Untitled Texas Attorney General Opinion

f The Attorney General of Texas September 11, 1990 Honorable Hamp Atkirr3on, Chairman opinion No. Mw-238 Public Education House of Representatives Re: Whether school boards Austin, Texas 16769 may discontinue hiring teachers cn a “probationary cr eontinuirg contract basis.” Dear Representative Atkinson: You have pased the followiq question: lf a board of trustees of an independent school district adopts Subchapter C of Section 13 of the Texas E&cation Code, &es it or a s&sequent board have the power to rescind such action, or are it and future boards fcwever bound to offer probationary and continuirrg contracts to all present and prospective teachers? Prior to 1967, independent school district boards of trustees had no authority to adopt permanent tenure plans fa hiriw teachers. Promen v. Goose Creek Ind. School District, 146 S.W. 2d 460 (Tex. Civ. App. - Galveston 1941, writ dism’d., jamt. car.). Pursuant to article 2761, V.T.C.S., (since repealed; E, now, E&c. Code S23.26), beards of such districts could only hire teachers u&r a “fixed term contract” for as many as three or five years, depend* rpcn the size of the district. Term contracts cover a specified time period and dD not establish tenure rights an behalf of the employee. Board of Regents v. Roth, 406 U.S. 564 (1972). In 1967, the legislature enacted article 2691-56, V.T.C.S. (now Chapter 13, Subchapter C of the Education Code), which changed the public policy regardirg teacher tenure. Article 2691-50 established a tenure plan whereby teachers may, following a probationary period, be awarded a “continuing contract” which is terminable anly for specified causes and in accordance with prescribed procedures. See E&c. Code gll.lOl, et seq. The tenure plan is discretionary; a school boardmay choose to implement its pmvisions or it may continue to hire teachers under term contracts. Cari v. South San Antonio Ind. School District, 561 S. W. 2d 560 (Tex. Civ. App. - Waco 1976, -rerdnr.e.);Midway Ind. School District, 469 S.W. 2d 706 (Tex. Civ. App. -7orpus Christi 1973, writ FePd n.r.e.); Attorney General Opinion M-123 (1967). Honorable Hamp Atkirwon - Page Two (NW-2381 Section 13.101of Subchapter C of the Education Code, states, in pertinent part: Each teacher hereinafter employed by any school district... shall be employed mder... a contract that is either a ‘proba- tionary contract’ a a ‘continuitg contract’ in accordance with the provisions of this s&chapter if the school bcerd chooses to offer such teacher a ‘probationary contract’ a a ‘continuirg contract’ All such contracts shall be in writing... and shall embody the terms and conditions of employment hereinafter set lath, and such other provisions not inconsistent with this stichapter as may be appropriate. Sections 13.102 through 13.ll6 of the Education Code set forth the conditions tmder which such contracts may be awarded and, if necessary, terminated. At the outset, we note that it is mclear whether a board must actually “adopt” the continuirg contract law. On the one hand, the language of section 13.101suggests that adoption is innecessary and that a board may decide UI a case-by-case basis whether to award individual teachers a probationary a continuing contract or a term contract. “Each teacher hereinafter employed... shall receive... a ‘probationary contract’ or a ‘continuirg contract’... if the school bosrd chooses to offer such teacher a ‘probationary contract’ a a ‘contintiiig contract’.” (Emphases added). me other hand, mrts seem to have assumed that the tenure plan must be “adopted” in order to be effective, and that all teachers employed after the date of adoption come under its pipvisions. See, e.g., Hix v. Tulaso-Midway 2nd. School District, srpra; Garcia v. Pharr, San Juan, Alamo Ind. School District, 513 S.W. 2d 636 (Tex. Civ. App. - Corpus Christi 1974, writ ref’d nr.e.1. A 1973 amendment to section 23.26 of the E&cation Code states, moreover, that “This section does not apply to teacher’s contracts in... districts which bve adopted... Subchapter C, Chapter l3....” (Emphasis added). We deem it tmnecessary to address this question, however, since ycu Jwve specifically asked whether a school board that “adopts” the continuing contract law thereby irrevocably commits that district to offer probationary and continubg contracts to all present and prospective teachers. Assuming that “adopts” connotes formal beard action, we will limit our inquiry to the question whether such action, once taken, may later be rescinded. A fundamental concept lnderlyirg legislation affecting Texas school districts is that decisions concernirg the public schools should, whenever possible, be made and implemented at the local 1eveL The legislatw’s lcng-stand@ commitment to local control of public education finds expression in section 23.26 of the Education Code, which confers lpcn school trustees “the exclusive power to manage and govern the public free schools of the district” The United States Supreme Court has approved the concept of local control, San Antonio Ind. School District v. Rodriguez, 4l.l U.S. 1 (1973), and Texas courts heve made clear their reluctance to interfere with school trustees’ exercise of their authority absent evidence of n clear abuse of discretion. Nichols v. Aldine Ind. School District, 356 S.W. 2d 192 (Tex. Civ. App. - Houston 1962, no writ). The question whether a beard may rescind a decision to adopt the continuing contract law must be answered in light of this public policy. P. 753 Honorable Hamp Atkinson - Pege Three (MW-238) A cardinal tule of statutory construction is that the true meanirrr of a statute should be determined by considers the motives which induced the legisl&re to enact it. See_ 76 C.J.S. _~ls__ae-S~-~~~pistricts Sl66. As we Mfe observed, the leaislatwb intent in enactit a permissive tenure plan was clearly to give school b&Is a choica between hiri& &hers under that ohm a contractimc with them fa fixed terms. See, s, Carl v~Sc&h San Antonio In& School District, “w. We think the element o~oice is cruciaL There is IY) evidence in the continuim contract law itself a in s&sequent case law to indicate that the legislature inten&d this choice, cmce made, to be irrevocable. Absent such evidence, there is noth@ to srppat that conclusion. In this respect, it should be noted that when the legislature has intended that a school board decision to adopt a permissive statute should be irrevocable, it has clearly said so. For example, section 23.llff) of the Education Code, which permits election of school trustees by pceition, provides that: “Once the bcerd... has adopted the provisions of this section, neither the beard... nor their successors may rescind the action.” Had the legislnture intended the continuing contract law to be irrevocable, it could easily have provided nccordirgly. Moreover, it is cur opinion that the legislature did not, in light of its commitment to the concept of local control of public education, intend that a school board would, by adopting the tenure plan, irrevocably bind itself and, more importantly, its successors to that plan, which may for any number of reasons later be deemed tmdesirnble If a board is to be able to fulfill its statutory mandate to “manage and govern the... schools...,” Education Code section 23.26, it must have flexibility to change its policy directions unless it has clearly been prohibited from doing so. For these reasons, we conclude that a decision to adopt the provisions of Chapter 13, S&chapter C of the Education Code may be rescinded. You have also asked: If a board may rescind such action: a. Do teachers already employed under continuti contracts have any vested right to continue tmder such contracts after the recission (even though all prospective teachers will enter tat&r term contracts)? b. Do teachers employed tmder probationary contracts have any vested right to continue under such contracts mtil they have been employed three years end can receive continuirg contracts (even though all prospective teachers will enter under term contracts)? In cur opinion, the answer to these questions may be found in the continuitg contract law itself. ‘. Honorable Hamp AU&son - Page Pour (Mw-23a) Section 13.101states that: . ..A11 [pmbationary and continuing contracts] shall be in writing, in such form as may be promulgated by... the commissioner of education, and shall embody the terms and conditions of employment hereinafter set forth.. . . Section 13.102 provides, in pertinent part: Any person who is employed as n teacher... la the first time, or who has not been employed by such district for three consecutive school years s&sequent to August 26,1967, shall be employed under n probationary contract,’ which shall be for a fixed term as therein stated;... no such contract shall be fa a term exceed@ three school years. . . . Section 13.107 provides, in pertinent part: Each teacher with whom a continuirg contract tms been made as herein provided shall be entitled to continue in his position or n padtion with the school district... fa future school years without the necessity for annual nomination a renppoint- ment, tmtil such time as [one of the stated conditions occurs]. As Section 13.101 makes clear, executed probationary a continue contracts incorporate the provisions of the continuirg contract law, either expressly cr bg’ implication. When a school board exercises the choice given it by the legislature and enters into a probationary or continuirg contract with its teachers, it thereby creates a bindirg contract which is governed by the terms of that law. See Cummins v. Banes Ind. School District, 466 SW. 2d 913 (Tex. Civ App. - Austin l97e writ). Thus, one must look to section 13.101, et seq., to determine the rights and obligations of the parties to the antract. Under’ the continuitg contract law and, therefore, under the employment contract, a continuing contract teacher -is entifled ‘to confinue %I his wition a a position with the school district... without the necessity fa annual nomination a reappointment” until such time as one of the stated events occurs. Educ. Code s13.107. A board decision to rescind its adoption of the continuirg contract law would have no effect upcn this entitlement, which was created in n contract validly executed by two parties with full authority to so contract under n law that is still in effect In this respect, the contract is no different from any other valid contract, and its terms may not be altered without the consent of both parties. It follows, therefore, that t?e relationship of the district to the teachers who have entered into continuing contrac’d with n school board that later rescinds its decision to adopt the continuing cont’&ct law till continue to be governed by that law, as incorporated in those contracts, even after recission. See also Indiana ex rel. Anderson v. Brand, 303 U.S. 95, reh. den., 303 as. 667 0938). P- 755 Honorable liamp Atkinson - Page Five (NW-23a) Similarly, one must look to the continuing contract law to ascertain the rights and obligations of a teacher under a probationary contract, “which shall be la a fiied term as therein stated... [not to exceed three a, where permitted, four school years] .‘I Educ. Code Sl3.102. Purstmnt to the continue contract law, a teacher would be entitled to serve art the remainder of the term stated in a probationary contract executed prior to the date of reclusion, but, provi&d he a she is first terminated, see Education Code sections 13.103, and 13.104, may thereafter be given a term contract.T should be noted that a teacher under a probationary contract would, unless terminated in accordance with sections 13.103 and 13.104, automatically be entitled to a continuing contract. Accordingly, in answer to your third question, teachers serving mder n probationary amtract executed before a school board rescinds its adoption of the continuing contract law may, rpan termination of their contract, pursuant to sections 13.103 and 13.104, be awarded term contracts. If not terminated in this manner they would be entitled to a continuirg contract. SUMMARY The board of trustees of an independent school district may rescind n decision to adopt Chapter 13, Subchapter C of the Education Code. If it does so, teachers with valid probationary or continuirrg contracts executed prior to the date of recission will continue to be governed after reciesion by their contracts incorporatitq the continuing contract law. Continuirrg contract teachers are entitled to be employed until cne of the specified conditions fa termination occurs, and they are entitled to the procedural safeguards afforded by the law. Probationary contract teachers are entitled to serve out the balance of the term stated in their contract Upan termination of the contract and in accordance with the procedures sat forth in the continue contract law, they may be awarded term contracts. MARK WHITE Attorney General of Texas JOHN W. FAINTER, JR. First Assistant Attorney General Prepared by Susan Garrison Assistant Attorney General p. 756 Honorable Hamp Atkinson - Page Six uw-238) APPROVED: OPINION COMMIITEE C. Robert Heath, Chairman Susan Garrison Rick Gllpin Laura Martin Bruce Youngblood p. 757