       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-01-00713-CV




                                         Pete Smith, Appellant

                                                    v.

               Felipe Alanis, Commissioner of Education; and Zapata Independent
                                  School District, Appellees


         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
            NO. 99-12114, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                Zapata Independent School District (AZapata@) signed Pete Smith to a three-year term

contract as a head football coach and athletic director. During the first few months of his employment,

Zapata demoted Smith and reassigned him to teach physical education at an elementary school.

Subsequently, Zapata informed Smith that his employment would be terminated at the end of the first year of

his contract. Smith appealed his termination to the Commissioner of Education (Athe Commissioner@). The

Commissioner determined that Smith could not enforce his three-year term contract against Zapata because

the Texas Education Code prohibited Zapata from entering into anything other than a one-year probationary

contract. The district court affirmed the Commissioner=s ruling. Because we agree with the district court

that the Commissioner=s determination was correct, we will affirm.
                                             BACKGROUND

                 In July 1997, Zapata hired Smith as a head football coach and athletic director. Zapata had

a written policy that a full-time professional employee who is required to hold a teaching certificate, and who

is employed by the district for the first time, must be employed under a probationary contract. Similarly, the

education code requires that teachers be employed for the first time under a one-year probationary

contract, which allows a district to terminate that employee at the end of the year upon a finding that

termination is in the best interest of the district. See Tex. Educ. Code Ann. '' 21.102, .103 (West 1996 &

Supp. 2002). Smith had never been employed by Zapata and the position for which he was hired required

a teaching certificate. Despite its existing policy, Zapata entered into a three-year term contract with Smith.

The contract, which took effect at the beginning of the 1997-98 school year, contained a provision allowing

for transfer or reassignment. It also contained clauses allowing for early termination under certain

circumstances, including good cause and financial exigency, both of which are recognized by the education

code as valid reasons for termination of a term contract. See id. ' 21.211 (West 1996).

                 In October 1997, approximately two months into the school year and the football season,

Zapata relieved Smith of his coaching duties and reassigned him as a physical education teacher at Zapata

South Elementary School. Zapata did not reduce Smith=s pay as a result of the reassignment. Smith filed an

administrative grievance, alleging that his contract did not authorize reassignment as a classroom teacher.

After Zapata denied his grievance, Smith filed a petition for review with the Commissioner, contending the

reassignment violated his contract and asking to be reinstated. Zapata argued that the Commissioner lacked

jurisdiction because Smith had not pleaded that he had suffered any monetary harm. Smith responded by


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arguing that his reassignment as an elementary school physical education teacher harmed his prospects of

advancing into future coaching positions. The Commissioner determined that he did not have jurisdiction to

hear Smith=s appeal because lost earning capacity is not a natural, probable, and foreseeable loss resulting

from a breach of contract. The district court and this Court affirmed the Commissioner=s decision. See

Smith v. Nelson, 53 S.W.3d 792 (Tex. App.CAustin 2001, pet. denied).

                In March 1998, while Smith=s appeal of his reassignment was ongoing, Zapata notified

Smith that it was terminating his employment at the end of his first year. Zapata did not base its decision on

any of the provisions of the contract allowing for termination. Instead, Zapata claimed that it did not have

the capacity to enter into a three-year term contract with Smith because the education code limited it to

entering into a one-year probationary contract with a first-time employee who required a teaching

certificate.

                Smith again appealed Zapata=s action to the Commissioner. In reaching his decision, the

Commissioner relied on a section of the education code mandating that school districts employ teachers for

the first time under a one-year probationary contract. The Commissioner found that because Smith was a

Ateacher@ for purposes of the education code, Zapata could only have employed him under a probationary

contract. On that basis, the Commissioner determined that the three-year contract the parties signed was

ultra vires and void. Because Zapata terminated Smith=s employment in accordance with the rules for

termination of a probationary contract, the Commissioner upheld Zapata=s termination of Smith. The district

court affirmed the Commissioner=s decision. Smith brings this appeal.


                                              DISCUSSION

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                 We review an order by the Commissioner under a substantial evidence standard. See

Hightower v. State Comm=r of Educ., 778 S.W.2d 595, 597 (Tex. App.CAustin 1989, no writ). Under

the substantial evidence rule, the question is whether reasonable minds could have reached the same

conclusion as the Commissioner. See Lauderdale v. Texas Dep=t of Agric., 923 S.W.2d 834, 836 (Tex.

App.CAustin 1996, no writ). For purposes of substantial evidence review, questions of statutory

interpretation are questions of law which are not entitled to a presumption of validity. Hightower, 778

S.W.2d at 597.

                 In this appeal, Smith makes two arguments. First, he argues that the Commissioner

erred in deciding that he was a Ateacher@ for purposes of the education code. Second, Smith argues that

requiring him to be employed under a probationary contract contradicts a provision of the education code

providing that school districts are only required to employ classroom teachers, principals, librarians, nurses,

and counselors under either a term, continuing, or probationary contract (collectively Achapter 21

contracts@). See Tex. Educ. Code Ann. ' 21.002 (West 1996).

                 Two relevant provisions of the education code require school districts to employ teachers

initially under a probationary contract. Section 21.102 provides that Aa person who is employed as a

teacher by a school district for the first time . . . shall be employed under a probationary contract.@ Id. '

21.102. Similarly, another provision requires that A[b]efore a teacher may be employed under a term

contract, the teacher must be employed under a probationary contract . . . .@ Id. ' 21.202 (West 1996).

Smith had never before been employed by Zapata, and the contract the parties signed was clearly a term




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contract. Thus, both of these provisions of the education code require that, if Smith is a teacher, Zapata had

to employ him under a probationary contract.

                The question becomes whether Smith is a teacher as that term is used in chapter 21 of the

education code. ATeacher@ is defined as


        a 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. The
        term does not include a superintendent or a person who is not entitled to a probationary,
        continuing, or term contract under Section 21.002, an existing contract, or district policy.


Id. ' 21.101 (West 1996).1 So, to qualify as a teacher, a district employee must fall into one of the groups

listed in the first sentence and must be entitled to a chapter 21 contract because of the education code, an

existing contract, or district policy. The Commissioner concluded that Smith was a full-time professional

employee who was required to hold a teaching certificate and that he was entitled to a probationary contract

under existing district policy. On that basis, the Commissioner found that Smith was a teacher and, thus,

was required to be employed for the first time under a probationary contract.

                Smith in essence concedes that he falls within the full-time professional employee provision.

However, he disputes the Commissioner=s conclusion that he was Aentitled to@ a probationary contract

under district policy. The written district policy clearly requires that when Zapata Independent School

        1
          The definition of teacher applicable to section 21.202 of the education code differs only in that it
includes rather than excludes superintendents from the classes of employees that can qualify as a teacher.
See Tex. Educ. Code Ann. ' 21.201 (West 1996).




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District employs, for the first time, a full-time professional required to hold a teaching certificate, it must

employ that person under a probationary contract. Smith was a full-time professional employee being

employed by Zapata for the first time. He was required to hold a valid teaching certificate. Given these

facts, and in accordance with its written policy, Zapata could only enter into a probationary contract with

Smith.

                 Smith argues that Zapata=s written policy is irrelevant because in signing him to a three-year

term contract, Zapata effectively waived its policy as to Smith. We reject Smith=s argument. Smith has

failed to demonstrate either (1) that Zapata can waive or repeal its formal written policy on a case-by-case

basis, or (2) that it intended to waive or repeal its policy in this case. Smith has not cited, and we have not

found, any cases that address the issue of waiver of school-district policy. However, in the context of

legislative statutes, repeal by implication is not favored. See Eppenauer v. Eppenauer, 831 S.W.2d 30,

33 (Tex. App.CEl Paso 1992, no writ). The general rule is that it takes a law to repeal a law. See

Abrams, Inc. v. Sebastian, 570 S.W.2d 81, 86 (Tex. Civ. App.CEl Paso 1978, writ ref=d n.r.e.) (citing

City of Hutchins v. Prasifka, 450 S.W.2d 829, 832 (Tex. 1970)). Given the importance the education

code places on providing notice of district employment policies, we cannot conclude that a school district

should be presumed to waive its adopted policy each time it acts in a manner inconsistent with that policy.

See Tex. Educ. Code Ann. ' 21.204(d) (West 1996) (requiring schools to distribute copies of all personnel

policies to term contract teachers each year). The incorporation of district policy into the education code

for purposes of determining who districts are required to employ under a probationary contract also

counsels against a presumption that a school district waives its employment policy every time it acts in a


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manner inconsistent with its policy. See id. '' 21.102, .202. Finally, Smith has introduced no evidence

beyond the contract itself to suggest that Zapata intended to waive its policy.

                We also reject Smith=s contention that requiring him to be employed initially under a

probationary contract conflicts with other provisions of the education code. Smith relies on section 21.002,

which provides that school districts are not required by the education code to employ anyone other than

classroom teachers, principals, librarians, counselors, and nurses under a chapter 21 contract. See id. '

21.002(b). Smith argues that because he is not one of the above mentioned employees, Zapata is not

required to employ him under a chapter 21 contract. Smith=s argument fails because Zapata chose to

employ him under a chapter 21 contract. Because Zapata chose to entitle Smith to a chapter 21 contract

even though they were not required to do so, the education code requires that Zapata first employ him

under a probationary contract. See id. ' 21.102.

                Having found that Smith was entitled to a chapter 21 contract under district policy, that he

was a full-time professional employee required to hold a teaching certificate, and that he was being

employed by Zapata for the first time, the Commissioner could correctly conclude that the education code

prohibited Zapata from employing Smith initially under anything but a one-year probationary contract.

Because Zapata had no legal authority to enter into any contract with Smith other than a one-year

probationary contract, the Commissioner had the discretion to conclude that signing the multi-year term

contract in this case amounted to an ultra vires act by the district. School officials may not exceed the

authority granted by law. See Peevy v. Carlile, 139 S.W.2d 779, 780 (Tex. 1940). Thus, we affirm the




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decision of the Commissioner that an attempt to sign a teacher, Smith, to a term contract when the

education code requires that he be employed under a probationary contract is ultra vires and void.


                                            CONCLUSION

                 For the reasons discussed above, we affirm the decision of the district court.




                                                 Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Patterson

Affirmed

Filed: July 26, 2002

Do Not Publish




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