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

ACCEPTED
03-15-00313-CV
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
v.

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

i
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

ii
 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

iv
 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

v
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

vi
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.)

1
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.
2
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?

ix
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

1
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

3
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.
2
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

3
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 §

4
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

5
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

6
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

7
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

8
 the date that hand delivery is attempted, the notice must be mailed by
prepaid certified mail or delivered by express delivery service to the
teacher's address of record with the district. Notice that is postmarked
on or before the 10th day before the last day of instruction is
considered timely given under this subsection.

(b) The board's failure to give the notice required by Subsection (a)
within the time specified constitutes an election to employ the teacher
in the same professional capacity for the following school year.

(c) This section does not apply to a term contract with a
superintendent.

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.)

4
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).
9
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

10
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

11
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

12
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,

13
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

14
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
15
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.

16
 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

17
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).

18
 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

19
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.

20
 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

21
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.

22
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;

23
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.

5
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
24
 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.”
6
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
25
 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).
26
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

27
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

28
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.

29
 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

30
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

31
(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.

32
 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.

33
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

34
 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

35
 No. 03-15-00313-CV

IN THE COURT OF APPEALS FOR THE
THIRD JUDICIAL DISTRICT OF TEXAS
AUSTIN, TEXAS

HERMENIA JENKINS,
Appellant
v.

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

36
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

37
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
2
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.

(c) This section does not apply to a term contract with a superintendent.

If a school district fails to timely give a teacher notice of proposed nonrenewal when the

teacher's contract is about to expire, the school district is required to employ the teacher

in the "same professional capacity" for the following school year. A requirement to

employ a teacher in the "same professional capacity" is triggered only when a contract is
about to expire and timely notice of proposed nonrenewal is not given. The other time

the phrase "same professional capacity" is used in the Texas Education Code is found at

Texas Education Code section 21.212. This provision is very similar to Texas Education

Code section 21.206. The major distinction is that it applies exclusively to

superintendents.

In the present case, it would seem that no violation of Texas Education Code

section 21.206 could occur because when Petitioner was reassigned her contract was not

about to expire. Petitioner's contract will not expire until the end of the 2012-2013

school year. Petitioner's claim concerning Texas Education Code section 21.206 would

not appear to be ripe. However, Petitioner points out that she was employed by

Respondent as a principal just prior to her signing her 2011-2013 contract. Hence, during

the 2011-2012 school year, Respondent was required to employ Petitioner in the same

professional capacity as Petitioner held during the 2010-2011 school year. However, if

043-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.
(c) The notice of proposed nonrenewal required in this section shall contain a
statement of all the reasons for such proposed action.
(Emphasis added). If a teacher's contract was not noticed for 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

V.
~§ 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
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

I 13-RIO-0812
 The Term Contract Nonrenewal Act
2 (“TCNA”) was passed by the 67
th
Legislature
in 1981g. Term Contract Nonrenewal Act, th
67
Leg., R.S,, ch, 765, 1981 Tex. Gen Laws.
This law fundamentally changed teacher
4 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. Seferr i Lingleville
Indep. Sc/i. 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 TC?’A, that was then numbered section 21.204,
required a district that did not nonrenew a teacher’s contract to hire the teacher for the next

school year:

Hearing
(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 ofproposed nonrene wa! within the
time herein specUied, the board shall thereby elect to employ such employee in
the same professional capacityfor the succeeding school year.
(c) The notice of proposed nonrenewal required in this Section shall contain a
statement of all the reasons for such proposed action.
(Emphasis added). If a teacher’s contract was not nonrenewed. the school board was not
only required to hire the teacher for the next school year but also to employ the teacher in

2 Section 1 of SB 341 itself provided that “this act shall be known as “The Term Contract Nonreriewal
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
school year. That makes the 1984-1985 school year, the first time the issue of whether a teacher was
rehired in the same professional capacity could actually be raised.
From the beginning, the TCNA has used an expansive definition of “teacher” that includes many who are
not normally referred to as teachers.

1 13-R1O-0812 4
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.”
Legislative History
The legislative history of the TCNA
5 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. SB 341 made it through the Senate in substantially the same form as it was
filed.

In the House, SB 341 became the TCNA. The House Education Committee passed
its substitute for SB 341 with the following language in Section 21.204(b).

The relevant legislative history may be found at the website for the Legislative Reference Library of
Texas. h//vywJrLtate.tx.usiindex.cfrn.

ll3-RlOO8l2
 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”
Bunch
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 Bunch v. San Feiipe-Del Rio Consolidated Independent School District, Docket No.
I 17-Rla-484 (Comm’r Educ. 1985):

Petitioner argues that he did not receive an offer of employment in the
‘same professional capacity,” because he was never offered the same position he
had held during the 1982-83 school year; i.e., ROTC teacher. It would not be
reasonable, however, to conclude that the legislature intended that every teacher
who does not receive notice of his or her proposed nonrenewal by April I 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” ünstead of “the exact same position ‘), intended to
allow school dLctricts to be flexible in their personnel assignments while
discouraging the abuse of the district’s inherent or contraclual reassignment
authority, In other words, the district may place a teacher whose employment has
been renewed by operation of law in a position dftrent from that to which the

113-RIO-0812 6
 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 eiitc’red 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 ofa classroom teacher;
a classroom teacher may not be placed in the capacity ofa counselor; a counselor
may not be placed in the capacity of a nurse; a nurse may not be placed in the
capacity ofa 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., administrcilorj, but nevertheless, be invalid (e.g., from
superintendent to assistant elementwy school princmal,). Factors to be considered
in determining the validity of such ci placement include, but are not necessarily
limited to, differences in au(hority, duties, and sala,y,
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 skiIls. (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

113-R1O-0812 7
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 he 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 a listed term 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, I-fester v. Canadian Independent School District,
Docket No. 106-Rl-585 (Comm’r Educ. 1985) further sets out what is meant by “same
professional capacity.” Hester was employed under contract for the position teacher/coach.

113-RIO-0812 8
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 2L201(l).
Nonetheless, the Commissioner found that by contract the district had made teacher/coach
Hester’s professional capacity. I-low 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 numerous 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.
Prouenv of Barich
Through the years since 1 985, 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. Ground 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’ basketball. Reyes v. Culberson

113-RiO-0812 9
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 ci 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. 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 district properly reassigned employee from the position of high school assistant
principal to the position of middle school assistant principal. Andrews v. Houston
Independent School District, Docket No. 236-Rl-897 (Comm’r Educ. 1997). Contracted
as a professional employee
, the district properly reassigned the employee from the position
6
of athletic director to the position of teacher/assistant principal. Keith v. Tarkingron
Independent School District, Docket No. 4594U-891(Comm’r Educ. 1992). Contracted
as teachers, the district’s reduction in salary by itself did not place the teachers in different
professionat capacities. Goedeke v. Smyer Independent School District, Docket No. 111-
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 principal of an
independent middle school campus to the position of principal for grades 7 to 9 at a unified

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.

113-Rl0-0812 10
junior highlhigh 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 from varsity coach and teacher to the position
of junior high school coach and teacher, Young v Leggett Independent School District,
Docket No. I 75-R3-898 (Comm’r Edue. 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. 011 -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-R10-900 (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-
R10-900 (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. 01 l-R3-1102 (Comm’r Educ. 2004). Contracted as an administrator, the district
properly reassigned the employee from a district-wide Director ofEven Start to the position
of middle school assistant principal. Perales v. Robstown independent School District,
Docket Nos. 052-R10-104, 084-R3-604 (Comm’r Educ. 2006). Contracted as an
administrator, the district properly reassigned the employee from a central office position
to an assistant principal position. Sanchez v. Donna Independent School District, Docket
No. 075-R10-605 (Comm’r Educ. 2007). Contracted as an administrator, the district
properly reassigned the employee from a central office position to an assistant principal
position. Gonzalez v. Donna Independent School District, Docket No. 074-R10-605
(Comm’r Educ, 2007). Contracted as an administrator, the district properly reassigned 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

1I3R1Q-Q812 II
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. 201 1). Contracted as a 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-R3-0108 (Cornm’r Educ. 2012). The district properly reassigned the employee

from the position of elementary school principal to the position of Program Specialist 11.
Montgorneiy i Richardson Independent School District, Docket No. 007-Ri 0-1008
(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-R10-1007 (Comm’r Educ.
20 12). 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 Carpenwr 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
reassignment of those school district personnel coming under its protections.
Petitioner would have the Commissioner of Education hold that the phrase “same
professional capacity” as used in the TCNA is either defined by or in some way
informed by the definition of ‘teacher’ found in § 21.201(1) of that Act. I do not
believe the statutory language can permit of such an interpretation. Rather, this

113-R1Q-0812 12
 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 4 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 .J.S.D., Docket No. 1 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) .

However, this is not such a case. It has been the consistent view of the
Commissioner that the TCNA balanced its grant of limited tenure rights against the
considerable personnel management problems it might cause if imposed inflexibly.
Districts have responded to this law by creating broad classes within which
transfers do not implicate the TCNA. If taken to extremes, this tactic would be
against public policy as expressed in the TCNA, but I cannot make such a finding
in this case. The need for flexibility in making personnel changes is strongest, and
the argument for a rigid tenure system weakest, at the administrative level. In short,
I find the generic “administrator” position before me consistent with the policies of
the TCNA.
Administrators can often be reassigned to different administrator positions, but that does
not mean that they ma 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. AliefIndependent School District. Docket No. 008-R1 0-1007
(Comm’r Educ. 2012).
Deference
If the Commissioner were to decide to issue a new interpretation of “same
professional capacity” it would seem to be because his long standing interpretation was
incorrect. To determine whether the Commissioner’s interpretation is correct, some
cannons of statutory interpretation will be considered. The standards for deferring to an
agency’s interpretation have been set by the Texas Supreme Court:

The old Texas Education Code section 2 I .204 is the predecessor of the current Texas Education Code
section 21.206.

113-Rl0-0812 13
 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. Ulil. Comm’n v. GulfStares Utils. Co.. 809 S.W.2d 201, 207 (Tex.
199fl; Stanjbrdv. 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 ofLloyd, Inc.,
815 S.W.2d 245,248.34 Tex. Sup. Ct. J. 652 (Tex. 1991) (“[A] statute of doubtful
meaning that has been construed by the proper administrative officers, when re
enacted without any substantial change in verbiage, will ordinarily receive the same
construction.’ This rule is only applicable where there has been an affirmative long
standing administrative poticy.”) (quoting Humble Oil & Ref Co. v. Calve,’!, 414
S.W,2d 172, 180, 10 Tex. Sup. Ct. J. 254 (Tex. 1967)); Tex. Employers’lns. Ass’n
v. Holmes, 145 Tex. 158, 196 S.W.2c1 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.”)
Tex. Dept. of Protective and Regilatoiy Services v. Megs Child Care, 145 S.W.3d 170,
176 (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, 71st Leg. t6
h C.S., cli. I § 3.14, 1990 Tex.

113-RIO-0812 14
Gen. Laws I (Allowing the hearing to be heard by a board designated impartial hearing
officer); Term Contract Nonrenewal Act, th
74
Leg. R.S.. ch. 260 ch. 21 subch. E and F,
1995 Tex. Gen. Law 2207 (Making many changes including modifying the definition of
“teacher” and allowing boards to use the Independent Hearing Examiner Process); Term
Contract Nonrenewal Act, th
78 Leg R.S., ch. 484 § 1, 2003 Tex. Gen. Laws 1749
(Concerning distribution of district employment policies); 82 Leg. 1 CS., ch, 8 § 8-il,
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?
It could be argued that the theory that a principal may only be reassigned to another
principal position is compatible with Barich. Such a 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.

This theory is not compatible with Barich. Under Bunch, the first question is could
the teacher contract for the position at issue. The next question is that even if the position
could be contracted for are differences in authority, duties, salary and 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(l) 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 this theory were 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

1 13-R1O-0812
this theory. since “superintendent” is found in the definition of “teacher” in section
2L201(1). “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.
This 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 the alternative theory, but is more faithful to the statute at issue. If the
Legislature intended that “same professional capacity” means 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.
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 Barieh 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

113-RIO-0812 16
 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 highly significant.

In the recent case of Lehr v. Ector County Independent School District, Docket No.
003-R3O908 (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. 8 Currently, the only
certifications for administrator are superintendent and principal.
9 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 goes without saying
that a superintendent is answerable to the board of trustees. It is not the fact that the
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

suigeneris. 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 sni generis.

While it is correct that principals have many duties spelled out in the Texas
Education Code, this does not make the position of principal sui generis. Because the

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,
19 TEx, ADMIN. CODE cli. 241 and 242. All other administrator certifications were not issued after 2000.

I 13-Rl0-0812
Texas Education Code defines many duties of a principal, the principal position is 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 sni 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, 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. Fasqua v. Fort Stockton Independent School District, Docket No. 011-

R3-l 102 (Comrn’r Educ. 2004).
Present Reassignment

In the present case, Petitioner was reassigned from the position of high school
principal to the position of elementary school assistant principal. The only arguments that
Petitioner makes in her briefing is that she could not be assigned to an assistant principal

position with a salary reduction. Before the school board, Petitioner had the burden of

proof. It was Petitioner’s responsibility to show that the reassignment was not in the same

professional capacity. Before the Commissioner it is Petitioner’s job to show that the board

of trustees’ decision is not supported by substantial evidence, arbitrary, capricious or

unlawful. Petitioner has not chosen to argue that comparing differences in authority,

duties, and any other relevant factors that the two positions are not in the same professional

1I3R1OO812 18
capacity, with the exception that Petitioner argues that her salary was reduced. Because
the issue of the authority and responsibilities was not raised, the size of the two schools
and just what Petitioner was doing in those two jobs is unknown. An assistant principal
does not have particular statutory duties, but may be assigned a great range of duties.
Because the issue was not raised, it is concluded that there was no significant difference in
actual authority and responsibilities between the two positions.

Change iny
As a principal and for her first year as an assistant principal, Petitioner earned
$78,600. According to the salary schedule, for her first year as an assistant principal
Petitioner should have earned $68,406.84. The difference between the two salaries is

$10,193.16. The question becomes whether this change in pay, along with the change from

principal to assistant principal, is sufficient to amount to a change in professional capacity.

The change is salary is not insignificant. It no doubt would be felt by Petitioner. However,

the change in salary is not such that it indicates a change in professional capacities. Again

it should be pointed out that Petitioner had the burden of proof before the school board.
There is no evidence in the record of what range of salaries principal receive at Respondent
or in other school districts across the state. It would not be surprising to find that some
principals in Texas receive less than $68,406.84 per year. But unless such salary evidence

is presented. it cannot be determined that the change in salary, along with the change from

being a principal to the position of assistant principal, is sufficient to prove a change in

professional capacity. No violation of Texas Education Code section 21.206(b) occurred.

Demotion

Petitioner citing Young v. Leggeu Independent School District, Docket No, 175-

R3-898 (Comm’r Educ. 1999) contends that the change in pay and position constitute a

demotion. 1-lowever, there can only be a demotion case that the Commissioner has

jurisdiction over if there is a violation of a written employment contract that causes or

would cause monetary harm. TEX. EDUC. CODE § 7.057(A)(2)(B). Petitioner makes such

113-R1O-0812 19
a claim, but also admits that the change in position was permissible under the explicit terms

of contract
. See Petitioner’s Brief in Support of Claims for Relief, p. 3. Hence, the
10
demotion would have to be shown to be a violation of statute that was incorporated into

the contract for Petitioner to prevail. As shown above, the only statutory claim that the
Commissioner has jurisdiction over is resolved against Petitioner. The TCNA does not
prohibit Petitioner’s transfer. If a transfer, which includes a change in title and a decrease

in pay, is allowable under a contract and statutes incorporated into the contract, there is no

unlawful demotion. If neither contract nor statute prohibits a change in position and salary’,
no unlawful demotion has occurred. Petitioner was not demoted.

Conclusion

The Petition for Review should be denied, 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 has jurisdiction over this case under Texas Education
Code section 7.057(a)(2) except for the claims that Respondent violated the Texas

Whistleblower Act and the Texas Labor Code.

2. 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 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, EDuc. CoDE §
7.057(0(2).

H)
The contract did not state a particular salary for each year of the contract but staled the salary would be
,

set by the school board.

]l3-R10O2l2 20
 3. 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 Whistleblower Act and the Texas Labor Code under Texas Education Code section

7.057(a)(2)(A).

4. In many cases, statutes existing when contracts are entered into are
incorporated into the contracts. However, 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 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.

5. One can be entitled to the protections of Texas Education Code Chapter 21,
subchapter E based solely on a contract or district policy. One does not need to hold a
position described in the first sentence of Texas Education Code section 21.201(1) to be
entitled to a Chapter 21 term contract.
6. The positions described in the first sentence of Texas Education Code
section 21.201(1) may or may not be professional capacities for purposes of Texas
Education Code section 21.206(b).
7. The fact that the position of “principal” is listed in the first sentence of
Texas Education Code section 21.201(1) does not mean that if one is employed by a school
district as a principal under a term contract that one is employed under the professional
capacity of principal. TEx. EDUC. CODE § 21.206(b).
8. A contract can establish a teacher’s professional capacity under Texas
Education Code section 2 1.206(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

fl3-RIO-0812 21
professional capacity of “administrator” will not be impermissibly broad for a
reassignment.
9. Petitioner’s professional capacity under Texas Education Code section
21.206(b) is administrator.
10, As Petitioner did not contest that her contractual professional capacity of
administrator is impermissibly broad under the standards set out in Barich and its progeny.
Petitioner has not raised this issue.
11. The mere fact that a term contract employee is employed in a principal
position does not make the employee’s professional capacity “principal,”
12. In determining whether a transfer is permissible for one employed in the
professional capacity of administrator, one must compare responsibilities, authority, salary,
and other relevant facts between the two positions.

13. Respondent did not improperly reassign Petitioner to a non-principal
position in violation of Texas Education Code section 21.206(b).
14. Respondent did not reassign Petitioner in violation of Texas Education
Code section 21.206(b).

15. There can only be a demotion case that the Commissioner has jurisdiction
over if there is a violation of a written employment contract that causes or would cause
monetary harm. TEX. EDUC. CODE § 7.057(A)(2)(B).
16. If a transfer, which includes a change in title and a decrease in pay, is
allowable under a contract and statutes incorporated into the contract, there is no unlawful
demotion. If neither contract nor statute prohibits a change in position and salary, no
unlawful demotion has occurred. Petitioner was not demoted.

17. The Petition for Review should be denied in part and dismissed in part.

I 13-RIO-0812
 _____

Order
After due consideration of the record, matters officially noticed and the foregoing
Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Education,

it is hereby

ORDERED that the Petitioner’s appeal be. and is hereby, denied in part and
dismissed in part.

SIGNED AND ISSUED this day of 2014.

COMMISSIONER OF EDUCATION

I 13-R1O-0812 23
Crosby ISD’s Appendix

TAB 6
• ELCORAMOS

v.
DOCKET NO. 002-R 10-900

§
§
§
BEFORE THE

§ COMMISSIONER OF EDUCATION
§
EL PASO INDEPENDENT §
SCHOOL DISTRICT § THE STATE OF TEXAS

DECISION OF THE COMMISSIONER

Petitioner, Elco Ramos, appeals the decision of Respondent, EI Paso Independent

School District, concerning his grievance. Margaret E. Baker is the Administrative Law

Judge appointed by the Commissioner of Education. Ramos is represented by Karl Tiger

Hanner o f Austin, Texas. EPISD is represented by S. Anthony 8afi of El Paso, Texas.

The Administrative Law Judge issued a Proposal for Decision recommending that

Petitioner's appeal be dismissed for lack of jurisdiction and for failure to state a claim for

•
which relief can be granted. No exceptions were filed.

Findings of Fact

The following Findings of Fact are supported by substantial evidence:

1. EPISD employed Ramos Wlder a term contract during the 1999-2000
school year and assigned him as the principal of the Jefferson/Silva High School.
2. EPISD reassigned Ramos to the position of principal of Houston
Elementary School prior to the beginning of the 2000-200 1 school year.

3. Ramos has not received any decrease in salary as a result of the

reassignment. Ramos's salary for the 2001-2002 school year has not been set.
4. Ramos has not alleged that the two principal positions are radically

di fferent.

5. Ramos filed a grievance regarding his reassignment. The board of trustees

denied his grievance on July 18,2000.

• 6. Ramos timely filed this appeal.
• Discussion

Ramos asserts that the Commissioner of Education has jurisdiction over this

appeal under Texas Education Code section 7.057(a)(2). Ramos contends that EPISD has

changed his professional capacity andlor has demoted him and thereby violated section
2 1.206 of the Texas Education Code and his employment contract. EPJSD argues that the

Commissioner lacks jurisdiction over this case because Ramos's reassignment did not

violate any school law or contract provision and did not cause any monetary harm.

Monetary Harm

Texas Education Code section 7.0S7(a)(2)(B) grants jurisdiction over violations of

written employment contracts that cause or would cause monetary harm. In the present
case, Ramos has been transferred from a position that receives a high school principal's
salary to a position that normally receives an elementary school principal's salary.

•
Ramos, however, is to receive the same salary for the current year that he previously
received when he was a high school principal. Ramos's salary for the 2001 -2002 schoo l

year has not yet been determined. Ramos has not suffered any monetary harm,

Furthermore, any financial loss in the future is too specu lative to invoke the

Commissioner's jwisdiction. 1 In fact, Ramos concedes in his brief on the merits that any

appeal WIder section 7,057(a)(2)(B) could not arise until EPISD takes action that will

cause him monetary hann. Therefore, the Commissioner lacks jurisdiction over Ramos ' s

claim that his reassignment breached his contract and caused him monetary hann.

Change of Professional Capacity

Ramos also alleges that EPISD violated a school law of the state. He asserts that

EPISD elected to employ him in the same professional capacity when it failed to provide

him with notice of a proposed nonrenewal as required by section 21.206 of the Texas

Education Code and then violated the statute by changing his professional capacity or

• demoting him by reassigning him. It is well-established that school districts have broad

1 Comerv. Dickinson I,SD., Dkt. No. 117-R 10-698 (Comm'r Educ. 1999).

#OO2-R 10-900 -2-
-,-

• discretion when it comes to transferring administrators. 2 Ramos does not allege that his

duties as a high school principal and an elementary school principal differ radically.

Ramos's transfer from one principal position to another does not violate the requirement

that a teacher who is not nonrenewed must be employed in the same professional

capacity. Therefore, it is concluded that Ramos has failed to state a claim for which relief

can be granted.

Conclusion

The Commissioner lacks jurisdiction over Ramos's claim that his contract was
breached causing him monetary hann because he has not suffered any monetary hann and

any financial loss in the future is too speculative to invoke the Commissioner's

jurisdiction. Furthermore, Ramos has failed to state a claim for which relief may be

granted with respect to his contention that EPJSD violated section 21.206 because he has

•
not alleged that the duties of a high school principal and an elementary school principal

differ significantly.

Conclusions of Law

After due consideration of the record, matters officially noticed, and the forego ing

Findings of Fact. in my capacity as Commissioner of Education. I make the fo llowing

Conclusions of Law:

I. The Commissioner lacks jurisdiction to hear Ramos's claim under Texas

Education Code section 7.057(a)(2)(8) because Ramos has not suffered any monetary

harm and future lost earnings capacity is too speculat ive to invoke the Commissioner' s

jurisdiction.

2. The Commissioner has jurisdiction over Ramos's claim of a violation of

Texas Education Code section 2 1.206; however, Ramos has failed to state a claim for

which relief can be granted because he has not alleged that the duties of the two

• principal positions differ significantly. 19 TEx. ADMIN. CODE § 157.1056.

2 Young\'. Leggett I.SD., Dkt No. 175·R3· 898 (Comm'r Educ. 1999).

H002-R 10-900 -3-
r .

• 3. This case should be dismissed for lack of jurisdiction and for failure to

state a claim for which relief can be granted.

ORDER

After due consideration of the record. matters officially noticed and the foregoing
Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Education,
it is hereby
ORDERED that Petitioner' s appeal be, and is hereby, DISMISSED for lack of

jurisdiction and for failure to state a claim for which relief can be granted .

SIGNED AND ISSUED this !l!!!....-
.
::;bku.to.llt
day of
~ .~)
,2002 .

ELSON
MISSIONER OF EDUCATION

•

•
#OO2-R10-900 -4-
Crosby ISD’s Appendix

TAB 7
 ..' . . ..

• DOCKET NO. Oll-R3-1 102

PAUL PASQUA § BEFORE THE
§
§
v. § COMMISSIONER OF EDUCATION
§
FORT STOCKTON INDEPENDENT §
SCHOOL DISTRICT § THE STATE OF TEXAS

DECISION OF THE DESIGNEE OF THE CQMMISSIONER

Statement of the Case

Petitioner, Paul Pasqua, appeals the action of Respondent, Fort Stockton

Independent School District. concerning his grievance. Joan Stewart was initially

appointed as me Administrative Law Judge to preside over this cause. Subsequently,

Christopher Maska was appointed substitute Administrative Law Judge. Petitioner is

•
represented by Sam D . Sparks , Attorney at Law. San Angelo, Texas. Respondent is

represented by Shellie Hoffman Crow. Attorney at Law. Austin, Texas.

The Administrative Law Judge issued a Proposal for Decision recommending

that Petitioner's appeal be denied. No exceptions were filed.

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 tbe Findings of Fact that can best support Respondent's decision:

1. For eleven years, Petitioner, Paul Pasqua, served as a high school

principal for Respondent. Fort Stockton Independent School District.

2. On April 8, 2002. Petitioner received a two-year contract. The contract

was entitled "Two-Year Term Contract for Certified Administrator Position as

Assigned." The contract provides:

• #OIl-R3-1102 -1-
... ..

•
2. The board will pay Employee in twelve installments an annual
salary according to the compensation plan adopted by the Board, but in
no event less than the 200112002 annual salary.

4. Employee shall be subject (0 assignment and reassignment of
positions or duties, additional duties. changes in responsibilities or
work. transfers, or reclassification at any time during the contract term .
3. On August 19, 2002, after the completion of the first day of the 2002·

ZOO3 school year, Petitioner was called to the Superintendent's office and was assigned

to the position of assistant middle sc hool principal.

4. Petitioner filled the position of assistant middle school principal until his

resignation on November 6, 2002.

5. Petitioner received full compensation until he resigned.

6. Board members did not conduct a meeting without posting notice to

decide whether Petitioner should be reassigned.

7. Petitioner did not file a timely grievance concerning the lack of

• evaluations.

8. Petitioner failed to raise a constructive discharge argument before the

board of trustees.

Discussion

Petitioner contends that Respondent demoted him by reassigning him from high

school principal to assistant middle school principal. constructively tenninated his

contract. failed to evaluate him, and violated the Open Meetings Act. Respondent

denies these allegations. alleges that Petitioner failed to exhaust administrative

remedies. and argues that the case is moot.

Mootness

Respondent contends that this case is moot because Petitioner has resigned from

his contract. However, Petitioner alleges that Respondent1s ' actions amount to

• IOIl·R)·\ \02 ·2·
 ..

• constructive discharge. If Petitioner were correct as to the constructive discharge

claim. relief could be granted. Based on this allegation. the case is not moot.

Contract

Petitioner contends that his reassignment from high school principal to assistant

middle school principal was a demotion which resulted in constructive discharge.

Petitio,ner also contends that his property rights in his comraci were violated. The

Commissioner's jurisdiction over such claims must be based upon Texas Education

Code section 7.057 (a):

(2) actions or decisions of any school district board of U1Jstees that violate:

(8) a provision of a wrinen employment contract between the school
district and a school district employee, if a violation causes or would
cause monetary harm .
Petitioner had a property interest in his term contract during the contract's term. The

•
issues are whether the comract was violated and did this result or would it result in

monetary hann.

For eleven years, Petitioner served as a high school principal for Respondent.

On April 8, 2002. Petitioner received a two·year contract. The contract was entitled

"Two-Year Term Contract tor Certified Administrator Position as Assigned." The

contract provides:

2. The board will pay Employee in twelve installments an annual salary
according to the compensation plan adopted by the Board. but in no event less
than the 200 112002 annual salary.

4. Employee shall be subject to assignment and reassigrunent of positions
or duties, additional duties. changes in responsibilities or work, transfers, or
reclassification at any time during the contract tenn .
On August 19, 2002, after the completion of the first day of the 2002-2003 school

year, Petitioner was called the Superintendent's office and was assigned to the

•
(0

#01l-R3-1l02 -3-
 . ..

• position of assistant middle school principal.

November 6, 2002, when he resigned.

Property RighI
Petitioner filled this position until

Petitioner's contract is not a contract for the position of high school principal.

(t is a contract for a certified administrator position as assigned. Assistant middle

school principal is a certified administrator position. 19 TEX. ADMIN. CODE ch. 241.

The Commissioner has held that the professional capacity of administrator is to be

broadly interpreted for reassignment purposes. Carpenter v. Wichita Falls Independent

School Dis/ricl, Docket No. 247-R3-491 (Camm'r Educ. 1993), While Petitioner was

not assigned to the assistant principal position until after he had completed his first day

of the new school year as a high school principal, the contract itself allows Petitioner to

be reassigned as long as compensation is not reduced from that in the 2001-2002 school

year. Petitioner did not Jose any compensation. Petitioner's reassignment did nO[

• violate his contract.

Good Faith

Petitioner contends that the timing of the reassignment was unfair and that he

should have been given a chance to remediate if his performance were questioned.

Petitioner alleges that if Respondent had notified him at the begilUling of the summer

that he would be reassigned for the next school year that he could have sought other

high school principal positions. During that time frame, districts would still be looking

to filt principal positions and Petitioner could still represent that his position with

Respondent was high school prinCipal. Petitioner's argument is that Respondent owed

Petitioner a duty of good faith and fair dealing. However, in Texas there is no duty of

good faith and fair dealing in the employment context. Ciry of Midland v. 0 'Bryanr,

18 S.W.3d 209, 216 (Tex. 2000). Further, even if a cause of action for good faith and .

fair dealing existed, the only damages in the present case would be lost earnings

• capacity or loss of reputation.

NOII·R3·1I02
The Commissioner lacks Nrisdiction over an
• employment contract case based on such damages. Smith v. Nelson, 53 S.W.3d 792,

795(Te •. App.·Austin 2001, pel. denied).

Constructive Discharge

It has been held that "A constructive discharge occurs when the employer

makes conditions so intolerable that a reasonable person in the employee's position

would. have felt compelled to resign." lett v. DaLlas Indep. Sch. Dist., 798 F.2d 748,

755 (5- Cir. 1986) arrd in part 109 S.CI. 2702 (1989). Petitioner has railed to exhaust

administrative remedies as to Ihis issue. Petitioner did not make a constructive

discharge argument before the board of trustees. This is not surprising because the

board hearing occurred on October 28, 2002 and Petitioner did not resign until

November 6, 2002. But even assuming that Petitioner had exhausted administrative
remedies he would not prevail. The record does not support a finding that Respondent

made Petitioner's working conditions intolerable. While Petitioner's anger at being

• reassigned is understandable. being assigned to position of less prestige does not by

itself constitute constructive discharge.

Evaluations

Petitioner notes that he was not formally evaluated during the 1999-2000 and

2000-2001 school years. While this could be related to a violation of Texas Education

Code sections 21.354 and 39.054, Petitioner should have brought a grievance as to

those events under the district's grievance policy. Wittman v. Nelson, 100 S.W.3d
356, 360 (Tex. App.·San Antonio 2002 pel. denied). Respondent limited Petitioner',
presentation concerning evaluations to arguments as to how he exhausted local

remedies. TR, 4. Even if Petitioner were correct that the failure to provide

evaluations violated the school laws of this state, the Commissioner could not as a

result order the requested relief of reinstatement and back pay.

• NO 11 ·R3· I 102 ·5·
 ..

• Open Meetings Act

Petitioner contends that board members violated the Open Meetings Act by

agreeing to the reassignment of Petitioner outside of a properly called meeting. TEX .

Gov'T CODE § 55J.041. The record is scant as to this issue . Petitioner's

representative's allegations taken alone do not constitute a violation of the Open

Meetings Act. Tr. 16·17. However, the superintendent's testimony was that he made

the decision himself without board approval. Tf. 24. The record does not suppon a

finding that a violation occurred. Even if a violation occurred it would not result in the

vote on Petitioner's grievance being overturned. A discussion that was not properly
conducted according to the Open Meetings Act does not result in voiding a vote at a

properly called meeting on the same subject. Hill v. Palestine Indep. Sch. Dist., 113

S.W.3d l4. 17 (Tex. App .-Tyler 2000, pet denied).

Conclusion

• Respondent did not violate Petitioner'S contract by reassigning Petitioner.

Petitioner's contract allowed for the reassignment. Petitioner failed to exhaust

administrative remedies as to his constructive tennination and evaluation claims.

Respondent did not violate the Open Meetings Act. Petitioner's appeal should be

denied.

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, ] make the following Conclusions of Law:

1. The Commissioner has jurisdiction to hear this cause under Texas

Education Code section 7.057 except as specified in Conclusions of Law Nos. 2, 6-8.

2. Because Petitioner failed to exhaust administrative remedies as to his

constructive discharge and evaluation claims, the Commissioner lacks jurisdiction over

• these claims. 19 TEX. ADMIN. CODE §l57.1056(a).

NOIt-R3-It02 -6-
.. ,
• 3.
4.
As pled, this case is nO[ moot.

Assistant middle school principal is a certified administrator position.

19 TEX. ADMIN . CODE ch. 241.

5. Petitioner's reassignment did not violate his contract.

6. There is not a duty of good faith and fair dealing in the employment law

context.
7. The Commissioner Jacks jurisdiction over Petitioner' s good faith and fair
dealing claim . 19 TEX. ADMIN. CODE §157 . !056(a).

8. Even if there were a duty of good faith and fair dealing in the
employment context, jurisdiction would not exist under Texas Education Code section
7.057(3)(2)(8) because the Commissioner lacks jurisdiction on a claim of. lost earnings

capacity or loss of reputation. 19 TEX . ADMIN . CODE §lS7. 1056(a).

9. Members of Respondent's board of trustees did not violate the Open

• Meetings Act as they did not preapprove Petitioner's reassignment outside of a

properly called meeting. TEX. GoV'T CODE § 551.041

10. Even if members of Respondent's board of trustees had violated the
Open Meetings Act by preapproving Petitioner's reassignment outside of a properly
called meeting. this does not result in the board's vote to deny Petitioner's grievance
being declared void.

11. Petitioner's appeal should be denied.

QJUli..R
After due consideration of the record, matters officially noticed and the
.
foregoing Findings of Fact and Conclusions of l..a.w, in my capacity as Designee of the

Commissioner of Education, it is hereby

• #011·R3·1102 ·7·
 ..
" '.. ~ .

• ORDERED that Petitioner's appeal ~ and~bY' DENIED .
SIGNED AND ISSUED this".(? day 0 me. <' .2004.

R ~+~~ 0
CHIEF DEPUTY COMMISSIONER
BY DESIGNATION

•

• NOlI-RJ-II02 -8-
Crosby ISD’s Appendix

TAB 8
I,

• JANIS K. UNDERWOOD
DOCKET NO. 062-R3-198

§
§
BEFORE THE
§
V. § COMMISSIONER OF EDUCATION
§
WEST RUSK COUNTY §
CONSOUDATEDINDEPENDENT §
SCHOOL DISTRICT § THE STATE OF TEXAS

DECISION OF THE COMMISSIONER
Statement of the Case

Petitioner, Janis K. Underwood, appeals the denial of her grievance concerning
her reassigrunent from junior high school principal to either prinCipal of the seventh

through ninth grades or to assistant high school principal by Respondent, West Rusk
County Consolidated Independent School District, subsequent to the merger of the

• junior and senior high school campuses.
The Administrative Law Judge appointed by the Commissioner of Education is
Paula Hamje . Petitioner is represented by Kevin F. Lungwitz, Attorney at Law.

Austin , Texas . Respondent is represented by John C. Hardy. Attorney at Law, Tyler.
Texas.
On February 17, 1998 , the Administrative Law Judge issued a Proposal for
Decision recommending that Petitioner's appeal be denied. Exceptions and replies
were timely filed and considered.
Findings

It is detennined that the following rtodings are supported by substantial
evidence:

1. Petitioner, Janis K. Underwood, was employed by Respondent, West

•
Rusk County Consolidated Independent School District, as West Rusk Junior High
principal for six years prior to filing her appeal to the Conunissioner.

TAsa
• 2. A proposed merger of the West Rusk Junior High and High School

resulted in Respondent's notice, on or about September 30, 1997, to Petitioner of a
reassignment from her position as junior high principal under the immediate
supervision of Superintendent of schools to "seventh through ninth grade principal" or

to assistant high school principal under the immediate supervision of the high school
principal.
3. On February 18, 1997, Petitioner and Respondent entered into a written

contract pertaining to Petitioner's employment with Respondent in the position of

"administrator" for the term of July I, 1997 to June 30, 1999. At the time of the

appeal, the contract remained in effect. The contract provides that Petitioner is subject
to reassignment of positions or duties. additional duties, changes in responsibilities or

work, transfers, or reclassification at any time during the term of the contract.

•
4. The reassigned pOSition includes responsibility for more students and
teachers, but with similar duties as Petitioner's previous position. As a result of the
reassignment, Petitioner's salary remains the same, her professional responsibilities are
not lessened, and the degree of skill required is not lessened.
5. Petitioner remains an administrator after the reassignment and continues
to function in that same professional capacity at the merged junior and senior high
schools.
Djscussion
Petitioner seeks reinstatement as head principal of West Rusk Junior High
School, reporting directly to the superintendent of schools, and seeks an award of

compensation for actual or potential economic and other losses . Relief is sought due to

her reassignment to either "seventh through ninth grade principal" or to assistant high
school principal at the newly merged junior and senior high school in West Rusk CISD.

• Petitioner argues that the reassignment is a demotion and breach of her employment
contract. [n addition, she argues that the reassignment will have a negative impact on

.".
• her furore earning potential; however, no evidence was offered in support of that
argument.

Petitioner has a written contract with Respondent for employment as an

administrator which is not intended to mean she always retains the "exact same
position" she occupied prior to the reassigrunent. Barich v. San Felipe~De/ Rio
Consolidated Independent School District, Docket No.117-Rla-484 (Comm'r

Educ.1985). The reassigned position is very similar to the previous position with
regard to duties and responsibilities. Petitioner is expected to function as principal to
seventh, eighth and ninth grade students instead of seventh and eighth grades only.
Petitioner's salary does not change. Petitioner's written contract provides in paragraph
"2" that Petitioner is subject to .. ...reassignment of positions or duties, additional
duties. cbanges in responsibilities or work ... at any time during the contract tenn ."

•
Respondent has acted within the parameters of Petitioner's contract while attempting to

accomplish the merger of two school campuses . There is no evidence that Respondent
intended to demote Petitioner. and Petitioner suffered no reduction in pay,
responsibilities , or required skills, all important elements to consider in determining

whether a reassignment constitutes a demotion. Reyes v. Culberson County
Independent School District, Docket No. 229-R3-787 (Comm'r &luc. 1989) and Cody
v. Graham Independent School District, Docket No. 247-R3-787 (Comm' r. &luc.

1989). Petitioner remains an administrator at the same pay .

Respondent considered the needs of the district in the decision to reassign

Petitioner. There was no evidence presented that Respondent failed to consider criteria

for personnel decisions set out in its local board policies as asserted by Petitioner;

therefore , there is no need to address the issue of whether local board policy is a school

law as defined by statute. Petitioner argues that Respondent violated the Texas

• &lucation Cnde §21.206 which requires a school district to employ an employee in the

#062-R3-1QR
 -.
• same professional capacity from one year to the next. Pertinent portions of the rule
read as follows:

(a) Not later than the 45" day before the last day of instruction 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 specified constitutes an election to employ
the teacher in the same professional capacity for the
following school year.
This case does not concern renewal or nonrenewal of a contract; therefore the above

provision does not appear applicable. In addition, Petitioner is retained in her same

professional capacity as previously addressed in this proposal.

• Conclusions of Law
After due consideration of the record. matters officially noticed , and the

foregoing Findings, in my capacity as Commissioner of Education, I make the
foIlowing Conclusions of Law:

1, The Commissioner of Education has jurisdiction over the instant matter
pursuant to Tex. Educ. Code §7.057.

2, Respondent's reassignment of Petitioner to an administrator position in
the newly merged junior and senior high school was not a violation of the school laws
of this state,
3, Respondent's reassignment of Petitioner was not a demotion and was not
in violation of any provision of her written employment contract with Respondent that

caused or would cause monetary hanD to Petitioner,
4. Petitioner's appeal should be DENIED.

• TAsa
#062-RJ-198
.
, "- " .

,

•
•
ORDER
After due consideration of the record, matters officially noticed , and the

foregoing Findings and Conclusions of Law, in my capacity as Commissioner of

Education, it is hereby

ORDERED that Petitioner's appeal be, and is hereby , DENIED.

SIGNED AND ISSUED this ?II! day of -' "a""''fi+-<-- - - -
7?f'-'-f
1998.

MIKE MOSES
COMMISSIONER OF EDUCA nON

•

• T~S8
#062·R3-198
Crosby ISD’s Appendix

TAB 9
 DOCKET NO. 004-Rl-0908

HOI .I.V McCOY ~ HEFORE THE
§
§
v. § COMMISS ION ER OF EDUCATION
§
KERMIT INDEPENDENT §
SCIIOOL DISTRlCT § TH E STATE OF TIOXAS

DECISION OF THE COMMISSIONER
Statement of the Case

Pet itioner, Ho lly McCoy, appeals the action of Respondent, Kennil tndependent

School Di strict , com:crni ng her grievance . Christopher Maska is the Ad mi nistrati ve Law

ludge appoi nted hy the Commissioner of Education. Petitione r is represented by Mark

W. Robinett. Attorney at Law, Austin, Texas. Respondent is represen ted by Chri stine

Badillo. Attorney at Law, Austin, Texas.

The Adm ini strative Law Judge issued a Proposal for Decision recommending thai

Petit ioner's appeal be dismissed in part and denied in parI.

Findings ofFaet
Arter dllC co n:sitleralion of the record and matters officially noticed , it is
concluded that the fo llowing Findings of Fact arc supponed by substantial ev idence and

are the Findings orr-act that best support Respondent' s decision I,

I. Petitioner WilS employed by Respondent under a term contract for the

2007-2008 school year in the position of principal. Th is contrllct exp ired at the end of the

2007-2008 school year.

2. for the ::!008 -2 009 school years, Petitioner signed a term contract with

Respondent. The contract is en titled "For Certified Admini stra tor."

- - - - _.._-
I St! FOR CAUSH. NOlhi.g i. Ihis s.boheplor shen prohibil

a l30ard of tR:lstees :frOAl diseRargmg 8 teaeRer for oause during the teR'fl of tRe eORt:raet.

[S.olio. 21.211] Section 21.210. EXEMPTIONS. This subchapter does not apply to

teachers who are employed under the provisions of the probationary or continuing contract law

as set out in Subchapter C of Chapter 13 of this code.

SECTION 5. The importance of this legislation and the crowded condition of the

calendars in both houses create an emergency and an imperative public necessity that the

constitutional rule requiring bills to be read on three several days in each house be suspended,

and this rule is hereby suspended.
Crosby ISD’s Appendix

TAB 11
 ~ffite of t~e attornep .enerlll
6tate Df G:exu

DAN MORALES
AT'fOIlNIY GDlU.AL
June 4, 1991

Honorable Ernestine V. Glossbrenner Opinioo No. DM- 27
Cbairman
Public Education Committee Re: Whether section 13.3S2(d) of the
Texas House of Representatives Texas Education Code authorizes a
P. O. Box 2910 principal of a public school to reject
Austin, Texas 78768-2910 leacbers wbo are transferred by the
school district, or voluntarily tran&fer, 10
his school; and whether the principal's
approval authority extends 10 all sebool
staff (RQ-39)

Dear Ms. Glossbrenner:

You bave requesled clarification of section 13.3S2(d) of the Texas
Education Code, which provides the followiJJB:

(d) EadI principal sball:

(1) approve a11leacher and staff appoinbnents for thaI principal's campus from
a pool of applicants selected by the district or of applicants wbo meel the hiring
requirements establisbed by the district, based on crileria developed by Ibe
principal after informal consultation with the faculty.

You explain thaI school districts are divided about the interpretation of this
provision. "Some districts believe it to mean the principal must approve only
newly hired teachers and thaI the law does nol give the principal authority to
reject (1) leachers wbo are tranSferred to his/her campus by the school district
administration or (2) teachers wbom the district approves for volunlary transfer
to his/her campus." You also ask wbether the provision extends 10 tbe
"assignment of all campus staff (including sucb positions as h'bnirian, counselor,
nurse, custodian)" or whether il applies only 10 instructional stalf.

p . 124
Honorable Ernestine V. Glossbrenner - Page 2 (DII-27)

Section 13.352(d) was amended 10 its presenl form in 1990. A comparison
of the pre- and post- amendmenl ..,rslons indicales thai the purpose of the
amendmenl was 10 aWe principals more control over their campuses with a view
10 grealer principal accountability for campus conditions and studenl
achievement. S« Glso Bill Analysis 8.8.1, 71st I.eI-, 6th C.S. (1990)
"Accounlabillty and Incentive Elements" (Campus Performance Objectives);
Senale Edue. Comm. Synopsis of S.D. 1, ACCOIIIftQ/)iIity Q1JIJ lru:enIive EkmenlS of
SmIlIe BiI11 SMh CIIIJed Session (Principals) (1990) al 3; HOUSE REsEARCH
ORGANIZATION, WRAP UP OF TIlE 1990 SPEOAL SEssIONS ON PUBUc
EDUCATION, al 36-47 (July 31, 1990). Before amendment, section 13.352(d)
merely authorized principals 10 "participale in the selection of leachers for thai
principal's campus." Nothing in the Ianauaae of the statute suggests thai the
principal's authority 10 approve the appointmenl of a teacher 10 his campus Is
restricted to teachers newly bired by the district or thai the principal is bound by
transfer decisions of the dislrict administration. Furthermore, the statute
reoognires the principal's authority 10 make selection decisions based on crileria
"developed by the principal after informal consultation with the faculty," i.e,
criteria unique to the particular campus. The principal's authority 10 shape his
campus through application of unique criteria would be diminished in
derogation of section 13.352(d) if the school district could mandale the
principal's a=ptance of transferred teachers. We therefore find that the
approval authority granted by the provision extends 10 teachers transferrina
within the district.

We bell..., that the language and history of section 13.352(d) also answer
your second question. Prior 10 the 1990 amendment, the principal's role in the
selection process for his campus extended only 10 the selection of teachers. The
provision now eslablishes the principal's authority over "all teacher and staff
appointments." This is clear authority for the principal 10 exercise his discretion
in selecting individuals 10 fill staff as well as instructional positions on his
campus.

SUMMARY

Section 13.352(d) of the Texas EducatiOn Code grants authority to
public school principals 10 approve all teacher and staff appointments on their

p. 125
Honorable Ernestine V. Glossbrenner - Page 3 (DM-27)

c:ampu5OS. They are therefore not required to accept teache" approved for
transfer to their campuses by the school district administration.

DAN MORALES
Attorney General of Texas

WUJ..PRYOR
First Assistant Attorney General

MARYKEI1ER
&ecutive Assistant Attorney General

JUDGE ZOUlE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEAIDCKS
Special Assistant Attorney General

Madeleine B. Johnson
Chair, Opinion Committee

Prepared by Faith Steinberg
Assistant Attorney General

p . :.126