Smith v. Nelson

*797KIDD, Justice,

dissenting, on motion for rehearing.

Today, the majority opinion effectively restricts a teacher’s right to appeal a school district’s adverse employment action or decision to the Commissioner. In my view, the rule of statutory construction announced by the majority will bar all breach-of-contract appeals where a teacher has not suffered an immediate, out-of-pocket, monetary loss. From this point forward, in all contract disputes short of outright termination, the school district can prevent an appeal to the Commissioner by simply continuing to pay a teacher’s full salary. Because in my opinion this result is not required by the Education Code, I respectfully dissent.

The Controversy

Pete Smith was hired in July 1997 as head football coach and athletic coordinator at a high school pursuant to a three-year contract with Zapata County Independent School District. In October 1997, less than two months into the school year and high school football season, he was demoted without notice or explanation, and was reassigned to teach physical education in an elementary school, where he was not certified to teach. Smith filed an administrative grievance with the district, arguing that this action violated his contract and further, that the action was taken unilaterally by the school district without any of the due process guarantees provided by his contract and district personnel policies. Smith sought, as his sole remedy, reinstatement to his former position. Smith specifically did not seek monetary damages against the district. The district administration denied that its actions violated Smith’s contract. Not surprisingly, the district superintendent and district trustees denied Smith any relief.

Smith then filed an appeal with the Commissioner of Education pursuant to the appeal procedure contained in the Texas Education Code. See Tex. Educ.Code Ann. § 7.057 (West 1996). Prior to 1995, Smith would have been entitled to appeal any grievance to the Commissioner. Texas Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90-91 (Tex.1992) (stating that “any person aggrieved by ... actions or decisions of any board of trustees” is entitled to appeal to the Commissioner). However, following a legislative committee’s extensive interim study, the Texas Education Code was revised. The right to appeal was restricted, and pertinent to this cause, a teacher’s breach-of-contract appeal was limited to those instances where a violation of the contract “causes or would cause monetary harm to the employee.” Tex. Educ.Code Ann. § 7.057(a)(2)(B). Following the district’s jurisdictional challenge, the Commissioner dismissed Smith’s appeal.

It is ironic that in a contract dispute where Smith’s sole requested remedy is reinstatement, the Commissioner’s decision and the majority opinion expend so much effort discussing the type of monetary damages Smith is prohibited from recovering.1 Although the majority opinion seems to apply traditional rules of statutory construction (ie., the plain meaning rule), it ignores a key portion of the Education Code provision in question.

The Plain Meaning of “Would Cause” and “Monetary Harm”

“If the meaning of the statute is plain, we apply it as written.” Sorokolit v. Rhodes, 889 S.W.2d 239, 244 (Tex.1994) (citation omitted). “The goal of statutory *798construction is to give effect to the intent of the legislature.” Id. at 241 (citation omitted). If the language of the statute is unambiguous, then the court must seek the legislative intent as found in the “plain and common meaning of the words and terms used.” Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex.1993) (citation omitted).

Following the 1995 amendments to the Education Code, Smith can only appeal a contract violation that “causes or would cause monetary harm to the employee.” Tex. Educ.Code Ann. § 7.057(a)(2)(B). While the majority opinion concludes that Smith has failed to show that the alleged breach has caused present monetary harm, it ignores the tougher question of whether it “would cause” harm in the future. In his decision, the Commissioner quoted the following definition of “would”: a “word sometimes expressing what might be expected.” Black’s Law Dictionary 1607 (6th ed.1990) (emphasis added). Therefore, if a teacher is able to present competent evidence that the alleged breach of contract might be expected to cause monetary harm, the Commissioner is required to exercise jurisdiction over the appeal. To require Smith to suffer an immediate salary reduction as a prerequisite to the appeal of his demotion, as the majority opinion does, ignores an important part of the statute in question. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981) (“It is a rule of statutory construction that every word of a statute must be presumed to have been used for a purpose.”) (citation omitted).

Additionally, it seems to me that the majority misconstrues the term “monetary harm.” One definition of harm is “a material and tangible detriment or loss to a person, whether or not the law grants a remedy.” Webster’s Third New International Dictionary 1034 (Philip B. Gove ed., 1986) (emphasis added). However, the majority construes monetary harm to require monetary damages.2 Certainly the legislature could have used the term “damages” rather than “harm,” but it did not. Rules of statutory construction prohibit us from substituting words within a statute; rather we must apply the words as originally drafted by the legislature. Sorokolit, 889 S.W.2d at 241 (“In applying the plain and common meaning of the language in a statute, courts may not by implication enlarge the meaning of any word in the statute beyond its ordinary meaning; such implication is inappropriate when legislative intent may be gathered from a reasonable interpretation of the statute as it is written”) (citations omitted). More importantly, the majority opinion restricts the type of damages required as a prerequisite to appeal. According to the majority, only contract damages are permitted; tort damages will not suffice. By what rule of statutory construction does the majority arrive at this conclusion? We are not told. Certainly, this distinction does not reside within the statute. Further, the majority opinion defines contract damages as “the value of the expected contractual bargain.” Op. at 795. Under this test and absent outright termination, no teacher can meet this jurisdictional bar as long as the district continues to pay the teacher’s full salary. Finally, the majority argues that tort damages are not recoverable against the district. While this might be true in some cases, how does that disqualify Smith from bringing this appeal where he seeks only reinstatement?3

*799In sum, the majority has taken the qualifying phrase “causes or would cause monetary harm” and construed it to read “causes present, recoverable monetary contract damages.” This misconstruction of the statute has robbed Smith of a valuable right to appeal. See Doctors Hosp. Facilities v. Fifth Court of Appeals, 750 S.W.2d 177, 179 (Tex.1988) (“We have long recognized that the right of access to an appellate tribunal is a valuable one, constitutionally protected against arbitrary or unreasonable abrogation.”) (citation omitted).

Conclusion

This case is not about the right to recover monetary damages. This case is not about whether school districts can transfer their employees from one school to another, or reassign them teachers from one position to another. This case is about the appellate rights of teachers who allege that they have been aggrieved by a school district’s violation of a written employment contract in such a manner as to cause them monetary harm, presently or in the foreseeable future. By construing the statute in a manner that denies teachers in these circumstances the statutory right to a hearing before the Commissioner, I fear the majority opinion allows school districts to breach employment contracts whenever they deem it expedient to do so and are financially ready, willing, and able to continue paying the teacher’s full salary for the balance of the contract term.

Because I believe that the majority opinion places an unwarranted and unjustified restriction on Smith’s right to appeal his contract dispute to the Commissioner, I respectfully dissent.

. The Commissioner even devotes a portion of his written decision to a discussion of sovereign immunity as an absolute bar in cases involving tort damage claims. Smith seeks no tort damage recovery.

. Damages: “Money claimed by, or ordered to be paid to, a person as compensation for loss or injury.” Black's Law Dictionary 393 (7th ed.1999).

. Purely to preserve his jurisdictional right to appeal, Smith filed affidavits by the executive director of the Texas High School Coaches Association and two other high school football *799coaches demonstrating that his demotion would result in future monetary harm.