Opinion

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

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Sep 24, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

giving “serious consideration” and “some deference” to agency's interpretation of a statute it is charged with enforcing so long as the construction is reasonable and does not conflict with the statute's language

How later courts described this case

giving “serious consideration” and “some deference” to agency's interpretation of a statute it is charged with enforcing so long as the construction is reasonable and does not conflict with the statute's language
Once the Texas Supreme Court and courts of appeals "construe a statute and the Legislature re-enacts or codifies that statute without substantial change, we presume that the Legislature has adopted the judicial interpretation. "
“Once this Court has construed a statute and the Legislature re-enacts the statute without substantial change, it is presumed the Legislature has adopted our interpretation.”
upholding the Commissioner’s interpretation of the definition of “teacher” in the Term Contract Nonrenewal Act

Written by the judges who cited it.

The opinion

ACCEPTED

03-15-00313-CV

7078401

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/24/2015 11:25:11 AM

JEFFREY D. KYLE

CLERK

No. 03-15-00313-CV

IN THE COURT OF APPEALS FOR THE FILED IN

3rd COURT OF APPEALS

THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS

AUSTIN, TEXAS 9/24/2015 11:25:11 AM

JEFFREY D. KYLE

Clerk

HERMENIA JENKINS,

Appellant

CROSBY INDEPENDENT SCHOOL DISTRICT AND MICHAEL L.

WILLIAMS, COMMISSIONER OF EDUCATION,

Appellees

On Appeal from the District Court of Travis County, Texas

200th Judicial District

Trial Court Cause No. D-1-GN-14-000619

BRIEF OF APPELLEE CROSBY INDEPENDENT SCHOOL DISTRICT

David B. Hodgins

State Bar No. 09775530

dhodgins@thompsonhorton.com

THOMPSON & HORTON LLP

Amber K. King 3200 Southwest Freeway, Suite 2000

State Bar No. 24047244 Houston, Texas 77027

aking@thompsonhorton.com Telephone: 713-554-6745

Facsimile: 713-583-8245

Frances Broussard

State Bar No. 24055218

fbroussard@thompsonhorton.com

ATTORNEYS FOR APPELLANT CROSBY INDEPENDENT SCHOOL DISTRICT

IDENTITY OF PARTIES AND COUNSEL

The undersigned counsel of record certifies that the following listed persons

have an interest in the outcome of this case. These representations are made so

that the judges of this Court may evaluate possible disqualification or recusal.

1. Hermenia Jenkins

Plaintiff / Appellant

2. Kevin F. Lungwitz

Elizabeth Poole

The Lungwitz Law Firm, P.C.

3005 S. Lamar Blvd.

Austin, Texas 78704

Attorneys for Plaintiff / Appellant

3. Crosby Independent School District

Defendant / Appellee

4. David B. Hodgins

Amber K. King

Frances R. Broussard

Thompson & Horton LLP

3200 Southwest Freeway, Suite 2000

Houston, Texas 77027

Attorneys for Defendant / Appellee CISD

5. Michael Williams, Commissioner of Education

Defendant / Appellee

6. Greg Abbott

Daniel T. Hodge

David C. Mattax

David A. Talbot, Jr.

Andrew Lutostanski

Office of the Attorney General of Texas

PO Box 12548, Capitol Station

Austin, Texas 78711

Attorneys for Defendant / Appellee Williams

7. Texas Elementary Principals and Supervisors Association

Amicus Curiae

8. Daniel A. Ortiz

Giana Ortiz

The Ortiz Law Firm

1304 West Abram St., Suite 100

Arlington, Texas 76013

Attorneys for TEPSA

9. Texas Association of School Boards’ Legal Assistance Fund

Amicus Curiae

10.David P. Backus

Ronn P. Garcia

Underwood Law Firm, P.C.

1111 West Loop 289

Lubbock, Texas 79416

Attorneys for TASB

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ i

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES......................................................................................v

STATEMENT OF THE CASE .............................................................................. viii

STATEMENT REGARDING ORAL ARGUMENT ............................................. ix

ISSUES PRESENTED............................................................................................. ix

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

SUMMARY OF THE ARGUMENT ........................................................................4

ARGUMENT AND AUTHORITIES ........................................................................6

I. Standard of Review .............................................................................................6

II. The Term Contract Nonrenewal Act ...................................................................8

III. Jenkins’ Claim Did Not Involve An Expiring Term Contract And,

Consequently, Was Not Ripe For The Commissioner’s Review, as Pled. .......10

IV. Assuming Arguendo §21.206 Applied To Jenkins’ Claim, The Commissioner

Correctly Determined that Jenkins’ Reassignment from Principal to Assistant

Principal was in the Same Professional Capacity and Legally Valid. ..............13

1. The phrase “same professional capacity” is not defined in the Texas

Education Code; therefore, the Commissioner’s interpretation must be

afforded broad deference...............................................................................13

2. The Commissioner has reasonably and consistently interpreted the

phrase “same professional capacity.” ..........................................................14

3. The Commissioner has properly declared that “administrator” is a

distinct professional capacity. .......................................................................16

4. Tex. Educ. Code §21.201(1) does not define “professional capacity”

for purposes of §21.206. ................................................................................18

5. The Commissioner’s interpretation is entitled to deference. ................21

6. The Commissioner’s longstanding interpretation of “same professional

capacity” should be upheld by the doctrine of legislative acquiescence. .....22

7. A change from principal to assistant principal is not a per se change in

professional capacity. ....................................................................................26

iii

8. The Commissioner considered the contract, compared the two

positions at issue, and appropriately determined they were both within the

professional capacity of administrator. .........................................................29

9. Plaintiff’s argument that “once a principal, always a principal” is an

unsound policy for school districts in the state of Texas. ..............................32

CONCLUSION AND PRAYER .............................................................................33

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

CERTIFICATE OF SERVICE ................................................................................35

APPENDIX ..............................................................................................................36

INDEX OF AUTHORITIES

Page(s)

Cases

Barich v. San Felipe-Del Rio Consolidated Indep. Sch. Dist.,

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

Carpenter v. Wichita Falls Indep. Sch. Dist.,

Docket No. 247-3-491 (Comm’r Educ. 1993) ..................................17, 19, 29, 32

City of Austin v. Pub. Util. Comm’n,

146 S.W.3d 742 (Tex. App.—Austin 2004, no pet.) ....................................31, 32

Dodd v. Meno,

870 S.W.2d 4 (Tex.1994)....................................................................7, 14, 25, 26

DuPont Photomasks, Inc. v. Strayhorn,

219 S.W.3d 414 (Tex. App.—Austin 2006, pet. denied) ................................... 23

Goodie v. Houston Indep. Sch. Dist.,

57 S.W.3d 646 (Tex. App.—Houston [14th Dist.] 2001, pet.

denied)............................................................................................................... 6, 7

Gustafson v. Canutillo Indep. Sch. Dist.,

Docket No. 113-R10-0812 at 6-13 (Comm’r Educ. 2014) ..........................passim

Holman v. Arp Indep. Sch. Dist.,

Docket No. 093-R8-805 (Comm’r Educ. 2007) ...........................................12, 36

Judson Indep. Sch. Dist. v. Ruiz,

04-13-00706-CV, 2015 WL 1501758 (Tex. App.—San Antonio

Mar. 31, 2015, pet. filed) ...................................................................................... 7

Lehr. v. Ector County Indep. Sch. Dist.,

Docket No. 003-R3-0908 (Comm’r Educ. 2011) ............................................... 13

Matthews v. Scott,

268 S.W.3d 162 (Tex. App.—Corpus Christi 2008, no pet.) ............................... 6

McCoy v. Kermit Indep. Sch. Dist.,

Docket No. 004-R3-0908 (Comm’r Educ. 2012) ........................................passim

McGilvray v. Moses,

8 S.W.3d 761 (Tex. App.—Fort Worth 1999, pet. denied) ..........................14, 22

Miller v. Houston Indep. Sch. Dist.,

51 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) ................... 7

Mireles v. Tex. Dep't of Pub. Safety,

9 S.W.3d 128 (Tex.1999)...................................................................................... 6

Montgomery Indep. Sch. Dist. v. Davis,

34 S.W.3d 559 (Tex. 2000)............................................................................... 6, 7

Murillo v. Laredo Indep. Sch. Dist.,

Docket No. 027-R3-0108 (Comm’r Educ. 2012) .............................11, 12, 17, 36

Pasqua v. Fort Stockton Indep. Sch. District,

Docket No. 011-R3-1102 (Comm’r Educ. 2004) ...................................17, 26, 37

Perales v. Robstown ISD,

Docket No. 052-R10-104, 084-R-604 (Comm’r Educ. 2006)......................19, 20

Poole v. Karnack Indep. Sch. Dist.,

344 S.W.3d 440 (Tex. App.—Austin 2011, no pet.) ........................................ 7, 8

Railroad Comm'n v. Tex. Citizens for a Safe Future & Clean Water,

336 S.W.3d 619 (Tex. 2011) .............................................................................. 22

Ramos v. El Paso Indep. Sch. Dist.,

Docket No. 002-R10-900 (Comm’r Educ. 1999) ...................................17, 32, 36

Tex. Dept. of Protective & Regulatory Servs. v. Mega Child Care, Inc.,

145 S.W.3d 170 (Tex. 2004) ........................................................................23, 24

Tex. State Bd. of Dental Exam'rs v. Sizemore,

759 S.W.2d 114 (Tex.1988).................................................................................. 6

TGS-NOPEC Geophysical Co. v. Combs,

340 S.W.3d 432 (Tex. 2011) ........................................................................14, 22

Transcon. Ins. Co. v. Crump,

330 S.W.3d 211 (Tex. 2010) ........................................................................23, 24

Underwood v. West Rusk County Consolidated Indep. Sch. Dist.,

Docket No. 062-R3-198 (Comm’r Educ. 1998) .....................................18, 26, 37

Wheeler v. Austin Indep. Sch. Dist.,

Docket No. 008-R3-1108 (Comm’r Educ. 2011) ............................................... 30

Young v. Leggett Indep. Sch. Dist.,

Docket No. 175-R3-898 (Comm’r Educ. 1999) ...........................................17, 32

Statutes

19 Tex. Admin. Code Ann. § 241.1(d) ........................................................21, 27, 31

Tex. Educ. Code Ann. § 7.057 ..................................................................................ix

Tex. Educ. Code Ann. § 11.201(d)(2) ..................................................................... 31

Tex. Educ. Code Ann. § 11.202(b) .......................................................................... 27

Tex. Educ. Code Ann. § 21.046 ............................................................................... 27

Tex. Educ. Code Ann. § 21.201(1) ...................................................................passim

Tex. Educ. Code Ann. § 21.201(3) ............................................................................ 8

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

Tex. Educ. Code Ann. § 21.210 ................................................................................. 2

Tex. Educ. Code Ann. § 21.211. .............................................................................. 11

Tex. Educ. Code Ann. §§ 21.251 et seq. ................................................................. 11

Tex. Educ. Code Ann. § 21.307(f) ............................................................................. 6

Tex. Gov’t Code Ann. § 2001.174 ............................................................................. 6

Other Authorities

Tex. Atty. General Op. DM-27 (1991) .................................................................... 27

vii

STATEMENT OF THE CASE

This is an appeal pursuant to section 7.057 of the Texas Education Code.

On December 2, 2011, Jenkins filed a Petition for Review with the Commissioner

of Education seeking a review and decision by the Commissioner that Crosby

Independent School District improperly reassigned Jenkins from a principal

position to an assistant principal position in violation of the Education Code and

her contract. (A.R. 155-158.1) The Commissioner upheld the District’s

reassignment decision (“Commissioner’s Decision”). (App’x 1.) Subsequently, on

February 28, 2014, Jenkins filed an Original Petition in the 200th Judicial District

of Travis County, Texas against both the District and the Commissioner seeking a

reversal of the Commissioner’s Decision. (C.R. 32.) The parties each filed trial

briefs supporting their respective positions. (C.R. 71, 224, 263.) On December 4,

2014, the Honorably Amy Clark Meachum held an oral hearing, and then issued a

final judgment affirming the Commissioner’s Decision. (App’x 2.) Jenkins filed a

motion for new trial, which was overruled by operation of law. (C.R. 378.) On

May 22, 2015, Jenkins filed a notice of appeal. (C.R. 385.)

The abbreviation “A.R.” is used for the Administrative Record that is included as Joint Exhibit

No. 1 of the Reporter’s Record. The page numbers referenced are the TEA page numbers

located at the bottom right-hand corner.

The abbreviation “C.R.” is used for the Clerk’s Record.

viii

STATEMENT REGARDING 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.

ISSUES PRESENTED

Whether the Commissioner’s Decision to uphold the District’s reassignment

of Appellant/Plaintiff from principal to assistant principal is supported by

substantial evidence?

TO THE HONORABLE JUDGES OF THE COURT:

The Appellee, Crosby Independent School District, submits it’s brief as

follows:

STATEMENT OF FACTS

Jenkins worked as the principal of Charles R. Drew Intermediate School

within Crosby ISD from 2003 to June 2011. (A.R. 6, ¶2.) In March 2011, Jenkins’

employment contract with the District was renewed, and she signed a new two-

year term contract for the upcoming school years 2011-2012 and 2012-2013.

(A.R. 294.) The contract stated in pertinent part the following:

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 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 Crosby Independent School District shall have

the right to reassign such duties to the Employee as Superintendent

shall deem proper, and since the Employee is not employed to fill a

specific position or assignment, the Superintendent may assign or

reassign to other or additional duties for which he or she is

professionally certified or otherwise qualified to perform.

(Id.)

On June 28, 2011, the Superintendent notified Jenkins of his decision to

reassign her from the principal position at Drew Intermediate to the assistant

principal position at Crosby High School. (A.R. 291.) Both positions were

campus administrator positions, and Jenkins’ compensation remained the same.

(A.R. 286.) The District provided the reassignment notice prior to the “penalty-

free resignation date,” which for the 2011-2012 school year, was July 8, 2011.3

Jenkins did not resign, but instead accepted her new position as assistant principal

at Crosby High School.

On July 18, 2011, Jenkins filed a grievance with the Superintendent through

the District’s board policy DGBA, which is an internal grievance/complaint

procedure available for employees. (See A.R. 331.) In her grievance, Jenkins

alleged that the Superintendent lacked the legal authority to reassign her from an

intermediate school principal position to a high school assistant principal position

because it amounted to an improper change in professional capacity in violation of

the Texas Education Code. (A.R. 287.)

The District held a Level Two grievance hearing to address the complaint.

(A.R. 284.) In his decision upholding her reassignment, the Superintendent

communicated his rationale for the reassignment explaining that Jenkins’ “skill set

could meet a real need at [the] High School.” (A.R. 285.) According to the

Superintendent, the high school campus was in dire need of “administrative

support and focus” and Jenkins’ “previous experiences, . . . skills and abilities with

The “penalty-free” resignation period is a statutory period of time provided to an individual

employed under a term contract during which the individual may relinquish his/her position and

leave the employment of the district without penalty. See Tex. Educ. Code Ann. § 21.210.

organization, problem solving, and attention to detail” would be “valuable and

helpful in this very important endeavor.” (Id.) The Superintendent also detailed

Plaintiff’s duties as a high school assistant principal:

At this much larger campus, you will continue to have numerous

administrative responsibilities, including, but not limited to,

appraising and making recommendations regarding staff, helping

provide instructional leadership, implementing student discipline,

facilitating and assisting with developing an effective campus

improvement plan based on student needs, providing leadership in the

identification, evaluation, and election of instructional programs,

materials, and equipment with regard to increased student

achievement, training teachers to utilize various instructional

strategies to meet student learning needs, assisting in the planning and

implementation of staff development programs designed to fulfill the

professional growth needs of the high school staff, planning and

implementing staff development programs designed to fulfill the

professional growth needs of the high school staff, working directly

with parents and patrons on solving problems and addressing

numerous issues that may be presented, facilitating the

implementation of new assessment and working to support the

alignment of campus and district curriculum, as well as numerous

other administrative duties as assigned.

(A.R. 285-86.)

Jenkins was not satisfied with the Superintendent’s decision and filed an

appeal on September 27, 2011, through a Level Three grievance. (A.R. 282.) On

October 24, 2011, the Crosby ISD Board of Trustees held a hearing. (A.R. 255.)

At the time of her Level Three grievance hearing in October 2011, Jenkins had

been performing in her role of assistant principal for Crosby High School for

approximately nine (9) weeks. At no time, nor in any grievance hearing, did

Jenkins argue that the duties outlined for her current assistant principal position

were untrue, inaccurate, or needed further clarification. Nor did Jenkins claim that

her principal duties at the intermediate school were substantially different than her

administrative duties as an assistant principal at the much larger high school. (See

A.R. 255, 258-61; see also A.R. 155-58.)

The Board denied Jenkins’ grievance in a six to one vote. (A.R. 324.)

Consequently, Jenkins filed a Petition for Review with the Commissioner of

Education on December 2, 2011. (A.R. 155.) On December 19, 2013, the

Commissioner issued his Decision denying Plaintiff’s petition in part and

dismissing in part. (App’x 1.) The Commissioner rejected Jenkins’ arguments and

concluded that being employed by a school district as a principal under a term

contract does not mean that the person is employed under the professional capacity

of “principal.” (A.R. 29, ¶10.) The Commissioner went on to find that Jenkins’

professional capacity was “administrator,” and that the District’s reassignment of

Jenkins to an assistant principal position was within the same professional

capacity; therefore, the District did not violate the Texas Education Code. (App’x

1, p. 25, ¶¶12, 14.)

SUMMARY OF THE ARGUMENT

Jenkins failed to plead this case as a demotion, and instead opted to plead it

as a failure to employ her in the “same professional capacity” in violation of §

21.206(b). Jenkins’ claim, however, involved a mid-contract reassignment of

Plaintiff; thus, the requirement in § 21.206(b) to employ an employee in the “same

professional capacity” was not even triggered in this case, depriving the

Commissioner of jurisdiction. Assuming the Commissioner did have jurisdiction,

he properly determined that Jenkins’ reassignment from principal to assistant

principal was in the “same professional capacity” and, therefore, Jenkins’

reassignment did not violate §21.206. This decision was appropriate and supported

by substantial evidence for a number of reasons. First, the term “same professional

capacity” is not defined in the Education Code. Consequently, over the last three

decades, the Commissioner has consistently interpreted “same professional

capacity” by comparing the duties, responsibilities, and salary of the reassigned

position and not by the title of the position alone. Second, the Commissioner has

properly declared that “administrator” is a distinct professional capacity; that a

principal is an administrator; and that reassignment from a principal to assistant

principal position can be appropriate. Third, the Commissioner has never defined

principal as its own professional capacity and has consistently declined to do so.

Finally, the Commissioner’s longstanding interpretation should be afforded

substantial deference by this Court and should be upheld by the doctrine of

legislative acquiescence. Jenkins’ arguments to the contrary are misplaced,

inaccurate, and, if adopted by this Court, will result in poor public policy for Texas

school districts throughout the entire state. Consequently, this Court should affirm

the Commissioner’s decision and deny Jenkins’ appeal.

ARGUMENT AND AUTHORITIES

I. Standard of Review

“On appeal of the district court's judgment, the focus of the appellate court's

review, as in the district court, is on the decision of the Commissioner.” Goodie v.

Houston Indep. Sch. Dist., 57 S.W.3d 646, 650 (Tex. App.—Houston [14th Dist.]

2001, pet. denied) (citing Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559,

562 (Tex. 2000)). A court may not reverse the Commissioner's decision unless his

decision is not supported by substantial evidence or his conclusions of law are

erroneous. See Tex. Educ. Code Ann. § 21.307(f); Tex. Gov’t Code Ann. §

2001.174; Davis, 34 S.W.3d at 566. Substantial evidence means more than a mere

scintilla; thus, the evidence may preponderate against the decision, yet still amount

to substantial evidence. Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131

(Tex.1999). The test is whether reasonable minds could have reached the same

conclusion as the Commissioner. See Tex. State Bd. of Dental Exam'rs v.

Sizemore, 759 S.W.2d 114, 116 (Tex.1988). The appellant bears the burden of

demonstrating that the Commissioner’s decision was not supported by substantial

evidence. Matthews v. Scott, 268 S.W.3d 162, 172 (Tex. App.—Corpus Christi

2008, no pet.); Miller v. Houston Indep. Sch. Dist., 51 S.W.3d 676, 680 (Tex.

App.—Houston [1st Dist.] 2001, pet. denied).

Whether the Commissioner's Decision meets this standard is a question of

law. Davis, 34 S.W.3d at 566. “With respect to conclusions of law, the

Commissioner's reasoning for his decision is immaterial if his conclusion is

correct.” Goodie, 57 S.W.3d at 650; Judson Indep. Sch. Dist. v. Ruiz, 04-13-

00706-CV, 2015 WL 1501758, at *3 (Tex. App.—San Antonio Mar. 31, 2015, pet.

filed). The court, therefore, must uphold the Commissioner's Decision on any legal

basis shown in the record. Goodie, 57 S.W.3d at 650. Finally, as with

administrative agencies generally, the Commissioner's construction of a statute is

entitled to serious consideration, so long as the construction is reasonable and does

not contradict the plain meaning of the statute. Id. (citing Dodd v. Meno, 870

S.W.2d 4, 7 (Tex.1994)); see also Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d

440, 443 (Tex. App.—Austin 2011, no pet.). 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 possesses considerable authority and expertise.”

Dodd, 870 S.W.2d at 7. When the Education Code is ambiguous or silent as to a

term, the question “is not whether the 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.

II. The Term Contract Nonrenewal Act

The vast majority of Texas school districts employ teachers, administrators,

and other professionals pursuant to a term contract. A term contract is a contract

for employment between a school district and an individual for a fixed number of

years, not to exceed five school years. See Tex. Educ. Code Ann. § 21.201(3).

Chapter 21, Subchapter E of the Texas Education Code is referred to as the Term

Contract Nonrenewal Act (“TCNA”) and provides extensive administrative

processes that a school district must follow prior to terminating or nonrenewing a

term contract. An employee may be proposed for termination during the contract

term only for good cause or a financial exigency. Id. §21.211. In that situation,

the employee is entitled to notice and a hearing pursuant to the procedures outlined

in Chapter 21, Subchapter F. See id. §§21.251, et seq.

Alternatively, at the end of a contract term, the board of trustees must

determine whether it will renew or nonrenew the employee’s contract for another

term. The TCNA requires the following notice:

(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.

superintendent.

Id. §21.206.4 Upon receiving notice of a proposed nonrenewal, the employee has

the right to request a hearing before the board. See id. §21.207.

The Commissioner’s interpretation of the term “same professional capacity”

in §21.206(b) is the crux of this case. Jenkins asserts that, as a principal, the only

position within her “same professional capacity” is another principal position. See

Appellant’s Brief, pp. 14-30. Therefore, according to Jenkins, the District’s

reassignment of her from principal to assistant principal was in violation of the

“same professional capacity” mandate. See id. The Commissioner disagreed

finding that Jenkins’ professional capacity was as an administrator, and Jenkins’

reassignment from principal to assistant principal was in the “same professional

capacity” and did not violate §21.206(b). (See App’x 1.)

The term “teacher” as used in this provision is defined much more broadly than the traditional

concept of teacher. See Tex. Educ. Code Ann. §21.201(1).

III. Jenkins’ Claim Did Not Involve An Expiring Term Contract And,

Consequently, Was Not Ripe For The Commissioner’s Review, as Pled.

The requirement to employ an individual, such as Jenkins, in the “same

professional capacity” is triggered when a term contract is about to expire and the

board of trustees fails to give timely notice of a proposed nonrenewal. See Tex.

Educ. Code. Ann. § 21.206(b). Under those very specific circumstances, a school

district is obligated to employ the individual within the “same professional

capacity” for at least one additional school year. See id. This is not the factual

scenario that occurred in this case.

Here, Jenkins received timely and appropriate notice, her contract was

renewed for a two-year term, and she began the terms of her new contract assigned

to serve as principal. (A.R. 294.) After the renewal process and during the term

of Jenkins’ new contract, the Superintendent, pursuant to both the contractual

agreement made between the parties and Crosby ISD Board Policy DK (Local),

exercised his express authority and reassigned Jenkins “to other or additional

duties for which [she was] professionally certified or otherwise qualified to

perform.” (See A.R. 203, 294.) In the Superintendent’s professional judgment and

in the best interest of the District, Jenkins’ skill set would serve an important role

at the high school. (See A.R. 285.)

Under these facts, the “same professional capacity” requirement and analysis

pursuant to §21.206(b) was not triggered because Jenkins’ contract was renewed

and she was originally assigned to serve in the same position. In the context of a

multiple year contract, such as Jenkins’, due process via nonrenewal is not an

available remedy under Chapter 21 of the Education Code until the end of the

multiple-year term. See Tex. Educ. Code Ann. §§ 21.211, 21.251 et seq.; see also

App’x 1, pp. 5-6.

Nevertheless, Jenkins pled her case to the Commissioner as an inappropriate

change in professional capacity without due process in violation §21.206 – a due

process she was not entitled to because the District was not seeking to nonrenew

her contract nor had it failed to provide appropriate, timely notice. Although it

ultimately would have been unsuccessful under the present facts, Jenkins could

have and should have pled an inappropriate demotion, which would have been the

proper pleading for this mid-contract reassignment case. Jenkins failed to do so

instead electing to plead the strained and unsupported argument of “once a

principal always a principal.” (See A.R. 132; see also C.R. 82-87.)

This case is factually similar to Murillo v. Laredo Indep. Sch. Dist., Docket

No. 027-R3-0108 (Comm’r Educ. 2012). (App’x 3.) Murillo was employed under

a term contract for the 2006-2007 school year as a middle school principal.

Murillo signed another contract with the district for the 2007-2008 school year as a

“professional employee.” Murillo accepted the contract and shortly into its term

was reassigned to the position of Human Resources Coordinator. Murrillo filed

internal grievances and then an appeal to the Commissioner. One of Murillo’s

complaints was that the district changed her professional capacity in violation of

§21.206. The Commissioner disagreed and held:

A school district does not violate Texas Education Code section

21.206 when a term contract expires without notice of proposed

nonrenewal and the district employs the teacher in a position for the

next school year that the teacher held under the contract during the

previous school year. If a teacher holds the same position in both

school years, the teacher’s professional capacity has not changed.

Because Respondent employed Petitioner for the 2007-2008 school in

a position that Petitioner held under her 2006-2007 contract,

Respondent did not violate Texas Education Code section 21.206.

Id. at 3.

Similarly, Jenkins’ reliance on §21.206 is misplaced because no violation of

21.206 had occurred at the time she filed her appeal with the Commissioner.

Jenkins held the same position (principal) in both school years, and was then

properly reassigned during the term of the contract to a new position pursuant to

the language of the contract, state law, and local policy. Consequently, Jenkins’

case was not ripe at the time she filed and should have been dismissed based on a

lack of jurisdiction. See Holman v. Arp Indep. Sch. Dist., Docket No. 093-R8-805

(Comm’r Educ. 2007) (stating that ripeness is a component of subject-matter

jurisdiction and dismissing appeal because petitioner had not yet been injured by

the policy challenged) (App’x 4). The Commissioner’s conclusion of law that

Jenkins’ claim was ripe as to the 2011-2012 school year was erroneous and should

be reversed by this Court. (See App’x 1, pp. 5-6; 24, ¶7.)

IV. Assuming Arguendo §21.206 Applied To Jenkins’ Claim, The

Commissioner Correctly Determined that Jenkins’ Reassignment from

Principal to Assistant Principal was in the Same Professional Capacity

and Legally Valid.

This Court should affirm the Commissioner’s Decision because substantial

evidence shows that Jenkins’ reassignment from the principal of an intermediate

school to an assistant principal of a high school was within the “same professional

capacity” and not in violation of §21.206. Jenkins seeks for this Court to reverse

the Commissioner and find that the position of principal constitutes its own

professional capacity, resulting in the unworkable conclusion that a principal may

never be reassigned to any position other than that of principal. Jenkins’ position

constitutes a radical departure from the longstanding precedent set by the

Commissioner and should not be embraced by this Court.

1. The phrase “same professional capacity” is not defined in the Texas

Education Code; therefore, the Commissioner’s interpretation must

be afforded broad deference.

Although the phrase “same professional capacity” is used in §21.206(b) of

the Education Code, the phrase has not been defined by the Legislature, causing it

to be susceptible to multiple interpretations. See Lehr. v. Ector County Indep. Sch.

Dist., Docket No. 003-R3-0908 (Comm’r Educ. 2011) (stating that the Texas

Education Code does not define “same professional capacity”) (Appellant’s Brief,

App’x 9). When vagueness, ambiguity, or room for policy determinations exist, as

in this case, the Court should defer to the agency’s interpretation unless it is plainly

erroneous or inconsistent with the language of the statute. See TGS-NOPEC

Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011). “Construction of a

statute by the administrative agency charged with its enforcement is entitled to

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

contradict the plain language of the statute.” Dodd, 870 S.W.2d at 7. Given the

Commissioner’s considerable authority and expertise in matters involving the

Education Code, the Court should not be inclined to reverse the Commissioner's

reasonable determination. See id. (upholding the Commissioner’s interpretation of

the definition of “teacher” in the Term Contract Nonrenewal Act); see also

McGilvray v. Moses, 8 S.W.3d 761, 764 (Tex. App.—Fort Worth 1999, pet.

denied).

2. The Commissioner has reasonably and consistently interpreted the

phrase “same professional capacity.”

Because the phrase “same professional capacity” is not defined, the

Commissioner has been tasked with interpreting and applying the “same

professional capacity” requirement found in §21.206. The Commissioner first

ruled on this issue in 1985 in the seminal case of Barich v. San Felipe-Del Rio

Consolidated Indep. Sch. Dist., Docket No 117-R1a-484 (Comm’r Educ. 1985)

(Appellant’s Brief, App’x 6). In that case, the Commissioner outlined what has

become the well-established test for analyzing the “same professional capacity”

question:

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

term, “same professional capacity” (instead of “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 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 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 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 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.

A reassignment is in the same professional capacity if the employee

could have contracted with the teacher 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, whether applying such factors as

differences in authority, duties, and salary show that the two positions

are really in two different professional capacities.

Id. at 8 (emphasis added).

Thus, according to the Commissioner, the focus is not on the title of the

positions at issue, but rather on two fact-intensive questions: (1) whether the

employee could contract for the reassigned position and (2) whether the new

position is one of similar authority, duties, and salary. The phrase “same

professional capacity” must not be interpreted to mean “the exact same position,”

and must allow school districts the necessary flexibility to make personnel changes

and decisions.

Over the last three decades, the Commissioner repeatedly has evaluated,

from a nonrenewal perspective, whether a particular assignment or reassignment is

in the required same professional capacity, and has consistently applied the test

first set out in Barich. The Commissioner’s Decision provides a detailed and

thorough analysis of Barich and its progeny regarding how the phrase “same

professional capacity” is to be evaluated and applied. See App’x 1, pp. 9-16; see

also Appellant’s Brief, Appx. 13; Gustafson v. Canutillo Indep. Sch. Dist., Docket

No. 113-R10-0812 at 6-13 (Comm’r Educ. 2014) (App’x 5).

3. The Commissioner has properly declared that “administrator” is a

distinct professional capacity.

On numerous occasions, the Commissioner has directly addressed the very

issue on appeal in this case – the reassignment of administrators (including

principals) – and has correctly determined that “administrator” itself is an

appropriate professional capacity.

It has been the consistent view of the Commissioner that the TCNA

balanced its grant of limited tenure rights against the considerable

personnel management problems it might cause if imposed inflexibly.

Districts have responded to this law by creating broad classes within

which transfers do not implicate the TCNA. If taken to extremes, this

tactic would be against public policy as expressed in the TCNA, but I

cannot make such a finding in this case. The need for flexibility in

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

tenure system weakest, at the administrative level. In short, I find the

generic “administrator” position before me consistent with the policies

of the TCNA.

Carpenter v. Wichita Falls Indep. Sch. Dist., Docket No. 247-3-491 (Comm’r

Educ. 1993) (Appellant’s Brief, App’x 8); see also Barich, Docket No 117-R1a-

484 at 8 (referencing “administrator” as a professional category); Ramos v. El Paso

Indep. Sch. Dist., Docket No. 002-R10-900 (Comm’r Educ. 1999) (the district

properly transferred the employee from the position of high school principal to the

position of elementary principal) (App’x 6); Young v. Leggett Indep. Sch. Dist.,

Docket No. 175-R3-898 (Comm’r Educ. 1999) (contracted as a teacher/coach, the

district properly reassigned the employee from the position of varsity coach and

teacher to the position of junior high school coach and teacher) (Appellant’s Brief,

App’x 10); Murillo, Docket No. 027-R3-0108 at 2-3 (contracted as a “professional

employee,” the district properly reassigned the employee from a principal position

to the position of Human Resource Coordinator).

Moreover, the Commissioner has directly addressed the issue of a principal

being reassigned to an assistant principal position and has found the reassignment

appropriate under many circumstances. See, e.g., Pasqua v. Fort Stockton Indep.

Sch. District, Docket No. 011-R3-1102 (Comm’r Educ. 2004) (contracted as an

administrator, the district properly reassigned the employee from the position of

high school principal to the position of middle school assistant principal) (App’x

7); Underwood v. West Rusk County Consolidated Indep. Sch. Dist., Docket No.

062-R3-198 (Comm’r Educ. 1998) (contracted as an administrator, the district

properly reassigned the employee from principal of an independent middle school

campus to the position of principal or assistant principal for grades 7 to 9 at a

unified junior high/high school campus) (App’x 8); McCoy v. Kermit Independent

School District, Docket No. 004-R3-0908 (Comm’r Educ. 2012) (contracted as an

administrator, the district properly reassigned the employee from the position of

principal to the position of assistant principal) (App’x 9); Gustafson, Docket No.

113-R10-0812 at 6-13 (contracted as administrator, the district properly reassigned

the employee from a principal position to an assistant principal position).

4. Tex. Educ. Code §21.201(1) does not define “professional capacity”

for purposes of §21.206.

Section 21.201(1) of the Education Code defines the term “teacher” for

purposes of identifying which professionals in the educational setting are entitled

to a Chapter 21 contract:

“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. . . .

Tex. Educ. Code Ann. §21.201(1).

Jenkins erroneously asserts that the definition of “teacher” in §21.201 should

be used to define the term “professional capacity” for purposes of 21.206(b). See

Appellant’s Brief at 14-20. According to Jenkins, pursuant to this definition,

“principal” constitutes one of several professional capacities specifically identified;

therefore, the District can only reassign principals to other principal positions in

order to comply with the “same professional capacity” requirement under

21.206(b). See id.

Jenkins’ position is completely unsupported by a series of Commissioner’s

decisions. A multitude of cases exist where the Commissioner has thoroughly

analyzed the meaning of “same professional capacity” and appropriately and

specifically rejected Jenkins’ argument that 21.201’s listing of individual

classifications defines the term professional capacity for purposes of 21.206. See,

e.g., Perales v. Robstown ISD, Docket No. 052-R10-104, 084-R-604 (Comm’r

Educ. 2006) (stating that “‘same professional capacity,’ as used in Texas Education

Code section 21.206, is not limited to the individual classifications used in Texas

Education Code section 21.201(1). This interpretation of the Commissioner is

affirmed by the doctrine of legislative acceptance”) (Appellant’s Brief, App’x 7);

Carpenter, Docket No. 247-R3-491, at 3 (“Petitioner would have the

commissioner…hold that the phrase ‘same professional capacity” is defined…by

the definition of ‘teacher’ found in 21.201(1) of [the TCNA]….[T]his phrase

is….undefined…and…is a matter for interpretation by the commissioner, in the

first instance, and by the courts.”).

Indeed, the Commissioner has articulated multiple problems with Plaintiff’s

interpretation. See Perales, Docket No. 052-R10-104, at 3-4. First, §21.201

specifically provides a definition of “teacher” that is used to determine who is

entitled to a term contract, not “professional capacity.” See id. at 3. Second, under

the analysis, the term “other full-time professional employee who is required to

hold a certificate under Subchapter B” would also be a professional capacity. See

id. According to the Commissioner, this “hardly seems a distinct category.” Id.

Third, the Commissioner’s longstanding interpretation of the phrase “same

professional capacity” does not support this analysis. See id. at 4. The

Commissioner has repeatedly upheld categories of professional capacities that are

not listed in §21.201(1). See id.

Contrary to Jenkins’ assertion, the Commissioner certainly has not

“conceded that §21.201(1) defines ‘professional capacity,” nor has he shown

“indecisiveness” on this issue. In fact, the Commissioner recognized

From the first substantive decision made in the first year the issue

could be addressed by the Commissioner, the named positions found

at Texas Education Code section 21.201(1) were not held to be

professional capacities as the Commissioner used the term

‘administrator’ that is not listed to include superintendents and

assistant principals.

App’x 1, p. 11.

The Commissioner specifically concluded in his decision in this case, “[th]e

fact that the position of “principal” is listed in the first sentence of Texas Education

Code section 21.201(1) does not mean that if one is employed by a school district

as a principal under a term contract that one is employed under the professional

capacity of principal.” (Id. at 25, ¶10.) The Commissioner recently reiterated this

same analysis, once again rejecting the same argument Jenkins makes here. See

Gustafson, Docket No. 113-R10-0812 at 15-16, 21.

The Commissioner has never interpreted “principal” as its own professional

capacity, and this Court should not do so now. In reality, unlike a teacher,

counselor, librarian and others, both a principal and an assistant principal are

administrators; have administrative duties and skills; and have an administrative

certification. In fact, to serve as either a principal or an assistant principal in Texas

public schools, an individual must hold the same “Principal Certificate.” See 19

Tex. Admin. Code Ann. §241.1(d). “Administrator” is, therefore, the proper

professional capacity for both a principal and an assistant principal.

5. The Commissioner’s interpretation is entitled to deference.

The Commissioner’s interpretation of the phrase “same professional

capacity” is reasonable and does not conflict with the plain language of the statute.

The Commissioner, who is charged with enforcement of the Education Code,

possesses considerable authority and expertise in this area of the law; therefore, his

interpretation is entitled to serious consideration and deference. See Combs, 340

S.W.3d at 438; Tarrant Appraisal Dist., 845 S.W.2d at 823; McGilvray, 8 S.W.3d

at 764; Railroad Comm'n v. Tex. Citizens for a Safe Future & Clean Water, 336

S.W.3d 619, 624–25 (Tex. 2011) (giving “serious consideration” and “some

deference” to agency's interpretation of a statute it is charged with enforcing so

long as the construction is reasonable and does not conflict with the statute's

language).

Jenkins seeks this Court to overturn the Commissioner’s longstanding

interpretation of this phrase and hold that, in the context of a principal, “same

professional capacity” must be construed to mean only another principal position.

This Court should not accept Jenkins’ invitation to alter this well-established and

well-reasoned position of the Commissioner.

6. The Commissioner’s longstanding interpretation of “same

professional capacity” should be upheld by the doctrine of

legislative acquiescence.

A firmly-established statutory construction rule in Texas jurisprudence is the

concept of legislative acquiescence. Under this doctrine, if a court or an

administrative agency (such as the Commissioner) has given a longstanding

construction to an ambiguous statute, and in the face of this longstanding

construction, the Legislature reenacts the statute without substantial change, the

Legislature is presumed to have been familiar with the construction and adopted it.

See Tex. Dept. of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145

S.W.3d 170, 176 (Tex. 2004); see also Transcon. Ins. Co. v. Crump, 330 S.W.3d

211, 237 (Tex. 2010) (“Once this Court has construed a statute and the Legislature

re-enacts the statute without substantial change, it is presumed the Legislature has

adopted our interpretation.”).

This Court has expressly recognized and applied the doctrine of legislative

acquiescence. In Texas Association of Appraisal Districts, Inc. v. Hart, the Court

was asked to determine whether two entities constituted “governmental bodies”

subject to disclosure of public information under the Texas Public Information Act.

382 S.W.3d 587 (Tex. App.—Austin 2012, no pet.) The Court determined that the

definition was susceptible to more than one meaning and that deference was to be

given to the Attorney General’s interpretation. See id. at 593. The Court also

recognized that for over two decades since the Attorney General first interpreted

the definition, the Legislature had amended or modified section 552.003(1)'s

definition of “governmental body” several times without altering the language.

See id. at 594. “Thus, [the Court was required to] presume that the Legislature was

aware of the Attorney General's interpretation of section 552.003(1)(A)(xii) and

adopt it as its own.” Id.; see also DuPont Photomasks, Inc. v. Strayhorn, 219

S.W.3d 414, 422 (Tex. App.—Austin 2006, pet. denied) (finding Comptroller’s

interpretation of the sale-for-resale exemption in the Tax Code was longstanding;

the Legislature had amended the provision several times without substantial

change, therefore, the Legislature was presumed to be familiar with and to have

adopted the Comptroller’s interpretation).

The Commissioner appropriately determined that the doctrine of legislative

acquiescence applies to this case and that the “Legislature has acquiesced in the

Commissioner’s interpretation of the phrase ‘same professional capacity.’” (App’x

1, pp. 17-18.) As discussed in detail above, the term “same professional capacity”

is not defined, so the Commissioner has been tasked with interpreting its meaning.

The Commissioner’s well-established interpretation of the phrase “same

professional capacity” spans approximately three decades. As detailed in the

Commissioner’s Decision, the TCNA was amended by the Legislature on four

occasions between 1990 and 2011, without altering the wording of the phrase or

providing a clarifying definition. (See App’x 1, pp. 8-9; 17-18.) The Legislature,

therefore, presumably was aware of the Commissioner’s interpretation and has

adopted it.5 See Mega Child Care, Inc., 145 S.W.3d at 176; Transcon. Ins. Co.,

330 S.W.3d at 237; Texas Ass’n of Appraisal Districts, Inc., 382 S.W.3d at 593-94.

During the 73rd Regular Legislative Session, a statutory definition of “same professional

capacity” as it related to probationary and continuing contracts was proposed and rejected in

Senate Bill 395. Section 13.118(d) provided the following: “Same professional capacity” means

a position, including supervision of extracurricular activities, which is substantially equal in

duties, responsibility, authority, certification, endorsement, education, and remuneration. No

action was taken on the bill in committee. See App’x 10, Introduced Bill, Tex. S.B. 395, 73rd

Leg., R.S. (1993). Although proposed, the Legislature elected not to adopt this definition, or any

As stated by the Commissioner:

If the Legislature intended “same professional capacity” to mean any

position listed in the definition of ‘teacher,’ the Legislature would

have said so. Instead, the Legislature used an undefined phrase that it

intended the Commissioner to interpret using his experience in how

schools operate. The Commissioner has done so since the first

opportunity to interpret the phrase at issue.

(App’x, p. 19.)

In fact, the TCNA was amended again during the 83th Legislative Session

held in 2013; yet the Legislature did not add a definition of professional capacity

or otherwise amend the statute to provide further clarity. See Act of 2013, 83th

Leg., R.S., ch. 443, §10 (SB 715) (amending the definition of “teacher” under

section 21.201 to state “school counselor” instead of “counselor”). Moreover, the

Legislature recently completed the 84th Legislative Regular Session in June 2015.

The district court’s ruling in this case affirming the Commissioner’s interpretation

occurred in February 2015 – in the midst of the session. (Appx. 2.) Nevertheless,

the Legislature took no action to amend or define the term “same professional

capacity” in response to the outstanding ruling. The Legislature’s continued

silence lends itself to only one conclusion – the Legislature has adopted the

Commissioner’s longstanding interpretation, and this Court should too.6

definition, thereby affirming the Commissioner’s reasonable interpretation and application of the

phrase “same professional capacity.”

Notably, the Legislature has responded to the Commissioner’s and the court’s interpretation of

the TCNA in the past. In 1994, the Supreme Court issued the case of Dodd v. Meno, in which it

In the present case, the Commissioner used his knowledge and experiences

to properly determine that Jenkins’ transfer from one administrative position to

another administrative position, while keeping the same salary, was legally valid

and in the same professional capacity.

7. A change from principal to assistant principal is not a per se change

in professional capacity.

As discussed above, the Commissioner has appropriately determined on

more than one occasion that principals and assistant principals are both

administrators; therefore, based on the particular facts of the case, an assignment

from principal to assistant principal can be in the “same professional capacity.”

See, e.g., Pasqua, Docket No. 011-R3-1102, at 4, 7; Underwood, Docket No. 062-

R3-198, at 2-4; McCoy, Docket No. 004-R3-0908, at 5, 7; Gustafson, Docket No.

113-R10-0812 at 15-16, 21. Jenkins asserts alternatively that even if this Court

does not accept her argument that §21.201(1) defines the relevant categories for

“professional capacity,” a principal and assistant principal can never be in the

“same professional capacity.” According to Jenkins, a principal is such a unique

position and so fundamentally different than an assistant principal, that it per se

constitutes a professional capacity of its own and cannot fall within the more

upheld the Commissioner’s interpretation of the definition of “teacher” in §21.201(1), and found

that a nurse did not fall within the definition of “teacher,” as it was defined at that time. See 870

S.W.2d 4, 5-6 (Tex. 1994). Shortly thereafter, during the 1995 Legislative Regular Session, the

Legislature responded by amending the definition of “teacher” in §21.201(1) to include a nurse.

See Acts 1995, 74th Leg., R.S., ch. 260, §1 (S.B. 1).

general category of “administrator.” See Appellant’s Brief at 20-24. Jenkins’

arguments in this regard are misplaced.

Section 11.202 delineates the role of the campus principal (the instructional

leader of the campus) and job requirements. Legislative history shows that the

purpose of section 13.352(d), the predecessor to §11.202, was to “give principals

more control over their campuses with a view to greater accountability for campus

conditions and student achievement.” Tex. Atty. General Op. DM-27 (1991)

(App’x 11). The purpose of §11.202, however, was not to establish the role of

principal as a unique, stand-alone “professional capacity,” as Jenkins argues.

While it is true that §11.202 of the Education Code identifies certain statutory

duties of a principal, this provision does not equate to a per se finding that the

position of principal is so fundamentally different and distinct that it must

constitute its own professional capacity. See Tex. Educ. Code Ann. §11.202(b);

see also McCoy, Docket No. 004-R3-0908 at 5.

In fact, principals and assistant principals are treated similarly in many

respects. For example, both a principal and an assistant principal are required to

hold a principal certificate, are required to actively participate in professional

development activities and training, and are subject to the same standards for

serving as a first-time campus administrator. See 19 Tex. Admin. Code Ann.

§241.1(c), (d), §241.25; Tex. Educ. Code Ann. §21.046. These similarities further

support the argument that both positions are sufficiently similar and are

appropriately considered administrative positions.

Jenkins’ argument that the change from principal to assistant principal alone

is sufficient to show a violation of the “same professional capacity” requirement of

§21.206(b) is simply not supported, and is a position the Commissioner has

specifically rejected. See McCoy, Docket No. 004-R3-0908, at 5 (“[I]n 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.”); see also Barich, Docket No 117-R1a-484, at 8 (stating “same

professional capacity” does not mean “the exact same position”); Gustafson,

Docket No. 113-R10-0812 at 6-13.

Even though Jenkins failed to plead it or exhaust her administrative remedies

on the issue, and thus waived the argument, the appropriate analysis in determining

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

professional capacity” would be to consider the factors set forth by the

Commissioner in Barich. Jenkins failed to argue at the Commissioner level as a

factual matter that an actual comparison of her position as principal and her

position as assistant principal lead to the conclusion that the two jobs were not in

the same professional capacity. (See App’x, p. 22.) Jenkins instead relied solely

on the argument that as a matter of law the positions could not be in the same

professional category.

Nevertheless, assuming arguendo that Jenkins properly asserted this

argument, the Commissioner’s application of the Barich test and determination that

the two positions had similar duties, responsibilities, and salary is supported by

substantial evidence. Jenkins’ compensation remained the same in her position as

assistant principal at the high school, and her administrative duties and

responsibilities at a much larger high school campus remained substantially similar

(A.R. 285-86).

8. The Commissioner considered the contract, compared the two

positions at issue, and appropriately determined they were both

within the professional capacity of administrator.

Admittedly, the contract at issue is ambiguous with regard to an identified

professional capacity. Jenkins contract was for an “employee” for 2011-2013.

(A.R. 294.) Although the Commissioner has found that an employment contract

simply listing “employee” is too broad to define the professional capacity; the

analysis does not end at that point. How a contract defines the professional

capacity is relevant but not necessarily dispositive. See Carpenter, Docket No.

247-R3-491 at 3. The Commissioner and the courts have consistently looked to

the language of the employment contract itself and attempted to give the parties the

benefit of their bargain. See id.

Jenkins seeks to rewrite her contract by replacing the term “employee” with

her job title of “principal.” The Commissioner, however, has not taken the

approach of looking merely at the job title to define “professional capacity.”

Instead, he looks to the terms of the contract and the employment category within

which the employee is actually assigned (in the present case as an administrator),

and considers whether the two positions at issue are in the same professional

capacity based upon a factual comparison of the job duties, responsibilities, and

salary. See, e.g., Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3-1108

(Comm’r Educ. 2011) (Appellant’s Brief, App’x 11).

Here, the terms of Jenkins’ contract are particularly relevant. Jenkins’

contract expressly provided the Superintendent the right to reassign Petitioner:

…the Superintendent of Crosby Independent School District shall have the

right to assign such duties to the Employee as 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.)

The contract explicitly stated that: (1) the Superintendent has the right to

assign Plaintiff as he “shall deem proper”; (2) Plaintiff is not employed to fulfill a

specific position, including campus principal; and, (3) the Superintendent can

reassign Plaintiff to any position for which she is certified and qualified to

perform. Id. Jenkins was certified and qualified to serve as both a principal and an

assistant principal, as the certification requirements are the same. See Tex. Admin.

Code Ann. §241.1(d); see also Section IV.7, infra. The Commissioner’s

interpretation of Jenkins’ professional capacity as “administrator” rather than just

“principal” is consistent with the Superintendent’s contractual reassignment

authority – Jenkins’ interpretation is not.

Moreover, the Superintendent’s reassignment authority is further outlined

and supported in state law and board policy. As stated in the Education Code, the

statutory duties of the Superintendent specifically include the administrative

authority and responsibility for the assignment of all personnel of the District. See

Tex. Educ. Code Ann. §11.201(d)(2) (emphasis added). Crosby ISD Board Policy

DK (LOCAL) also states:

All personnel are employed subject to assignment and reassignment

by the Superintendent or designee when the Superintendent

determines that the assignment or reassignment is in the best interest

of the District. Reassignment shall be defined as a transfer to another

position, department, or facility that does not necessitate a change in

the employment contract of a contract employee.

(A.R. 203, Crosby ISD Board Policy DK (LOCAL) (emphasis added).)

Jenkins’ preferred solution – replacing “employee” with “principal” – runs

contrary to these state and local authorities as well. The Commissioner’s

interpretation – that the appropriate professional capacity for principal and

assistant principal is “administrator” – is supported by substantial evidence and

should be affirmed. See City of Austin v. Pub. Util. Comm’n, 146 S.W.3d 742, 748

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

interpretation of an agreement if the interpretation is supported by substantial

evidence).

9. Plaintiff’s argument that “once a principal, always a principal” is

an unsound policy for school districts in the state of Texas.

Jenkins advocates that principals may only be reassigned to other

principalships at other campuses within the school district. This is unsound policy

that contradicts well-settled law established by the Commissioner. As stated

previously, the Commissioner has recognized the importance of flexibility for a

school district to reassign employees in order to manage staff to cover school

needs. See Carpenter, Docket No. 247-3-491, at 4. This flexibility is especially

paramount when reassigning administrators. Id., see also Ramos, Docket No. 002-

R10-900 2002, at 2-3 (school districts have broad discretion when it comes to

transferring administrators); Young, Docket No. 175-R3-898, at 4 (the phrase

“same professional capacity” encompasses broad categories). To hold otherwise,

as suggested by Jenkins, would unjustifiably disadvantage students, particularly, as

in the present case, when an individual’s, such as Jenkins’, skill sets are needed at

a particular campus. (See A.R. 285.) Moreover, such a limitation would

inappropriately limit a Superintendent’s reassignment authority and ability to

manage staff and meet the ever-changing needs of students within a school district.

Jenkins’ position, if adopted by this Court, would cause unjustified

operational difficulties for a school district. For example, a school district could

face the situation of having to close a campus due to budgetary constraints and/or

lower student enrollment. Under Jenkins’ position, if no available principal

position existed or if the principal at the campus to be closed refused to be assigned

to another administrative position, the school district would have to terminate or

nonrenew the employment contract of the principal at that campus instead of

having the option to reassign the employee to another non-principal, administrative

position. Besides being unreasonable, such a result is neither mandated by statute,

case law, or reason. Jenkins’ strained attempt to redefine “same professional

capacity” is bad public policy, would reverse well-articulated decisions by the

Commissioner, and should be rejected by this Court.

CONCLUSION AND PRAYER

For all of the reasons set forth above, Appellant’s reassignment from

principal to assistant principal was legally valid and did not violate §21.206 of the

Texas Education Code. The Commissioner’s Decision, which was based on three

decades of precedent from the agency, was correct and supported by substantial

evidence. The District, therefore, respectfully requests that this Court affirm the

decision of the Commissioner.

Respectfully submitted,

THOMPSON & HORTON LLP

/s/ David B. Hodgins

David B. Hodgins

State Bar No. 09775530

Amber K. King

State Bar No. 24047244

Frances R. Broussard

State Bar No. 24055218

3200 Southwest Freeway, Suite 2000

Houston, Texas 77027

Telephone: (713) 554-6745

Telecopy: (713) 583-8245

Attorneys for Appellee Crosby ISD

CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify

that the number of words in this brief, excluding those matters listed in Rule

9.4(i)(1), is 7,881.

/s/ Amber K. King

Amber K. King

CERTIFICATE OF SERVICE

I hereby certify that on the 24th day of September, 2015, a true and correct

copy of the above and foregoing pleading was served upon counsel of record via

electronic filing and certified mail, RRR:

Kevin F. Lungwitz

The Lungwitz Law Firm, P.C.

3005 S. Lamar Blvd.

Suite D-109-362

Austin, Texas 78704-4785

P. 512.462.0188

F. 866.739.7138

kevin@lungwitzlaw.com

Via CMRRR: 70102780000049858814

Andrew Lutostanski

Assistant Attorney General

Administrative Law Division

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

P.O Box 12548, Capitol Station

Austin, Texas 78711-2548

P. 512.475.4300

F. 512.320.0167

Via CMRRR: 70102780000049858807

/s/ Amber K. King

Amber K. King

No. 03-15-00313-CV

IN THE COURT OF APPEALS FOR THE

THIRD JUDICIAL DISTRICT OF TEXAS

AUSTIN, TEXAS

HERMENIA JENKINS,

Appellant

CROSBY INDEPENDENT SCHOOL DISTRICT AND MICHAEL L.

WILLIAMS, COMMISSIONER OF EDUCATION,

Appellees

On Appeal from the District Court of Travis County, Texas

200th Judicial District

Trial Court Cause No. D-1-GN-14-000619

APPELLEE CROSBY INDEPENDENT SCHOOL DISTRICT’S APPENDIX

Decision of the Commissioner ………………………………………………..Tab 1

District Court’s Final Judgment ………………………………………………Tab 2

Murillo v. Laredo Indep. Sch. Dist.

Docket No. 027-R3-0108 (Comm’r Educ. 2012) ……………………………..Tab 3

Holman v. Arp Indep. Sch. Dist.

Docket No. 093-R8-805 (Comm’r Educ. 2007) ………………………………Tab 4

Gustafson v. Canutillo Indep. Sch. Dist.

Docket No. 113-R10-0812 (Comm’r Educ. 2014) ……………………………Tab 5

Ramos v. El Paso Indep. Sch. Dist.

Docket No. 002-R10-900 (Comm’r Educ. 1999)……………………………...Tab 6

Pasqua v. Fort Stockton Indep. Sch. District

Docket No. 011-R3-1102 (Comm’r Educ. 2004) ……………………………..Tab 7

Underwood v. West Rusk County Consolidated Indep. Sch. Dist.

Docket No. 062-R3-198 (Comm’r Educ. 1998) ………………………………Tab 8

McCoy v. Kermit Independent School District

Docket No. 004-R3-0908 (Comm’r Educ. 2012) ……………………………..Tab 9

Introduced Bill, Tex. S.B. 385, 73rd Leg., R.S. (1993) ……………………..Tab 10

Tex. Atty. Gen. Op. DM-27 (1991) ………………………………………….Tab 11

Crosby ISD’s Appendix

TAB 1

DOCKET NO. 043-RlO-1211

HERMENIA JENKINS § BEFORE THE

v. § COMMISSIONER OF EDUCA nON

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 l .

The Administrative Law Judge issued a Proposal for Decision recommending that

Petitioner's appeal be denied in part and dismissed in paM. 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 Brief of Amicus Curiae.

043-RIO-1211

exercise his broad expenence In education to determine just what IS the "same

professional capacity" in each individual case.

Findings of Fact

After due consideration of the record and matters officially noticed, it is

concluded that the following Findings of Fact are supported by substantial evidence and

are the Findings of Fact that best support Respondent's decision .

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

in relevant part:

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 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, 2011, 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.

2See 19 TEX. ADMIN. CODE § 157.I073(h); Bosworth v. East Central Independent School District, Docket

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

043-R10-1211 2

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 11.201, which grants supervisory rights to superintendents, and section

21.206(b) which requires a school board that does not timely give notice of proposed

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

year. Petitioner also alleges that Respondent violated 19 TEX. ADMIN. CODE § 150.1021,

which concerns the Commissioner's Recommended Appraisal process for administrators

and policy DN(LOCAL). Respondent denies these claims.

Rights

Petitioner claims her reassignment violated her rights under Texas Education

Code section 11.202,19 TEX. 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 Independent

School District, Docket No.1 06-Rl 0-496 (Comm'r Educ. 1999)

TEX. EDUC. CODE § 11.201

Texas Education Code 11.201 (d)(2) provides that superintendents have

responsibility for most assignments. Petitioner contends that Respondent's

043-RI0-1211 3

superintendent reassigned her in an arbitrary and capnclOUS manner and, hence, the

reassignment is invalid. However, a superintendent does not violate Texas Education

Code 11.20 1(d) when a superintendent poorly exercises an authority granted by this

section. The Commissioner has held that:

The provisions in question do not require this responsibility to be exercised fairly

or wisely. The provisions also do not prohibit a district from taking action against

superintendents who act rashly or unfairly.

S.R.S. v Groesbeck Independent School District, Docket No. 02S-RS-10S (Comm'r Educ.

2006). Texas Education Code 11.20 1(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 capnclOus.

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 7.0S7 to the prior jurisdictional statute, Texas

Education Code section 11.13. The Commissioner lacks jurisdiction under Texas

Education Code section 7.0S7(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-RI0-1211 4

(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.

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-RlO-1211 5

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-RI-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

nonrenewal. In such a case, the district is required to prove good cause and the case is

heard by an independent hearing examiner. TEX. EDUC. CODE §§ 21.211, 21.251 et seq.

Must Principals Remain Principals?

Petitioner argues that the Commissioner should overturn precedent and conclude

that 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.

TCNA

The Term Contract Nonrenewal Act3 ("TCNA") was passed by the 6ih

Legislature in 19814. Term Contract Nonrenewal Act, 6ih Leg., R.S., ch. 765, 1981 Tex.

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

Act."

4 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-RIO-1211 6

Gen Laws 2847. This law fundamentally changed teachers 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 Indep. 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 1 proceeding the

end of the employment fixed in the contract.

(b) In the event offailure to give such notice of proposed nonrenewal within the

time herein specified, the board shall thereby elect to employ such employee

in the same professional capacity for the succeeding school year.

statement of all the reasons for such proposed action.

(Emphasis added). If a teacher's contract was not noticed for nonrenewal, 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 ftrst time the issue of whether a teacher was

rehired in the same professional capacity could actually be raised.

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

not normally referred to as teachers.

043-R10-1211 7

Legislative History

The legislative history of the TCNA6 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

appealable to district court under the Administrative Procedures and Texas Register Act.

More to the point of the current controversy, SB 341 as filed defined "demotion"

in an expansive manner:

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

responsibility, or compensation, or the reassignment of a teacher outside the scope

of the teacher's teaching certificate or major or minor field of study.

Any loss of rank, responsibility, or compensation constituted a demotion. All of the

procedures for ending a contract described in the preceding paragraph also applied when

a teacher was proposed for demotion. Demotion could only occur after just cause was

proved at a hearing. Demotion would apply to a change in professional capacity as well

as many more situations. SB 341 made it through the Senate in substantially the same

form as it was filed.

In the House, SB 341 became the TCNA. The House Education Committee

passed its substitute for SB 341 with the following language in section 21.204(b).

6The 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-RlO-12Il 8

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."

Barich

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-R1a-484 (Comm'r Educ. 1985):

Petitioner argues that he did not receive an offer of employment in the

"same professional capacity," because he was never offered the same position he

had held during the 1982-83 school year; i.e., ROTC teacher. It would not be

reasonable, however, to conclude that the legislature intended that every teacher

who does not receive notice of his or her proposed nonrenewal by April 1 is

entitled to be employed in the exact same position the following school year.

Such a holding would require a school district to actually begin nonrenewal

proceedings by April 1 against every teacher it might conceivably wish to assign

to a different position the following year, or face a nonrenewal claim with any

reassignment effected after April 1.

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

"same professional capacity" (instead of lithe exact same position''), intended to

allow school districts to be flexible in their personnel assignments while

discouraging the abuse oj 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

043-RIO-1211 9

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, 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.

In the present case, Petitioner was employed during the 1982-83 school

year as an ROTC teacher. The district's offers of employment ranged from the

general (i.e., a statement that the district would comply with the Commissioner's

Order and that Petitioner should "report to work" at once) to the relatively - -

though not completely - - specific (i.e., references to teaching an elementary

grade, eighth grade social science, high school psychology, or high school

industrial arts). Nevertheless, it is clear - - and Petitioner concedes (Tr. 77-79) - -

that, although the district at no time offered to reinstate Petitioner as ROTC

teacher, it did offer to place him in a teaching position of some sort. Further, the

uncontested testimony is that Petitioner would not suffer any loss of salary due to

the placement. (See Finding of Fact No.4). In his Post-Hearing Brief, Petitioner

asserts that the other positions "are substantially different, involve different

responsibilities, and require different skills." (p. 3). However, Petitioner

introduced no evidence which would support this contention. More importantly,

no evidence was introduced which would support a holding that it would be

improper to reassign an ROTC teacher to one of the positions referred to by the

district.

Under the circumstances, it is concluded that the school district

unconditionally offered Petitioner a position in the "same professional capacity"

for the 1983-84 school year and that Petitioner rejected that offer. Petitioner was,

therefore, not employed by the district during the 1983-84 school year by choice,

and he has no cognizable claim against the district for correctly noting, on March

28, 1983, that he was not then employed by the district, and for advising him that

it did not 'intend to employ him during the 1984-85 school year.

(Emphasis added)

As shown above, the Commissioner's interpretation of the Legislature's intent is

supported by the legislative history. As the bill went through the Legislature more

flexibility was granted to school districts. The Commissioner held that the first question

to be asked to determine whether a reassignment is in the same professional capacity is

043-RI0-1211 10

whether the district could have contracted with the teacher for that position. This results

in several conclusions. An administrator cannot be reassigned as a classroom teacher. A

classroom teacher cannot be reassigned as a counselor. A counselor cannot be reassigned

as a nurse. A nurse cannot be reassigned as a librarian. It should be noted that as the

TCNA then read, classroom teacher and counselor were listed as such in the definition of

"teacher" found at Texas Education Code section 21.201(1):

"Teacher" means a superintendent, principal, supervisor, classroom teacher,

counselor or other full-time professional employee, except paraprofessional

personnel, who is required to hold a valid certificate or permit.

Administrator, nurse, and librarian were not listed as such in the definition of "teacher"

found at Texas Education Code section 21.201(1). From the first substantive decision

made in the first year the issue could be addressed by the Commissioner, the named

positions found at Texas Education Code section 21.201(1) were not held to be

professional capacities as the Commissioner used the term "administrator" that is not

listed to include superintendents and assistant principals.

The Commissioner goes on to find that employing one in the same professional

category is not sufficient to constitute same professional capacity in some instances.

While a superintendent and an assistant elementary school principal might be in the same

professional category of administrator they are not in the same professional capacity

because of major distinctions in authority, duties, and salary. The Commissioner

acknowledges that other factors could be considered. As to the issue directly presented in

Barich, it was found that reassigning an ROTC teacher to another teaching position was

valid because the positions were in the same professional capacity.

Hester

Decided just months after Barich, Hester v. Canadian Independent School

District, Docket No. 106-R1-585 (Comm'r Educ. 1985) further sets out what is meant by

"same professional capacity." Hester was employed under contract for the position

043-RIO-1211 11

teacher/coach. The Commissioner found that Hester was employed in the professional

capacity of teacher/coach and that since there was not substantial evidence to support the

nonrenewal of his contract that Respondent was required to employ Hester in the same

professional of teacher/coach for the next school year. It should be noted that coach was

not listed as such in the definition of "teacher" found at Texas Education Code section

21.201 (1). Nonetheless, the Commissioner found that by contract the district had made

teacher/coach Hester's professional capacity. How a teacher's contract defines the

teacher's professional capacity is significant but not necessarily dispositive. Carpenter v.

Wichita Falls Independent School District, Docket No. 247-R3-491 (Comm'r Educ.

1991). The Commissioner has held in several cases that a school district is bound by

professional capacities such as teacher/coach and teacher/dean that it creates in its

contractual relationships. If a school district hires a teacher under a term contract in a

particular capacity, even if such capacity is not specifically listed in the definition of

"teacher" in the TCNA, the district must rehire the teacher in that capacity for the next

school year if the district does not nonrenew the teacher's contract.

Progeny of Barich

Through the years SInce 1985, the Commissioner has consistently applied the

principles enunciated in Barich. Contracted to be a teacher or a coach, the district

properly reassigned the employee from the position of middle school teacher and high

school coach to the position of physical education teacher with scheduling and budgeting

responsibilities. Lieberman v. Eagle Mountain-Saginaw Independent School District,

Docket No. 192-R3-785 (Comm'r Educ. 1985). Contracted to be Teacher/Coach

Football (Head football coach), the district improperly reassigned the employee to a

teaching position. Grounds v. Tolar Independent School District, Docket No. 340-R3-

786 (Comm'r Educ. 1986). Contracted to be a teacher and head coach for duties as

assigned, the district properly reassigned the employee from teacher and head coach for

football, basketball, and track to the position of teacher and head coach for boys'

043-R10-1211 12

basketball. Reyes v. Culberson County Independent School District, Docket No. 229-R3-

787 (Comm'r Educ. 1987). Contracted to be a teacher/coach, the district properly

reassigned the employee from being a teacher and football coach to being a teacher and

baseball coach. Satcher v. Florence Independent School District, Docket No. 363-R3-

786 (Comm'r Educ. 1987). Contracted to be teachers/deans, the district improperly

reassigned the employees from teacher/dean positions to teacher positions. Abbott et al.

v. Ector County Independent School District, Docket No. 081-R3-1287, 105-R3-288

(Comm'r Educ. 1991). Contracted for 220 duty days, the district properly reduced duty

days to 188 days for the following school year. Marshall v. Seguin Independent School

District, Docket No. 177-R1-690 (Comm'r Educ. 1991). Contracted as an administrator,

the district properly reassigned the employee from the district wide position of Science

Support Specialist to the position of high school assistant principal. Carpenter v. Wichita

Falls Independent School District, Docket No. 247-R3-491 (Comm'r Educ. 1991). The

di strict properly reassigned employee from the position of high school assistant principal

to the position of middle school assistant principal. Andrews v. Houston Independent

School District, Docket No. 236-RI-897 (Comm'r Educ. 1997). Contracted as a

professional employee 7, the district properly reassigned the employee from the position

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

Independent School District, Docket No. 459-R3-891(Comm'r Educ. 1992). Contracted

as teachers, the district's reduction in salary by itself did not place the teachers in

different professional capacities. Goedeke v. Smyer Independent School District, Docket

No. l11-R3-1292 (Comm'r Educ. 1997). Contracted as teacher/assistant band director,

the district improperly reassigned the employee' to a teaching position. Salinas v. Roma

Independent School District, Docket No. 058-R3-1196 (Comm'r Educ. 1997).

Contracted as an administrator, the district properly reassigned the employee from

7 Keith does not discuss whether "professional employee" is a legitimate professional capacity. It does not

conclude that because the two positions at issue were professional that the reassignment is allowable. Keith

simply mentions what the contract at issue states.

043-RI0-1211 13

principal of an independent middle school campus to the position of principal or assistant

principal for grades 7 to 9 at a unified junior high/high school campus. Underwood v.

Rusk Independent School District, Docket No. 062-R3-198 (Comm'r Educ. 1998).

Contracted as a teacher/coach, the district properly reassigned the employee from the

position of varsity coach and teacher to the position of junior high school coach and

teacher. Young v. Leggett Independent School District, Docket No. 17S-R3-898

(Comm'r Educ. 1999). Contracted as an administrator, the district properly reassigned

the employee from the district wide position of attendance coordinator to the position of

middle school assistant principal. Veliz v. Donna Independent School District, Docket

No. OII-R3-999 (Comm'r Educ. 2000). The district properly transferred the employee

from one principal position to another. Yturralde v. El Paso Independent School District,

Docket No. 001-RIO-900 (Comm'r Educ. 2002). The district properly transferred the

employee from the position of high school principal to the position of elementary

principal. Ramos v. El Paso Independent School District, Docket No. 002-RI0-900

(Comm'r Educ. 2002). Contracted as an administrator, the district properly reassigned

the employee from the position of high school principal to the position of middle school

assistant principal. Pasqua v. Fort Stockton Independent School District, Docket No.

011-R3-1102 (Comm'r Educ. 2004). Contracted as an administrator, the district properly

reassigned the employee from a district-wide Director of Even Start to the position

middle school assistant principal. Perales v. Robstown Independent School District,

Docket Nos. OS2-RIO-I04, 084-R3-604 (Comm'r Educ. 2006). Contracted as an

administrator, the district properly reassigned the employee from a central office position

to an assistant principal position. Sanchez v. Donna Independent School District, Docket

No. 075-RIO-60S (Comm'r Educ. 2007). Contracted as an administrator, the district

properly reassigned the employees from a central office position to an assistant principal

position. Gonzalez v. Donna Independent School District, Docket No. 074-RIO-605

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

043-RIO-1211 14

the employee from a central office position to an assistant principal position. Perez v.

Donna Independent School District, Docket No. 086-Rl-705 (Comm'r Educ. 2007).

Contracted as an administrator, the district properly reassigned the employee from the

position of Executive Director of Special Education to the position of elementary school

assistant principal. Lehr v. Ector County Independent School District, Docket No. 003-

R3-0908 (Comm'r Educ. 2011). Contracted as professional employee, the district

improperly reassigned the employee from the position of assistant principal to the

position of classroom teacher. Wheeler v. Austin Independent School District, Docket

No. 008-R3-1108 (Comm'r Educ. 2011). Contracted as a professional employee, the

district properly reassigned the employee from the position of middle school principal to

the position of Human Resources Coordinator. Murillo v. Laredo Independent School

District, Docket No. 027-R3-0l08 (Comm'r Educ. 2012). The district properly

reassigned the employee from the position of elementary school principal to the position

of Program Specialist II. Montgomery v. Richardson Independent School District,

Docket No. 007-RlO-1008 (Comm'r Educ. 2012). Contracted as a professional

employee, the district improperly reassigned the employee from the position of Career

Specialist to the position of teacher. Tuck v. Alief Independent School District, Docket

No. 008-RIO-I007 (Comm'r Educ. 2012). Contracted as an administrator, the district

properly reassigned the employee from the position of principal to the position of

assistant principal. McCoy v. Kermit Independent School District, Docket No. 004-R3-

0908 (Comm'r Educ. 2012).

Administrators

As can be seen from the above, a great many of the same professional capacity

cases involved administrators. In Carpenter v. Wichita Falls Independent School

District, Docket No. 247-R3-491 (Comm'r Educ. 1991) the Commissioner held:

The question presented by this appeal is the scope and reach of the Term Contract

Nonrenewal Act, Texas Education Code section 21.204(b), in the context of the

043-RIO-1211 15

reassignment of those school district personnel coming under its protections.

Petitioner would have the Commissioner of Education hold that the phrase "same

professional capacity" as used in the TCNA is either defined by or in some way

informed by the definition of "teacher" found in § 21.20 I (I) of that Act. I do not

believe the statutory language can permit of such an interpretation. Rather, this

phrase is left undefined by the statute, and therefore its meaning is a matter for

interpretation by the Commissioner, in the first instance, and by the courts. The

decisions of the Commissioner (and the courts) have consistently looked to the

language of the employment contract itself and attempted to give the parties the

benefit of their bargain. In this case, the contract between the parties provides that

the position to which Petitioner was entitled was that of a generic "administrator."

Petitioner has not proven that hers was a contract of adhesion, which would

clearly change the result in this case. It is true that the Commissioner has held that

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

Barich v. San Felipe-Del Rio C1.S.D., Docket No. I 17-Rla-484 (Comm'r Educ.

May 1985). It is possible to imagine situations where the transfer clause of an

employment contract would be held to be unenforceable under § 21.204(b) 8.

However, this is not such a case. It has been the consistent view of the

Commissioner that the TCNA balanced its grant of limited tenure rights against

the considerable personnel management problems it might cause if imposed

int1exibly. Districts have responded to this law by creating broad classes within

which transfers do not implicate the TCNA. If taken to extremes, this tactic

would be against public policy as expressed in the TCNA, but I cannot make such

a finding in this case. The need for flexibility in making personnel changes is

strongest, and the argument for a rigid tenure system weakest, at the

administrative level. In short, I find the generic "administrator" position before

me consistent with the policies of the TCNA.

Administrators can often be reassigned to different administrator positions, but that does

not mean that they may be assigned to any administrator positions. Districts ,can by

contract establish broad professional capacities. However, professional capacities that

are too broad will not be allowed. Tuck v. Alief Independent School District, Docket No.

008-RIO-I007 (Comm'r Educ. 2012).

Deference

If the Commissioner were to decide to issue a new interpretation of "same

professional capacity" it would seem to be because his long standing interpretation was

incorrect. To determine whether the Commissioner's interpretation is correct, some

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

section 21 .206.

043-RI0-1211 16

cannons of statutory interpretation will be considered. The standards for deferring to an

agency's interpretation have been set by the Texas Supreme Court:

If there is vagueness, ambiguity, or room for policy determinations in a statute or

regulation, as there is here, we normally defer to the agency's interpretation unless

it is plainly erroneous or inconsistent with the language of the statute, regulation,

or rule. See Pub. Util. Comm'n v. Gulf States Uti/so Co., 809 S.W.2d 201, 207

(Tex. 1991); Stanfordv. Butler, 142 Tex. 692,181 S.W.2d 269, 273 (Tex. 1944).

TGS-NOPEC Geophysical v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). There is

ambiguity about what the phrase "same professional capacity" means. The phrase is not

defined in statute and is susceptible to multiple interpretations. The Commissioner's

interpretation should be deferred to.

Further, as the Commissioner's interpretation is a long standing interpretation, the

doctrine of legislative acquiescence applies:

If an ambiguous statute that has been interpreted by a court of last resort or given

a longstanding construction by a proper administrative officer is re-enacted

without substantial change, the Legislature is presumed to have been familiar with

that interpretation and to have adopted it. See Grapevine Excavation, Inc. v. Md.

Lloyds Ins. Co., 35 S.W.3d 1, 5,43 Tex. Sup. Ct. J. 1086 (Tex. 2000) (Once the

Texas Supreme Court and courts of appeals "construe a statute and the Legislature

re-enacts or codifies that statute without substantial change, we presume that the

Legislature has adopted the judicial interpretation. "); Sharp v. House of Lloyd,

Inc., 815 S.W.2d 245, 248, 34 Tex. Sup. Ct. J. 652 (Tex. 1991) ("'[A] statute of

doubtful meaning that has been construed by the proper administrative officers,

when re-enacted without any substantial change in verbiage, will ordinarily

receive the same construction. I This rule is only applicable where there has been

an affirmative long-standing administrative policy.") (quoting Humble Oil & Ref

Co. v. Calvert, 414 S.W.2d 172, 180, 10 Tex. Sup. Ct. J. 254 (Tex. 1967)); Tex.

Employers' Ins. Ass'n v. Holmes, 145 Tex. 158, 196 S.W.2d 390,395 (Tex. 1946)

("There is another well-settled rule to guide us in the construction of a statute

which is uncertain and ambiguous ... : 'Where a statute which has been construed,

either by a court of last resort or by executive officers, is re-enacted without any

substantial change of verbiage, it will continue to receive the same construction. III)

043-RI0-1211 17

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

175 (Tex. 2004). The Commissioner's interpretation is long standing. It goes back over

one-quarter century. It has been repeatedly affirmed.

The statute at issue has been amended multiple times since the Commissioner has

issued his interpretation. The TCNA has been amended by the Legislature in 1990, 1995,

2003 , and 2011. Term Contract Nonrenewal Act, 71 51 Leg. 61h 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, 78 th Leg R.S., ch. 484 § 1, 2003 Tex. Gen.

Laws 1749 (concerning distribution of district employment policies); 82 nd Leg. 15t C.S.,

ch. 8 §§ 8-11 , 2011 Tex. Gen Laws 5463 (allowing districts to hire their own hearing

examiners and making several changes concerning notice). The Legislature has

acquiesced in the Commissioner's interpretation of the phrase "same professional

capacity. "

Must Principal be a Professional Capacity?

Petitioner contends that her theory that a principal may only be reassigned to

another principal position is compatible with Barich although she does recognize that it

would require overruling other Commissioner's Decisions. Petitioner's theory rests on

the premise that because the definition of "teacher" found in the TCNA references the

position "principal" that "principal" is a professional capacity.

Petitioner's theory is not compatibie with Barich. Under Barich, the first question

is could the teacher contract for the position at issue. A principal can contract for an

assistant principal position as a principal certificate is needed for either a principal or

assistant principal position. 19 TEX. ADMIN. CODE § 241(d). The next question is that

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

043-RIO-1211 18

other factors so great that the reassignment is actually in another professional capacity.

This second consideration is set out right after the issue of reassigning a superintendent to

the position of assistant elementary principal is raised. Texas Education Code section

21.201 (1) in the original TCNA read as follows:

"Teacher" means a superintendent, principal, supervisor, classroom teacher,

counselor or other full-time professional employee, except paraprofessional

personnel, who is required to hold a valid certificate or permit.

If Petitioner's theory was compatible with Barich, the Commissioner would have said the

determination of whether a superintendent may be reassigned to the position of

elementary school assistant principal is a simple issue, not an issue that is "not. .. so

clear." Under Petitioner's theory, since "superintendent" is found in the definition of

21.201 (l), "superintendent" is a professional capacity. The result would be that a

superintendent cannot be reassigned to any position that is not a superintendent position.

There would be no reason to apply the standards set out in Barich to determine whether a

superintendent could be reassigned to an assistant principal position.

Petitioner's theory does have the virtue of simplicity. If a position is named in the

definition of "teacher" any reassignment would have to be in that same position.

However, it would be just as simple to apply the rule that if one holds an administrator's

position one can be reassigned to any administrator's position. The Commissioner's

solution is more complex than Petitioner's theory, but is more faithful to the statute at

issue. If the Legislature intended "same professional capacity" to mean any position

listed in the definition of "teacher," the Legislature would have said so. Instead, the

Legislature used an undefined phrase that it intended the Commissioner to interpret using

his experience in how schools operate. The Commissioner has consistently done so since

the first opportunity to interpret the phrase at issue.

043-RlO-1211 19

Like a Superintendent?

There are no Commissioner's Decisions that directly address whether a

superintendent may be reassigned to another position. There is no Commissioner's

Decision that finds that a superintendent was improperly reassigned. While Barich holds

that a superintendent cannot be reassigned to the position of assistant elementary school

principal, Barich was not a superintendent and was not reassigned to an assistant

principal position. There is a pre-TCNA case, Board of Trustees of Crystal City

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

ref'd n.r.e), which determined that a reassignment from superintendent to teacher was not

allowed:

Briggs was hired as superintendent of the public schools; under the statute, it is

clear that there is a vast difference in the position of superintendent of a district

answerable only to the Board of Trustees and that of a teacher in the schools. §§

16.07, 16.08 Education Code.

The court in Briggs found the fact that a superintendent was only answerable to the board

of trustees to be highly significant.

In the recent case of Lehr v. Ector County Independent School District, Docket

No. 003-R3-0908 (Comm'r Educ. 2011), the issue was raised whether it was appropriate

to reassign the Executive Director of Special Education to the position of assistant

principal. The Commissioner held:

The change in positions is unlike the move from superintendent to

assistant principal described in Barich. A superintendent according to statute is

"the educational leader and chief executive officer of the school district." TEX.

EDUC. CODE § 11.201(a). The position of superintendent is sui generis. There is

no administrator position that compares to it. The position of Executive Director

of Special Education is not mentioned in the Texas Education Code. In fact, the

certification mentioned in the job description for the position is

"midmanagement/supervisor" is no longer awarded. 9 Currently, the only

9 Hence, it is a good thing that the job description allows for alternative qualifications. While those who

received midmanagement and supervisor certifications retain them, it is not perhaps wise to limit

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

043-RIO-1211 20

certifications for administrator are superintendent and principal. lO There is no

certification that an Executive Director of Special Education is required to hold

under the Texas Education Code or the rules adopted under the code.

Here like in Briggs, the Commissioner noted that the position of superintendent is unique.

A superintendent is the chief executive officer of a school district. It almost goes without

saying that a superintendent is answerable only to the board of trustees. Only the board

of trustees has the authority to direct a superintendent. It is not the fact that the Texas

Education Code specifies many of the superintendent's duties and creates unique

procedures to nonrenew a superintendent's contract that makes the superintendent's role

sui generis. TEX. EDUC. CODE §§ 11.201, 21.212. It is instead the fact the superintendent

is only answerable to the school board as the chief executive officer of the school district

that makes the office of superintendent sui generis.

Petitioner is correct that principals have many duties spelled out in the Texas

Education Code. This does not make the position of principal sui generis. That the

Texas Education Code defines many duties of a principal makes the principal position a

well defined species. It does not make the principal position a genus all to itself. A

principal is answerable to the superintendent and often to other high administrators such

as deputy and assistant superintendents. A principal is answerable to the school board as

the school board can nonrenewal or terminate a principal's contract.

Further, while there is a principal certification, it is required for both being a

principal and an assistant principal. 19 TEX. ADMIN. CODE § 241 (d). That the same

training is required to be either a principal or an assistant principal is a further indication

that the position of principal is not sui generis. It is true that one who holds a

superintendent' s certificate also is qualified to hold the positions of principal and

assistant principal. 19 TEX. ADMIN. CODE § 242.1 (d). It is not surprising that the training

required to be a superintendent would also prepare one to a principal or an assistant

principal. But a superintendent is required to have more than a principal's certificate.

10 19 TEX. ADMIN. CODE ch . 241 and 242. All other administrator certifications were not issued after 2000 .

043-R10-1211 21

One who holds only a principal's certificate is not qualified to be a superintendent. A

superintendent's certificate requires significantly more training than a principal's

certificate. When a principal is reassigned, a school district is not limited to assigning the

principal to another principal position. Underwood v. Rusk Independent School District,

Docket No. 062-R3-l98 (Comm'r Educ. 1998), Pasqua v. Fort Stockton Independent

School District, Docket No. 011-R3-1102 (Comm'r Educ. 2004), Murillo v. Laredo

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

Montgomery v. Richardson Independent School District, Docket No. 007-R10-l008

(Comm'r Educ. 2012), and McCoy v. Kermit Independent School District, Docket No.

004-R3-0908 (Comm'r Educ. 2012).

Present Reassignment

In the present case, Petitioner was reassigned from the position of principal of an

intermediate school to the position of assistant principal of a high school. There is little

in the record that indicates what duties Petitioner had at those two positions. The record

does not demonstrate that applying the Commissioner's precedent as to what is the "same

professional capacity" results in a conclusion that the two positions were in different

professional capacities. However, Petitioner has not raised this issue. Petitioner's claim

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

other relevant factors, the two positions were in separate professional capacities.

Petitioner's claim is that a principal may only be reassigned to another principal position.

This is not the law. As the two positions are not shown to be in different professional

capacities, Respondent did not violate Texas Education Code section 21.206.

Possible Consequences

Petitioner contends that if the Commissioner does not to change his interpretation

of "same professional capacity" this could lead to a situation where a school district could

reassign a principal to a position that does not require a chapter 21 contract and then

make the principal an at-will employee for the following school year. It should be noted

043-Rl0-1211 22

that this is not the situation the Commissioner is presented with in this case. After her

reassignment Petitioner retains a chapter 21 contract.

But assuming without finding that this issue was properly raised, there are at least

two major problems with this claim. Petitioner chose not to contest her reassignment

under Commissioner's precedent but instead to solely argue that she could only be

reassigned to a principal's position. Whether or not Respondent reassignment meets the

Commissioner's standards has not been contested or ruled upon. Not contesting a

reassignment based on the standards previously established by the Commissioner could

result in not receiving a Chapter 21 contract, but the fault would not be with the

Commissioner's interpretation of Chapter 21.

Further, the case Petitioner relies on Harris v. Royse City Independent School

District, Docket No. OS7-R1-0S06 (Comm. Educ. 2009) had a very different fact

situation. Harris began his employment with Royse City Independent School District by

signing a contract for a non-certified administrator position that provided for renewal or

nonrenewal under chapter 21 of the Texas Education Code. This is not the type of

contract that Petitioner holds. Petitioner in her original assignment and her reassignment

was required to hold a principal's certificate.

Conclusion

The Petition for Review should be dismissed in part and denied in part. In many

cases, principals may be assigned to other administrative positions. In the present case, it

is determined that Petitioner was properly reassigned in the same professional capacity.

Conclusions of Law

After due consideration of the record, matters officially noticed, and the foregoing

Findings of Fact, in my capacity as Commissioner of Education, I make the following

Conclusions of Law:

1. The Commissioner, under Texas Education Code section 7.0S7(a)(2)(A),

has jurisdiction over the claims that Respondent violated Texas Education Code section

043-RIO-1211 23

21.206(b) and based on such a violation also violated Texas Education Code section

11.20 and 19 TEX. ADMIN. CODE § 150.1021.

2. The Commissioner, under Texas Education Code section 7.057(a)(2)(A),

lacks jurisdiction over violations of school district policies.

3. The Commissioner, under Texas Education Code section 7.057(a)(2)(A),

lacks jurisdiction over the claim Respondent violated its policy FN(LOCAL).

4. A superintendent does not violate Texas Education Code 11.20 1(d) when

a superintendent poorly exercises an authority granted by this section.

5. The Commissioner lacks jurisdiction over the claim that Respondent's

superintendent arbitrarily and capriciously reassigned her in violation of Texas Education

Code section 11.201(d) TEX. EDUC. CODE § 7.057(a)(2)(A).

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

nonrenewal when the teacher's contract is about to expire, the school district is required

to employ the teacher in the "same professional capacity" for the following school year.

A requirement to employ a teacher in the "same professional capacity" for the following

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

proposed nonrenewal is not given. TEX. EDUC. CODE § 21.206(b).

7. Petitioner's claim that Respondent failed to employ her in the same

professional capacity is ripe only as to the 2011-2012 school year.

8. One can be entitled to the protections of Texas Education Code Chapter

21, subchapter E based solely on a contract or district policy. One does not need to hold

a position described in the first sentence of Texas Education Code section 2l.20 1(1) to be

entitled to a Chapter 21 term contract.

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

section 2l.201(1) mayor may not be professional capacities for purposes of Texas

Education Code section 21.206(b).

043-RI0-1211 24

10. The fact that the position of "principal" is listed in the first sentence of

Texas Education Code section 21.201(1) does not mean that if one is employed by a

school district as a principal under a term contract that one is employed under the

professional capacity of principal. TEX. Eouc. CODE § 21.206(b).

11. A contract can establish a teacher's professional capacity under Texas

Education Code section 21.206(b) if the professional capacity is not impermissibly broad.

Whether a professional capacity is impermissibly broad is determined by comparing

differences in authority, duties, and salary and other relevant factors. In many cases, a

professional capacity of "administrator" will not be impermissibly broad for a

reassignment.

12. Petitioner's professional capacity under Texas Education Code section

21.206(b) is administrator.

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

administrator is impermissibly broad under the standards set out in Conclusion of Law

No. 11, Petitioner has not raised this issue.

14. As the fact that a term contract employee is employed in a principal

position does not make the employee's professional capacity "principal," Respondent did

not improperly reassign Petitioner to a non-principal position in violation of Texas

Education Code section 21.206(b).

15. Respondent did not reassign Petitioner in violation of Texas Education

Code section 21.206(b)

16. The Petition for Review should be denied in part and dismissed in part.

043-RIO-1211 25

After due consideration of the record, matters officially noticed and the foregoing

Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Edcuation,

it is hereby

ORDERED that the Petitioner's appeal be, and is hereby, denied in part and

dismissed in part. I nft--- (1

SIGNED AND ISSUED this ~ day of~ , 2013.

043-RlO-1211 26

Crosby ISD’s Appendix

TAB 2

CAUSE NO. D-I-GN-14-006I9

HERMENIA JENKINS, § IN THE DISTRICT COURT

Plaintiff, §

v. § TRA VIS COUNTY, TEXAS

CROSBY INDEPENDENT

§ ofiravl 5

DIstrIct court

flied In ~hOcounty, jellallcd

SCHOOL DISTRlCT and § fr.S 26 20\5

MICHAEL 1. WILLIAMS § /Ojl..o bJI..

THE STATE COMMISSIONER § At_ -O\strict Clerk

Vel~a L. Price,

OF EDUCA nON, §

Defendants. § 200'h JUDICIAL DISTRICT

FINAL JUDGMENT

On December 4, 2014, came to be heard and considered the cause of Plaintiffs

suit for judicial review of an administrative decision of the Texas Commissioner of

Education issued in Texas Education Agency Docket No. 043-RlO-1211. Having

considered the administrative record, pleadings, briefs, and arguments of counsel, the

Court affinns the Commissioner's decision.

IT IS THEREFORE ORDERED that the Commissioner's decision is affinned.

IT IS FURTHER ORDERED that all taxable costs of court are assessed against

the party who incurred them; that all remedies not specifically granted herein are denied;

and that this judgment disposes of all claims and all parties and is final and appealable.

SIGNED on this 7jJ;~ of fv\oiW.otl~ ,2015.

THE~ARKMEACHUM

Page I of2

Approved as to fonn:

Kevin F. Lungwitz

State Bar No. 12698790

The Lungwitz Law Firn" p.e.

3005 S. Lamar Blvd., Suite 0·109-362

Austin, Texas 78704-4785

Phone: (512) 461-0J 88

Fax: (866) 739·7138

kcvin(~lllng'vitzlnw.conl

FOR PLAINTIFF HERMENIA JENKINS

Davf;A~/~

State Bar No. 09775530 -

Rebecca B. Weimer

Slate Bar No. 24062597

Thompson & Horton LLP

3200 Southwest Freeway, Suite 2000

Houston. Texas 77027

Phone: (713) 554-6745

Fax: (713) 583-824S

dhl)dginsqljlhompsonhurtun.cuill

rwcill1erlf:lj.lhllmpS(~nhorlon.cl\ln

FOR DEFENDANT CROSS Y ISD

~~ndrew lutostanski

Assistant Attorney General

State Bar No. 24072217

Office of the Attorney General of Texas

Administrative Law Division

P.O. Box J2548.

Austin. Texas 78711-2548

Phone: (5 t2) 475-4200

Fax: (512) 320-0167 .

:1ndrcw.lutostunski@lcxasatlorncygcncrul.gov

FOR DEFENDANT COMMISSIONER

Pae:e 2 of:2.

Crosby ISD’s Appendix

TAB 3

DOCKET NO. 027·R3·0108

l~m . DA MURILLO *

BEfORE THE

v. § COMMISSIONER OF EDUCATION

LAREDO §

IN DEPENDENT SCHOOL DISTRICT § THE STJI TE or TEXAS

DECISION OF THE COMMISSIONER

Statement or the Case

Petitioner, Imelda Murillo. complains of actions and decisions of Respondent ,

Laredo Independent School District. Christopher Maska is the Admi nistrati ve Law Judge

appoi nted by the Commissioner of Education to preside over this cause. Petitioner' is

represented by Mark W. Robinett. I\((011lcy at Law, Austin, Texas. Respondent is

represented by .I. hancisco Tamez, AU-orney at Law, Laredo. Texas.

The Administrative Law Judge issued a Proposal for Decision recommendin g, Ibm

Petitioner's appeal be dismissed in part and denied in pan. Exceptions and replies were

timely HIed and considered.

Findings of Fact

After due consideration of the record and maHer:; officially noticed, it is

concluded that the following Find ings of Fact arc supported by substantial evidence and

arc the Findings of' Fact that best support Respondent's decision I.

I. Petitioner was employed under a chapter 21, subchapter E term contract

lor the 2006-2007 sc hool year. Petitioner was employed as a midd le schoo l principal fur

thc lirS! pari of the 2()06·2007 school year.

2. On Apri l \7, 2007, Petitioner signed a chapter 21. subchapter E term

contract with Respondent for the 2007-2008 school year. This was a 12-mol1lh contract

'!! 19 TEx. Al:lMIN. (()DE § 157. 107 J(h); BOlWlJrlh

I SC II. [(W Cemyal'ndependl1n1 School D i.l"fricl. Docket

N(1 090-R I -M03 (Comm'r Edu~ . 2003).

1l27·R3·0t08

Tf.o..SB

with a beginning date of July 2, 2007, 'Ilte contract states that il is "For Professional

Employee" but docs nol f1ll1her specify what Petitioner's duties will be .

3. On June 21. 2007, Petitioner was informed that effective immediately shl.·

was reassigned to the position of Human Resources Coordinator, This event occurred

during the 2007·2008 school year.

4. June 27. 2007, Petitioner requested a Level I conference on her grievance

which included claims thai Respondent changed her professional captlcity in violatioll of

Texas Edllcation Code section 21.206 and demoted her.

Discussion

Petitioner contends that Respondent changed her professional capacity In

violation of'Texas Education Code seclion 21.206 and demoted her.

Change of Professional Capacity

Petitioner contends that Respondellt changed her professiollal capacity from

principal 10 Human Resources Coordinator in violation of Texas Educafion Codc section

21.206;

(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 renew or not renew the contract.

(b) The board's failure to give the notice required by Subsection (a) within the

time speci tied constitutes an election to employ the teacher in tbe same

pro fessional capacity for the following school year.

Petitioner had a term contract for the 2006·2007 school year. Petitioner was not

proposed for nonrcnewal at the end of the 2006·2007 school year . Therefore,

Respondent was required to employ Petitioner during the 2007-2008 school year in same

pmfessional capacity as she was employed during the 2006-2007 school year. During the

2006·2007 school year Petitioner was employed both a<; a middle school principal and as

the Human Resources Coordinator. Petitioner contends that Respondent had to cmploy

her as a principal for the 2007·2008 school ycar.

027·RJ·OI08 2 TASS

The basis fo r the claim that Respondent wo uld have to employ Petitioner for the

2007·2008 school year in only one of the positions Pet itioner held under her 2006-2007

contract is no! clea r. A sc.:hool dist rict docs nOl violate Texas Educati on Code section

21 .206 when a term contract expires wi thout notice of proposed nonrenewa l and the

di:-;Iricr empl oys the teac her in a position lor the next school year that Ihc= teacher held

undcr the contract during the prev ious schoo l year. If a teacher holds the same position

in both school years. the teacher's proressional capacity has not c hanged. Because

Respondent employed Pet iti oner lor the 2007-2008 school in ft position that Petitio ner

held under her 2006·2007 contract, Respondent did not violate Texas Ed uca tion Code

st:ction 21.206.

Oemotion

Pt:titioner con tends that she was demoted. The Texas Education Code does O{lt

generally prohibit districts from demoting teachers. But the Commissioner may hllve

jurisdiction over a claim that a school has demoted a teacher in violation of the teacher's

written contract. TEX . EDUC. CODE § 7.057(a)(2)(B). However, violations of some

sections or the Texas Education Codc could also rcsult in a demotio n. for exampl e. if

mid-year a d istrict decided to pay teachers less than required by Texas Education Code

~cction 21.402. the Minimum Salary Schedule, this could be both a vio lation of school

laws of th is state clOd a demotion in vio lati on of a contract. Since, Petitioner rai ls to cite

lu a statute that may have been violated as to hcr clai m or demotion . the issue fur the

Commissioner to decide is whether a demotion occurred that violated Pe titione r's written

employmen t coni rae\.

As noted above, Petitioner's cbange in positions occurred during the 2006-2007

school year. Pet itioner's 2006-2007 contract is not io thc record nor is thc re signi fi ca nt

discussion of the contract. Petitioner has failed to indicate in pleading and brieling what

provision of Pctit ioner's 2006-2007 contract may have been vioh\ted. Whi le the 2007.

2008 contract is in the record, Petitioner ha.o; fai led to indieale in pleading and briefing

027-KJ ·OI OR J

TASS

which provision or this contract may have been violated. As Petitioner has fuiled to

specify which provision or Petitioner' s contract that Respondent may have violated , the

Commissioner lacks jurisdiction over Petitioner's demotion claim.

Conclusion

Respondent did not violate Texas Education Code section 21.206. Th~

Commissioner lacks jurisdiction over Petitioner's demotion claim.

Conclusions of La\¥

Aller duc consideration of the record, mailers officially noticed , and the foregoing

Findings of Pact, in my capacity as Commissioner of Education, I make the following

Conclusions ofl.aw:

I. The Commissioner of Education has jurisdiction over this cause under

Texas Education Code section 7.0S7{a)(2)(A).

2. 'l'hc Commissioner of Education lacks jurisdiction over this cause under

Tcxas Education Code section 7.057(a)(2)(B).

J. A demotion claim is normally brought under Texas Education Code

sl.!ction 7.057(a)(2)(8) because there is no general prohibition to demotions under the

school laws ofthis state.

4. Petitioner's demotion claim is a contract claim.

5. Because Petitioner has lailed the identify a potential violation of her

written employment contract that causcs or would cause monetary harnl in connection

with hcr demotion claim, the Commissioner lacks jurisdiction over Petitioner' s dcmotion

Claim.

fi. Texas Education Code section 21.206 requires a school district that docs

not propose the nonrcncwal of an expiring term contract to employ the teacher ill the

same professional capacity for the following school year.

017· RJ·0 I08 4

7. A school district does nOl violate Texas Education Code section 21.206

whcn a term contract expircs without notice of proposcd nonrenewal and the district

employs the tcacher in a position for the next school year that {he teacher held under the

contract during tbe previous schoo l year.

8. Because Respondent emp loyed Petitioner for the 2007~2008 school year in

a position that Petitioner held undcr her 2006·2007 contract, Responden! did not vio late

Texas Education Code section 21.206.

9. The Pl:tition for Review should be dismissed in part and denied in part.

A ner 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 hercby

ORDERED that the Petitioner's appeal be. and is hereby, dismissed in part and

denied in part. ,.-rl'h

SIGNED AND ISSUED this ~Cday of ~ , 2012.

ROBERTscon

COMM ISSIONER OF EDUCA nON

027-RJ-U I OR 5

Crosby ISD’s Appendix

TAB 4

DOCKET NO. 093-R8-805

TAJUANA HOLMAN § BEFORE TflE

~§ COMMISS IONER OF EDUCATION

ARP INDEPENDENT §

SCHOOL DISTRICT § THE STATE OF TEXAS

DECISION OF THE DESIGNEE OF THE COMMISIONER

Statement of the Case

Petitioner, Tajuann Holman. appeals the action of Respondent, Arp Independent

School District, concerning her grievance. Christopher Maska is the Administrative Law

Judge appointed by the Commissioner of Education. Petitioner appeared pro se,

Respondent is represented by John C. Hardy, Attorney at Law, Tyler, Texas.

The Administrative Law Judge issu~d a Proposal for Decision recommending that

Petitioner's appeal be dismissed. No exceptions were filed.

Findings of Fact

The foHowi ng Findings of Fact are not disputed:

1. Respondent has established a uniform policy only for its middle school.

2. None of Petitioner's children are currently attending Respondent's

middle school.

Petitioner contends that Respondent should grant an exception to the school

uniform policy. Respondent maintains thar the issue is not ripe.

Ripeness

Respondent has adopted a school uniform policy under Texas Education Code

section 11 .162 for its middle school. This provision of the Education Code allows

parents to opt oul of a uniform requirement if the parent states a bona fide religious or

philosophical objection to uniforms. TEX. Eouc. CODE § 11.162(c). Petitioner has no

N093-RS-S05 -\-

TASS

children al the Arp Middle School Ihis year bUI next year it is likely that one of her

children may attend Arp Middle SchooL A case is ripe if there is a concrete injury, a

remote injury is not sufficient. Waco Indcp. Sell. Di.r/. v. Gibson, 22 S.W.3d 849, 85 1-

852 (Tex. 2000). Ripeness is a component of subject matter jurisdiction. Jd. This case is

not ripe because it is uncertain whether Arp Middle School will have a uniform policy

next year and it is not certain that Respondent' s child will be attending Arp Middle

School next year. Although it is likely that the chi ld will be attending the middle school,

such events as Ihe family moving out of district could occur. For these reasons, this case

is not ripe.

Conclusion

This case should be dismissed because it is not ripe.

Conclusions of Law

After due consideration of the record, matters officially noticed. and the foregoing

Findings of Fact, in my capacity as designee of the Commissioner of Education, I make

the following Conclusions of Law:

1. TIle Commissioner lacks jurisdiction to hear this cause under Texas

Education Code section 7.057.

2. Ripeness is a component of subject matter jurisdiction.

3. Because Petitioner's children are I\ot currently affected by Respondent's

uniform policy. this case is not ripe.

4, This case should be dismissed for lack of jurisdiction. 19 TEX. Am.iIN.

CooE§ 157.1056(0}.

#093-RS-S05 -2-

TASS

ORDER

After due consideration of the record. matters officially noticed and the foregoing

Findings of Fact and Conclusions of Law. in my capacity as designee of the

Commissioner, it is hereby

ORDERED that Petitioner's appeal be, and is hereby. DISMISSED.

SIGNED AND ISSUED this..2I1Jl 'doy of ;\0.11'1 ...... ,2007.

ROBERT SCOTT

CHIEF DEPUTY COMMISSIONER

BY DESIGNATION

N093-R8-805 -3-

TASS

Crosby ISD’s Appendix

TAB 5

DOCKET NO. 113-Rl0-0812

PEGGY GUSTAPSON BEFORE THE

COMMISSIONER OF EDUCATION

CANUTILLO §

INDEPENDENT SCHOOL DISTRICT § THE STATE OF TEXAS

DECISION OF THE COMMISSIONER

Statement of the Case

Petitioner, Peggy Gustafson, appeals the denial of her grievance by Respondent,

Canutillo 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 Jorge Luis Rivas, Jr., Attorney at Law. El Paso, Texas. Respondent is

represented by Steven J. Blanco and Jerry R. Wallace, Attorneys at Law, El Paso, Texas.

The Administrative Law Judge issued a Proposal for Decision recommending thar

Petitioner’s appeal be denied in part and dismissed in part. Exceptions and replies were

timely filed and considered.

Findina 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’.

1. Petitioner was employed by Respondent under a two year term contract for

the 2011-2012 through the 2012-2013 school years for an administrator position.

2. Petitioner served as the principal of the Northwest Early College High

School from January 2008 until June, 7,2011.

3, On June 7, 2011, Petitioner was reassigned as assistant principal for the

Canutillo Elementary School.

See 19 TEX. ADMIN, CoDE 157.1073(h): Bosworrh i’. East Central Independent School District, Docket

No. 090-Ri-803 (Comm’r Ethic. 2003).

113-R3-0812

4. Petitioner earned the same salary for the 2011-2012 school year as she had

earned for the 2010-201 1 school year. which was $78,600. However, under Respondent’s

salary schedule Petitioner’s salary for the 201 1-2012 school year should have been

S68,40&84.

Discussion

Petitioner asserts that Respondent improperly reassigned her and demoted her.

Petitioner makes three claims: that she was not reassigned in the same professional

capacity, that she was transferred from a principal to an assistant principal position and that

the position had a lesser pay, and that the transfer violates certain statutes. Respondent

contends that Petitioner’s new position is in the same professional capacity, Respondent

also contends that the Commissioner lacks jurisdiction over some of Petitioner’s claims.

Jurisdiction

The Petition for Review alleges that Respondent violated the Texas Whistleblower

Act and Chapter 21 of the Texas Labor Code. Under Texas Education Code section

7.057(a)(2) the Commissioner has jurisdiction over violations of the “school laws of this

state” and violations of certain written employment contracts. The “school laws of this

state” are defined as the first two titles of the Texas Education Code and the rules adopted

under those titles, TEx. Eouc, CoDE § 7,057(fX2). The Texas Whistleblower Act and the

Texas Labor Code do not meet the definition of the “school laws of this state.” The

Commissioner lacks jurisdiction over the Texas \Vhistleblower Act and the Texas Labor

Code under Texas Education Code section 7.057(a)(2)(A).

In many cases, statutes existing when contracts are entered into are incorporated

into the contracts. C’eniral Education Agency v. George West Indep. Sch. Dist. 783 S .W.2d

200, 201 (Tex. 1989). However, as the Commissioner held in Barborak v. Oalcwood

Independent School District, Docket No. 224-R3-797 (Comm’r Educ, 1999), when a

statute is incorporated into a contract, the whoLe statute including the enforcement

mechanism is incorporated. That enforcement mechanism must be exhausted before a case

I 13-R10-0812

can be brought to the Commissioner. As Petitioner has not exhausted the statutory

enforcement mechanisms, the Commissioner lacks jurisdiction under Texas Education

Code section 7.057(a)(2)(B) over Petitioner’s claims under the Texas Whistleblower Act

and the Texas Labor Code.

Same Professional Capacity

As a practical matter, it is very likely that if one is transferred from a principal

position to an assistant principal position. that under the school district’s salary schedule

one will be earning a lesser salary. So while this case cannot be viewed as solely asserting

that a principal cannot be transferred to an assistant principal position, it is very similar to

such a case.

Must Principals Remain Principals

Petitioner argues that if a principal’s contract is not nonrenewed. that a school

district is limited to reassigning a principal to another principal position for the next school

year. Petitioner does not argue that comparing the particular duties and responsibilities of

the two positions leads to the conclusion that the two positions are not in the same

professional capacity. Petitioner argues that the only position that is in the same

professional capacity of a principal is the position of principal. Petitioner’s argument

would require Commissioner’s precedent to be overturned. Precedent should not be lightly

overturned. Teachers and school districts base important decisions in reliance on

Com

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