                   February 21, 1969


Hon. J. W. Edgar                 Opinion No. M-342
Commissioner of Education
Texas Education Agency          R@:    Authority of school dis-
201 East 11th Street                   tricts adopting the pro-
Austin, Texas 78711                    visions of Article 2891-50,
                                       Vernon’s Civil Statutes,
                                       to establish mandatory
                                       retirement age for teachers
                                       employed by the school
Dear Dr. Edgar:                        dlstrlct.
          You have requested the opinion of this office on the
following questions:
          “1. Does a school district board which
     adopts Article 2891-50 (the continuing con-
     tract law) have authority to set a mandatory
     retirement age for its employees; can such
     age be under sixty-five?
          “2 . Assuming the district -by policy
     legally may set mandatory retirement at
     age sixty-five, and does: May such a per-
     son at age sl,xty-flve(where local policy
     permits) on Invitation be em loyed there-
     after on one-year contract(sP basis; viz.,
     in lieu of’a continuing contract basis?
           “3.  May the age of retirement policy
     vary at the option of the school board wlth-
     out affordl.ngthe hearing and having specific
     reasons,  as outlined in Sections 6 and ‘7,
     Artlcl,e2891~50?”
          These question:?have been prompted by the fact that
the DlrdviIle Indepelnlent,
                          Sr:huolDiatrl,cthas recently elected
to follow the procedures or#r:;cri~bed
                                    by Artjcle 2891-50, Vernon’s
Hon. J. w. Edgar,   Pa@?   2   (M-342)


Civil Statutes, for the employment of Its teacher personnel.
The previous teacher employment policy of the District proceeded
In three stages. The first stage consisted of a series of one
year contracts for the first three years of employment. This
was followed by a two year contract and thereafter the teacher
was employed under a five year contract until the age of sixty-
five. All teacher contracts were terminated with the close of
the regular school term in which the teacher reached the age of
sixty-five.
          'The provisions of Article 2891-50 establish a system
whereby, after an initial probationary period, teachers engaged
in classroom Instruction of academic subjects are given tenure
In their employment by a school district. While it is not man-
datory that all school districts follow this plan, once the
school district has adopted Article 289130, it Is mandatory
that the district's teacher employment policy conform to,the
statute. Attorney General's Opinion M-123 (1967). Under the
system established by Article 2891-50, a teacher may be employed
by a school dlstrlct under a probationary contract for a sixth
term not exceeding three school years. The probationary contract
period may not be extended beyond the end of the third consecutive
school year of the teacher's employment unless the school board
determines that it Is in doubt whether the particular teacher
should be given a continuing contract, In which event such
teacher may be employed for one additional school year under
a probationary contract, At the end of the probationary contract
period the teacher's employment by the district must either be
terminated or he must be reemployed under a continuing contract.
          Once a teacher has been employed under a contfnulng
contract, the provisIons of Article 28X-50 are explicit with
regard to the reasons for which he or she may be discharged or
returned to prohationarg status. we quote the relevant portions
of the Act as follows:
                .Each teacher with whom a continuing
     contract'has brtfnmade as hereln provided sha.11
     bc? entltled ts>r:ont,fnue
                              In his position or a
     pozltion as del'1nedIn SubsectIon (c), Section
     1 ,*with the schoo:ldlstrll:tat a salary authorized
     by the board of trustees of said district com-
     l)lyI.ngwith the mlnl.mum wilary provisions of
     the foundatinr.aid law, f'nt* JIA~U~Xschool years,
     without the necessity I'or;iiirrunlnc~mlnat1on $9~
                   , until such t,l"lP
     rc::appoIntment                  nr. t.kIo
                                              pern011r
Hon. J. W. Edgar, Page 3 (M-342)


         "(2) is released from employment by the
    school district at the end of a school year
    because of necessary reduction of personnel
    as herein defined;
         “(3)  Is discharged for lawful cause, as
    defined In Section 5 below, and in accordance
    with the procedures hereinafter provided;
          "(4) is dismissed at the end of a school
     year for any reason as set out in Section 6,
     and pursuant to the procedures hereinafter
     provided in such cases; or
           “(5)   is returned to probationary atatua,
    as   authorized in Section 6 of this Act.
           II     II
             . . .
         "Sec. 5.  Anv teacher, whether employed
    under a probationary contract, or under a con-
    tinuing contract, may be discharged during the
    school year, for one or more of the following
    reasons, which shall constitute lawful cause
    for discharge, viz.: immorality; conviction
    of any felony or other crime involving moral
    turpitude; drunkenness; repeated failure to
    comply with official directives and established
    school board policy; physical or mental in-
    capac-itypreventing performance qf the con-
    tract of employment; and repeated and continuing
    neglect of duties.
         "sec. 6.   Any teacher employed under a
    continuing contract may be released at the end
    of any school year and his employment with
    the school district terminated at that time,
    or he may be returned to probationary con-
    tract employment for not exceeding the three
    (3)  succeeding school years, upon notice and
    hear:Lng (1:'requested) a3 hereinafter provided,
    for any reason enumerated in Section 5 above
    or for ;rr~y01'the f'ollowlngadd,ltlonalreasons:
         "(a) Lnefflclency or lncnmpete,ncy1r1per-
    formance oi duties;


                           .-   IbHe;   .”




                                                        -
Hon. J. W. Edgar, page 4 (M-342)


          "(b) failure to comply with such reasonable
     requirements as the board of trustees of the em-
     ploying school district may prescribe for achieving
     professional improvement and growth;

          "(Cl wlllfil failure to pay debts;
          "{d) habitual use of addictive drugs or
     hallucinogens;

          "(e)   excessive use of alcoholic beverages;
     or

         'l(f) necessary reduction of personnel by
    the school district (Such reductions shall be
    made in the reverse order of seniority In the
    specific teaching fields.);
          "(g) for good cause as determined by the
     local school board, good cause being the failure
     of a teacher to meet the accepted standards of
     conduct for the profession as generally recognized
     and applied in sin$larly situated school districts
     throughout Texas.
          The foregoing language of the statute Is clear and
unambiguous. It sets forth the exclusive methods and reasons
for either the dismissal or return to probationary status of
a teacher who Is on a continuing contract of employment. We
find neither express nor implied authority for a school dls-
trict operating under Article 2891-W to terminate the employ-
ment of a teacher employed under a continuing contract solely
on the basis of the teacher's age. Cf. State ex rel. Bish
v. Board of Education of Mt. Orob Village School Dist?ict,
 . .       (Ohio, 1942).
          Article 6~52-14, Vernon’s ClvJ,lStatutes, prohibltlng
the cntabl:lshmentof a maximum age under s:Lxty-f:I.ve
                                                    years for
employment, does not apply to school dlstrlcts whl.chadopt.
Article 2Rgl-50, since under our foregoIng statutory construs-
tion the latter statute, when adopted, Is exclusive and mnn-
datory. Such school.d-lstrictsare without authority to promul-
gate rules restricting the statutol:my
                                     rights a,ndplans set out
in that statute.
          Therefore,,1.nanswer to your f-lrstquestion, it Is
our opinion ,thata school dl,strlctwh-tch 1s operating under the
.       .   .



    .




        Hon. J. W. Edgar, page 5 (M-342)


        provisions of Article 2891-50, Vernon's Civil Statutes, does
        not have authority to set a mandatory retirement age for its
        teacher employees.
                  In view of our answer to your first question, it Is
        unnecessary for us to answer your second or third questions.
                                SUMMARY
                     A school district which has adopted and
                operates under the provisions of Article 2891-50,
                Vernon's Civil Statutes, does not have authority
                to set a mandatory retirement age for its teacher
                employees.
                                      V,+j truly yours,



                                      Attorney Glneral of Texas
        Prepared by W. 0. Shultz
        Assistant Attorney General
        APPROVED:
        OPINION COMMITTEE
        Kerns Taylor, Chairman
        George Kelton, Vice-Chairman
        Malcolm Quick
        Sally Phillips
        Rex White
        Ralph Rash
        W. V. GEPPERT
        Staff Legal Assistant
