                               AunTIN    11. .x-EeAa
PRICE   DANIEL
ATTcl*NEYGENERAL


                             September 24, 1951



          Hon. James I-I.Moore          Opinion Ho. V-1292
          County Attorney
          Ange lina County              Re: Validity of a contract
          Lufkin, Texas                     for the superintendent
                                            of a rural. high school
                                            district which was ex-
                                            ecuted on June I., 1950,
                                            for the two years from
                                            July 1, 1951, to June
          Dear Slrr                         30, 1953.

                    We quote from your letters in substance
          as follows:

                        On June 10, 1948, Huntington Rural
                   High School District entered into a
                   contract with J. B. Kannenburg to be its
                   superintendent for a period of the three
                   years, 1948-49, 1949-50 and 1950-51, the
                   employment to begin on July 1, 1948, and
                   expiring on June 30, 1951.

                        On June 1, 1950, one year prior to
                   the expiration date of the foregoing
                   contract, the board of trustees executed
                   a new contract with Kannenburg.  This
                   second contract is for a term of two
                   years commencing July 1, 1951, and end-
                   in& June 30, 1953. It was approved by
                   the county superintendent.

                        The truatees’contend that this Bec-
                   ond contra.ct is void in that it violates
                   Article 275Oa-1, V.C.S. Their 4ispositlon
                   is not to recognize Its validity for any
                   period of tims.

                         Queryr Is the superintendent’s em-
                   ployment contract, dated June 1, 1950,
                   providing for his employment to begin in
                   a future year (July I., 1951) and to ex-
                   pire two years thereafter, totally void
                   by reason  of Article 2750a-1, or is the
Hon. James H. Moore, page 2 (V-1292)



     contrsct severable and therefore valid
     for, the 1951,752 year?

          The district in qUeStiOn iB Classified as
a rural high school district, Bnlletin 512, TeXa8
Education Agency 1950-5~, and a8 BUCh it i8 Subject
to the same provisions and restrictions applicable
to conmon school district8 except where otherwise
provided. Article 2922k, V.C.S. Therefore, Article
375Oa-1, V.&S. controls a8 to the period of time
for which a superintendent%    contract may run ,&try
Gen. Op. V-1229, and not Article    2781, V.C.S., which
is applicable to independent district3 only.

         ,Article 275Oa-1 provide3 as fOllOWBS

           ?Frustees Of any Common School MB-
     trict . . . Shall have authority to make
     contracts for a period of time not'ln ex-
     ces8 of two (2) years with principals,
     superintendents, and teachers of Said
     Common School Districts . . . provided
     that BUCh cc8&%ct8 Shall be approved
     by the County Superintendent.   ??o con-
     tract may be Sign8ff by the Trustees of
     hIIIIIIOR
             School MStriCtB  . . . until the
     newly elected trustee or trustees have
       ualified and t8ken the oath of office."
     9mphaBiB   added.)

          The last sentence of Article 275Oa-1 ha3
been construed to mean that a board of trustees of
a rural high school district has no authority to
execute or sLan teach8rs' contracts during the time
between the e!.ectimof the district's new trustee8
and their qualification.  Att'y Oen. Op. V-l051
(1950).
          Section 4 of Article  2774a, V.C.S., vests
the control and management of a rural high BChOO~
district in a boar& 3f seven trustees. That ZPW
provide3 for an election annualiy Of two or three
trustees for;the bcmrd. It 18 thus possible that
once in any three-y88r trustee election period it8
entire membership amv change. Furthermore, the
board of trustees of a ruz%?d.high school district
is constituted a body politic and corporate and as
such may contract and be contracted with. Arts.
2748, 2922k, V.C.S.
      ROII. James H. Moore, page 3 (V-1292)



                Therefore, any lawful contract8 made by
      a rural high school district board are   corporate
      contracts, and not the contract8 of individuals
      who then constituted the board. By Statute, it is
      a continuing corporate body. It8 membership may
      change but the body corporate does not. The cor-
      porate body after the first Saturday In April of
      each year is the same a8 it was preceding that
      trustee election day. True, the new officers 818
      not like then lawful contracts made through the o9d
.     officers prior to election day, but that doe8 not
      affectthe validity of such contracts. They will
      have a like privilege of makfng lawful contracts
      near the close of their terms, which they can pass
      OR t0 their BUCCeBSOr8. State v. Board of Eduoa-
      w,    118 S.E. 877 (W. Va. Sup. 1923).

                In Town of Pearsall v. Woolls, 50 S.W.
      959 (Tex. 'Xv. App.1899)     it d I Gulf Bitullthlc
      Co. v. Rueces County 11 6.: 2: 30; TComm. App l$%),
      the School board e&red    in& a written contra&.
      dated June 27, 1898 (four days before the expiraiion
      of their office: Art. 3953, R.C.S. 1895). with MI-S.
      Woolls to teach for .the immediate ensuing school
      term beginning September 1, 1898. In upholding the
      validity of her contract, the court stated3
                "      It i8 well settled,    also,
           that a'bia;d of 8ChOOl trustees    may
           make contracts for teacher8 for    the
           term of BChOOl succeeding their    term
           of office."

                Prom the opinion in Miller v. Smile& 65
      S.W.2d 417, 420 (Tex. Civ. Appm,      error ref.) we
      quote as followsr
                (I
                        But we cannot bring our-
           selves io'billeve that a mere fortuitous
           change in the YWmber8hip of the board,
           prior to the formal approval by the coun-
           tg SUperiI&8ndent of the lawful contracts
           theretofore msde by the board, pemnits
           such contract8 to be arbitrarily revoke&
           by the new board and the county superin-
           tendent without any charge of fraud, lm-
           position or mutual misteke, and with no
I L        hearing given the tOdch8r8 of such in-
           tended revocation of their contracts.
Hon.   James   H. Moore, page 4 (v-1292)



         "It seems to us that to hold other-
       wise would be to violate the plainest
       principles of fairness and justice,
       and to acquiesce in arbitrary and dic-
       tatorial power8 not conferred by our
       statutes upon the boards of BChOOl
       trustees, or county superintendents."

          For-other authorities to the effect that
school boards may make lawful contracts for employ-
ment of teachers or superintendents for the immed-
iate ensulna school vear or terms which will be




          If, therefore, the contract in question
herein, dated June 1, 1950, is a lawful contract
(is BUCh 8 contract as may have been made under the
contractusl powers Vested in the school board of a
rural high school district under Article 2750a-l),
it is binding on the present board, in the absence
of,fraud, imposition, or mutual mistake in its mek-
iD&.

          It  is contended on behalf of Mr. xannen-
burg that in the event the contract is not valid for
the entire term contemplated, the ContlgCt is sever-
able and velid for the year beginning July 1, 1951.
This is based on the fact that the  trUBteeS had the
authority to contract for two years from June 1,
1950, and under the theory advanced, the final year
of the lg.68 contract (beginning July 1; 1950) and
the first year of the 1950 contract (beginning July
1, 1951) would CW~tpriSe the two-gear period.

          Although under the holding in Smith v.     :
Morton Independent School DiSt, 85 S.W.2-
?Xv. App. 1935, writ dism.) it might appear that "t%
contract here involved is severable, we think Such
Hon. James H. .&ore, page 5 (V-1292)


a conclusion is foreclosed by the decision in
Fikes v. Shar    112 S.W.2d 774 (Tex. Civ. App.
1938, error pe%.).   In that case it was held
under Article 2750 (prior to the enactment of
Article 2750a which was superseded by Article
2750a-1; see Att'y Qen. Op. 1051) the trustees
of a common school district had no power to con-
tract with teachers fora period longer than one
year.

          In that case, on the night of April 3,
1957, after the polls for trustee election held
on that day were7closed, two trustees of the
common school district met and elected five
teachers for the immediate ensuing scholastic
year. Thqexecuted   contracts with the teachers
covering,such one-year period, which were filed
with the county school superintendent on April
20. On April 26 there was a meeting of the trus-
tees, at which all three were present, and the
same teachers were elected for the ensuing two-
term period (1937-38 and 1938-39). These con-
tracts were filed with the county superintendent
April 28.  On August 20 the county superintendent
erased the provisions calling for the two-year
employment and substituted therefor a one-year
term employment. There was an appeal from this
action to the county school board and frond that
action to the State Board of Education, result-
ing in the disapproval of the contracts by the
latter. Suit was then filed by appellants (teach-,
ers) in the nature of an appeal from that action.
We quote from the opinion of the Court as fol-    :
lowsr

          "After careful consideratkon of
     our statutes and their uniform inter-
     pretation, we have reached the con-
     clusion that the contracts were void,
     in that they were for a period lower
     than one year. . . ." (Emphasis added.)

          It is to be observed that the Court held
that those two-year written contracts were totally
void, even though the county superintendent at-
tempted to change their term to cover only one
yeap to confrom with what he though the law per-
mitted. Thus, school board employment contracts
executed to cover a period of time which exceeds
 Hon. James H. Moore,   page 6 (V-1292)



 the time permitted by the laws governing that
 board are totally void. Under the law and the
 facts in the Fikes case, the school board could
 have entered ma     lawful teacher contract to
 cover the ensuing year 1937-38, and did enter
 a two-year contract covering the terms of 19370
 38 and 1938-39, yet the court did not hold the
 invalid two-year contract was severable and
 valid for the immediate ensuing 1937-38 period.

             Article 275Oa-1, enacted in 1941, ex-
  pressly authorizes the school boards of districts
  classified as common to execute contracts with
  teachers, principala, and superintendents for a
  periqd. of time not to exceed tvo’years. But fol-
  lowing the holding and in the light of the ma-
  soning in the’ pikes case, such a board, fzincethe
  enactment of Ame      275Oa-1, would have no au-
“,thmity to enter into a contract for a three-year
  period of time,

           Under the facts herein submitted, the
 School board of the HUitil@on   district on June 1,
 1948, contracted with J. H. Itarmenburg to be its
 superintendent for a three-year  period of time.
 The tems of that contract have been performed.
 However, for the pw?poses of this opinion, we must
 assume by virtue of the holding in the Fikes case
 that on June 1, 1950, when the HuntirigtiB7Tatrlct
 executed with Kannenburg the’two-year contract
 under consideration herein, there then existed no
 valid contract between the district and Mr. Kaunen-
 burg.

           Clearly under the facts submitted, under
 Article 275ba-1, and in the light of the author-
 ities afommantioned,  the Huntington school board
 on Suue 1, 1950, could have entered into a contract
 with J. H. Kmnenburg,  the term of employment to
 begin July 1, 1950, and to terminate on June 30,
 1952   But that they did not do. The contract ox-
          l

 scutea on June 1, 1950, provides for the employ-
 ment term to comn~nce an July 1, 1951,and to ter-
 minate June 30, 1953.
           The question is thus reduced to the fol-,
 louing general propoaitiont  Under Article 275Oa-1
 is a school board of a common district e!?zPouered
 to make a contract with a superintendent for an
    ,   .)




             Hon. James H. Moore, page 7 (V-1292)



             employment period not to exceed two years, the term
             of employment to begin after and beyond the im-
             mediate ensuing school year or term? In the instant
             matter, if the Huntington board as constituted on
             June 1, 1950, could lawfully enter such a two-year
             contract to begin on July 1, 1951, then it could,
             conceivably, have contracted for it to have com-
             menced in 1952, 1953, 1954, or possibly any future
             date.

                         We think that an examination of Article
             2750a-1, containing, as it does, an express limits,-
             tion period of two years, leads to the inevitable
             conclusion that the legislature intended that the
             contractual   power therein granted shall be limited
             to employment for the immsdiate ensuing two school
             years. If not so limited and construed, then the
i            school trustees might employ teachers, principals,
             and. superintendents for any number of future years
             beyond the immediate next ensuing two years, tie
             the hands of their successors in office, and wrest
             from the control of the people the schools which
             they are required to support. The spirit of that
             st.atute is repugnant to the idea that one board of
             trustees, by contract wholly to be performed in the
             future , insa, year or years beyond the imtnediate~en-
             suing year, can divest future boards of the power
             to select teachers, principals, and superintendents,
             and make contracts therefor, and indirectly take
             from the people all the advantages to be derived
             from annual elections. This conclusion is strength-
             ened by the universal practice of employing teachers,
             principals, and superintendents for one or two year
             periods, the employment period of which is to begin
             the immediate next ensuing school term or period.
             In every case cited herein, the contract considered
             by the court therein was for employment beginning
             the next ensuing school term or year. In an ex-
             haustive search for authorities,we have been unable
             to find a oing;Bzase involving the validity of a
             teacher contract, the term of which was to begin
             beyond the immediate ensuing school year or period.

                       In short and by way of illustration,
             under the facts submitted, we think the Huntington
             school board on June 1, 1950, had authority by
             virtue of Article 2750a-1 to contract with Mr.
             Ksnnenburg for anemployment  period of one year or
             two years beginning on July 1, 1.950, and terminat-
                                                       .   . .   .




Hon. James R; Moore, page 8 (V+92)



ing on June 30 of 1951 or 1952, depending on
whether the contract was for a one or two-year
period. But the ,spirit and intent of Articl6
2750a-1, with its two-year employment limita-
tion, militates against a cons*ruction thereof
authorizing the board on June 1, 1950, to con-
tract for his services for an employment period
of one or two years duration to begin on July 1,
1951, and to terminate ,on June 30 of 1951 or
1952.
          Accordingly, we agree wfth you that
the two-year contract dated June 1,. 1950, ex-
ecuted by the board of trustees o~~.duntington
Rural High School District with J. H. Kannen-
burg, for superintendent services to commence
on July 1, 1951, and terminate on June 30,
1953; is void, and, as such, is unenforceable
for any period of time. AttOy Gen. Op. O-3465
(1941).
                       SUMMARY

          Under the facts submitted and in
     view of the two-year employment lim-
     itation in Article 2750a-1, V.C.S., the
     superintendent employment contract ex-
     ecuted by the Huntington Rural Righ
     School District on June 1, 1950, for a
     two-year employment term to begin on
     July 1, I.951 and to terminate on June
     30, 1953, is void and unenforceable for
     any period of time. Fikes v. Sha
     112 S.W.28 774,,(Tex. Civ. App. 1
     error ref.); Town of Pearsall v. Woolls,
     50 S.W. 959 (Tex. Civ. App.m;       Attry
     Gen. Opsr O-3456 (1941) and V-1051
        ( 1 950)   l




APPROVEDr                        Yours very truly,

J. C. Davis, Jr.                   PRICE DAEIEL
County Affairs Division          Attorney General

Jesse P. Luton, Jr.
Reviewing Assistant               --Lf%ik+m-
                                  BY
Everett Hutchinson                Chester E. Ollison
Executive Assistant                        Assistant

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