Untitled Texas Attorney General Opinion

Office of tfy TZWmep@eneral
&tate of ?Itexa$
DAN MORALES October 27,1992
ATTORSEY
GENERAL

Honorable Gibson D. (Gib) Lewis Opinion No. DM-177
Speaker
Texas House of Representatives Re: Whether a teacher returning to
P. 0. Box 2910 work after a leave of absence for
Austin, Texas 78768-2910 temporary disability must be placed on
active duty, and if so, when such service
must commence (RQ-416)

Dear Mr. Speaker:

You have requested our opinion regarding the interplay between sections
13352(d) and 13.905 of the Education Code. Specifically, you ask the following:
1. What is the meaning of the word “term” in [section]
13.905(e); and
2. How is the provision in Section 13.905 requiring placement
of an employee after leave of absence in a position
interpreted in light of Attorney General Opinion DM-27
(1991) interpreting Texas Education Code Section
13.352(d)?
You set forth the following fact situation:
[A] teacher was diagnosed by her physician as having a
serious illness which precipitated the teacher’s request for
leave of absence under Section 13.905. Two months later, in
January of 1992, the teacher learned that the diagnosis was
incorrect, that she had no debilitating disease, and that she
could return to work. No position for which she is qualified
was available at the school in which she taught prior to her
taking a leave of absence. Further, after interviewing with
other principals throughout the district, no placement offers
were made to this particular teacher.
Honorable Gibson D. (Gib) Lewis - Page 2 W-177)

Section 13.905 states in pertinent part as follows:
(a) Each certified, full-time employee of a school
district shah be expected to be given a leave of absence for
temporary disability at any time the employee’s condition
interferes with the performance of regular duties. The
contract and/or employment of the employee cannOt be
terminated by the school district while on a leave of absence
for temporary disability. Temporary disability in the Act
includes the condition of pregnancy.
. . . .

(e) An employee returning to active duty after a leave
of absence for temporary disability shall be entitled to an
assignment at the school where the employee formerly
taught, subject to the availability of an appropriate teaching
position. In any evenL the employee shah be placed on
active duty no later than the beginning of the next term
As this office ~has stated previously, section 13.905 protects an employee’s tenure
and right to return to active employment while that employee takes a leave of
absence for temporary disability. Attorney General Opinion H-352 (1974) at 2.

Section l3.9OS(e) requires that the employee be “placed on active duty no
later than the beginning of the next term.” [Emphasis added.] Your fhxt question
asks whether the word “term,” as section 13.905(e) uses it, refers to a school year or
a semester. The Education Code does not expressly define “term.” Additionally, we
were unable to find any legislative history indicating the sense in which the
legislature intended to use the word.

We note, however, that in 1973, at the time the legislature enacted section
l3.905, section 16310 of the Education Code required foundation school programs
to pay classroom teachers for the “18Oday school term” during which the teachers
provide instruction for pupils plus at least ten days “of inservice education and
preparation for the beginning and endii of the school term.” E&c. Code 8 16310
(current version at Educ. Code 8 16.0559(b)) [emphasis added]; see &o Attorney
General opinion H-352 at 4. In our opinion, therefore, when the legislature
enacted section UMS(e), it understood “term” to mean the 180day period during
which teachers instruct students. Although the legislature since has amended and

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Honorable Gibson D. (Gib) Lewis - Page 3 W-177)

renumbered section 16310, we do not believe the legislature intended to change the
meaning of the word “term”as section 13.905(e) uses it.

Furthermore, we note that the Texas Education Agency (the “agency”) has,
by rule, interpreted the word “term”to mean the school calendar year, as opposed to
a semester. See 19 T.A.C. 88 105.71(a)(l)(H), (a)(2)(B), 10572(e). Corn- 19
T.A.C 8 105.254 (lhniting number of days of sick leave employee may earn in any
one school term to five) wirh Educ. Code $$13.9@4(a)(providing for state minimum
sick leave program consisting of five days per year sick leave). Unless an agency’s
interpretation of an unambiguous statute is contrary to the statute’s clear meaning, a
court will give weight to the agency interpretation. Attorney General Gpiion
JM-1149 (1990) at 2. In our opinion, the agency’s rules use “term” in the manner in
which the legislature intended, and we therefore credit the agency’s interpretation.
Accordingly, we construe section 13.905(e) to require a school district to place an
employee who wishes to return from leave of absence for temporary disabiity on
active duty no later than the beginning of the nest school year, ie, the SO-day
period during which teachers instruct students.

Your second question requires us to consider how section 13.905 interacts
with section l3352(d)( l), which provides as follows:
Each principal [of a school] shalh
approve all teacher and staff appointments for that
principal% campus from a pool of applicants selected by the
district or of applicants who meet the hiring requirements
established by the district, based on criteria developed by
the principal after informal consultation with the faculty.
This office examined section 13352(d)(l) in Attorney General opinion DM-27
(1991). That opinion found that the legislature amended section 13352(d) to its
present form in 1990 for the purpose of providing principals more control over their
campuses. Attorney General Opinion DM-27 at 2 [and sources cited therein].
Ultimately, the legislature hoped to make principals more accountable for campus
conditions and student achievement. Id. After considering the legislative history of
the amendments to section 13352(d), the opinion concluded that the section
authorizes “public school principals to approve all teacher and staff appointments on
their campuses.” Id. at 2-3. Accordingly, under section 13.352(d), principals are not

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Honorable Gibson D. (Gib) Lewis - Page 4 (1x4-177)

required to accept teachers that the school district has approved for transfer to their
campuses. Id. at 3.

If an irreconcilable conflict exists between two statutes, the last enacted, as
the most recent expression of legislative intent, controls and implicitly repeals
inconsistent prior enactments. Gov’t Code 5 311.025(a); Attorney General Opinion
H-975 (1977) at 2 (citing Commercial Stondani Fire & iUa&e Co. v. Chnmissioner of
Ins., 429 S.W.2d 930 (Tex. Civ. App.-Austin 1968, no writ)); Attorney General
opinion H-90 (1973)); lA SUTHERLANDSrAnrroRY C~~STR~~ON 9 22.22, at
238 (4th ed. 1985) [hereinafter SI~THERLAND 1. If, however, we reasonably can
construe two statutes harmoniously, finding a logical field of operation for each, we
should do so. Postell v. State, 693 S.W.2d 462,464 (Tex. Grim. App. 1985); see alro
2A SUTHERLAND, supm, Q45.12, at 61-62 (5th ed. 1992); 2B SUTHERLAND, supm,
0 53.01, at 22930 (5th ed. 1992). We believe that. by construhrg section 13.905(e) in
light of apparent legislative intent, we can avoid any conflict between these two
St&llteS.

By its terms, section l3.905(e) evidences a presumption that the teacher will
return to the school at which the teacher originally worked. The first sentence. of
the subsection provides that the teacher “shall be entitled to an assignment uf the
school where the employee fe taught.”[Emphasis added.] The following
sentence, which requires that the teacher be returned to active duty no later than
the beginning of the next term, does not indicate where the teacher shall be placed
on active duty: at the school at which the employee formerly taught, or at another
campus witi the school district. Inasmuch as the teacher’s contract is with the
school district, rather than with any particular school, one might read the second
sentence to mean that the district can place the teacher at any campus within the
school district. However, unless the district places the teacher with a principal who
voluntariy has approved the teacher’s appointment to the principal’s campus, the
district will run afoul of section 13352(d)( 1) of the Education Code.

We believe that the second sentence of section 13.905(e) of the Education
Code carries forward the legislative presumption that the school teacher will return
to active duty at the school at which the teacher formerly taught. In subcommittee
hearings on House Bill 740, which bill ultimately became section 13905(e) of the
Education Code, subcommittee members expressed concern that the language
which is essentially the present fiit sentence would permit a school teacher who had
been on leave of absence for temporaty disability to return to the classroom when

p. 927
Honorable Gibson D. (Gib) Lewis - Page 5 (m-177)

only one or two weeks remained in the school year. See Hearings on H.B. 740
Before the House Subconun. on Public Bducation, 63d Leg., (Apr. 3, 1973)
(testimony of Rep. Barnhart) (tape available from ORIce of the House Committee
Coordinator). Some members felt that returning at such a time would be disruptive
for the students. Id. Apparently, therefore, the legislature added the second
sentence of subsection 13905(e) to mean that, in such a situation, the school may
delay the teacher’s return until the beginning of the next school year. ‘Ihe
legislature did not intend the second sentence to imply that the teacher would be
placed on active duty at another campus within the school district. Of course, if a
principal at another campus within the district voluntarily approves the appointment
of the returning teacher to his or her campus, the district may place the teacher at
that campus. If not, however, we believe that the district must place the returning
teacher on active duty at the school at which the teacher formerly taught.

SUMMARY

Section 13905(e) of the Education Code requires a
school district, before the beghming of the next school year,
to place on active duty an employee who wishes to return
from a leave of absence for temporary disability. A
principal at another campus in the school district voluntarily
may approve the appointment of the employee who wishes
to return from leave of absence. However, if no other
principal approves by the begimthrg of the next school year,
the school district must place the teacher at the school at
which the teacher formerly taught.

DAN MORALES
Attorney General of Texas

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Honorable Gibson D. (Gib) Lewis - Page 6 (~~-177)

WILL PRYOR
First Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENEAHIcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Option Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

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