Hon.   F. E. Mitchell               Opinion No. O-4845
County Attorney                     Re:   Liability  of district             for   salary
Callahan   County                   of school superintendent
Baird,   Texas
Dear Sir:
             We have received          your   letter    of recent     date     which    we
quote    in part as follows:
              “The trustees  of Putnam Independent    School Dis-
        trict  in Callahan  County employed a superintendent
        in the summer of 1941, on a yearly     basis,   the salary
        to be paid in monthly installments.       The term of such
        employment was from July 1, 1941 to July 1, 1942.
                “Said superintendent         closed the school term about
        May 20, 1942, and was paid the monthly installment                      for
        the month May, 1942.             The superintendent        then left
        before    June 1, 1942, and secured            employment elsewhere,
        moving away from the school district                  and having no
        further     contact     with the school.         He is now demanding
        the last monthly         installment      for the month of June,
        1942.     His theory       is that under his employment he was
        not required       to do more than finish           the school for
        the year 1941-42,          while the trustees         think it was his
        duty to remain for the full             year,    in order to see af-
        ter the interest         of the school and the students,             in
        such matters        as making transcripts          of credits,    etc.,
        and I have given them my opinion               to the effect      that
        they are correct         in this matter,       his employment being
        for the year,        though paid in monthly installments.
        May I have your opinion            as to whether        or not the said
        superintendent         is entitled    to said last month’s in-
        stallment     under the facts        stated    above.”
               Article    2781,   Vernon’s      Annotated    Civil    Statutes,        pro-
vides as follows:
               “The Board of Trustees        of any city or town or any
        independent       school district    may employ a superintendent,
        principal,      teacher,    or other executive     officers    in the
        schools    therein     for a term not to exceed three         years,
        provided     that the Board of Trustees        of an independent
        school district        which had a scholastic      population     of
        5,000 or more in the last preceding            scholastic     year may
Hon. F. E. Mitchell,         page     2   (O-4845)


       employ a superintendent,               principal,  teacher,      or
       other executive    officers            in the schools    therein
       for a term not to exceed               five years.    All twelvQ-



       added)
              This opinion      necessarily      will be general      in nature.
In the first      place,    this department        is not authorized      to pass
on questions      of fact.      In the second place,          we do not have the
contract     of employment before         us for examination.         We assume
that   such contract      was legally       entered     into,  that it calls      for
services’over       a period ‘of 12 months,          and that, the board of trus-
tees has done nothing          in the nature       of breaching     th%e contract.
              You will notice       that   Article   ,,2781 provides     that 12
 monthcontracts        shall   begin on July 1st and end on June 30th.
 Evidently;     the board of ‘trustees        had this provision        In mind when
 the contract      was entered     into.    If the contract      called     for the
 services    of ,the superintendent       fo.r a ,period of 12 months and the
 superintendent      left    at the end of 11 months and did not perform
~services    during the 12th.month,         such action ,being in no way
.caused by the~‘board of trustees,            then it is our opinion         that the
 school district       is not liable     for his salary      for the 12th month.
                We quote-, the   following        from Corpus   Juri s,   Volume 56,
page   396:      ”
               ?The rules  of law relating     to the ,performance
       ,and, breach of contracts    generally,    apply to, contracts
       between teachers      and the school authorities.         ,Both
       parties    must perform the. contract     according    t.o its
       terms.ll,
                The following       appears     on page 411 of the        same volume:
              “Failure   ~of: the teacher     to perfarm.his     part of the
       contract     is a defense    to an action     by him to recover
       damages for its ,breach,by         the school.board,      as where
       he failed-to     secure a certificate,        or voluntarily     aban-
       doned his employment before           the end of his term.”
            In view of the foregoing        you are respectfully       ,aavi.sed
that where a superintendent         is employed under Article       2781, supra,
by the board of trustees       of an independent      Scholl district       under
a’ contract   for al p’eriod of 12 months’and      such superintendent,
through-,no  fault   or action     on the part of the board.of        trustees,
leaves, at the, end, ‘of ,the .llth month anddoes       not pe~rform any
.    I




    Hon. F. E. Mitchell,     page 3    (O-4845)


    services during the 12th month of the contract,           the school
    district is not liable     to the superintendent     for his salary
    for the 12th month.     This opinion    is expressly    limited    to
    the fact situation     presented   and the assumptions       made.
                                        Very truly    yours
                                        ATTORNEYGENERAI,OF TEXAS
                                        By /s/    George W. Sparks
                                        George    W. Sparks, Assistant
    APPROVEDOCT 9, 1942
    /s/ Grover Sellers
    FIRST ASSISTANT ATTORNEYGENERAL!
    APPROVED: OPINIOti COMMITTEE
    BY:      BWB, CHAIRMAN
    GWS:db:wb
