# Hermenia Jenkins v. Crosby Independent School District and Michael L. Williams in His Official Capacity as State Commissioner of Education > Texas Court of Appeals, 3rd District (Austin) · September 24, 2015 URL: https://www.frixlaw.com/law-library/cases/4073359 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** September 24, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4073359 ## How later opinions describe it (automated extraction) - 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 ## Opinion text 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 H. Jenkins v. Crosby ISD TEA #: 000005 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). 043-Rl0-1211 2 H. Jenkins v. Crosby ISD TEA #: 000006 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 043 -RI0- 12 11 3 H. Jenkins v. Crosby ISD TEA #: 000007 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: 043-Rl0-1211 4 H. Jenkins v. Crosby ISD TEA #: 000008 (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 H. Jenkins v. Crosby ISD TEA #: 000009 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 H. Jenkins v. Crosby ISD TEA #: 000010 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. 043-RI0-1211 7 H. Jenkins v. Crosby ISD TEA #: 000011 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. 043-RI0-1211 8 H. Jenkins v. Crosby ISD TEA #: 000012 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 043-Rl0- 1211 9 H. Jenkins v. Crosby ISD TEA #: 000013 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 day of November, 2006. FOOTNOTES: n1 "TCNA" stands for the "Term Contract Nonrenewal Act." Prior to the rewrite of the Education Code in 1995, the statutory provisions concerning term contracts were officially known as the Term Contract Nonrenew- al Act. Page 1 HOLLY McCOY v. KERMIT INDEPENDENT SCHOOL DISTRICT DOCKET NO. 004-R3-0908 Copyright (c) 2012 Texas Education Agency 2012 TX Educ. Agency LEXIS 2 April 13, 2012 PANEL: [*1] ROBERT SCOTT, COMMISSIONER OF EDUCATION OPINION: DECISION OF THE COMMISSIONER Statement of the Case Petitioner, Holly McCoy, appeals the action of Respondent, Kermit Independent School District, concerning her grievance. Christopher Maska is the Administrative Law Judge appointed by the Commissioner of Education. Petitioner is represented by Mark W. Robinett, Attorney at Law, Austin, Texas. Respondent is represented by Christine Badillo, Attorney at Law, Austin, Texas. The Administrative Law Judge issued a Proposal for Decision recommending that Petitioner's appeal be dismissed in part and denied in part. 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 n1. 1. Petitioner was employed by Respondent under a term contract for the 2007-2008 school year in the position of principal. This contract expired [*2] at the end of the 2007-2008 school year. 2. For the 2008-2009 school years, Petitioner signed a term contract with Respondent. The contract is entitled "For Certified Administrator." 3. For the 2008-2009 school year, Respondent assigned Petitioner to the position of assistant principal. Petitioner's salary or benefits for the 2008-2009 school year were not decreased from that received for the 2007-2008 school year. Discussion Petitioner contends that Respondent changed her professional capacity when it reassigned her from the position of principal to the position of assistant principal. In particular, Petitioner maintains that the position of a campus principal is a distinct professional capacity. Petitioner also contends that she was demoted. Respondent denies Petitioner's claims. Demotion The Texas Education Code does not prohibit a school district from demoting a teacher. Petitioner has not alleged that any section of the Texas Education Code prohibits demotions. To the extent the Commissioner has jurisdiction over demotions, that authority must come from Texas Education Code section 7.057(a)(2)(B) which gives the Commissioner jurisdiction over violations of written employment [*3] contracts that cause or would cause monetary harm. Because Petitioner has not lost salary or benefits Petitioner cannot show the requisite monetary harm. Smith v. Nelson, 53 S.W.3d 792 (Tex. App.-Austin 2001, pet denied). The Commissioner lacks jurisdiction over Petitioner's demotion claim. Page 2 2012 TX Educ. Agency LEXIS 2, * Same Professional Capacity A "teacher n2" who holds a term contract under Texas Education Code chapter 21, subchapter E that is about to expire cannot be reassigned to new a position for the next school year unless the position is within the same professional capacity as the position the "teacher" held in the current school year: (a) Not later than the 45th 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 re- new or not renew the contract. (b) the board's failure to give the notice required by Subsection (a) within the time specified constitutes [*4] an election to employ the teacher in the same professional capacity for the following school year. Tex. Educ. Code § 21.206. The term "same professional capacity" is not defined in the Texas Education Code. Howev- er, the Commissioner from the earliest substantive decision concerning this provision has held that "administrator" is a professional capacity. It is more reasonable to conclude that the legislature, by using the term "same professional capacity" (in- stead of "exact same position"), intended to allow school districts to be flexible in their personnel as- signments while discouraging the abuse of the district's inherent or contractual 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 n3 [*5] may not be placed in the capacity of a classroom teacher. . . 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 be invalid (e.g., from superintendent to assistant elementary school principal). Factors to be considered in determining the validity of such an assignment include, but are not limited to differences in authority, duties, and salary. Barich v. San Felipe-Del Rio Consolidated Independent School District, Docket No. 117-R1a-484 (Comm'r Educ. 1985). Further, the Commissioner has found that the professional capacity of "administrator" is to be broadly interpret- ed: It is possible to imagine situations where the transfer clause of an employment contract would be held to be unenforceable under § 21.204(b) n4 . However, this is not such a case. It has been the consistent view of the Commissioner that the TCNA balanced its [*6] grant of limited tenure rights against the considerable personnel management problems it might cause if imposed in- flexibly. 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. Carpenter v. Wichita Falls Independent School District, Docket No. 247-R3-491 (Comm'r Educ. 1993). In many cases, it will not constitute a violation of Texas Education Code section 21.206, for a district to reassign a term contract ad- ministrator from a position with one administrative job title to a position that has a different administrative job title. Principal and Assistant Principal Certification Texas Education Code section 21.046 provides guidance for the State Board for Educator Certification in creating standards for principal certification. The [*7] State Board for Educator Certification issues only one type of certificate for both principals and assistant principals: Principal Certificate. Page 3 2012 TX Educ. Agency LEXIS 2, * (a) Due to the critical role the principal plays in campus effectiveness and student achievement, and con- sistent with the Texas Education Code (TEC) § 21.046(c), the rules adopted by the State Board for Edu- cator Certification will ensure that each candidate for the Principal Certificate is of the highest caliber and possesses the knowledge and skills necessary for success. (b) As required by TEC § 21.046(b)(1)-(6), the standards identified in § 241.15 of this title (relating to Standards for the Principal Certificate) emphasize instructional leadership; administration, supervision, and communication skills; curriculum and instruction management; performance evaluation; organiza- tion; and fiscal management. (c) Each individual serving as a principal or assistant principal is expected to actively participate in pro- fessional development activities to continually update his or her knowledge and skills. Currency in best practices and research as related to both campus leadership and student learning is essential. (d) The holder of the Principal [*8] Certificate issued under the provisions of this chapter may serve as a principal or assistant principal in a Texas public elementary, middle, or secondary school. 19 Tex. Admin. Code § 241.1. Both principals and assistant principals are treated by the State Board for Educator Certi- fication as principals: Requirements for the First-Time Principal in Texas (a) Principals or assistant principals employed for the first time as campus administrators (including the first time in the state) shall participate in, at least, a one-year induction period. (b) The induction period should incorporate the assessment and professional growth requirements con- tained in § 241.30 (b) of this title (relating to Requirements to Renew the Standard Principal Certificate). (c) The induction period should be a structured, systemic process for assisting the new principal or assis- tant principal in further developing skill in guiding the everyday operation of a school, adjusting to the particular culture of a school district, and developing a personal awareness of self in the campus admin- istrator role. Mentoring support must be an integral component of the induction period. 19 Tex. Admin. Code § 241.20. [*9] The fact that principals and assistant principals are both required to have the same certificate and to undergo the same one-year induction period is significant evidence that principals and assistant principals normally share the same professional capacity. Principal's Role Petitioner is correct that an assistant principal reports to a principal. Petitioner is also correct that the Texas Educa- tion Code gives specific and important roles to principals but not to assistant principals. Texas Education Code 11.202 makes clear that "the principal of a school is the instructional leader of the school" and goes on to specify duties of a principal. A principal has specific duties under Texas Education Code chapter 37 concerning the placement of students. There are real differences between principals and assistant principals. However, principals and assistant principals are both administrators. Principals and assistant principals share the same certification. The mere fact that a term contract "teacher" is reassigned from the position of principal to the position of assistant principal does not mean that a "teacher" is being employed in a different professional capacity. In certain cases, [*10] it may be the case that a "teacher" would be employed in a different professional capacity when a "teacher" is reassigned from being a principal to a position of assistant principal. A district could give an em- ployee the title of "assistant principal" but give that individual none of the duties normally associated with the job of assistant principal. In such a case, the factors set forth in Barich and perhaps additional factors might result in a conclu- sion that a change of professional capacity has occurred. However, in the present case Petitioner's argument is that the change from principal to assistant principal alone is sufficient to show a violation of Texas Education Code section 21.206(b). It is not. Conclusion A change from a position of principal to a position of assistant principal does not necessarily involve a change of professional capacity as that term is in Texas Education Code section 21.206(b). Conclusions of Law Page 4 2012 TX Educ. Agency LEXIS 2, * After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as Commissioner of Education, I make the following Conclusions of Law: 1. The Commissioner has jurisdiction to over Petitioner's [*11] Texas Education Code section 21.206 claim under Texas Education Code section 7.057(a)(2)(A). 2. The Commissioner lacks jurisdiction over Petitioner's demotion claim. Tex. Educ. Code § 7.057(a)(2)(B). 3. The Commissioner does not have jurisdiction over demotion claims based on Texas Education Code section 7.057(a)(2)(A). 4. The Commissioner may have jurisdiction over a demotion claim if a violation of a written employment contract is alleged that causes or would cause monetary harm. Tex. Educ. Code § 7.057(a)(2)(B). 5. The monetary harm referred to in Texas Education Code section 7.057(a)(2)(B) must be a contract damage. If an employee does not lose salary or benefits based on an alleged violation of a written contract, the employee has not suf- fered monetary harm. 6. Because Petitioner did not suffer monetary harm as that term is used in Texas Education Code section 7.057(a)(2)(B), the Commissioner lacks jurisdiction over Petitioner's demotion claim. 7. Administrator is a professional capacity as that term is used in Texas Education Code section 21.206(b). 8. The professional capacity of administrator, as it applies to Texas Education Code section 21.206(b), is a broad professional [*12] capacity. 9. The positions of principal and assistant principal are normally within the same professional capacity. Tex. Educ. Code § 21.046, 19 Tex. Admin. Code § 241.1, and 19 Tex. Admin. Code § 241.20. 10. The fact alone that a principal is reassigned to the position of assistant principal is not sufficient to show a change of professional capacity as that term is used in Texas Education Code section 21.206(b). 11. Respondent did not violate Texas Education Code section 21.206(b) when Petitioner was reassigned from the position of principal to the position of assistant principal. 12. The Petition for Review should be dismissed in part and denied in part. Order 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 Education, it is hereby ORDERED that Petitioner appeal be and is hereby dismissed in part and denied in part. SIGNED AND ISSUED this day of , 2012. FOOTNOTES: n1 See 19 Tex. Admin. Code § 157.1073(h); Bosworth v. East Central Independent School District, Docket No. 090-R1-803 (Comm'r Educ. 2003). [*13] n2 The definition of "teacher" found at Texas Education Code section 21.201 is truly a creature of statute. It includes individuals who would never in common speech be referred to as teachers. n3 In the original Term Contract Nonrenewal Act, a district had to propose nonrenewal on or before April 1, instead of the current requirement of "the 45th day before the last day of instruction." Term Contract Nonrenew- al Act, 67th Leg., R.S., ch. 765, § 2, 1981 Tex. Gen Laws 2847. n4 The old Texas Education Code section 21.204 is the predecessor of the current Texas Education Code section 21.206. CROSBY INDEPENDENT SCHOOLDISTIUCT TWO-YEAR TERM CONTRACT 8[01c atTe1a1) Counly ore.ma} Thlt - - Is eulr:!:d lnlo by =! b e - ll>c n....i or 'l'Ns- or u.. OD1bJ ~ Soboo• c1.irtcc (Board) ...s 11. Mag Jenld.Jul (lklploy..) Ulldor Iha n.no..uia term od coodi~t' ta mploy Iha l!mplD)'lby ~ Sc:bt>OI DIJ!ricl dllJI li&v6 llit risllt fll .t.nf1111 sucli dudCf la Ilia E=pfoy.. LI Iha ~ WJ1 datm pmpc; &lid tiiloo Ibo Easpl01li0 a not employed IO !DI • rptc:i.lla poaidaa at wlJIDZll&:ll~ 111.o s~1 lllll)' adsn arRUdp Illa Bmplll)'llO 1<>ctbctcr addldllllll dJUlu lbt""1Llh ~ orw u portafooallycenU!od ci allu:rwloo ~Q8cd 10 pcrliiim. lulm!n4iro.lln du,tct will bo lll&da lridt IM llpplDYll otlhcr Boan\. ~. for""""". 8Qppl1:111a11al dlll!BI "'">'be ... 1gn.oc1 ID Iha llmployoe dj>mld 1rt1t'/ or IJlllYllOC be pel4. No ~rlJ)ll IO =ntlnued l::lllp!oyml!lll llllsta Ill m:b sappJ""""tal dod01 reBlltllort or~ lllp'llb 0... 11..nhpprom S, It II ~ mid apt.cd lha1 IC Iha Employee Ii 01Dplo,..i hi 1110to dl.ai oac pcllfdon tuth u lu.cbalDDlob ct ~d dlrtdcr, tho Employee'• por{onmlleb will bo thls Ccnncl th&l 1116.l!mployeo Jhall c:any Oil! hll orhtr olul!m to !Im boll nrbtJ or hlrd:fll qd abtll:y -ilhlll tJICl!azgn lb du!la "'l"&td by lh• ft:dcnl ,..,,, 1oy atbool Ian orIlda a.i., w lrylhla Dt.nicl. tho ecm-i. 'f'OOll!c:olly fRldl!CI 111 tbepollclot, ~'4mbilllnllve ~ nz!nslld lq11JAl!Ollfaflho Dblrict whltTI...,. -m. midlcal ioeoti!s, a.tis oraffic4 and odn:r......U nqWcd by lb# DW:lct. Al dul beslmda.r crlh!1Caallv:I,a.od&1q1!11111 dmloglht. 0.mnct, thlo Ealployee api:c1Jlcall)' GjpKa IO "'1miltID • n:vi- or hfl "' ,_ 11111•1111 mimlml hlalOly ._..i lnltinnllloa (NCHlll} If ftllUln:d by lb Dlattltl. TBA. or 8BBC. AZJ'f taltnp~ ~ la Ill)' orlb=.. .......ta lhsll bo ,._.i, J'ar tho tamlllOllcri a( ""'l'ioyaaaiL L Ar(/ aclioo ... .-1 lhu Iha Board ~ - • lllwlW.l mll"DOY &Ill! • C!Oao 11rp1: l':ml orllilt C4lllraot. 9, l!mpkrymccl la a fmlmlty or~y llmdal podllaa I.a~ c=dltlll!led llJ>CI! lho1Vlllahllity a!IWI lllmilll& t\rlbo poddol1, llliacy """1rlmab.Wlmi afdiit ~ 10. 1haBoW otTnutculholl 11Dln!lsaaltd bylhl1 Co:mct. Tuls Caatra cmplO)'llll:o.t beyolid ll>a !ml! c!Uio O:oalOI:(. ll. DudZQI lhalatm •flhls Calllract. thol!inplayao lllll)'l>crlerallaaod 111taood colll6 udclettalned bylho Boud, lill&lltld =daeccy lhalroqulnu h:ductlDll la pc1111Z1111~ lll'WN'f:/l'OOIOa llllal f!I BoudpoUoy fottliltCmillaal. 1ha BoardtDllf lllllpmid l!mpl"7"0 wllllout pll)' !bl' aocd -.au dcl.crmlacd hy1hc Botnl lOra period notll> a1=1d bayDIHI lhctlld otllle ..i..ot yCN"........t la dilr CUllllUl:s-liur;dhcliatp otllmp!oy•ur In Um.1 otwmhmllon. 13. h Ir W>dtnlooc! llllCI lljlrocd by Iha Baud l:id lh• Eti.ploycc, lflll llpoll "'""l't=.o Qf lhJs Cwtmt by IM Empll7)'tc. 1111 prcv!DW1 aialmtJ or ~twltb Iha Board 1111 svpmcdtd wt ltmilIW&d !lad 1111 orm lhnoi lllld r.lrcet. •.- Joi. Tho '"'"Y or lbr Iha !art DKmlh Ill• itrm o! Ihle Cculnl:I WlJ be i"'}'lhl• only 1q>011 r=dpt lium ti= Employoo ot all Dlnlcl p-oporty, loxllJoo.b, ~ llld ropotfl reql>!nod by lh• Dlllzlc:I. • ,,1 IS. Tho Employi::a may tt.Sfa:i atlho cad ort1s11c:lio0lyw llDwn:d bt Ibis Ccnilr&cl by l!IJai a wri11e1 realgn11!on wltb Iha Boan! ia loag u Ille ~ "'laaod•n I& lllcd &]' th• 43• day ~ lln! 11111 "'Y ct Iha follow!a1 sebOlll you. A 'Wtlllc h:Glsmtlon malled by prrpold tud1tcd t1t ~ a...11 ti> Ilse Ptmldml of tluJ Boan! 11 lhc pClll ome11 lddiao or 1llo Dlmli:t It C06lldetcd llled ai lho tlma af mall!ag. Ir dlt l!mplO)ll:O Mlcmpl! 111talgn &t lll>Y allu:r l&nc, lhc.BniplO)'Hwl!l lit releual &om.tldrCaabutcnly wlill lllci wrltlell CllllUlllotlho Bolllli. !Clhe !loud doa ~ PlllltDt la mloue Illa !!mployco lllld Iha J!mployca =vathtlosl lhudoo.i llm C4almcl, Illa nwno1 may lila • compfalnL KC!da.a uncdona a.,.Jml dm ED!j>lo;yta>. 'lrilh Iha Slalo l'loatd tor llduClllbl C6nUlc:alloll. I( lavslWtyotll\l' J10111= oftbb ~ct lllldo: lllo la1n Dl'lllo Siiia orTaw or of Ibo !JlllU>d Staid &ball.,., .m:ct tbc Vil.Id!!)' ar Iha n:malm!:r o!tho Cwll'Dcl. • 17. 'lbia o~ ot 111q1IO)'llW!t exi:l:u tr lhh Comnot la not 1laaal sl:d ra1IJnla! 111 di. lluporlmcmdait by lho l!mploycc C111 or bct1X11 Harth 31 1!1.!L__, ( \~ H. Jenkins v. Crosby ISD TEA #: 000294 Appendix -- 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. 1 o 67th I,EGISLATT'RE-REGULAR SEITSION Ch. ?6õ TENM CONTRACT NONRENEWAL ACI-TEACHNRS AND SUPERINTENI}ENTSI CHAPTER 706 S. B. No.341 An Aot r.l¡tlng to .tañd¡?d. rnd prôoaduF.a toF lh|l rþnranawtl of oont?¡ot¡ lor t æhc?. tnd .uDælntlndant. urrdôr tlrot oonl?¡otr tnd to Drob¡tlon ln låa publlo .thool¡ ol thl. ¡t¡tr¡ rddlng !.ctlon.8t.l01 thrluth ll.l11 to tub. oh¡pt r O ln Ch¡Þt.r 2l ot th. Lrtr lduo¡tlon Cod., ¡¡ ünrñd.d. 8o åt nneote¡l bU the Leghla,tue ol the Stote of Teaøe : Section 1.0¡ Thls Act shall be k¡iown a¡ "The Term Contr¡ct Nonre- new¡l Act." Sec. 2. Subchapter G, Chapter 21, Tex¿s Educatlon Code, ar amend- ed, ls amended by adding{. Sections 21.201 through 21,2U to re¡d 4s fol- Iow¡: "Sec. 21.201. Deflnltlon¡ "A¡ used in this subchaDter, the fotlowins term¡ sh¡ll have the mean- lng ascrlbed to them ln thl¡ aectlon. "(l) 'Teacher' means a superintendent, prlncipal, supervisor, classroom teacher, counselor, or other full-tlme professlonal em. ployee, except paraprofeaslonal perronnel, who l¡ requlred üo hold a valld certlflcate or teaching permit. "(2) 'Bo¡rd'cnd'board of tru¡tees'me¡n¡ the governlng board ot a publlc ¡chool dlstrlct. "(8) 'School dlstrlct' means any publlc rchool dl¡trlct ln thla ¡tate. "({) 'Term contrect' mean¡ sny contract ol employmenü for a flxed term between the school dlstrlct Bnd a teach€r. "8ec. 21.202. Te¡chcr Ev¡lu¡tlon¡ "The board of trustees of each school dlstrlct shall provlde by wrltten pollcy lor the perloillc written evaluatlon of each teacher in ltr employ at ennual or more frequent Interval¡. Such evaluatlon ¡hall be con¡ldered by the board of trustee¡ pr¡or to any decislon by the board not to renew the term contract of eny teacher. "Sec. 21.209. Nonrenew¡l of Tcrm Contr¡ct¡ "(a) The board of trustee¡ of each ¡chool dlstrlct may chooae not to renew the employment of any teaeher employed under a term contract ef- fectlve at the end of the contr¡ct perlod. "(b) The board ol tru¡tee¡ of each ¡chool dl¡trlct shall e¡tabllsh poll- cle¡ conslst€nt wlth this subchapter whlch sh¡ll e¡tsbllsh re¡¡on¡ for non- renowal. "(c) the board of ürustees of oach ¡chool digtrlct ¡hall ertabllrh poll. cle¡ and procedurer for recelvlng recommendetlon¡ from lt¡ school ad- mlni¡tratlon for the nonrenewal of teacher term contr¡ctr, exceptlng only the general superlntendent of ochool¡. '€ec. 21.204. Notlce "(a) In the event the board ol trustee¡ recolve¡ a recommendatlon tor nonrenewal, the board, ¿fter conslder¡tion ol tho wrltten evaluatlon¡ re- qulred by Soctlon 2L,202 of thla subchapter and the reasone for tho rec- tù V.Î.C,Â. Eduo8tlon Codc, | ¡1,¿0¡ Of. V.T,C,À Educrtlon Codr, ll ll,l0l to noto, 8l,l1l' 2t47 Ch. ?Oõ OTth LEGISLATURE-NEGUL/IR SESSION ommendatlon, rhall, ln lte sole dlocretion, either reJect the recommend¡- tlon or ¡hall give the teacher written notlce of the propored nonrenewat on or beforp April I precedlng the end of the employnent term tlxed in the contract. "(b) In the event of fallure to give ¡uch notlce of propoeed noDrenew- ¡l wlthin the time herein rpeclfted, the board of trustee¡ ¡hall thereby elect to employ ruch employee in the same profesaional capacity for tbe succeedlng school ye¡r. "(c) The notlce of proposed nonrenewal requíred ln thl¡ ¡estlon sh¡ll contaln ¡ statement of all the reasons for ¡uch propoBeal sctlon. "Sec. 21.20õ. Hearlng "(a) If tbe te¿cher de¡lre¡ a hearlng after recelvlng notlce of the pro- poeed nonrenewal, the teacher shall notlfy the board of tn¡¡tee¡ ln wrlh ing wlühln 10 dayo ¿fter recelvlng the notlce of nonrenew¡I. The boeril shall provide for e hearlng to be held wlthln lõ dayo alter recelvlng wrlL ten notlce from the teacher regueating a hearlng. Such heerlng shell be closed unles¡ an open hearlng ls requeated by the employee. "(b) The he¿rlng shall be conducted ln ¡ccordance wlth rulec promul. gated by the dl¡t¡ict. "Scc" 21.200. Decl¡lon of Bo¡rd "(¡) If the teacher fail¡ to requert a hearlng, the bo¿rd sh¡ll tske ¡uch actlon as lt deemo lawful and approprl¡te ¡nd rhall notlfy the em- ployee ln wrlting of thet actlon wlthln lõ daya of the explratlon of the lO-day perlod for requeetlng ¡ he¡rlng. "(b) Ifthe teacher requerta s hearlng, the board ¡hall t¡ke ¡uch ac- tion as lt deems lawful end approprlat¿ and shall notlfy the toacher ln wrltlng ot th¡t action wlthln lõ dayr followlng the conclu¡lon of the hesrlng. "Sec. 21.207. Appcal "(s) If the teacher lr aggrievod by the decislon of the board of tru¡Þ eer, he may appeal to the St¡te Commlasloner of Educ¡tlon purõuant to Sectlon 11.18 of thi¡ code. îhe comml¡sloner may not sub¡titute hi¡ Judgment for thet of the board of tru¡tee¡, unles¡ the decl¡lon below wa¡ ¡rblt¡ery, ceprlclour, unlawlul, or not rupported by ¡ub¡t¡nülal evldence. "(b) The State Bo¡rd ol Educatlon ¡h¿ll h¡ve Jurhdlctlon to hear ap- pealr from ¡ush decl¡ion¡ ol the Stat¿ Commlssloner of Educatlon. "Sec. 21.208. Superlntondente "Il a maJorlty of the bosrd of trugtee¡ ol any ¡chool dl¡trlct ¡hsll de- termlne that the term controct of the general euperlntendent ol ¡chools should be considered for nonrenewal, the provlslons of thls eubchapter rhall appl¡ ercept th¡t tbere need not be s recommendstlon trom the de¡lgnated school Âdmlnl¡tratlon. "8oc. 21.209, Prob¡tlon "The boa¡d ol tru¡tee¡ of any school dlsürlct may provide by written pollcy for a probatlonary porlod not to exceed the fir¡t two yeara of con- tlnuou¡ employment ln the dl¡trlct, ln whlch case the provlrlonr of thl¡ rubch¡ptor rhall not apply rlurlng ruch probatlonary perlod. '€oc. 2lJl0. Ill¡ch¡rge lor C¡u¡e "Nothlng ln thls subchapt€r shall prohlblü a board of t¡ustees from dl¡ch¡rging s toacher lor csuse durlnS the term ol the contr¡ct. "SGc. 21.211. Erernptlonr "Thl¡ subchepter doer not aDDly to teecher¡ who are employed under the provlslon¡ of the probatlonary or continutnr contrect l¡w a¡ ¡et out ln Subchaphr C of Chaptar 18 of thl¡ code." 2f,/,8 O?Th LEGISLATURE_REGUTI\R SESSION Ch. ?OO Sec. 8. The importance ol thia legisletion a¡rd the crowded condition of the calendars in both hou¡ee create an emergency and an imperatlve publlc neceealùy that the constitutional rule requiring bill¡ to be read on three ¡ever¿l d¡y¡ in each hou¡e be auepended, ¿nd thls rule i¡ hereby ruspended, and that thls Act t¿ke effect and be in force from and ¡fter ita paerage, and lt i¡ ¡o enacted. Paseed the Sen¡te on May 12, 1981: Yeas 80, Nayr 1; Sen¡te con- curred ln Hou¡e amendments on May 26, 1981, by r vlva-voce vote; passed the House, wlth amendments, on May 2õ, f981. by ¡ non-rec- ord vote. Approved June 17, 1981. Effectlve Aug. 81, 1981, 90 daye after date of adJournment. PSYCHOLOGISTII-LICENSURE, CERTIFICAIION, AND REGULATION CITÂPTER 760 S. B. No. 869 An Act rclltlng to tha oonllñu¡tlon ol th. Î.xr¡ ¡trt. Ðor?d ol ¡r¡mlna¡l ot Payoholoelab, ltr orernllltlon, pow.¡., tnd dut¡rì .n.l th. r.eulatlon ot provldara ol pryohologlc¡l a.¡vlca¡lamandlne ¡aollona ¡l' arr õ, ar l, 11, lt' 14, 1ó, tl, ll, m) 2I ¡1, rnd ¡!, Paycholoelatat C.Éltlortlon .nd Llo.ñ¡l¡e Act, rr rnondrd (Artlalc {¡11o, Vtlnon'r T.x¡. Clyll atrtut.¡). Be it enaated by the Legiela,tutc of the Støte ol Tenøe: l. Sectlons 4, 4a, õ, 0, 8, 11, 12, 14, 1õ, 10, l?, 20, 21,22, and Sectlon 29, Prychologlst¡' Certiflcation and Llcenelng Act, as ¿mended (Artlcle 4õ12c, Vernon's Texas Clvll Statutes), are amendedol to reed as follow¡¡ ßt¡to llo¡¡d of E¡arÍlnor.¡ memben; appolntrncnt rnd tcrmr¡ oetlr "Sec. l. (a) The Texa¡ St¡te Board of Examlnsrs of PcycholoSl¡t¡ shatl con¡fst of nlne qualtfied p€rsonr appolnted by the governor wlth the ¡dvlce and consenù ol the ¡anate, for regular term¡ of eir years. "(b) Before enterlng upon the dutle¡ of hlr offlce, each member of ùhe Board ahall t¡ke the con¡tltutlonal oath of offlce and llle lt with the ¡ec- retary of etate. "(c) Appolntments to the Bo¡rd ¡hall be made wlthout re8ard to thc race, creed, sex, rellglon, or national origln of the appolnteee, Âppllcetlon ol Sun¡ot Acù "Sec, 4¡. the Texa¡St¡te Board of Examinerg of P¡ychologlrtr lr rubJectto the Texa¡ Sunset Act, as amended (Artlcle õ429k, Vernon'r Îe¡a¡ Clvll Statutes); and unlesr continued ln exlstence as provlded by thst Act the Board l¡ aboll¡hed, ¡nd thls Act explree effectlve Septembçr 1, 1998. tö. Vornon'. Ann,Clv,Bt. r¡t, aõl¡c' ll { to 6, I, tl, 1¡, tl to 17, 80 to ll, 2849 2 o 82nd LEGISLATURE-FIRST CÂLLED SESSION ch.8,$l (B) the woma,n's 21st birThda'y. ARTICLE 16. IMPLEMENTATION; EFFECTIVE DATE SECTION 16.01. It is the intent of the legislature that the Health and Human Services Commission take any action the commission determines is necessary and appropriate, including expedited and emergency action, to ensure the timely implementation of the relevant provisions of this bill and the corresponding assumptions reflected ín H.B. No. 1, 82nd Legislature, Regular Session,2011 (General Appropriations Act), by Septæmber L,20tL, or the effective date of this Act, whichever is later, including the adoption of administrative rules, the preparation and submission of any required waivers or state plan amendmenLs, and the preparation and execution ofany necessary contract changes or amendments. SECTION 16.02. Except as otherwise provided by this Act, this Act takes effect on the 91st day aft,er the last day of the legislative session, Passed the Senate on June 3, 201 1: Yeas 31, Nays 0; June 1 3, 201 1 , Senate refused to concur in House amendments and requested appointment of Conference Comm [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4073359. Public record. Not legal advice.