dissenting.
When the Tolar Independent School District first decided not to renew Coach Grounds’ term contract, it refused to give him notice of the reasons for its decision because it believed, incorrectly, that it was not required to do so. The District also refused to afford Grounds a hearing to discuss his nonrenewal. After the April 1 statutory deadline for giving notice of reasons for nonrenewal passed, the District was required by the Term Contract Nonre-newal Act, Tex.Educ.Code §§ 21.201-211, [“the Act”] to employ Coach Grounds “in the same professional capacity for the suc*425ceeding school year.” Id. § 21.204. At first the District refused to employ him in any capacity, and eventually it offered to reinstate him as a teacher but not as a coach. The Commissioner of Education concluded, on appeals by Coach Grounds from the District’s decisions, that because the District had failed to give the notice required by statute, Grounds was entitled to continued employment both as a teacher and as a coach. Grounds v. Tolar Indep. Sch. Dist., Docket No. 110-Rla-484 (Comm’r Educ., May 14, 1984); Grounds v. Tolar Indep. Sch. Dist., Docket No. 340-R3-786 (Comm’r Educ., Oct. 17, 1988).
Grounds sued the District for breach of contract and for deprivation of his civil rights under the Fourteenth Amendment to the United States Constitution, article I, section 19 of the Texas Constitution, and 42 U.S.C. § 1983. The contract claim was for damages, including attorney fees and costs, resulting from the District’s wrongful refusal to continue Grounds’ employment. That claim, including related attorney fees and costs, was settled, leaving only the civil rights claims. In essence, Grounds contends that the District’s refusal to give him notice of the reasons for its decision not to renew his contract was a violation of due process for which he is entitled to recover additional damages apart from those incurred from his loss of employment. The trial court held that Grounds’ due process rights had been violated, but that he had suffered no damages as a result. Accordingly the trial court rendered judgment for the District. The court of appeals affirmed, but disagreed with the trial court that Grounds had been denied due process. The appeals court held that Grounds had no property interest protected by due process. 856 S.W.2d at 418.
The issue before us is not whether the District violated Grounds’ constitutional rights by denying him employment when his term contract had been automatically renewed due to the inadequacy of the notice of nonrenewal. Grounds makes no such argument, and the issue is foreclosed by the settlement of his contract claim and all damages which relate to his denial of employment. We may assume, without deciding, that once Grounds’ contract was automatically renewed for an additional term, he had a property interest in continued employment to the end of that term that was protected not only by contract law but by constitutional guaranties of due process.
Rather, the issue before us is whether the District’s denial of notice and a hearing, by itself, violated Grounds’ due process rights. Grounds no longer claims damages because his right to continued employment has been denied; that claim has been settled. Grounds claims damages only because his right to notice and a hearing has been denied. While it is undisputed that the District denied Grounds this right, it is also undisputed that Grounds is not entitled to recover damages unless he has been deprived of an interest in property. The only deprivation he claims is of notice and a hearing. The right to notice and a hearing is not a property interest; notice and a hearing are the process used to protect a property interest, not the interest itself. In essence, Grounds’ only remaining claim is that he has a due process right to due process.
The Court’s opinion is devoted entirely to the issue of whether term contract public teachers have a property interest in continued employment under the Act. While I therefore regard the issue which the Court decides as immaterial to a resolution of this case, I am nevertheless constrained to explain why I think the Court has decided that issue incorrectly. I do not agree with the Court that the Term Contract Nonre-newal Act, Tex.Educ.Code §§ 21.201-211, imposes any substantive restriction on a school board’s discretion not to renew term contracts of public teachers. The Act prescribes only the procedures for exercising that discretion; it does not limit the reasons for nonrenewal.
Under the Act, school districts are to adopt policies providing for the periodic written evaluation of teachers, § 21.202, establishing reasons for nonrenewal, § 21.-203(b), and prescribing procedures for administrators to follow in recommending that contracts not be renewed, § 21.203(c). *426If after considering a teacher’s evaluations, a district is inclined to accept a recommendation of nonrenewal, the district must give the teacher notice of its decision by April 1 preceding the expiration of the contract term, § 21.204(a), and of the reasons for that decision, § 21.204(c). The teacher is entitled to a hearing before the board of trustees before the decision is final, § 21.-205, and written, timely notice of whatever action is taken, § 21.206. A teacher aggrieved by the board’s decision may appeal to the State Commissioner of Education. § 21.207.
The decision not to renew a term contract is, in the words of the statute, within the “sole discretion” of the school district’s board of trustees. § 21.204(a). The Act imposes only two limitations on the exercise of that discretion. One is that the school board must have a reason for nonre-newal which it has adopted as part of the policies of the school district. The other is that the school board must give a teacher notice of the reasons for proposed nonre-newal. If the school board does not give this notice, the contract is automatically renewed. § 21.204(b). The rights to a hearing and an appeal do not limit the school board’s discretion but afford a teacher an opportunity to assure that the decision not to renew his contract has been made in the manner prescribed by statute.
It is the first limitation — that the reasons for nonrenewal be school district policy— which the Court considers to be substantive rather than purely procedural. The reality which the Court never confronts is that the only restriction the Act places on school district policy is that it must be consistent with law. Id. The requirement that school boards act lawfully does not, of course, create a property right of teachers to continued employment. Subject only to this restriction, school boards may adopt as policy any reason for nonrenewal. They are not limited to basing nonrenewal on inadequate performance. A school board is free to adopt a policy that a good teacher who has performed adequately in all respects can be replaced by someone whom it regards, in its sole discretion, to be a better teacher. The requirement that the reasons for nonrenewal be part of board policy in no way limits what those reasons can be. The requirement is procedural — it prescribes how reasons for nonrenewal are to be adopted. It is not a substantive limitation on the kinds of reasons allowed. The Court does not, and cannot, point to any such limitation.
The Court cites a number of cases which hold that public employees who can be discharged only for “cause” have a property interest in continued employment. I do not disagree that these cases correctly state the law. Nor do I disagree with the Court that if dismissal is limited to “cause”, it makes no difference whether “cause” is set by the Legislature or by the school board. The critical factor is whether the school board’s discretion to decide not to renew a teacher contract is subject to any substantive, as opposed to procedural, limitations. “Cause” is such a limitation, as the many cases cited by the Court amply demonstrate. The Act here, however, does not limit the reasons for nonrenewal of teacher term contracts to “cause”. § 21.203(a). The Act imposes no substantive limitation at all on the reasons for nonrenewal; it imposes only the procedural requirement that those reasons be adopted as policy by the school board. By contrast, “cause” is required to discharge a term contract teacher before the term expires. § 21.210. The cases the Court cites are simply inap-posite. The Court cites no case which holds that provisions like those of this Act create a constitutionally protected property right.
In Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the United States Supreme Court defined a constitutionally protected property interest:
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
When retention of term contract teachers rests entirely within the discretion of the school board, it cannot be said that the *427teachers “have a legitimate claim of entitlement” to continued employment. As the Court observes: “The hallmark of property ... is an individual entitlement grounded in state law, which cannot be removed except ‘for cause.’ ” Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1154-55, 71 L.Ed.2d 265 (1982). We agreed in Bexar County Sheriff's Civil Serv. Comm’n v. Davis, 802 S.W.2d 659, 661 n. 2 (Tex.1990), that civil service rules which permit dismissal only “for cause” create a constitutionally protected property interest. By contrast, the Act does not require “cause” for nonrenewal of term contracts, but only a reason — some reason, any reason — within the sole discretion of the school board.
The Court confuses procedural protections afforded by the State with due process guaranteed by the constitution. A statute which does no more than merely condition an employee’s removal on compliance with certain specified procedures creates no right in continued employment. Bishop v. Wood, 426 U.S. 341, 345-47, 96 S.Ct. 2074, 2077-79, 48 L.Ed.2d 684 (1976). In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985), the Court stated: “The categories of substance and procedure are distinct.... ‘Property’ cannot be defined by the procedures provided for its deprivation.” Although Loudermill holds that a state cannot lessen the nature of a property interest by affording it scant procedural protection, the principle on which the case is based cuts both ways. The state’s decision to provide or not to provide procedural protections does not itself determine whether the interest involved is or is not protected by constitutional due process.
The distinction between substantive limitations and procedural protections is consistently recognized by federal appellate courts. In Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir.1984), the court stated:
Procedural requirements ordinarily do not transform a unilateral expectation into a constitutionally protected property interest. A constitutionally protected interest has been created only if the procedural requirements are intended to be a “significant substantive restriction” on ... decision making. If the procedures required impose no significant limitation on the discretion of the decision maker, the expectation of a specific decision is not enhanced enough to establish a constitutionally protected interest in the procedures.
In Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir.), cert. denied, 493 U.S. 992, 110 S.Ct. 540, 107 L.Ed.2d 537 (1989) (citations omitted), the court stated: “In order to give rise to a constitutionally protected property interest, a statute or ordinance must go beyond mere procedural guarantees to provide some substantive criteria limiting the state’s discretion — as can be found, for example, in a requirement that employees be fired only ‘for cause.’ ” Accord Hogue v. Clinton, 791 F.2d 1318, 1324 (8th Cir.) (“Grievance procedures that do not establish any grounds upon which termination must be based do not in themselves create a property interest in employment.”), cert. denied, 479 U.S. 1008, 107 S.Ct. 648, 93 L.Ed.2d 704 (1986); Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983) (per curiam).
The Court characterizes the Act as requiring “preestablished” reasons for nonre-newal, a characterization it appears to consider significant, but which is actually somewhat misleading. It is true, of course, that the reasons for nonrenewal must be found within board policies before a decision not to renew a term contract is made, and to that extent the reasons must be “preestablished”. However, the Act does not limit a school board’s amendment of its policies from time to time to include reasons for nonrenewal not previously adopted as part of its policies. Nor does the Act preclude a school district from amending its policies in the course of a particular nonrenewal decision to include as a new policy the reason for that decision. To the extent, then, that nonrenewal reasons must be preestablished, that requirement does not impose a substantive restriction on the board’s decision making.
The Court’s conclusion that term contract teachers have a property interest in continued employment is also at odds with *428the statutory scheme governing teacher contracts. A district may choose to offer a teacher a continuing contract, or a probationary contract that may lead to a continuing contract. Tex.Educ.Code §§ 13.101-.102. Teachers with continuing contracts may be discharged only for reasons specified by statute, and thus clearly have some entitlement to continued employment. § 13.110. The Court’s decision equates the rights of term contract teachers with continuing contract teachers. For this reason the Fifth Circuit correctly held in English v. Hairston, 888 F.2d 1069 (5th Cir.1989), that term contract teachers do not have a property right to renewal.
The Court quotes dicta in Central Educ. Agency v. George West Indep. Sch. Dist., 783 S.W.2d 200, 202 (Tex.1989), to the effect that the “Act was specifically designed to give teachers due process rights when a school district decides not to renew the teacher’s contract of employment.” The holding in CEA was that a school district cannot unilaterally modify a term contract after it is executed. This holding was based on contract law, not constitutional law. The Court notably does not quote dicta from Seifert v. Lingleville Indep. Sch. Dist., 692 S.W.2d 461, 462 (Tex.1985), where we said: “The [Act] was enacted to give Texas teachers certain procedural protections.” Moreover, as the Fifth Circuit observed in English, CEA stopped short of stating that teachers have a property right to term contract renewal under the Act.
The consequences of concluding that the Act creates a property interest are significant. Without such an interest, the State may afford such protections as it considers appropriate. Where such an interest exists, however:
“minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action.” [Quoting Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 1263, 63 L.Ed.2d 552 (1980) ] ...
“While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.” [Quoting Arnett v. Kennedy, 416 U.S. 134, 167, 94 S.Ct. 1633, 1650, 40 L.Ed.2d 15 (1974) (Powell, J., concurring in part and dissenting in part).]
Loudermill, 470 U.S. at 541, 105 S.Ct. at 1493. If, as the Court seems to say, term contract teachers have a property interest in continued employment, then they are entitled not only to the procedural protections of the Act but to full due process rights in renewal of their contracts. The Act cannot limit those rights. To put it directly, Coach Grounds has a constitutional right to continued employment by the Tolar Independent School District which cannot be denied him without full due process protections, regardless of what the Act says, and all other term contract teachers have a similar right. Teachers are limited to the procedural protections of the Act only if they do not have a property interest in contract renewal.
The Court bases its decision upon the United States Constitution, although Grounds specifically relies also upon the Texas Constitution. Our construction of the Fourteenth Amendment is not, of course, binding on the federal courts. They are free to assess the Act differently.
The Court remands the case to the court of appeals to consider the propriety of the trial court’s finding that Grounds has suffered no damages from any violation of his constitutional rights. Nothing in the Court’s opinion precludes the appeals court from upholding that finding on remand, or of limiting Grounds to the recovery of nominal damages.
The lower courts correctly disposed of Grounds’ claims in this case, and I would affirm their judgments. Accordingly, I dissent.