local job description for principal is not necessary for this

appeal. However, there is no definition of assistant principal in any

state law. Realizing the CISD’s job description for assistant principal

was wholly insufficient, the superintendent crafted one in his level-two

decision for the purposes of this appeal.

3

AR 131.

In the end, the Commissioner issued a 26-page decision. AR 5-30 (App. 1). The

decision parses prior administrative decisions interpreting the same professional

capacity, the legislative history of the inclusion of that term in the Education Code,

and Ms. Jenkins’s contract. AR 5-30 (App. 1). Ultimately, the Commissioner

concluded:

6. If a school district fails to timely give a teacher notice of

proposed nonrenewal 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

year is triggered only when a contract is about to expire and timely

notice of proposed nonrenewal is not given. Tex. Educ. Code

§ 21.206(b).

....

12. [Ms. Jenkins’s] professional capacity under Texas Education

Code section 21.206(b) is administrator.

....

15. [The District] did not reassign [Ms. Jenkins] in violation of

Texas Education Code section 21.206(b).

See App. 1 at 28-29. Ms. Jenkins filed a motion for rehearing and then brought a

suit for judicial review. AR 339-357; CR 3-8.

The Trial Court Affirms the Commissioner’s Decision

After considering the administrative record and the arguments, the trial court

affirmed the Commissioner’s decision. CR 376-77 (Tab 2). This appeal followed.

4

SUMMARY OF THE ARGUMENT

This case presents one issue of statutory interpretation, another of substantial-

evidence review based on a comparison of the two jobs at issue, and a final issue of

contract interpretation.

Statutory Interpretation. Chapter 21 of the Texas Education Code shows that a

principal is an administrator. But section 21.206(b)’s phrase “same professional

capacity” is undefined and ambiguous. So the Commissioner has reasonably

assessed whether the two positions at issue are in the “same professional capacity”

based on necessary certifications and on the authority, duties, and salaries of the

positions. Indeed, over the past 30 years, the Commissioner has reasonably and

consistently interpreted “same professional capacity” in this way and the

legislature has accepted the Commissioner’s interpretation and not displaced it.

The Commissioner’s interpretation is also supported by legislative intent. While

Ms. Jenkins’s interpretation of same professional capacity is plausible, it fails next

to the Commissioner’s reasonable interpretation which carries great weight and

holds expertise.

Substantial Evidence. Principals and assistant principals are both administrators,

are both principals, and both share the same certification. And in her new assistant

principal position at a much larger school, Ms. Jenkins continued to have

5

significant and comparable duties and responsibilities. Also, Ms. Jenkins’s salary

was unchanged, and she was certified to hold the assistant principal position.

Contract Interpretation. While Ms. Jenkins’s employment contract is ambiguous

with respect to her professional capacity because it says only that she is an

employee, her contract unambiguously provides that she may be reassigned to

positions for which she is certified. Ms. Jenkins tries rewrite her contract so she

may only be employed as a principal, but doing so conflicts with the contract’s

reassignment clause, conflicts with the superintendent’s reassignment authority,

and is unworkably stiff for the contract’s aim. In contrast, the Commissioner read

the contract as a whole, and properly concluded that according to her contract

Ms. Jenkins may be assigned as an assistant principal.

6

ARGUMENT

I. The Commissioner’s interpretation of section 21.206(b)’s phrase “same

professional capacity” is reasonable and proper.

A. Standard of Review

While statutory construction is a question of law reviewed de novo, “an

agency’s interpretation of a statute it is charged with enforcing is entitled to

‘serious consideration,’ so long as the construction is reasonable and does not

conflict with the statute’s language.” R.R. Comm’n v. Tex. Citizens for a Safe Future

& Clean Water, 336 S.W.3d 619, 624 (Tex. 2011) (giving deference to and

upholding the agency’s interpretation of “public interest” in the statute it

administers); Sw. Pharmacy Solutions, Inc. v. Tex. Health & Human Servs. Comm’n,

408 S.W.3d 549, 559, 561-62 (Tex. App.—Austin 2013, pet. denied) (holding

agency’s interpretation and application of certain Medicaid code provisions and

agency rules was reasonable, in harmony with the statutes and rules, and entitled to

deference); Nucor Steel-Texas v. Pub. Util. Comm’n, 363 S.W.3d 871, 878-79 (Tex.

App.—Austin 2012, no pet.) (providing an agency’s interpretation of a statute it is

charged with administering only has to be reasonable and in accord with the

statute’s plain language to be entitled to deference).

Additionally, the Texas Supreme Court has held that in education law the Court

should defer to the Commissioner’s “reasonable determination in an area where he

7

possesses considerable authority and expertise.” Dodd v. Meno, 870 S.W.2d 4, 7

(Tex. 1994); Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443-44 (Tex.

App.—Austin 2011, no pet.). And when the Education Code is ambiguous or silent

as to a term, the question “is not whether an interpretation of the statute posed by

[the plaintiff] is reasonable, but whether the Commissioner’s interpretation is

reasonable and does not contradict the plain language of the statute.” Poole, 344

S.W.3d at 444.

B. Chapter 21 of the Texas Education Code shows that a principal is an

administrator.

Ms. Jenkins states that the term “administrator” is not present in section

21.201 of the Texas Education Code. Appellant’s Br. at 26. That’s not the whole

truth. Statutes must be read as a whole, 20801, Inc. v. Parker, 249 S.W.3d 392, 396

(Tex. 2008), and here chapter 21 of the Texas Education Code uses the term

“administrator” twenty times, and across ten different sections. Tex. Educ. Code

§§ 21.003, .033, .047, .061, .207, .252, .354, .355, .4032, .4511. Chapter 21 shows

that a principal is an administrator. Three sections bear mentioning.

First, section 21.354 and its history show that a principal is an administrator.

Before June 2011, section 21.354 was titled “Appraisal of Administrators,”

provided that each school district shall appraise each administrator annually, and

specifically addressed the appraisal of a principal. Tex. Educ. Code § 21.354 (2010)

8

(App. 3). Then, the legislature revised the section’s title to “Appraisal of Certain

Administrators,” stated that section 21.354 “does not apply to the appraisal of the

performance of a principal,” and created a new and more specific appraisal system

for principals in section 21.3541. Acts 2011, 82nd Leg., R.S., Ch. 1093 (S.B. 1383),

Sec. 1, eff. June 17, 2011 (App. 4). Thus, the legislature originally identified

principals as administrators, and continues to identify principals as administrators

through the exclusion in section Tex. Educ. Code § 21.354(a-1).

Second, immediately following section 21.3541’s appraisal system for principals,

section 21.355(a) states that “[a] document evaluating the performance of a teacher

or administrator is confidential.” Tex. Educ. Code § 21.355(a). Section 21.355(a)

applied in this case and was the basis for an agreed protective order covering Ms.

Jenkins’s evaluations—“documents evaluating the performance of an

administrator.” CR 367-69. Thus, for at least some purposes, Ms. Jenkins

recognizes that she is an administrator, and that a principal is an administrator.

Last, section 21.003 lists employment categories that require certification, and a

principal is not a category to itself but rather falls under the term “administrator.”

See Tex. Educ. Code § 21.003 (listing categories where principal can only fit as an

administrator); see also Tex. Educ. Code § 21.046 (qualifications for certification as

superintendent or principal). Also, administrative rules governing certification

9

treat principals and assistant principals as principals. 19 Tex. Admin. Code

§ 241.1(d) (providing that the holder of a principal certificate may serve as a

principal or assistant principal in a Texas public elementary, middle, or secondary

school); see also 19 Tex. Admin. Code § 241.25(a) (requiring principals and

assistant principals to undergo the same one-year induction period).

In short, sections 21.201 and .206 must be read in the context of chapter 21 of

the Texas Education Code, which confirms that a principal is an administrator.

C. Section 21.206 does not define “same professional capacity.”

Section 21.206 of the Texas Education Code provides:

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.

10

Tex. Educ. Code § 21.206 (emphasis added).

Section 21.206 does not define same professional capacity, nor does any other

part of the Texas Education Code, nor is common usage sufficiently precise. The

Commissioner’s interpretation of same professional capacity does not violate the

plain language of section 21.206 because that section does not define same

professional capacity. Same professional capacity was left undefined and

ambiguous.

D. Section 21.201 does not define “same professional capacity.”

The Commissioner has never held that professional capacities are limited to

those classes of positions set out in section 21.201(1)’s definition of teacher:

“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.

Tex. Educ. Code § 21.201(1).

The reasons for this are simple. Section 21.201(1) does not define same

professional capacity; it defines teacher. Nor does section Tex. Educ. Code

§ 21.206 define same professional capacity. And the two sections do not reference

each other. Thus there is no textual indication that the definition of same

11

professional capacity in section 21.206 is the same as that of teacher in section

21.201. The statute is ambiguous.

Indeed, if the legislature had intended for section 21.201(1) to define same

professional capacity, there were ample ways it could have done that consistent

with the means used in other parts of chapter 21. Very simply, the legislature could

have said same professional capacity “as defined by” section 21.201(1). E.g. Tex.

Educ. Code §§ 21.0452(b)(4)(B) (“students of limited English proficiency, as

defined by Section 29.052”), .154(4) (“is discharged for good cause as defined by

Section 21.156”), .402(a) (“the state maximum compressed tax rate, as defined by

Section 42.101(a)”). Or the legislature could have defined same professional

capacity by reference as it did frequently with other terms in chapter 21. E.g. Tex.

Educ. Code §§ 21.106(c) (“A teacher returned to probationary contract status

must serve a new probationary contract period as provided by Section 21.102 as if

the teacher were employed by the district for the first time.”), .4541 (“serving a

significant number of students identified as students at risk of dropping out of

school, as described by Section 29.081(d).”). But the legislature did not do these

things. It left same professional capacity undefined.

12

Thus, measured against the exacting and most comparable backdrop of chapter

21 of the Education Code, the term “same professional capacity” is undefined and

ambiguous.

E. The Commissioner has reasonably and consistently interpreted “same

professional capacity,” and the legislature has accepted the

Commissioner’s interpretation and not displaced it.

Because the Education Code does not define same professional capacity, the

Commissioner has been called on to interpret and apply section 21.206 in many

cases over the past 30 years. In doing so, the Commissioner, unlike Ms. Jenkins,

acts as a disinterested arbiter seeking the most textually faithful reading of the

Education Code. And the Commissioner’s interpretation, unlike Ms. Jenkins’s,

carries great weight. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,

438 (Tex. 2011) (“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.”); Dodd v. Meno, 870 S.W.2d 4, 7 (Tex.

1994) (providing that the Commissioner’s interpretation of a statute is entitled to

serious consideration if it is reasonable and does not contradict the statute’s plain

language).

13

The Commissioner first considered what constitutes reassignment to a position

in the same professional capacity in 1985 in Barich v. San Felipe-Del Rio

Consolidated School District, Docket No. 117-R1a-484 (Comm’r Educ. 1985). There

the Commissioner considered whether the district violated the non-renewal statute

by reassigning an ROTC instructor to a teaching position, and held that an ROTC

instructor and a teacher were in the same professional capacity where there was

“no reduction in salary or status.” Barich, Docket No. 117-R1a-484 at COL #2

(App. 5). In analyzing and interpreting section 21.206, the Commissioner

explained:

It is more reasonable to conclude that the legislature, by using the

term “same professional 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 words, the

district may place a teacher whose employment has been renewed by

operation of law in a position different from that to which the teacher

was assigned the previous year, as long as the position is one to which

the district could have reassigned the teacher had the parties

voluntarily entered into a contract for the following year. In some

instances, the validity of a particular placement will be clear. For

example, an administrator who does not receive the required notice by

April 1 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.

In other instances, the validity of a particular placement might not be

so clear. For example, a placement might be to another position within

the same professional category (e.g., administrator), but nevertheless,

14

be invalid (e.g., from superintendent to assistant elementary school

principal). Factors to be considered in determining the validity of such

a placement include, but are not necessarily limited to, differences in

authority, duties, and salary.

Barich (App. 5). In other words, a reassignment is in the same professional capacity

if the district could have contracted with the employee for the reassignment, that is

a district cannot reassign an employee to a position that the employee is not

certified to hold, and when both positions are in the same category, such as

administrator, where applying such factors as authority, duties, and salary shows

that the two positions are actually similar and not in different professional

capacities.

Since 1985, the Commissioner has applied the Barich test, examining whether

the positions have similar authority, duties, and salary. App. 6. Indeed, over the

past 30 years the Commissioner has consistently interpreted same professional

capacity and the legislature has accepted that interpretation and not displaced it.

In 1990, following Barich and other administrative decisions, the legislature

amended chapter 21 of the Texas Education Code but did not change section

21.206. Term Contract Nonrenewal Act, 71st Leg., 6th C.S., ch. 1, § 3.14, 1990

Tex. Gen. Laws 1, 30.

Then, in 1993, the Commissioner decided Carpenter v. Wichita Falls Independent

School District, Docket No. 247-R3-491 (Comm’r Educ. 1993) (App. 7). There, Ms.

15

Carpenter brought the same argument that Ms. Jenkins brings, and the

Commissioner rejected it:

[Ms. Carpenter] 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.

Id. at 3 (App. 7).

Also in 1993, a bill was proposed to define same professional capacity for

probationary and continuing contracts, but the bill did not pass. Introduced Bill,

Tex. S.B. 395, 73rd Leg., R.S. (1993) (proposing to define same professional

capacity as a position substantially equal in duties, responsibility, authority,

certification, endorsement, education, and remuneration). And in 1995, the

legislature again amended chapter 21 of the Texas Education Code but did not

change section 21.206. Term Contract Nonrenewal Act, 74th Leg., R.S., ch. 260

ch. 21 subch. E and F, 1995 Tex. Gen. Law 2207, 2378-79.

Then in 1998, the Commissioner again addressed “same professional capacity”

in Underwood v. West Rusk County Consolidated Independent School District, Docket

No. 062-R3-198 (Comm’r Educ. 1998) (App. 8). There, like here, a middle school

principal was reassigned to be a high school assistant principal, and her salary was

16

not changed. Id. at 1-2. Although the principal argued that this violated section

21.206 because she was not employed in the same professional capacity, the

Commissioner noted Barich, analyzed the facts, and concluded that section 21.206

was inapplicable because a contract was not non-renewed and “[i]n addition, [the

principal] is retained in her same professional capacity . . . .” Id. 3-4. Thus, the

Commissioner interpreted same professional capacity and rejected a claim like this

one.

In 2003, the legislature again amended chapter 21 of the Texas Education Code

but did not change section 21.206. Term Contract Nonrenewal Act, 78th Leg.,

R.S., ch. 484, § 1, 2003 Tex. Gen. Laws 1749.

Then in 2006, the Commissioner again interpreted “same professional

capacity”—this time in Perales v. Robstown Independent School District, Docket No.

052-R10-104, 084-R3-604 (Comm’r Educ. 2006) (App. 9).

The parties dispute the meaning of the phrase “same professional

capacity.” The term “same professional capacity” is not defined in

statute. Petitioner suggests that the definition of “teacher”, found at

Texas Education Code section 21.201, is helpful . . . .

Petitioner contends that each individual classification is a different

professional capacity for purposes of Texas Education Code section

21.206. There are a number of problems with this interpretation. The

first problem is that the definition in question is that of “teacher”, not

of “professional capacity.” The second difficulty is that the statutory

category of “other full-time professional employee who is required to

hold a certificate under Subchapter B” hardly seems a distinct

17

professional capacity. A third difficulty is that in a number of cases the

Commissioner has interpreted “same professional capacity” in a

different way.

Id. at 4-5. After noting Barich, the long-standing interpretation of same professional

capacity, and comparing the positions and their compensation, the Commissioner

concluded that the reassignment from Even Start Director to assistant principal

was permissibly within the same professional capacity. Id. at 9-12.

In 2011, the legislature amended chapter 21 of the Texas Education Code, and

this time specifically revised section 21.206 but did not change 21.206(b) or define

same professional capacity. Act of Sept. 28, 2011, 82nd Leg., 1st C.S., ch. 8, § 9,

sec. 21.206, 2011 Tex. Gen. Laws 5463, 5465. Rather, the revision gave school

districts greater flexibility to implement staffing changes by reducing the notice

period for non-renewals in section 21.206(a). Id. Additionally, the legislature added

section 21.102(a-1) that provides that a person who voluntarily accepts an

assignment “in a new professional capacity that requires a different class of

certificate” may be employed under a probationary contract. Act of June 17, 2011,

82nd Leg., R.S., ch. 1010, § 1, sec. 21.102(a-1), 2011 Tex. Gen. Laws 1010. Thus,

the legislature again adopted “professional capacity” and for purposes of

probationary contracts coupled it with a specific trigger based on certification.

18

Then in 2012, the Commissioner again interpreted section 21.206(b)’s phrase

“same professional capacity.” McCoy v. Kermit Indep. Sch. Dist., Docket No. 004-

R3-0908 (Comm’r Educ. 2012) (App. 10). A well-formed habit at this point, the

Commissioner noted that same professional capacity is not defined, and that from

his earliest decision concerning this provision he has held that an “administrator”

is a professional capacity. Id. at *4. Noting Barich, that principals and assistant

principals are both principals under administrative rules, and that the employee’s

salary was unchanged, the Commissioner concluded that “[a]dministrator is a

professional capacity as that term is used in Texas Education Code section

21.206(b)” and that the school district did not violate section 21.206(b) when it

reassigned the principal to be an assistant principal. Id. at *11-12 (COL #7, 11).

Thus, the Commissioner previously interpreted same professional capacity as he

did here, and he previously rejected a claim like this one.

In summary, following Barich the Commissioner has consistently interpreted

same professional capacity. The Commissioner has decided whether a principal

was improperly reassigned to another position. Underwood v. Rusk Indep. Sch. Dist.,

Docket No. 062-R3-198 (Comm’r Educ. 1998); Pasqua v. Fort Stockton Indep. Sch.

Dist., Docket No. 011-R3-1102 (Comm’r Educ. 2004); Montgomery v. Richardson

Indep. Sch. Dist., Docket No. 007-R10-1008 (Comm’r Educ. 2012); Murillo v.

19

Laredo Indep. Sch. Dist., Docket No. 027-R3-0108 (Comm’r Educ. 2012); McCoy v.

Kermit Indep. Sch. Dist., Docket No. 004-R3-0908 (Comm’r Educ. 2012). The

Commissioner has applied the Barich test to other types of reassignments—for

example, from a central office position to an assistant principal position. E.g.,

Gonzalez v. Donna Indep. Sch. Dist., Docket No. 074-R10-605 (Comm’r Educ.

2007). The Commissioner has declared reassignments improper because the

reassignment was outside of the same professional capacity. E.g., Wheeler v. Austin

Indep. Sch. Dist., Docket No. 008-R3-1108 (Comm’r Educ. 2011). In sum, the

Commissioner has experience determining whether an assignment is proper based

on the statute, facts, and contracts at issue. As in Dodd v. Meno, 870 S.W.2d 4, 7

(Tex. 1994) and Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443-44 (Tex.

App.—Austin 2011, no pet.), this Court should affirm the Commissioner’s

decision that is based on his technical knowledge and expertise in applying section

21.206 of the Education Code to teacher and administrator contracts.

In addition, the Commissioner’s interpretation is so long-standing that it should

not be changed in the absence of clear statutory authorization. See Humble Oil &

Ref. Co. v. Calvert, 414 S.W.2d 172, 180 (Tex. 1967). In Humble Oil, the court noted

that “a statute of doubtful meaning that has been construed by the proper

administrative officers, when re-enacted without any substantial change in

20

verbiage, will ordinarily receive the same construction.” Id. The statute in question

had been uniformly construed in a particular manner for 46 years. Id. at 173. Here,

section 21.206(b)’s phrase “same professional capacity” is ambiguous, the

Commissioner has uniformly construed the provision for 30 years, and the

legislature has amended the TCNA without changing section 21.206(b).1 An

administrative officer’s construction of statutory language is entitled to great

weight when the construction has continued for a long time. Bullock v. Marathon

Oil Co., 798 S.W.2d 353, 357 (Tex. App.—Austin 1990, no writ). And if an agency

interpretation is in effect at the time the legislature amends the law without making

any substantial change in the statute, the legislature is deemed to have accepted the

agency’s interpretation. Humble Oil & Ref. Co. v. Calvert, 414 S.W.2d 172, 180

(Tex. 1967); Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56,

62 (1932); Marathon Oil Co., 798 S.W.2d at 357.

In sum, the Commissioner has reasonably and consistently interpreted section

21.206(b)’s phrase “same professional capacity,” and the doctrine of legislative

1The legislature amended the TCNA in 1990, 1995, 2003, and 2011. Term Contract Nonrenewal

Act, 71st Leg., 6th 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, 74th 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, 78th Leg., R.S., ch. 484, § 1, 2003 Tex.

Gen. Laws 1749 (concerning distribution of district employment policies); Term Contract

Nonrenewal Act, 82nd Leg., 1st 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).

21

acquiescence supports the Commissioner’s interpretation and the conclusion that

the reassignment from a principal to assistant principal is within the same

professional capacity.

F. Legislative intent further supports the Commissioner’s interpretation of

same professional capacity.

Legislative intent shows that same professional capacity falls short of covering

all demotions and that school districts have some discretion in reassignments.

The Term Contract Nonrenewal Act (TCNA) was passed by the 67th

Legislature in 1981. Term Contract Nonrenewal Act, 67th Leg., R.S., ch. 765, 1981

Tex. Gen. Laws 2847. The law fundamentally changed teachers’ contracts: it

required school districts to establish policy reasons for ending a contract and to

identify the reasons why it was proposing to end the contract, and it gave teachers

the right to a hearing where the administration bore the burden of proof. See

generally Seifert v. Lingleville Indep. Sch. Dist., 692 S.W.2d 461, 462 (Tex. 1985). But

as originally filed, Senate Bill 341 was more ambitious than what was enacted.

Under SB 341 as filed, a term contract could only be ended for “just cause”

after written notice of deficiencies, assistance, a time for improvement, and a

hearing. Significantly, SB 341 as filed also defined “demotion” as

an involuntary reduction of a teacher to a position of lesser rank,

responsibility, or compensation, or the reassignment of a teacher

22

outside the scope of the teacher’s teaching certificate or major or

minor field of study.

Introduced Bill, Tex. S.B. 341, 67th Leg., R.S. (1981). Demotion could only occur

for just cause after following the process for ending a term contract (notice,

assistance, time for improvement, and a hearing). In that form SB 341 passed the

Senate but not the House.

The House Education Committee passed its substitute for SB 341 with this

language:

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.

House Committee Report, Tex. S.B. 341, 67th Leg., R.S. (1981). As the

Commissioner explained in his decision, “same capacity” permits a range of

interpretations—the fifth grade English teacher at Davis Elementary, or any

classroom teaching position. Ultimately, the matter was not clarified: on second

reading the word professional was added to make “same professional capacity” but

no definition was provided. H.J. of Tex., 67th Leg., R.S. 3522 (1981). The House

version went on to become law.

What is clear, however, is that the legislature knew how to restrict

reassignments with specific triggers—lesser rank, or responsibility, or

23

compensation, or reassignment outside the scope of certification—but ultimately

chose to give school districts some flexibility. This legislative intent informs and

supports the Commissioner’s interpretation of same professional capacity: the

Commissioner considers similar factors—the Barich test of authority, duties,

salary, and certification—to those originally proposed by the Senate, but does so in

a more rounded way true to the enacted law than the Senate’s restrictive version.

G. Ms. Jenkins’s interpretation of same professional capacity is plausible

but unconvincing.

Ms. Jenkins’s interpretation of same professional capacity is plausible. In

Grounds v. Tolar Independent School District, 694 S.W.2d 241, 244-245 (Tex.

App.—Fort Worth 1985), rev'd on other grounds, 707 S.W.2d 889 (Tex. 1986), the

Fort Worth Court of Appeals came close to adopting her interpretation after

surveying the Education Code and concluding that the only two parts which appear

to classify professional capacities are section 21.201(1) which defines “teacher”

and the then section 16.056 which authorized school districts to use certain

professional positions for determining state base pay. But that court lacked the

Commissioner’s expertise and the Commissioner’s input (he was not a party), and

that court’s decision was flawed, vacated for lack of jurisdiction, and the

Commissioner’s decision was reinstated. Grounds v. Tolar Indep. Sch. Dist., 707

S.W.2d 889, 29 Tex. Sup. Ct. J. 307 (Tex. 1986). Additionally, after the first

24

Commissioner’s decision, the Commissioner issued another decision the following

year and concluded that Grounds was employed as a teacher/football coach and

entitled to be rehired in that same professional capacity. Grounds v. Tolar Indep.

Sch. Dist., Docket No. 340-R3-786 (Comm’r Educ. 1986); see also Grounds v. Tolar

Indep. Sch. Dist., 856 S.W.2d 417, 421 (Tex. 1993) (Gonzalez, J., concurring)

(succinctly explaining factual history). After that the Commissioner continued on

to consistently interpret same professional capacity. Put simply, Ms. Jenkins’s

argument would be more convincing if this case were presented on a basic slate.

But law, like life, carries its history forward, and that history matters. Here, that

history is the Commissioner’s long-standing interpretation and the legislature’s

acquiescence. Additionally, the Commissioner’s interpretation carries great weight

and its subject falls squarely within his expertise.

Ms. Jenkins also correctly notes that that the Texas Education Code gives a

specific and important role to principals but not to assistant principals. Section

11.202 makes the principal “the instructional leader of the school” and specifies a

principal’s duties, and a principal has specific duties under chapter 37 of the Texas

Education Code concerning student placement. Tex. Educ. Code § 11.202; e.g.,

Tex. Educ. Code §§ 37.002, .0181, .019. No doubt there are differences between

principals and assistant principals. But principals and assistant principals are both

25

administrators, are both principals, and both share the same certification. And the

legislature gave school districts some flexibility in reassignments, and the

superintendent has statutory authority to assign principals and assistant principals.

Tex. Educ. Code § 11.202(d)(2).

Ultimately, Ms. Jenkins’s interpretation of same professional capacity is

unconvincing. Where the Education Code is ambiguous or susceptible to multiple

reasonable interpretations this Court has held that the Commissioner’s reasonable

interpretation prevails. Poole v. Karnack Indep. Sch. Dist, 344 S.W.3d 440, 444

(Tex. App.—Austin 2011, no pet.). Here, the Commissioner’s interpretation does

not conflict with the text, is long-standing, is supported by legislative acquiescence,

and gives effect to legislative intent; it should therefore be followed.

II. The reassignment from middle school principal to high school assistant

principal with no change in compensation was permissibly within the

same professional capacity.

A. Standard of Review

Judicial review of the Commissioner’s decision is governed by the substantial

evidence rule, as described in section 2001.174 of the Administrative Procedure

Act (APA). Tex. Educ. Code § 7.057(d); Tex. Gov’t Code § 2001.174; Poole v.

Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443-44 (Tex. App.—Austin 2011, no

pet.). Under this standard, the Court may not substitute its judgment for that of the

26

agency. State v. Pub. Util. Comm’n, 883 S.W.2d 190, 203-204 (Tex. 1994). The

agency’s decision is presumed valid, and the opposing side has the burden to prove

its invalidity. Id. Although substantial evidence is more than a mere scintilla, the

evidence in the record may preponderate against the agency decision and still

amount to substantial evidence. Tex. Health Facilities Comm’n v. Charter Med.-

Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). See generally Texas State Bd. of

Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988) (describing

substantial evidence standard as whether the evidence as a whole is such that

reasonable minds could have reached the conclusion that the agency reached).

B. The reassignment was permissible.

Ms. Jenkins did not exhaust administrative remedies as to whether a comparison

of the two job assignments shows they differ in professional capacity. Before the

Commissioner, Ms. Jenkins merely argued that the Commissioner should “revisit”

the Barich test. A.R. 129-53. Her petition for review did not claim that her

reassignment was inappropriate because the two jobs at issue were actually

dissimilar. AR 155-58. Nor did she brief that the two jobs at issue were actually

dissimilar. AR 129-52; 114-22. As the Commissioner put it, “[Ms. Jenkins’s claim

is not that in her particular circumstance, comparing authority, duties,

compensation and other relevant factors, the two positions were in separate

27

professional capacities. [Her] claim is that a principal can only be assigned to

another principal position.” AR 26 (Tab 1). That is, Ms. Jenkins merely challenged

the Commissioner’s long-standing interpretation of “same professional capacity”:

she did not contest that should the Commissioner’s interpretation apply, her

reassignment fell within the same professional capacity. As a result, Ms. Jenkins

failed to raise the factual comparison as required by Rules 157.1051(b) and

157.1058(a)(4). 19 Tex. Admin. Code § 157.1051(b) (““all issues relied on … must

be raised in the petition for review, and the commissioner will not consider any

issues not raised in the petition for review.”); 19 Tex. Admin. Code §

157.1058(a)(4) (“Argument. The brief must contain clear and concise argument for

the contentions made with appropriate citations to authorities and to the record.”).

Regardless, here the reassignment was within the same professional capacity.

Principals and assistant principals are both administrators, are both principals, and

both share the same certification. And in her new assistant principal position at a

much larger school, Ms. Jenkins continued to have significant and comparable

duties and responsibilities—appraising and making recommendations about staff,

training teachers and assisting in staff development, providing instructional

leadership, implementing student discipline, developing an effective campus

improvement plan, and working directly with parents to solve problems. Compare

28

Tex. Educ. Code § 11.202 (listing some duties of principles) with AR 285-86

(listing Ms. Jenkins’s responsibilities as assistant principal). Also, Ms. Jenkins’s

salary was unchanged. AR 286. And her principal certification was sufficient for the

assistant principal position. 19 Tex. Admin. Code § 241.1(d) (providing that the

holder of a principal certificate may serve as a principal or assistant principal).

Thus, substantial evidence shows that the reassignment was proper. See Tex. Gov’t

Code § 2001.174 (substantial evidence standard); Tex. Health Facilities Comm’n v.

Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984) (substantial evidence is

more than a mere scintilla). That is, a reasonable person could conclude that the

reassignment from middle school principal to assistant principal at a much larger

high school and with no change in compensation was permissible.

III. The Commissioner properly concluded that according to her contract

Ms. Jenkins may be assigned to serve as an assistant principal.

A. Standard of Review

The interpretation of an unambiguous contract is a question of law. See

Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.

1996); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). An administrative

interpretation of an unambiguous contract does not carry deference. See Weslaco

Fed'n of Teachers v. Texas Educ. Agency, 27 S.W.3d 258, 263-64 (Tex. App.—Austin

29

2000, no pet.) (rejecting district’s argument that employment contracts should be

reviewed under the substantial-evidence standard, rather than de novo); see also

N.E. Indep. Sch. Dist. v. Kelley, No. 03-09-00641-CV, 2010 Tex. App. LEXIS 9792,

2010 WL 5019850 at *5 (Tex. App.—Austin Dec. 9, 2010, pet. denied) (mem. op.)

(finding similarly and following Weslaco). “[A]n agency’s interpretation of an

unambiguous contract is not binding on a district or appellate court.” Weslaco, 27

S.W.3d at 264.

In construing a contract, the Court must ascertain and give effect to the parties’

intentions as expressed in the document. J.M. Davidson, Inc. v. Webster, 128

S.W.3d 223, 229 (Tex. 2003); Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d

857, 861 (Tex. 2000). The Court will consider the entire writing and attempt to

harmonize and give effect to all the provisions of the contract by analyzing the

provisions with reference to the whole agreement. J.M. Davidson, Inc., 128 S.W.3d

at 229. Contracts are construed “from a utilitarian standpoint bearing in mind the

particular business activity sought to be served” and “will avoid when possible and

proper a construction which is unreasonable, inequitable, and oppressive.” Reilly v.

Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987). If, after the pertinent rules of

construction are applied, the contract can be given a definite or certain legal

meaning, it is unambiguous and the court construes it as a matter of law. J.M.

30

Davidson, Inc., 128 S.W.3d at 229. On the other hand, if the contract is subject to

two or more reasonable interpretations after applying the pertinent rules of

construction, the contract is ambiguous, creating a fact issue on the parties’ intent.

Id.

In the context of administrative determinations involving the factual issue of the

parties’ intent, this Court has explained that if an agreement is ambiguous the

agency’s interpretation will be affirmed so long as it is supported by substantial

evidence. See City of Abilene v. Pub. Util. Comm’n, 146 S.W.3d 742, 748 (Tex.

App.—Austin 2004, no pet.) (stating court will affirm the agency’s interpretation

of a settlement agreement if the interpretation is supported by substantial

evidence); AEP Tex. Cent. Co. v. Pub. Util. Comm’n, 286 S.W.3d 450, 471 (Tex.

App.—Corpus Christi 2008, pet. denied) (“If the agreement is ambiguous, we will

affirm the [agency’s] interpretation of it, so long as the interpretation is supported

by substantial evidence.”).

Here, the contract unambiguously states that Ms. Jenkins may be reassigned to

other duties for which she is professionally certified. But the contract is ambiguous

as to the professional capacity in which Ms. Jenkins was employed: the contract

states that she is an employee; however, employee is not a professional capacity

under Texas Education Code section 21.206.

31

B. The Commissioner properly concluded that according to her contract

Ms. Jenkins may be assigned to serve as an assistant principal.

Employment contracts need not specify an employee’s professional capacity.

Here, Ms. Jenkins’s employment contract is ambiguous with respect to her

professional capacity; it says only that she is an employee. AR 294 (App. 11). While

Ms. Jenkins would prefer to rewrite her contract from “employee” to read

“principal” instead of “administrator,” doing so conflicts with the contract’s

reassignment clause, conflicts with the superintendent’s reassignment authority,

and is unworkably stiff for the contract’s aim.

The reassignment clause in Ms. Jenkins’s employment contract provides:

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.

A.R. 294 (emphasis added). As a principal, Ms. Jenkins was certified and qualified

to serve as an assistant principal. 19 Tex. Admin. Code § 241.1(d) (a holder of the

principal certificate “may serve as a principal or assistant principal in a Texas

public school.”). Thus, the superintendent was specifically permitted by contract

to reassign Ms. Jenkins to be an assistant principal. Yet Ms. Jenkins’s preferred

contractual rewriting to “principal”—apparently excluding assistant principal—

32

prevents this, while the Commissioner’s interpretation reconciles Ms. Jenkins’s

professional capacity with the contract’s reassignment clause (and statutes and

administrative decisions). For this reason, the Commissioner’s interpretation is

reasonable and gives meaning to the contract as a whole, while Ms. Jenkins’s

preferred reading fails.

Similarly, Ms. Jenkins’s reading conflicts with the superintendent’s assignment

authority. Section 11.201(d)(2) provides:

(d) The duties of the superintendent include:

(2) except as provided by Section 21.202, assuming administrative

authority and responsibility for the assignment, supervision, and

evaluation of all personnel of the district other than the

superintendent.

Tex. Educ. Code § 11.201(d)(2). Although there is an exception for section 21.202

involving personnel decisions made by principals, this merely ensures the

superintendent need not make each and every personnel decision. In other words,

although section 11.202 (b)(1) provides that principals “shall approve all teacher

and staff appointments for that principal’s campus,” the superintendent has

statutory authority for the assignment of principals and assistant principals. Tex.

Educ. Code § 11.202(b)(1). Ms. Jenkins ignores this, and her interpretation

conflicts with and restricts the superintendent’s assignment authority.

33

Finally, Ms. Jenkins’s preferred contractual reading is unworkably stiff given

the contract’s business aims—supplying personnel to meet needs. As the

Commissioner has explained, “the [Term Contract Nonrenewal Act] balanced its

grant of limited tenure rights against the considerable personnel management

problems it might cause if imposed inflexibly,” and “[t]he need for flexibility in

making personnel changes is strongest, and the argument for a rigid tenure system

weakest, at the administrative level.” Carpenter v. Wichita Falls Indep. Sch. Dist.,

Docket No. 247-3-491 (Comm’r Educ. 1993). And Ms. Jenkins’s reading would

prevent school districts from assigning talented administrative personnel to address

local concerns like those here. See A.R. 285 (noting need at Crosby High School).

In short, the Commissioner properly interpreted the contract as a whole.

CONCLUSION AND PRAYER

This case presents a settled issue. The Commissioner has repeatedly held that

principal and assistant principal are in the same professional capacity and that a

school district need not provide notice and a hearing to non-renew a principal’s

contract when reassigning a principal to be an assistant principal. This Court

should not overturn nearly 30 years of precedent in formal adjudications,

particularly where the Commissioner’s interpretation of the Texas Education Code

is reasonable, longstanding, supported by the legislative intent, and entitled to

34

deference. The Commissioner respectfully requests that his decision and the trial

court’s judgment be affirmed.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR.

Chief, Administrative Law Division

/s/ Andrew Lutostanski

ANDREW LUTOSTANSKI

Assistant Attorney General

State Bar No. 24072217

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

Administrative Law Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Phone: (512) 475-4200

Fax: (512) 320-0167

andrew.lutostanski@texasattorneygeneral.gov

CERTIFICATE OF COMPLIANCE

I certify that the brief submitted complies with Texas Rule of Appellate

Procedure 9.4(i)(3) and the word count of this document is 7,649. Word 2013 was

used to prepare this document and count the words in it.

/s/ Andrew Lutostanski

Andrew Lutostanski

35

CERTIFICATE OF SERVICE

I hereby certify this document was served on September 24, 2015 to

Kevin F. Lungwitz Via e-service

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

Kevin@LungwitzLaw.com

Elizabeth@LungwitzLaw.com

Attorneys for Plaintiff Hermenia Jenkins

David B. Hodgins Via e-service

State Bar No. 09775530

Frances Broussard

State Bar No. 24055218

Amber K. King

State Bar No. 24047244

THOMPSON & HORTON LLP

3200 Southwest Freeway, Suite 2000

Houston, TX 77027

dhodgins@thompsonhorton.com

fbroussard@thompsonhorton.com

aking@thompsonhorton.com

Attorneys for Defendant Crosby ISD

/s/ Andrew Lutostanski

Andrew Lutostanski

36

INDEX OF APPENDICES

Specifically Listed

1. Commissioner’s Decision

2. Final Judgment

3. Tex. Educ. Code § 21.354 (2010)

4. Acts 2011, 82nd Leg., R.S., Ch. 1093 (S.B. 1383), Sec. 1, eff. June 17, 2011

5. Barich v. San Felipe-Del Rio Consolidated School District, Docket No. 117-R1a-

484 (Comm’r Educ. 1985)

6. Summary of Administrative Decisions

7. Carpenter v. Wichita Falls Indep. Sch. District, Docket No. 247-R3-491

(Comm’r Educ. 1993)

8. Underwood v. West Rusk County Consolidated Indep. Sch. District, Docket No.

062-R3-198 (Comm’r Educ. 1998)

9. Perales v. Robstown Indep. Sch. District, Docket No. 052-R10-104, 084-R3-604

(Comm’r Educ. 2006)

10. McCoy v. Kermit Indep. Sch. Dist., Docket No. 004-R3-0908 (Comm’r Educ.

2012)

11. Ms. Jenkins’s employment contract

Legislation

1. Act of Aug. 31, 1981, 67th Leg., R.S., ch. 765, 1981 Tex. Gen. Laws 2847

(current version at Tex. Educ. Code § 21.206(a)).

2. Act of Sept. 28, 2011, 82nd Leg., 1st C.S., ch. 8, § 9, sec. 21.206,

2011 Tex. Gen. Laws 5463, 5465.

3. H.J. of Tex., 67th Leg., R.S. 3522 (1981).

4. House Committee Report, Tex. S.B. 341, 67th Leg. R.S. (1981).

5. Introduced Bill, Tex. S. B. 341, 67th Leg., R.S. (1981).

6. Term Contract Nonrenewal Act, 71st Leg., 6th C.S., ch. 1, § 3.14,

1990 Tex. Gen. Laws 1, 30.

7. Term Contract Nonrenewal Act, 74th Leg., R.S., ch. 260 ch. 21 subch. E and

F, 1995 Tex. Gen. Law 2207, 2378-79.

8. Term Contract Nonrenewal Act, 78th Leg., R.S., ch. 484, § 1,

2003 Tex. Gen. Laws 1749.

DOCKET NO. 043-Rl0-1211

HERMENIA JENKINS § BEFORE THE

§

§

v. § COMMISSIONER OF EDUCATION

§

CROSBY §

INDEPENDENT SCHOOL DISTRICT § THE STATE 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 Briefof Amicus Curiae.

043-RI0-1211

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exercise his broad experience in education to determine just what 1s 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 .

1. In March 2011, Petitioner and Respondent signed a contract that provides

in relevant part:

l. 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 2010-2011 school year.

3. On June 28, 20 l 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.

2

See 19 TEX. ADM IN. CODE § 157.1073(h); Bosworth v. £as/ Central Independent School District, Docket

No. 090-lU-803 (Comm'r Educ. 2003).

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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 11.202, 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

nonrencwal to hire the teacher in the same professional capacity for the following school

year. Petitioner also alleges that Respondent violated 19 TEX. ADMtN. 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. ADMIN. CODE§ 150.1021 , and policy DN(LOCAL). Texas

Education Code section 11.202 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/11

School District, Docket No. I 06-Rl 0-496 (Comm'r Educ. 1999)

TEX. EDUC. CODE § 11.20 I

Texas Education Code I 1.201 (d)(2) provides that superintendents have

responsibility for most assignments. Petitioner contends that Respondent's

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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 11.20 I (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.l?.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 are 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:

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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 l 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 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" 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 at

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 to

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 -RI0- 1211 5

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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-Rl-0711 n. 2 (Comm'r Educ. 2011), multiple year contracts can

also benefit teachers. A multiple year contract may only be nonrenewed when it is about

to expire. A school district that wishes to end a multiple year contract at the end of the

fist contract year must proceed by the more difficult process of termination as opposed to

nonrcncwal. 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 if a 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.

111

The Term Contract Nonrenewal Act3 ("TCNA") was passed by the 67

Legislature in 1981 4 • Term Contract Nonrenewal Act, 671h Leg., R.S., ch. 765, 1981 Tex.

1

Section I of SB 341 itself provided that "this act shall be known as "The Term Contract Nonrenewal

Act."

1

' 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. Lingleville 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 ofproposed nonrenewal within the

time herein spec!fied, the board shall thereby elect to employ such employee

in the same professional capacity.for 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 prol'cssional capacity could actually be raised.

5

From the beginning, the TCNA has used an expansive definition of"teacher" that includes many who are

not normally referred to 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 after 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

appeal able 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 \Vas 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 2 l .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

definition 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 nonrencwal

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.

fl is more reasonable to conclude that the legislature, by using the term

"same pn~fessional 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 word~, the district may place a teacher whose employment has

been renewed by operation of law in a position different ji-om that to ·which the

teacher was assigned the previous year, as long as the position is one to which the

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discricc could have reassigned the teacher had the parties voluncarily entered into

a contract for the following year. Jn some instances, the validity of a particular

placement will be clear. For example, an administrator lvho does not receive the

required notice by April 1 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 1nay not be placed in the capacity of a nurse; a nurse may not be placed

in the capacity of a librarian; etc.

Jn other instances, the validity of a particular placement might not be so

clear. For example, a placement might be to another position within the same

pr<~fessional categmy (e.g., administra/01~. but nevertheless, be invalid (e.g. , .fom

superintendent to assistant elementmy school principal). Factors to be

considered in determining the validity of such a placement include, but are not

necessarily limited to, differences in authority, duties, and salary.

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 1983-84 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 21.201(1). 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 l (1) 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

professional 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

Dislrict, Docket No. 106-R 1-585 (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

nonrcnewal 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.

199 l ). 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'

043 -RI0-1211 12

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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. Abbott et al.

v. Eclor 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-Rl-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

Lo 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

7

professional employee , the district properly reassigned the employee from the position

of athletic director to the position of teacher/assistant principal. Keith v. Tarkington

Independent School DisLrict, 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 Dislrict, Docket

No. I 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 does 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.

043-RI0-1211 13

H. Jenkins v. Crosby ISD

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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-l 98 (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. 175-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 1-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-Rl0-900 (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-Rl 0-900

(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.

011 -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-Rl0-104, 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-Rl0-605 (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-Rl0-605

(Comm'r Educ. 2007). Contracted as an administrator, the district properly reassigned

043-Rl0-1211 14

H. Jenkins v. Crosby ISD

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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. Montgome1y v. Richardson Independent School District,

Docket No. 007-Rl0-1008 (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-R 10-1007 (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

043- RI0-1211 15

H. Jenkins v. Crosby ISD

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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 ( l) 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

§ 21.204(b) limits the right of the district to transfer a term contract teacher.

Barich v. San Felipe-Del Rio C.I.S.D., Docket No. 117-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-RI0· 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

H The old Texas Education Code section 21.204 is the predecessor of the current Texas Education Code

section 21.206 .

043-RI0-1211 16

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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. Viii. 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.W.3d 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."')

043-RI0- 1211 17

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Tex. Dept. of Protective & Regula/my Services v. Mage Child Care, 145 S.W.3d 170,

I 7 5 (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 Nonrencwal Act, 7ls1 Leg. 6111 C.S., ch. I § 3.14, 1990

Tex. Gen. Laws l (allowing the hearing to be heard by a board designated impartial

111

hearing officer); Term Contract Nonrenewal Act, 74 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 11d Leg. 151 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 § 241(d). The next question is that

even if the position could be contracted for are differences in authority, duties, salary and

043-Rl0- 1211 18

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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

21.20 l (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. lf 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. If 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 to interpret the phrase at issue.

043-RI0-1211 19

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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 frustees ql Crystal City

Independent School District v. Briggs, 486 S.W.2d 829 (Tex. App. Beaumont 1972, 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. §§

I 6.07, 16.08 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 postttons 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 1.20l(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

9

"midmanagement/supervisor" is no longer awarded. 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 wise to limit

employment to those who have achieved a certification that is no longer issued.

043-RI0-1211 20

H. Jenkins v. Crosby ISD

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certifications for administrator are superintendent and principat. 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§ 241(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. l (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.

111

19 Tr:x. ADMIN. Com: ch. 241 and 242. All other administrator certifications were not issued after 2000.

043-RI0-1211 21

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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- I 98 (Comm'r Educ. 1998), Pasqua v. Fort Stockton independent

School District, Docket No. Ol l-R3-1102 (Comm'r Educ. 2004), Murillo v. Laredo

independent Sclwol District, Docket No. 027-R3-0108 (Comm 'r Educ. 2012),

Monlgomery 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

docs 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-RI0-1211 22

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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 Independent 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

nonrcnewal 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:

I. 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-RI0-1211 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 11.20 I ( 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

nonrenewal 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§ 21.206(b).

7. Petitioner's claim that Respondent failed to employ her in 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 (I) to be

entitled to a Chapter 21 term contract.

9. The positions described in the first sentence of Texas Education Code

section 21.20 I ( 1) 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 tenn contract that one is employed under the

professional capacity of principal. TEX. Eouc. 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 impennissibly broad is determined by comparing

differences in authority, duties, and salary and other relevant factors. ln 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 l.206(b) is administrator.

13. As Petitioner did not contest that her contractual professional capacity of

administrator is impermissibly 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 does 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 21.206(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. (\A

SIGNED AND ISSUED this ~ay of ~~ , 2013.

043-Rl0-1211 26

H. Jenkins v. Crosby ISD

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376

377

§ 21.352 PUBLIC EDUCATION

Title2

§ 21.352. Local Role

Research References

Encyclopedias TX Jur. 3d Scimols § 333, Right to An0her

Appraisal anti Rebuttal.

TX Jut. 3d Schools § 331, Frequency of Ap- LI

praisal: Advance Notice. TX Jur. 3d Schools § 335. Appraisal of Teaeher•

TX Jm" 3d Schools § 332, Confidentiality; Re- and Administrators.

tention and Distribution of Appraisal Copies.

§ 21.353. Appraisal on Basis of Classroom Teaching Performance

Research References

B

Encyclopedias

TX Jut. 3d Schools • 335, Appraisal of Teachers

and Administratom.

§ 21.354. Appraisal of Administrators

(a) The commissioner shall adopt a recommended appraisal process and criteria on

•hict

to appraise the pertbrmance of various classifications of school administrators.

The criteria

must be based on job-related performance.

(b) The commissioner may solicit and consider the advice of teachers and administratorsm

developing the appraisal process and performance criteria.

(e) Each school district shall appraise each administrator annually using either:

criteria; or

(1) the commissioner's recommended appraisal process and purformanee

(2) an appraisal process and performance e•-iteria:

campus-le•'d

(A) developed by the district in consultation with the district- and

committees established under Section 11.25l: and

(B) adopted by the board of trustees.

h• not been

(d) Funds of a school district may not be used to pay an administrator who

appraised under.this section in the preceding 15 months.

(e) The a PP raisal of a P ldncipat shall include considenttion ".of the performance o!.a

er Section 39,t•of

" '

- ¯

,'

und

"

principal's campus on the student achievement mdwators estabhshed pertorma-•

¯

•ins

,•--e •-

including

and tlae campus's objectives established under Section 11.25;•,

the campus and the maintenance of those gains. Leg,,¢•

by Acts 2009, 81st

Added by Acts 1995. 74th Leg., ch. 260, • l. eft. May 30. 1995. Amended

895, § 21, elf. June 1O. 2009.

Research References

Appraised of Teach•-•

Encyclopedias TX Jur. 3d Schools • 335,

and Administrato•.

'IX Jm', 3d Schools • 334. Recommended Ap- Apprau•al of S•h•

praisal Process and Performance Criteria for TX Jut. ,•d Schools § 336,

Teachers and Administrators. Principals.

§ 21.355. Confidentiality

Encyclopedias

Research References

'IX Jur. 3d Administrative Law § 67, Construe-

"

'IX Jur. 3d •qchools §

.

9

"•-,

tention and Dist•ribution

Confidentiality;

•,.•i:-•l C0pl

ox. •r,v'-"

•

tion of Requirement.

TX Jur. 3d Administrative Law § 69, Type of

Information Subject to Disclosure--Categories

Classified as Public Information.

104

9/24/15 82(R) SB 1383 - Enrolled version - Bill Text

S.B. No. 1383

AN ACT

relating to an appraisal and professional development system for

public school principals.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The heading to Section 21.354, Education Code,

is amended to read as follows:

Sec. 21.354. APPRAISAL OF CERTAIN ADMINISTRATORS.

SECTION 2. Section 21.354, Education Code, is amended by

adding Subsection (a-1) to read as follows:

!a-ll This section does not apply to the appraisal of the

performance of a principal.

SECTION 3. Subchapter H, Chapter 21, Education Code, is

amended by adding Section 21.3541 to read as follows:

Sec. 21.3541. APPRAISAL AND PROFESSIONAL DEVELOPMENT

SYSTEM FOR PRINCIPALS. !al The commissioner by rule shall

establish and shall administer a comprehensive appraisal and

professional development system for principals.

(bl The commissioner may establish a consortium of

nationally recognized experts on educational leadership and policy

to:

(1) assist the commissioner in effectively

researching and developing the comprehensive appraisal and

professional development system described by Subsection !al: and

121 evaluate relevant research and practices and make

recommendations to the commissioner to improve the quality of the

training. appraisal. professional development. and compensation of

principals.

!cl If the commissioner establishes the consortium. the

commissioner shall select a presiding officer of the consortium.

The presiding officer:

fl) must be an expert on educational leadership and

policy;

!2l must have a demonstrated ability to lead a

statewide school leadership reform initiative: and

!3l may not be employed by a school district in this

state.

!dl The commissioner shall establish school leadership

standards and a set of indicators of successful school leadership

to align with the training. appraisal. and professional development

of principals.

(el In carrying out the commissioner's powers and duties

under this section. the commissioner may use only money available

from private sources that may be used for that purpose.

!fl In appraising principals. each school district shall

use either:

Ill the appraisal system and school leadership

standards and indicators developed or established by the

commissioner under this section; or

l2l an appraisal process and performance criteria:

!Al developed by the district in consultation

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with the district-level and campus-level committees established

under Section 11.251; and

(Bl adopted by the board of trustees.

lgl Each school district shall appraise each principal

annually,

lhl Not later than December 1 of 2012 and 2014. the

commissioner shall submit a written report to the governor.

lieutenant governor. speaker of the house of representatives. and

presiding officer of each standing legislative committee with

primary jurisdiction over public education of;

Ill any action taken under this section; and

(2) any recommendations for legislative action

concerning the training. appraisal. professional development. or

compensation of principals.

til Subsection lhl and this subsection expire January 1.

2015.

SECTION 4. Section 21.451, Education Code, is amended by

amending Subsections (a) through (d) and adding Subsection (a-1) to

read as follows:

(a) The staff development provided by a school district 1.Q

an educator other than a principal must be:

(1) conducted in accordance with standards developed

by the district; and

(2) designed to improve education in the district.

(a-1) Section 21,3541 and rules adopted under that section

govern the professional development provided to a principal.

(b) The staff development described by Subsection (al must

be predominantly campus-based, related to achieving campus

performance objectives established under Section 11.253, and

developed and approved by the campus-level committee established

under Section 11.251.

(c) For staff development under Subsection (al, a [~] school

district may use district-wide staff development developed and

approved through the district-level decision process under Section

11. 251.

(d) The staff development:

(1) may include training in:

(A) technology;

(B) conflict resolution; and

(C) discipline strategies, including classroom

management, district discipline policies, and the student code of

conduct adopted under Section 37.001 and Chapter 37; and

(2) subject to Subsection (e) and to Section 21.3541

and rules adopted under that section, must include training based

on scientifically based research, as defined by Section 9101, No

Child Left Behind Act of 2001 (20 U.S.C. Section 7801), that:

(A) relates to instruction of students with

disabilities; and

(B) is designed for educators who work primarily

outside the area of special education.

SECTION 5. Subsection (e), Section 21.354, Education Code,

is repealed.

SECTION 6. Notwithstanding Sections 21.354 and 21.451,

Education Code, as amended by this Act, until an appraisal and

professional development system for principals under Section

21.3541, Education Code, as added by this Act, is implemented,

public school principals shall be appraised under Section 21.354,

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Education Code, as that section existed before amendment by this

Act, and the staff development of principals is governed by Section

21.451, Education Code, as that section existed before amendment by

this Act.

SECTION 7. This Act takes effect immediately if it receives

a vote of two-thirds of all the members elected to each house, as

provided by Section 39, Article III, Texas Constitution. If this

Act does not receive the vote necessary for immediate effect, this

Act takes effect September 1, 2011.

President of the Senate Speaker of the House

I hereby certify that S.B. No. 1383 passed the Senate on

April 26, 2011, by the following vote: Yeas 31, Nays 0.

Secretary of the Senate

I hereby certify that S.B. No. 1383 passed the House on

May 25, 2011, by the following vote: Yeas 147, Nays 0, one

present not voting.

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