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
6015790
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/10/2015 11:56:19 AM
JEFFREY D. KYLE
CLERK
CASE NO. 03-15-00313-CV
_______________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
7/10/2015 11:56:19 AM
_____________________________ JEFFREY D. KYLE
Clerk
HERMENIA JENKINS ,
Appellant
v.

CROSBY INDEPENDENT SCHOOL DISTRICT, and
MICHAEL L. WILLIAMS, COMMISSIONER OF EDUCATION,
Appellees
_______________________________________

Appealed from the 200th Judicial District of Travis County, Texas
Cause No. D-1-GN-14-000619
Jenkins v. Crosby Indep. Sch. Dist. and Michael L. Williams
The Honorable Amy Clark Meachum presiding
_______________________________________

APPELLANT’S BRIEF
____________________________________

Kevin F. Lungwitz State Bar No. 12698790
Elizabeth Poole State Bar No. 24051201
The Lungwitz Law Firm, P.C.
3005 S. Lamar Blvd.
Box D-109-362
Austin, Texas 78704-4785
P. 512.461.0188
F. 866.739.7138
Kevin@LungwitzLaw.com
Elizabeth@LungwitzLaw.com
Attorneys for Appellant Hermenia Jenkins

ORAL ARGUMENT REQUESTED July 10, 2015
 I. IDENTITIES OF PARTIES AND ATTORNEYS

Appellant/Plaintiff
Hermenia Jenkins

Attorney in District Court and Court of Appeals:
Kevin Lungwitz
State Bar No. 12698790
Elizabeth Poole
State Bar No. 24051201
THE LUNGWITZ LAW FIRM, P.C.
3005 S. Lamar Blvd.
Box D-109-362
Austin TX 78704
Phone: 512.461.0188
Fax: 866.739.7138
Kevin@LungwitzLaw.com
Elizabeth@LungwitzLaw.com

Appellee/Defendant:
Crosby Independent School District

Attorneys in District Court and Court of Appeals:
David B. Hodgins
Rebecca R. Weimer
THOMPSON & HORTON, L.L.P.
3200 Southwest Freeway, Suite 2000
Houston TX 77027
Tel: 713.554.6745
Fax: 713.583.8245
DHodgins@thompsonhorton.com
RWeimer@thompsonhorton.com

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Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
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 Appellee/Defendant:
Michael L. Williams, Commissioner of Education

Attorneys in District Court and Court of Appeals:
Andrew Lutostanski
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
Administrative Law Division
Andrew.Lutostanski@texasattorneygeneral.com

Ken Paxton/Greg Abbott, Attorney General of Texas
Charles E. Roy/Daniel T. Hodge, First Assistant Attorney General of Texas
James E. Davis/David C. Mattax, Dep. Attorney General for Defense Litigation
David A. Talbot, Jr., Chief - Administrative Law Division

P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4200
Facsimile: (512) 457-4680

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 TABLE OF CONTENTS

IDENTITY OF PARTIES AND ATTORNEYS ......................................................... 2
TABLE OF CONTENTS ............................................................................................ 4
TABLE OF APPENDICES ........................................................................................ 5
INDEX OF AUTHORITIES ...................................................................................... 6
STATEMENT OF THE CASE .................................................................................. 8
STATEMENT REGARDING ORAL ARGUMENT ................................................ 8
STANDARD OF REVIEW ........................................................................................ 9
ISSUES PRESENTED ............................................................................................... 10
STATEMENT OF FACTS .......................................................................................... 11
SUMMARY OF THE ARGUMENT .......................................................................... 12
ARGUMENT .............................................................................................................. 14

1. Texas law requires a principal to be employed in the “same professional
capacity” from year to year, unless the school board nonrenews her
contract. Here, Jenkins was employed as principal for eight years, then
involuntarily reassigned to assistant principal without receiving the quasi-
due-process protections of the contract nonrenewal process. Is principal
in the “same professional capacity” as assistant principal? .............................. 14

A. Texas Education Code §21.201(1) defines “professional capacity”
in §21.206. ............................................................................................. 14

B. A principal’s job is not comparable to an assistant principal’s job. ...... 20

2. School districts must employ each educator under a contract with a
legitimate professional capacity. Jenkins was a principal, but her contract
says she was an “Employee” which is not a legitimate professional
capacity. The commissioner found that Jenkins was an “administrator,” a
term not found in her contract or defined in law, but broad enough to
encompass her reassignment from principal to assistant principal. Did the
commissioner correctly interpret the contract? ................................................ 24

CONCLUSION ........................................................................................................... 29
PRAYER .................................................................................................................... 30
CERTIFICATE OF COMPLIANCE ......................................................................... 31
CERTIFICATE OF SERVICE ................................................................................... 32

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 TABLE OF APPENDICES

1. Jenkins v. Crosby Indep. Sch. Dist.,
Docket No. 043-R10-1211 (Tex. Comm’r Educ. 2013)

2. Final Judgment - Jenkins v. Crosby Indep. Sch. Dist., No. D-1-GN-14-
000619 (200th Dist. Ct., Travis County, Tex. Feb. 26, 2015)

3. Texas Education Code Chapter 21, Subchapter E §§21.201-21.213

4. Texas Education Code §11.201 and §11.202

5. Jenkins’ Employment Contract 2011-2013

6. Barich v. San Felipe-Del Rio Cons. Indep. Sch. Dist.,
Docket No. 117-R1a-484 (Tex. Comm’r Educ. 1985)

7. Perales v. Robstown Indep. Sch. Dist.,
Docket Nos. 053-R10-104; 084-R3-604 (Tex. Comm’r Educ. 2006)

8. Carpenter v. Wichita Falls Indep. Sch. Dist.,
Docket No. 247-R3-491 (Tex. Comm’r Educ. 1993)

9. Lehr v. Ector County Indep. Sch. Dist.,
Docket No. 003-R3-0908 (Tex. Comm’r Educ. 2011)

10. Young v. Leggett Indep. Sch. Dist.,
Docket No. 175-R3-898 (Tex. Comm’r Educ. 1998)

11. Wheeler v. Austin Indep. Sch. Dist.,
Docket No. 008-R3-1108 (Tex. Comm’r Educ. 2011)

12. Tuck v. Alief Indep. Sch. Dist.,
Docket No. 008-R10-1007 (Tex. Comm’r Educ. 2012)

13. Chart of reassignment decisions from the commissioner (From the
commissioner’s brief filed in Travis County District Court.)

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 INDEX OF AUTHORITIES

Texas Cases:

Evergreen Nat. Indem. Com. v. Tan It All, Inc., 111 S.W. 3d 669
(Tex. App. - Austin 2003, no pet.) ...................................................... 28
Kelley-Coppedge, Inc. v. Highlands Ins. Co.,
980 S.W.2d 462 (Tex. 1998) ............................................................... 28
Montgomery Independent School District v. Davis, 34 S.W.3d 559, 566
(Tex. 2000) ............................................................................................ 9
Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443
(Tex. App. – Austin 2011, no pet.) ....................................................... 9

Commissioner’s Decisions:

Barich v. San Felipe-Del Rio Cons. Indep. Sch. Dist.,
Docket No. 117-R1a-484 (Tex. Comm’r Educ. 1985) ..... 16, 17, 19, 20
Carpenter v. Wichita Falls Indep. Sch. Dist.,
Docket No. 247-R3-491 (Tex. Comm’r Educ. 1993) ................... 16, 26
Jenkins v. Crosby Indep. Sch. Dist.,
Docket No. 043-R10-1211 (Tex. Comm’r Educ. 2013) ........... 8, 18, 24
Lehr v. Ector County Indep. Sch. Dist.,
Docket No. 003-R3-0908, p. 13 (Tex. Comm’r Educ. 2011) ....... 15, 19
Martinez v. San Antonio Indep. Sch. Dist.,
Docket No. 219-R3-589 (Tex. Comm’r Educ. 1989) ........................ 17
Perales v. Robstown Indep. Sch. Dist.,
Docket No. 053-R10-104; 084-R3-604 (Tex. Comm’r Educ. 2006)..16
Ramos v. El Paso Indep. Sch. Dist.,
Docket No. 002-R10-900 (Tex. Comm’r Educ. 2002) ...................... 17
Tuck v. Alief Indep. Sch. Dist.,
Docket No. 008-R10-1007 (Tex. Comm’r Educ. 2012)
..................................................................................... 15, 19, 20, 25, 28
Wheeler v. Austin Indep. Sch. Dist.,
Docket No. 008-R3-1108 (Tex. Comm’r Educ. 2011) ........... 18, 25, 28
Young v. Leggett Indep. Sch. Dist.,
Docket No. 175-R3-898 (Tex. Comm’r Educ. 1998) ........................ 25

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Texas Statutes and Administrative Code:

Texas Education Code §7.057(d) ................................................................... 9
Texas Education Code §11.201 and 11.202 .................................................. 21
Texas Education Code §11.253..................................................................... 21
Texas Education Code §11.253(h) ................................................................ 22
Texas Education Code Chapter 21 ................................................................ 14
Texas Education Code §21.002..................................................................... 27
Texas Education Code §21.201................................................... 12, 13, 16, 26
Texas Education Code §21.201(1) ...................... 12, 14, 15, 16, 18, 19, 20, 29
Texas Education Code §21.206....................................... 12, 14, 15, 16, 19, 20
Texas Education Code §21.206(b) .................................................... 14, 15, 18
Texas Education Code §21.210(c) ................................................................ 16
Texas Education Code §21.212..................................................................... 15
Texas Education Code §21.212(b) ................................................................ 15
Texas Education Code §21.354..................................................................... 23
Texas Education Code §21.3541................................................................... 23
Texas Education Code §21.357..................................................................... 22
Texas Education Code §39.107(b) ................................................................ 22
Texas Govt. Code §2001.174 .......................................................................... 9
Texas Govt. Code Chapter 2001, subchapters F and G .................................. 8
19 Texas Admin Code Chapters 241 and 242 ............................................... 23
19 Texas Admin Code §232.2(b) .................................................................. 23

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 STATEMENT OF THE CASE

Nature of the This is a public educator employment and contract case.
case The case is procedurally governed by Texas Education
Code §7.057(d), which gives this court jurisdiction; and
Texas Government Code Chapter 2001, subchapters F
and G.
Jenkins pursued an employment grievance. (R. 287-289;
R. 327-336) The Crosby ISD school board denied the
grievance on October 24, 2011. (R. 324)
The Jenkins timely appealed to the Commissioner of
Commissioner Education who affirmed the school board on December
of Education 19, 2013. Jenkins v. Crosby Indep. Sch. Dist., Docket
No. 043-R10-1211 (Tex. Comm’r Educ. 2013) (Appx.
1, R. 5-30).
Trial Court Jenkins timely appealed the Commissioner’s Decision to
Judge, district, the 200th Judicial District Court of Travis County,
county and Texas. Jenkins v. Crosby Indep. Sch. Dist. and Michael
disposition L. Williams, Cause No. D-1-GN-14-000619.

On February 26, 2015, the Honorable Amy Clark
Meachum signed the Final Judgment affirming the
Commissioner’s Decision. (Appx. 3) Jenkins timely
filed a motion for new trial on March 23, 2015, which
was overruled by operation of law.
Third Court of Jenkins filed a Notice of Appeal on May 22, 2015.
Appeals

STATEMENT REGARDING ORAL ARGUMENT

Oral argument would aid in the Court’s decision on the novel issues

presented. The likely presence of amici curiae indicates a broad interest in the

issues among affected members of the school law community. All of the attorneys

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in this case have experience in the narrow field of school law, providing the Court

the opportunity to inquire about matters that the briefs may not fully resolve.

STANDARD OF REVIEW

This Court has jurisdiction pursuant to §7.057(d) of the Texas Education

Code. Judicial review of the commissioner’s decision is governed by a substantial

evidence review, as set forth in §2001.174 of the Texas Administrative Procedure

Act. Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443 (Tex. App. – Austin

2011, no pet.). Under the substantial evidence rule, this Court reviews issues of

law de novo. Tex. Gov. Code §2001.174. This appeal involves pure issues of law.

This Court must confine its review to the record of the proceedings before

the commissioner. In reviewing the commissioner's decision, this Court must

determine whether there is "more than a mere scintilla" of evidence to support the

commissioner's decision. Whether the commissioner's decision meets that standard

is a question of law. Montgomery Independent School District v. Davis, 34 S.W.3d

559, 566 (Tex. 2000).

Substantial evidence does not exist to support the commissioner’s decision

and the commissioner’s conclusions of law are in violation of statute, in excess of

the agency’s statutory authority, or are otherwise erroneous. Tex. Gov. Code

§2001.174.

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 ISSUES PRESENTED

1. Texas law requires a principal to be employed in the “same

professional capacity” from year to year, unless the school board

nonrenews her contract. Here, Jenkins was employed as principal for

eight years, then she was involuntarily reassigned to assistant

principal without receiving the quasi-due-process protections of the

contract nonrenewal process. Is principal in the “same professional

capacity” as assistant principal?

2. School districts must employ each educator under a contract with a

legitimate professional capacity. Jenkins was a principal, but her

contract says she was an “Employee” which is not a legitimate

professional capacity. The commissioner found that Jenkins was an

“administrator,” a term not found in her contract or defined in law, but

broad enough to encompass her reassignment from principal to

assistant principal. Did the commissioner correctly interpret the

contract?

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 STATEMENT OF FACTS1

Jenkins served as campus principal of Charles R. Drew Intermediate School

from 2003 through June 2011. (R. 258, grievance transcript) She was employed

by Defendant Crosby Independent School District (CISD) under a term contract for

the school years 2011 - 2013, which she signed on March 2, 2011. (Appx. 5; R.

294 ex. 4) The contract is silent regarding her job placement or employment

classification. (e.g. principal, teacher, administrator, counselor, etc.) The contract

merely refers to Jenkins as “Employee.” (Appx. 5)

The superintendent informed her by memo dated June 28, 2011 that he was

reassigning Jenkins from campus principal of Charles R. Drew Intermediate to

assistant principal at Crosby High School for the 2011-12 school year. No

performance reason was given for the reassignment. (R. 291) At the time, Jenkins

had worked in CISD for 16 years, the previous eight years as principal.

Jenkins objected to the reassignment by pursuing an employment grievance

under school board policy DGBA. The school board denied the grievance. (R.

287-322; R. 324) Policy DGBA does not provide for a due process hearing; only a

“stop, look and listen” hearing. (R. 327)

1
“R.” stands for administrative record, and is followed by the administrative record page
number. The administrative record is part of the reporter’s record.
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 SUMMARY OF THE ARGUMENT

THE FIRST ISSUE: Principal and assistant principal are not in the “same

professional capacity” in Texas Education Code §21.206. Texas Education Code

§21.201(1) defines “teacher” as “superintendent, principal, supervisor, classroom

teacher, counselor, or other full-time professional employee who is required to

hold a certificate …, or a nurse.” (Appx. 3, emphasis added) Applying the law to

the facts, §21.206 requires that Jenkins - a principal - be employed in the “same

professional capacity” from year to year, unless the school board invokes the

statutory, contract nonrenewal process. (Appx. 3) Jenkins lost her job as principal

without receiving the protections of the quasi-due-process contract nonrenewal

process because CISD and the commissioner erroneously construed principal and

assistant principal to be in the same professional capacity.

For years the commissioner has opined that the positions listed in §21.201,

including superintendent, classroom teacher, counselor, librarian and nurse are all

distinct professional capacities - except for principal.

Instead of looking to the list of professional capacities in §21.201 to decide

this case, the commissioner first looked to the job title in the contract. Here, the

contract was too vague to determine professional capacity, so the commissioner

purportedly reviewed the authority, duties and salaries of the positions before and

after the reassignment to determine whether they fell within the same professional
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capacity. Even by this standard, it is clear that principal is not in the same

professional capacity as assistant principal. By law, a principal is the sole, campus

instructional leader and state law largely defines the authority and duties.

Conversely, state law does not define what an assistant principal does. An

assistant principal serves at the pleasure of the principal, subject to a local job

description. Also, the job descriptions in this case prove that principal and

assistant principal are not in the same professional capacity.

THE SECOND ISSUE: A school district must employ each educator under a

contract with a legitimate professional capacity. Though Jenkins had been

employed as principal for the preceding eight years, Jenkins’ contract with CISD

said she was a generic “employee,” which the commissioner has said is not a

legitimate professional capacity. To resolve this contractual ambiguity, the

commissioner erroneously held that Jenkins was an “administrator,” another

generic term broad enough to encompass her reassignment to assistant principal.

But “administrator” does not appear anywhere in Jenkins’ contract or in §21.201,

and it is not defined in relevant state law. Since the contract did not state a

legitimate professional capacity, the commissioner should have construed it

narrowly against the author, CISD, as a contract for the position of “principal,”

thereby invalidating Jenkins’ reassignment to assistant principal.

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 ARGUMENT

1. Texas law requires a principal to be employed in the “same
professional capacity” from year to year, unless the school
board nonrenews her contract. Here, Jenkins was employed as
principal for eight years, then involuntarily reassigned to
assistant principal without receiving the quasi-due-process
protections of the contract nonrenewal process. Is principal in
the “same professional capacity” as assistant principal?

A. TEXAS EDUCATION CODE §21.201(1) DEFINES
“PROFESSIONAL CAPACITY” IN §21.206.

Chapter 21 of the Texas Education Code governs the contractual relationship

between the professional, certified employee and the school district. Texas

Education Code §21.201(1) defines teacher as:

A superintendent, principal, supervisor, classroom teacher, counselor,
or other full-time professional employee who is required to hold a
certificate issued under Subchapter B, or a nurse.

(Appx. 3, emphasis added)

One of the greatest statutory protections teachers have is the right to be employed

from year to year, under contract, in the same professional capacity unless the

school district invokes the statutory, contract nonrenewal process. Texas

Education Code §21.206(b) states, “The board’s failure to give [timely, written

notice of proposed, contract nonrenewal] … constitutes an election to employ the

teacher in the same professional capacity for the following school year.”

(Brackets and emphases added) (Appx. 3) The commissioner has described this
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passage in §21.206 as “a central plank” in an educator’s statutory contract rights.

Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007, p. 5 (Tex. Comm’r

Educ. 2012) (Appx. 12).

Since the term “teacher” specifically includes principal, as applied in this case

§21.206(b) says, “The board’s failure to give [statutory written notice of proposed,

contract nonrenewal] … constitutes an election to employ the principal in the same

professional capacity for the following school year.” (Brackets and emphases

added; “principal” substituted for “teacher”) (Appx. 3) Principal is one of several

“professional capacities” specifically identified in §21.201(1).2

If a school board seeks to nonrenew a principal’s contract at the end of the

school year, the statutory nonrenewal process in §21.206 requires the board to give

a principal timely written notice and reasons for the proposed nonrenewal, and an

opportunity for a formal hearing to challenge the reasons. At the hearing, the

principal has the right to be represented, to hear the evidence against her, to cross-

examine adverse witnesses, and to present supporting evidence. Tex. Educ. Code

2
Superintendents are not included in the definition of “teacher” in §21.206. Superintendents are
protected by §21.212, the only other place in the Education Code where the term “same
professional capacity” is used. While the contract nonrenewal procedures for superintendents
are slightly different than for principals, supervisors, classroom teachers, and counselors,
§21.212(b) still requires a school board to “employ the superintendent in the same professional
capacity for the following school year” if the board fails to timely invoke the contract
nonrenewal process. (Appx. 3) It is undisputed that superintendent is a “professional capacity”
and that a school board cannot reassign a superintendent without following the contract
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§21.210 (c). These protections are best described as due process or “quasi-due-

process” protections.3 Here, Jenkins lost her principal job without ever receiving

these protections. She was only allowed to pursue a grievance with a “stop, look,

and listen” review by the school board. (R. 327; 287-289)

There are no reported Texas court cases on whether §21.201 defines some or

all of the “professional capacities” referred to in §21.206.4 Barich v. San Felipe-

Del Rio Cons. Indep. Sch. Dist., Tex. Educ. Agency Docket No. 117-R1a-484

(Tex. Comm’r Educ. 1985) (Appx. 6), is the commissioner’s watershed decision on

reassignments. In Barich, the issue was whether an ROTC instructor had to be

reassigned to the same ROTC position (for which he may not have been properly

certified by the U.S. Air Force), or another teaching position for which he was

certified by the Texas Education Agency. The commissioner explained that the

nonrenewal process. Lehr v. Ector County Indep. Sch. Dist., Tex. Educ. Agency Docket No.
003-R3-0908, p. 12 (Tex. Comm’r Educ. 2011) (Appx. 9)
3
While these protections include the traditional components of due process, the legislature has
declared that, “A teacher does not have a property interest in a contract beyond its term.” Tex.
Educ. Code §21.204 (e). Whether this declaration formally undercuts a claim to due process in
light of these traditional due process rights, is beyond the scope of this case. Suffice it to say that
the contract nonrenewal protections are at the very least “quasi-due-process” in nature.
4
The commissioner has confronted this argument before. Perales v. Robstown Indep. Sch. Dist.,
Docket Nos. 053-R10-104; 084-R3-604 (Tex. Comm’r Educ. 2006) (Appx. 7) “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).” Carpenter v.
Wichita Falls Indep. Sch. Dist., Docket No. 247-R3-491 (Tex. Comm’r Educ. 1993) (Appx. 8)
“Appellant would have the commissioner … hold that the phrase "same professional capacity"
… is … defined … by the definition of "teacher" found in §21.201(1) of that Act. … [T]his
phrase is … undefined … and … is a matter for interpretation by the commissioner, in the first
instance, and by the courts.”
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legislature used the phrase “same professional capacity” rather than “exact same

position,” thereby giving districts flexibility in personnel assignments “while

discouraging the abuse of the district’s inherent or contractual reassignment

authority.” Barich, pp. 7-8 (Appx. 6)

Jenkins agrees that an employee is not entitled to the exact same position

from year to year. “Same professional capacity” lies somewhere between, on the

one hand, the “exact same position,” and on the other hand, the school district’s

unfettered authority to reassign employees. The elementary principal of Campus A

may be reassigned as elementary principal of Campus B as in Martinez v. San

Antonio Indep. Sch. Dist., Tex. Educ. Agency Docket No. 219-R3-589 (Tex.

Comm’r Educ. 1989) (Appx. 8). A high school principal may be reassigned as an

elementary school principal as in Ramos v. El Paso Indep. Sch. Dist., Tex. Educ.

Agency Docket No. 002-R10-900 (Tex. Comm’r Educ. 2002) (Appx. 9).

However, since principal is its own professional capacity, CISD cannot reassign

Jenkins from principal to assistant principal without giving her the protections of

the contract nonrenewal process.

The commissioner recently described the competing interests that exist in

reassignments:

T h e district is given some flexibility to reassign employees in order
to manage staff to cover school needs, while employees are assured of
due process to protect against decisions that effectively demote them or
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 fundamentally alter their existing contractual relationships with and
duties to the employing district.

Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3-1108, p. 3 (Tex. Comm’r

Educ. 2011) (Appx. 11). Though the commissioner speaks as if he tries to balance

the different interests, the scales are always tipped against administrators. For 30

years prior to this case, the commissioner has never rejected a reassignment from

one administrator position to another. (Appx. 13) Jenkins was effectively

demoted from the unique position of campus principal to one of several assistant

principals at a different campus, fundamentally altering her contractual relationship

with the district, without any quasi-due-process protection that the commissioner

promised to protect.

The commissioner opined in this case, “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).”

Jenkins v. Crosby Indep. Sch. Dist., Tex. Educ. Agency Docket No. 043-R10-1211

(Tex. Comm’r Educ. 2013) (Appx. 1, p. 24 emphasis added). This indecisiveness

is an acknowledgement by the commissioner that he has recognized as professional

capacities many of the positions listed in §21.201(1), but not principal.

An administrator … 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.
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Barich, p. 8 (Appx. 6); See Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-

1007, p. 6 (Tex. Comm’r Educ. 2012) (Appx. 12). Thus, the commissioner has

conceded that §21.201(1) defines “professional capacity” as to superintendent,

classroom teacher, counselor, nurse, and librarian.5 However, without any

rationale, the commissioner has failed to include principal in that group, even

though it is also specifically identified in §21.201(1).

Defendants will argue that superintendents have statutory authority to

reassign staff and that the employment contract also grants reassignment authority.

There is a kernel of truth to that, but “same professional capacity” in §21.206 has

always tempered the school district’s authority to reassign professional staff.

Section §21.206 also trumps any contract language that says an employee may be

reassigned. This is the tension that the commissioner accurately described in

Barich that exists between “exact same position” and the district’s “abuse” of its

right to reassign. The commissioner said it best:

It would be odd for districts to believe just because contracts referred
to employees as ‘professional employees’ that they could reassign
such employees to any other professional position. If that were the
case, superintendents could be reassigned as librarians and school
nurses.

5
Superintendents may not be reassigned out of their professional capacity. Lehr v. Ector County Indep.
Sch. Dist., Docket No. 003-R3-0908, p. 13 (Tex. Comm’r Educ. 2011) (Appx. 9)
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Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007, p. 11 (Tex. Comm’r

Educ. 2012) (Appx. 12). If this Court finds that principal is its own professional

capacity like superintendent, classroom teacher, counselor, librarian and nurse,

Jenkins can still be reassigned to another campus as principal. Jenkins could agree

to a reassignment to another professional capacity. But the district could not

involuntarily reassign her to a position other than principal without giving her the

quasi-due-process protections of the contract nonrenewal process. Employing a

principal as an “employee,” then claiming an unchecked right to reassign her, is an

“abuse of the district’s inherent or contractual reassignment authority,” the very

thing the commissioner promised to guard against in Barich. Barich, pp. 7-8

(Appx. 6).

B. A PRINCIPAL’S JOB IS NOT COMPARABLE TO AN
ASSISTANT PRINCIPAL’S JOB

Assuming arguendo that §21.201(1) does not define “professional capacity”

in §21.206, principal and assistant principal are still not in the same professional

capacity. The commissioner has stated that he will review “differences in

authority, duties, and salary” to determine if two jobs are in the same professional

capacity. Barich p. 8. (Appx. 6.) He has declared that the test is “fact-intensive.”

Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007, p. 11 (Tex. Comm’r

Educ. 2012) (Appx. 12). But, once the employee is declared to be an

_______________________________________________________________________________________
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“administrator,” the commissioner’s test has proven to be a legal fiction. No

matter how different the authority, duties and salary, the result for administrators

is always the same: The commissioner has approved all administrator-to-

administrator reassignments for the last 30 years. (Appx. 13)

An objective comparison of the authority and duties between principal and

assistant principal prove that the positions are fundamentally different and are not

in the same professional capacity. Like a superintendent, and unlike any other

position in the public schools, a principal receives her authority and duties directly

from state law. Tex. Educ. Code §§11.201, 11.202 (Appx. 4). A school district or

superintendent may not alter the authority granted to a principal under state law.

Pursuant to Texas Education Code §11.202 the principal has these powers:

a. The principal of a school is the instructional leader of the
school and shall be provided with adequate training and
personnel assistance to assume that role.

b. Each principal shall:

1. Except as provided by Subsection (d), approve all teacher
and staff appointments for that principal's 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;
2. Set specific education objectives for the principal's
campus, through the planning process under Section
11.253;
3. Develop budgets for the principal's campus;

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 4. Assume the administrative responsibility and
instructional leadership, under the supervision of the
superintendent, for discipline at the campus;
5. Assign, evaluate, and promote personnel assigned to the
campus;
6. Recommend to the superintendent the termination or
suspension of an employee assigned to the campus or the
nonrenewal of the term contract of an employee assigned
to the campus; and
7. Perform other duties assigned by the superintendent
pursuant to the policy of the board of trustees.

c. The board of trustees of a school district shall adopt a policy for
the selection of a campus principal that includes qualifications
required for that position.

d. The superintendent … has final placement authority for a
teacher transferred because of enrollment shifts or program
changes …

A principal shall regularly consult a committee of community stakeholders in

the “planning, operation, supervision, and evaluation of the campus educational

program.” Tex. Educ. Code §11.253(h). That a principal is granted authority

directly from state law portends that the state also holds her accountable for the

success or failure of the campus. A principal may not be retained at a campus

deemed “unacceptable” for two years unless by permission of a statutory campus

intervention team. Tex. Educ. Code §39.107(b). Conversely, a principal may

receive a financial performance incentive for success. Tex. Educ. Code §21.357.

State law requires specific guidelines for the appraisals of principals that are

distinct from the appraisals of other administrators, including assistant principals.
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
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Tex. Educ. Code §21.354 and Tex. Educ. Code §21.3541.

There are only two categories of administrator certificates in Texas:

superintendent and principal. Title 19 Tex. Admin. Code Chap. 241 and 242.6

Not only does state law enunciate a principal’s legal duties and authority, state

regulation makes it clear that, like superintendents, principals are one-of-a-kind.7

A principal is a community figure and the spokesperson for the school. When

a campus principal is removed or demoted, it makes the news, even in large cities.

In contrast, an assistant principal’s authority and duties come from the

principal or other supervisors. There is no state law defining the authority and

duties of an assistant principal. Whereas the principal is the chief instructional

leader of the campus, an assistant principal serves at the pleasure of the principal

and a local job description. Whereas a principal’s statutory duties may not be

altered by the school district, an assistant principal’s duties may be altered at any

time by her supervisors. Here, the CISD’s job description vaguely says that the

assistant principal shall:

Provide students with appropriate learning activities and experience
designed to fulfill their potential for intellectual, emotional, physical

6
19 Tex. Admin. Code §232.2(b): Classes of certificates include the following: 1.
Superintendent; 2. Principal; 3. Classroom teacher; 4. Instructional educator other than classroom
teacher, including reading specialist; 5. Master teacher; 6. School librarian; 7. School counselor;
8. Educational diagnostician; and 9. Educational aide.
7
According to the commissioner, a superintendent is “sui generis,” or one-of-a-kind, and may
not be reassigned. Lehr v. Ector County Indep. Sch. Dist., Docket No. 003-R3-0908, p. 13 (Tex.
Comm’r Educ. 2011) (Appx. 9)
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 and social growth.

(R. 293) There is no comparison between the statutory authority and duties of

Jenkins as principal, and the authority and duties delineated in her assistant

principal job description.

The commissioner erroneously stated, “The local record does not indicate

with specificity what [Jenkins’] duties as assistant principal at Crosby High School

are.” Jenkins v. Crosby Indep. Sch. Dist., Tex. Educ. Agency Docket No. 043-

R10-1211 (Tex. Comm’r Educ. 2013) (Appx. 1, p. 2, finding of fact #4.). Had the

commissioner compared Jenkins’ statutory duties as principal with the actual job

description of assistant principal in the record (R. 293), he would have had no

option but to declare them as wholly different professional capacities.

2. School districts must employ each educator under a contract
with a legitimate professional capacity. Jenkins was a principal,
but her contract says she was an “Employee” which is not a
legitimate professional capacity. The commissioner found that
Jenkins was an “administrator,” a term not found in her
contract or defined in law, but broad enough to encompass her
reassignment from principal to assistant principal. Did the
commissioner correctly interpret the contract?

This issue is more fact-specific than the first. The commissioner has

approached reassignment cases by first looking to the job title stated in the

contract. The commissioner asks: “Is the contractual job title a legitimate

professional capacity? Are both jobs encompassed by the contractual job title?” If

_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
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yes to both questions, then the two positions are probably within the same

professional capacity. Young v. Leggett Indep. Sch. Dist., Docket No. 175-R3-898

(Tex. Comm’r Educ. 1998) (Appx. 10)

What if the contract does not state a legitimate professional capacity and the

answer to the first question is “no”? That is the case here. Jenkins was employed

under a contract with Crosby ISD as an “employee.” According to the

commissioner in two recent cases, “professional employee” is not a legitimate

professional capacity. Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3-

1108 (Tex. Comm’r Educ. 2011) (Appx. 11). Tuck v. Alief Indep. Sch. Dist.,

Docket No. 008-R10-1007, p. 11 (Tex. Comm’r Educ. 2012) (Appx. 12). The

commissioner has described “professional employee” as “broad,” “undefined,” and

“of little assistance in determining [the employee’s] professional capacity;”

“vague” and “overbroad” (Wheeler, pp. 5-6); “broad” and “improper” (Tuck, pp.

7-8); and “not a legitimate professional capacity.” (Wheeler, p. 5; Tuck p. 7)

Here the commissioner ignored the fact that Jenkins was employed as an

ambiguous “employee.” There is no way to discern from reading the contract what

Jenkins’ position was, therefore, the contractual job title should be replaced with

Jenkins’ actual position. In this case, the contractual job title, “employee,” should

have been replaced with “principal,” the job Jenkins had held for the previous eight

years when she signed the contract. Without any legal reasoning, the commissioner
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 25
found, sua sponte, that Jenkins’ professional capacity under the contract was

“administrator,” thus repairing the illegitimate contract term to the benefit of the

school district.

“Administrator” is not a term found in §21.201, and it does not appear in

Jenkins’ employment contract authored by CISD. The commissioner does not

explain where he got the term or why he inserted it into the contract. The

commissioner has held that “administrator” is a legitimate professional capacity,

but even the commissioner concedes the term is “generic.” Carpenter v. Wichita

Falls Indep. Sch. Dist., Docket No. 0247-R3-491 (Tex. Comm’r Educ. 1993)

(Appx. 8).

“Administrator” is a contractual black hole, pulling any and all

administrative positions into it. These positions may or may not require educator

certification, and may or may not be recognized in law. They might include

principal, assistant principal, assistant superintendent, athletic director, attendance

coordinator, science support specialist, director of Even Start, a generic central

office position, textbook coordinator, and other supervisory positions, limited only

by the school district’s creativity. (See Appx. 13) Though the differences in these

positions are often vast, the commissioner has painted them with the same broad

brush, declaring them to all reside in the same “administrator” professional

capacity. If the contract says “administrator,” the commissioner has never
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
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overruled a reassignment from one administrator position to another for 30 years

prior to this case. (Appx. 13)

State law says, “A school district shall employ each classroom teacher,

principal, librarian, nurse, or school counselor under a … contract.” Tex. Educ.

Code §21.002. This law would have no meaning if a principal could be hired as an

“employee” or “administrator” then immediately reassigned to another position

without quasi-due-process contract protection. Each principal is entitled to a

contract. The law says nothing about employing each administrator or employee

under a contract, and indeed, does not require it.

Here, this Court does not need to decide whether it is appropriate for a

school district to employ a principal under an “administrator” contract. What this

Court must decide is whether the commissioner erred when he unilaterally inserted

that term into her contract. Jenkins objects that the commissioner altered the

contract with the generic “administrator” to cure the more ambiguous “employee”

designation. The commissioner should have inserted the more accurate term -

“principal.” Each principal is entitled to a contract. Tex. Educ. Code. §21.002.

Jenkins was employed as the statutorily designated and authorized campus

principal - the campus instructional leader - for eight years preceding and during

the execution of the contract in question. (R. 287-89; R. 213) She was not an

ambiguous “employee” and she was not a generic “administrator.”
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Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
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 Under the doctrine of contra proferentem, an ambiguous contract should be

interpreted against its author. Evergreen Nat. Indem. Com. v. Tan It All, Inc., 111

S.W. 3d 669 (Tex. App. - Austin 2003, no pet.). Whether a contact is ambiguous

is a question of law for the court to decide. Kelley-Coppedge, Inc. v. Highlands

Ins. Co., 980 S.W.2d 462 (Tex. 1998). In other cases, the commissioner has

declared contracts like Jenkins’ to be ambiguous, describing “professional

employee” as “overbroad,” “vague,” and “improper.” Tuck at pp. 7-8; Wheeler at

pp. 5-6. Though her contract is ambiguous as a matter of law, here, the

commissioner failed to interpret the ambiguity against the author as required.

Jenkins was employed as a principal, and her contract should reflect that,

especially since the CISD used an ambiguous and illegitimate term to define her

professional capacity. This is the only reasonable and lawful interpretation that

one can impose on the contract, which was signed at the same time that Jenkins

was employed as a campus principal. (R. 294) When Jenkins’ contract is

construed against CISD on the question of her professional capacity, it must be

concluded that she cannot be reassigned from principal to assistant principal

without receiving the protections of the contract nonrenewal process.

_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
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 CONCLUSION

This case does not affect the superintendent’s authority to reassign any

personnel other than a principal. The school’s ability to reassign classroom

teachers, counselors, librarians, nurses and other administrators is unaffected.

Jenkins only advocates for the inclusion of principals among the specific list of

professional capacities defined by §21.201(1).

A principal is not comparable to assistant principal. Principals and

superintendents derive their authority directly from state law and state certification.

Assistant principals derive their authority only through their supervisors and a local

job description. The position of campus principal is not a generic administrator

position. As principal, Jenkins was the instructional leader, community figure,

spokesperson, and chief supervisor of the campus. As assistant principal, she is

one of several, operating in a supporting role, and serving at the pleasure of the

principal.

The school district may reassign the principal to a different campus. The

district may negotiate a reassignment of the principal to a different professional

capacity. If a principal is underperforming, the district may work to remediate her

performance, negotiate a peaceful resolution of the employment relationship, or

seek to dismiss the principal. The principal would be entitled to written reasons for

dismissal, and an opportunity to challenge the reasons in a hearing. These
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
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approaches respect the principal’s rights for quasi-due-process, and reasonably

temper the district’s unfettered authority to reassign principals.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, JENKINS respectfully

requests that she be granted the following relief:

A. That this Court reverse the trial court and the decision of the

commissioner and render for Jenkins;

B. That this Court finds that CISD breached Jenkins’ contract and/or

violated Jenkins’ statutory rights;

C. That this Court order CISD to immediately reinstate Jenkins to her

former position as principal;

D. That Jenkins be awarded such other and further relief to which she

may show herself to be justly entitled.

_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 30
 Respectfully submitted,

/s/ Kevin F. Lungwitz
Kevin F. Lungwitz
State Bar No. 12698790
Elizabeth Poole
State Bar No. 24051201
The Lungwitz Law Firm, P.C.
3005 S. Lamar Blvd.
Suite D-109-362
Austin, Texas 78704-4785
P. 512.461.0188
F. 866.739.7138
Kevin@LungwitzLaw.com
Elizabeth@LungwitzLaw.com
ATTORNEYS FOR APPELLANT
HERMENIA JENKINS

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. PROC. 9.4(I)(3)
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
4580.
/s/ Kevin F. Lungwitz
Kevin F. Lungwitz

_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 31
 CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document was
served on:
David B. Hodgins
THOMPSON & HORTON, L.L.P.
3200 Southwest freeway, Suite 2000
Houston TX 77027
Telephone: (713) 554-6745
Telecopy: (713) 583-8245
dhodgins@thompsonhorton.com
FOR APPELLEE CROSBY ISD

Andrew Lutostanski
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
Administrative Law Division
P.O. Box 12548, Capitol Station
Austin TX 78711-2548
Phone: (512) 475-4200
Fax: (512) 320-0167
andrew.lutostanski@texasattorneygeneral.gov
FOR APPELLEE COMMISSIONER OF EDUCATION

Via e-file and courtesy email on July 10, 2015.

/s/ Kevin F. Lungwitz
Kevin F. Lungwitz

_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 32
 APPENDIX 1

Jenkins v. Crosby Indep. Sch. Dist.,
Docket No. 043-R10-1211
(Tex. Comm’r Educ. 2013)
 DOCKET NO. 043-Rl0-1211

HERMENIA JENKINS § BEFORE THE
§
§
v. § COMMISSIONER OF EDUCA Tl ON
§
CROSBY §
INDEPENDENT SCHOOL DISTRICT § THE ST ATE 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'.

The Administrative Law Judge issued a Proposal for Decision recommending that

Petitioner's appeal be denied in part and dismissed in patt. 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 Bricfof Amicus Curiae.

043-RI0-1211
Appx. 1
H. Jenkins v. Crosby ISD
TEA #: 000005
exercise his broad experience 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

are the Findings of Fact that best support Respondent's decision 2 •

l. In March 2011, Petitioner and Respondent signed a contract that provides

in relevant part:

I. 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 20I0-2011 school year.

3. On June 28, 201 l, 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.

'See 19 TFX. ADM JN. Corne § 157.1073(h); Bosworth v. East Central Independent School District. Docket
No. 090-Rl-803 (Comm'r Educ. 2003).

043-RI0-1211 2

H. Jenkins v. Crosby ISD
TEA #: 000006
 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 I 1.202, which designates a principal as the instructional leader of

a campus; section 11.20 l, which grants supervisory rights to superintendents, and section

2 l.206(b) which requires a school board that does not timely give notice of proposed

nonrcncwal to hire the teacher in the same professional capacity for the following school

year. Petitioner also alleges that Respondent violated I 9 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. ADM IN. CODE § 150.1021, and policy DN(LOCAL). Texas

Education Code section I 1.202 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 lndepende/1/

School District, Docket No. 106-Rl 0-496 (Comm'r Educ. 1999)

TEX. EDUC. CODE § 11.20 l

Texas Education Code 11.201 (d)(2) provides that superintendents have

responsibility for most assignments. Petitioner contends that Respondent's

043-RI0-121 I 3

H. Jenkins v. Crosby ISD
TEA #: 000007
superintendent reassigned her in an arbitrary and capricious manner and, hence, the

reassignment is invalid. However, a superintendent does not violate Texas Education

Code l l.20l(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. 025-R5-105 (Comm'r Educ.

2006). Texas Education Code l l.20l(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 capricious.

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 7.057 to the prior jurisdictional statute, Texas

Education Code section 11.13. The Commissioner lacks jurisdiction under Texas

Education Code section 7.057(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 arc 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

H. Jenkins v. Crosby ISD
TEA #: 000008
 (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 I 0th 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 lo 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 al

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 lo

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-Rl0-1211 5

H. Jenkins v. Crosby ISD
TEA #: 000009
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-R 1-0711 n. 2 (Comm 'r Educ. 2011 ), multiple year contracts can
also benefit teachers. A multiple year contract may only be nonrcnewed when it is about

to expire. A school district that wishes to end a multiple year contract at the end of the

list 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 ifa 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.

The Term Contract Nonrenewal Act3 ("TCNA") was passed by the 67 111

Legislature in 198!'1• Term Contract Nonrenewal Act, 67' 11 Leg., R.S., ch. 765, 1981 Tex.

'Section I of SB 341 itself provided that "this act shall be known as "The Term Contract Nonrenewal
Act."
-t 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

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Gen Laws 2847. This law fundamentally changed teacher 5 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. Linglevi/le Jndep. 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 I 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/or 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 nonrencwal, 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 first 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 definition of"teacher" that includes many who arc
not normally referred lo as teachers.

043-RI0-1211 7

H. Jenkins v. Crosby ISD
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Legislative History

The legislative history of the TCNA 6 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 aller 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

appealablc 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).

"The relevant legislative history may be found at the website for the Legislative Reference Library of
Texas. http://www.lrl.state.tx.us/index.cfm.

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 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."

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

delinition 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-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 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 I.
It is more reasonable to conclude that the legislature. by using the term
"same pra la d:l!Ia u u:dp&! hy thti
Supc:ria!mdtnt a( lbil Crosh;r' lndopcnd:sll School D:lctrlct for Ibo Jeboal yain wltb begilmbg lll1d. t:zMiins da1eJ u te: by the

Tllo Board '8l"CCI lo pay tho Bmplaycir for tbcllCr'Vic=s nm.dcred m s:uuW sn1u)' aaxrd!os to Ebe c:arnpc:mzufcm plm Ddepted by Uu! 9mrd. Tbt
Bmployai wuilinwW and isrw: thor Ct1ly tha Bet.rd b authodrnd to c:atahU1b JJ1 trl%lud
rcgudla,gu.lary b of no oll'te md 1bll.ll 11DI be roll=! upon.
any nprt.set1tailtn:11 nu.do by IUl)' 111ht:r pctMlll

3. I! ls un.dml®dand agreed by thepu'f!es 1n fhls0:111trad thltlbsSlljlCrintmd11111 of'lhc cm.by lcd:pcndart School Dfl#fct dall flsv6 lht risbl
.. &al8" °""'
dudet IO lb Employ" u Wll docm pmpa; llld- Ibo 11mjJJ"'° b nol oo>ployed IO llll • rpooillo pool.... at
""'l' aui8" amudgn lho Bmp!Ol"" IO clbcrcr aldlllmd dwla fbt1'hlcb he or w b pof=loallly =o!Jtcotly nt;!d
fD nttsal.d n.ailladam oClb Dbtrfct whlch 1n1 In afrc:tndlil time. aay may
hen:s&rbc allcu:d oracywhkb may bcadoplal dwiaa Iha cum uClblt Co:Q1nz1t.

alb .. ......,...,,... by lhc D!Jtri•Ol"" "!""IJJ"11f '111"' 1a
.Uaott 1c • """" or hh "' bar "'1101>d crlmlmt hli""Y .....t - · (NClltll) if raiu&td by lhc Dlslrlcl. TBA, "' SBl!C. N>y
mbnp--to"'1•tlbefvn! tha lU1 day oflmuw:tl.on In !he scli.ool year
by lhl1 Ccatn..c4 whethtlt lrlale:ldtto n:nn ornoit'DlleW Ilia CcmfmL Rt:mwal
..... wW bo Jn a.ccbnftnc& with tht Bnlld pol"°J a:i.d sum

l1, ThaBaudhunotAdcptedanypallcy, ralr.,rc;p1lJllioo, fm tmura. No risfttortr::mim lsd'Clltd byth11 Coatnct. Tu1s
Cantr&t shaU not gm1 or cn=ut m'J ccnbiu:tual er ether apcdclr:-t orCODtmaed a:c;iloyma:il arolaim or tmldemc:ot io tWplD)'mtct boyottd IM
tam Cftbo Comca:t.

tl. oun.a Iba Imm •flhb ""°"'"'Iba Employ.....,. b a - lbtsce.t ..... u .r....m...t by Iba !loud, fi....i.J =laocoy lhol "'!Uh>s•
rcductiua la nr &r MY roaJoa natal mBolU'd poUcy lbC' thlt Omtnat. 1ba Soud mq r111plmll l!mplO)'l!.tl wffbow: psy lbt aood ctulf 11
dd.crmhtcd hy1hc Botrd lbra pc:rlDd not.ID attnd bnynnd thctlld or ywcown:d 1r& tblr CUllb'IUlf)lcudiurdbdmtp ctDmpkJ;yc= ar in
llm orwmfmi.tfan.

13. h ltur.dentDod alld qtocd by Iha Board mid !he Eciplayu; tfw nflhb Caub'ac;t by lit; limp1nyee, all prevtous coatram cf
the Boan! am mpmcded wt ltmtluaLodflnd m or no .&:tr= nnd cffc;:t. •"'

14. Tho Pluy lbr lb fut ttlOclb: or the ltnn of th!t Wll be piyabtc only upon ru:dpt from tbt: l!qllo)loo or 111! Olitrltil p-ope.rty.
"""""°' -.. am! """" """"""by "''Diltdot. /.
1,-. 'I'he E.mp{oytl'l W.Y rutsa 11 Ibo md orth11c:hr.o1 yw caYC"Cd by tbla Ccnlm::t b)' l1Ung 11 wrlttcn JeSlgoatioD wilb t!ia lq u the
writt= niti&nadon l& 6lcd &y the 43i111 dt.y baJlm ifre 1ln:i *J ot tho fdl!trwas ICboal :ycu. A wrltt= \i:dgmtlo:i malled by pnpUd t:t:rd&d cir
lO rhc PtmldcnJ aflb Boanl 11 the polt oM=i add:m: cl'th11 Dlsnicl fl filed 1U lM dma of malHag. lr da
..acmpu to r=lgn It any otha lfmCi the Bmplayee will lie roltucd liooi tttb Oxttmd Cl1ly wi1b Ibo Vtdttca. cam:t:Dt or tbo Bori Ir the !loud doc:a
" " _ , . , la llllmae Ibo Bmoloyco mid tho Bm,loyco ""'"''"" ahon4col lb c..m.cr, lho D!Jlrit< ""!' lilt ,
,....., tho Empt.,.... wt!h Iba SblaBoud ror-Cudl!sition of high school principal to thc position of mi