                                                                                             ACCEPTED
                                                                                         03-15-00313-CV
                                                                                                 7085481
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                    9/24/2015 2:50:18 PM
                                                                                       JEFFREY D. KYLE
                                                                                                  CLERK
                            NO. 03-15-00313-CV

                                                                  RECEIVED IN
                            IN THE              3rd COURT OF APPEALS
                      COURT OF APPEALS              AUSTIN, TEXAS
                           FOR THE              9/24/2015 2:50:18 PM
                                                  JEFFREY D. KYLE
           THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
                       AT AUSTIN, TEXAS                 Clerk



                           HERMENIA JENKINS,
                                                         Appellant,
                                      v.

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


   On Appeal from the 200th Judicial District Court of Travis County, Texas
                 Trial Court Cause No. D-1-GN-14-000619


                   BRIEF OF AMICUS CURIAE
TEXAS ASSOCIATION OF SCHOOL BOARDS’ LEGAL ASSISTANCE FUND
IN SUPPORT OF APPELLEE, CROSBY INDEPENDENT SCHOOL DISTRICT


                                           UNDERWOOD LAW FIRM, P.C.

                                                         /s/ David P. Backus
                                           David P. Backus
                                           State Bar No. 01493870
                                           Ronn P. Garcia
                                           State Bar No. 24065269
                                           Underwood Law Firm, P.C.
                                           1111 West Loop 289
                                           Lubbock, Texas 79416
                                           (806) 793-1711
                                           (806) 793-1723 facsimile
                                           ATTORNEYS FOR AMICUS CURIAE
                                           THE TEXAS ASSOCIATION OF
                                           SCHOOL BOARDS’ LEGAL
                                           ASSISTANCE FUND
                 IDENTITY OF THE PARTIES AND COUNSEL

       Amicus Curiae Texas Association of School Board’s (“TASB”) Legal

Assistance Fund (“TASB Legal Assistance Fund”) hereby adopts the Parties’

identity of parties and counsel to the order appealed from and, in accordance with

Texas Rule of Appellate Procedure 38.2(a)(1)(A), provides the following

supplemental information:

       Attorneys for Amicus Curiae TASB Legal Assistance Fund:

              David P. Backus
              Ronn P. Garcia
              Underwood Law Firm, P.C.
              1111 West Loop 289
              Lubbock, Texas 79416
              (806) 793-1711

                        IDENTITY OF BRIEFING PARTY

       In accordance with Texas Rule of Appellate Procedure 11(b), this Amicus

Curiae Brief is tendered on behalf of the TASB Legal Assistance Fund in Support

of Appellee, Crosby Independent School District (“District,” “Appellee,” or

“Crosby ISD”).

       Nearly 800 public school districts in Texas are members of the TASB Legal

Assistance Fund, which advocates the interest of school districts in litigation with

potential statewide impact. The TASB Legal Assistance Fund is governed by three




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD        Page 2 of 47
organizations: TASB, the Texas Association of School Administrators (“TASA”),

and the Texas Council of School Attorneys (“CSA”).

       TASB is a non-profit corporation whose members are the approximately

1,030 public school boards in Texas.           As locally elected boards of trustees,

TASB’s members are responsible for the governance of Texas public schools. See

TEX. EDUC. CODE §11.151 (b) & (d).               TASA represents the State’s school

superintendents and other administrators responsible for carrying out the education

policies adopted by their local boards of trustees. CSA is comprised of attorneys

who represent more than ninety percent of the public school districts in Texas.

                               SOURCE OF FEE PAID

       In accordance with Texas Rule of Appellate Procedure 11(c), this Amicus

Curiae Brief is wholly funded by the TASB Legal Assistance Fund, by and

through its members’ contributions.




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD          Page 3 of 47
                               TABLE OF CONTENTS

   I.       IDENTITY OF THE PARTIES AND COUNSEL ........……………..… 2

   II.      IDENTITY OF BRIEFING PARTY ................................……………... 2

   III.     SOURCE OF FEE PAID ........…………………………..…………...… 3

   IV.      TABLE OF CONTENTS ...………....…………………………..……… 4

   V.       INDEX OF AUTHORITIES .....…..…………………………………… 7

   VI.      STATEMENT OF CASE ……….……………………..…...………..... 12

   VII. ISSUED PRESENTED ……..……………………..…...………….….. 12

   VIII. STATEMENT OF FACTS ……..……………..……..…...……….….. 12

   IX.      SUMMARY OF THE ARGUMENT ………………….…….…...….... 12

   X.       ARGUMENT ………………………………...…………………..….... 14

          A. The Court Should Not Overturn Long-standing and
             Well-reasoned Precedent that Reassignments Between
             Administrative Positions in Texas Public Schools are
             Permissible as “Within the Same Professional Capacity” ………....…. 14

            1. The position of “administrator” is a professional
               capacity and one that must be broadly interpreted ………………… 14

            2. The Commissioner of Education has not
               arbitrarily interpreted “administrator” …………………………..… 17

            3. School districts must not be stripped of their
               flexibility to reassign administrators …………………………...…. 19

            4. The position of “principal” and “assistant principal”
               are within the “same professional capacity” …………...………….. 20


Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD       Page 4 of 47
          5. The superintendent has been given the authority to
             reassign all personnel in the best interest of the
             district ………………………………………………………….….. 27

       B. A Principal is Not Fundamentally Different
          from an Assistant Principal ……………………..………..................… 29

          1. State Board of Educator Certification requirements
             support the proposition that “principal” and
             “assistant principal” are within the same
             professional capacity …………………………………………....… 29

          2. A “principal” does not lose due process rights by
             being reassigned to another administrative position ……..……….. 34

          3. The position of principal is not “unique” whereby
             reassignment would be prohibited………………………...….…… 35

          4. Due Process protects no more than the status of
             being a governmental employee together with
             the “economic fruits” accompanying that position ……….….…… 38

       C. “Professional Capacities” Have Never Been Limited by
          Section 21.201(1) of the Texas Education Code ……………...……… 39

           1. The Commissioner of Education has not conceded
              that “professional capacity” is exclusively defined
              by section 21.201 of the Texas Education Code ……..…………… 40

           2. The Legislative Intent is not that “Professional
              capacities” be limited to Section 21.201 of
              the Education Code ………………………………………..…….... 41

       D. A Favorable Ruling for Appellant Would Result
          in an Unfavorable Result for Every Public School
          District in Texas ……………………………...………………….......... 42



Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD   Page 5 of 47
 XI.    PRAYER …….…………...……...………………………...…...….……. 43

 XII. CERTIFICATE OF COMPLIANCE …….………………...…...........…. 45

 XIII. CERTIFICATE OF SERVICE …….…………..……..…...….……...…. 46

 XIV. APPENDIX INDEX ….….……………………………...…..…….……. 47




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD   Page 6 of 47
                             INDEX OF AUTHORITIES

Case Law

Abbott et al. v. Ector County Indep. Sch. Dist.,
      Docket No. 081-R3-1287, 105-R3-288 (Comm’r Educ. 1991)……..... 26, 27

Andrews v. Houston Indep. Sch. Dist.,
     Docket No. 236-R1-897 (Comm’r Educ. 1997)…………………………... 26

Barich v. San Felipe-Del Rio Consolidated Ind. Sch. Dist.,
      Docket No. 117-R1a-484 (Comm’r Educ. 1985)…………………....... 14, 41

Carpenter v. Wichita Falls Ind. Sch. Dist.,
     Docket No. 247-R3-491 (Comm’r Educ. 1993)………...… 15, 19, 20, 22, 42

Findeisen v. North East Indep. Sch. Dist.,
      749 F.2d 234, 240-41 & n. 3 (5th Cir. 1984)……….…………………….. 39

Gonzalez v. Donna Indep. Sch. Dist.,
     Docket No. 074-R10-605 (Comm’r Educ. 2007)…………………...… 22, 31

Grounds v. Tolar Indep. Sch. Dist.,
     Docket No, 340-R3-786 (Comm’r Educ. 1986)………………………. 26, 27

Hester v. Canadian Indep. Sch. Dist.,
      Docket No. 106-Rl-585 (Comm’r Educ. 1985)……………………..… 26, 27

Jenkins v. Crosby Indep. Sch. Dist.,
      Docket No. 043-R10-1211 (Comm’r Educ. 2013)………………………... 12

Jenkins v. Crosby Indep. Sch. Dist.,
      No. D-1-GN-14-000619 (200th Dist. Ct., Travis County,
      Tex. Feb. 26, 2015)……………………………………………………….. 12

Jett v. Dallas Indep. Sch. Dist.,
        798 F.2d 748, 754 (5th Cir. 1986); 491 U.S. 701, 708 (U.S.
        1989)……......…………………………………………………...… 19, 38, 39


Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD   Page 7 of 47
Keith v. Tarkington Indep. Sch. Dist.,
      Docket No. 459-R3-89l (Comm’r Educ. 1992)…………………………… 23

Kimbrough v. Barnett,
     93 Tex. 301, 55 S.W. 120, 121-122 (1900)……………………………….. 35

Lieberman v. Eagle Mountain-Saginaw Indep. Sch. Dist.,
      Docket No. 192-R3-785 (Comm’r Educ. 1985)…………….….…..……... 26

Marshall v. Seguin Indep. Sch. Dist.,
     Docket No. l77-R1-690 (Comm’r Educ. 1991)……..………….……..……26

McCoy v. Kermit Indep. Sch. Dist.,
    Docket No. 004-R3-0908 (Comm’r Educ. 2012)……………......…14, 15, 26

Montgomery v. Richardson Indep. Sch. Dist.,
     Docket No. 007-RlO-1008 (Comm’r Educ. 2012)………….…….…...….. 26

Murillo v. Laredo Indep. Sch. Dist.,
      Docket No. 027-R3-0108 (Comm’r Educ, 2012)……………...…….……. 26

Pasqua v. Fort Stockton Indep. Sch. Dist.,
     Docket No. 011-R3-1102 (Comm’r Educ. 2004)………..…...…… 21, 22, 26

Perales v. Robstown Indep. Sch. Dist.,
      Docket Nos. 052-R10-104 & 084-R3-604, (Comm’r Educ. 2006)....… 23, 26

Perez v. Donna Indep. Sch. Dist.,
      Docket No. 086-R1-705 (Comm’r Educ. 2007)……………………...…… 26

Ramos v. El Paso Indep. Sch. Dist.,
     Docket No. 002-R10-900 (Comm’r Educ. 2002)…………………....……. 26

Reyes v. Culberson County Indep. Sch. Dist.,
      Docket No. 229-R3-787 (Comm’r Educ. 1987)……………………….….. 26

Salinas v. Roma Indep. Sch. Dist.,
      Docket No. 058-R3-1 196 (Comm’r Educ. 1997)……..…...…………...… 26


Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD   Page 8 of 47
Sanchez v. Donna Indep. Sch. Dist.,
     Docket No. 075-R10-605 (Comm’r Educ. 2007)…………………...… 22, 31

Satcher v. Florence Indep. Sch. Dist.,
      Docket No. 363-R3-786 (Comm’r Educ. 1987)…………………………... 26

Temple Indep. Sch. Dist. v. Proctor,
     97 S.W.2d 1047, 1052 (Tex. Civ. App. 1936)……………………….….... 35

Thomas v. Bd. of Trustees of Galveston ISD,
     515 F.Supp. 280, 287 (S.D. Tex. 1981)………………………...………… 16

Tuck v. Alief Indep. Sch. Dist.,
      Docket No. 008-Rl0-l 007 (Comm’r Educ. 2012)…...…………………… 26

Underwood v. West Rusk Indep. Sch. Dist.,
     Docket No. 062-R3-198 (Comm’r Educ. 1998)……………………..... 21, 26

Vasquez v. Dallas Indep. Sch. Dist.,
     Docket No. 095-R3-188, (Comm’r Educ. 1991)………………….…... 19, 27

Veliz v. Donna Indep. Sch. Dist.,
       Docket No. 01 1-R3-999 (Comm’r Educ. 2000)………….………...… 20, 21

Wheeler v. Austin Indep. Sch. Dist.,
     Docket No. 008-R3-1108 (Comm’r Educ. 2011)……………….… 17, 26, 32

Young v. Leggett Indep. Sch. Dist.,
     Docket No. 175-R3-898 (Comm’r Educ. 1999)…………………………... 26

Yturralde v. El Paso Indep. Sch. Dist.,
      Docket No. 001-R10-900 (Comm’r Educ. 2002)......................................... 26

Statutes

TEX. EDUC. CODE §11.151 (b) & (d)…………………………………………….... 3

TEX. EDUC. CODE §11.163(a)(1)………………………………………………..... 36


Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD                Page 9 of 47
TEX. EDUC. CODE §11.201(a)………………………………………………….… 37

TEX. EDUC. CODE §11.201(d)……………………………………………..…...… 28

TEX. EDUC. CODE §11.201(d)(2)-(4)………………………………………….…. 36

TEX. EDUC. CODE §21.031 .…...………………………..…..………………..…... 29

TEX. EDUC. CODE §21.042……………………..…………………………….…... 30

TEX. EDUC. CODE §21.201…………………………………………… 39, 40, 41, 42

TEX. EDUC. CODE §21.204 (b)…………………………………………………… 15

TEX. EDUC. CODE §21.206…………………………….…….…… 21, 23, 27, 40, 42

TEX. EDUC. CODE §21.210(d)……………………………………………..……... 35

Administrative

19 TEX. ADMIN CODE §229.2(3)………………………………………………… 17

19 TEX. ADMIN. CODE §241.1(c)…………………………………………..…….. 31

19 TEX. ADMIN. CODE §241.1(d)……………………………………………..….. 29

19 TEX. ADMIN. CODE §241.15……………………………………………..……. 31

19 TEX. ADMIN. CODE §241.20……………………………………………..….… 30

TEX. ATT’Y GEN. OP. NO. GA-0123 (November 2003)……………………… 35, 36

DISTRICT BOARD POLICY BJA (LEGAL)……………………………………….... 27

DISTRICT BOARD POLICY DK (LOCAL) ………………………………......… 27, 28




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD   Page 10 of 47
Rules
TEX. R. APP. P. 11(b) ……………………………………...……………………… 2

TEX. R. APP. P. 11(c) ……………………………………...……………………… 3

TEX. R. APP. P. 38.2(a)(1)(A) ……………………………………...………….….. 2




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD   Page 11 of 47
                            STATEMENT OF THE CASE

       This is a case on appeal from a decision of the Texas Commissioner of

Education (the “Commissioner”), see Jenkins v. Crosby Independent School

District, Docket No. 043-R10-1211 (Tex. Comm’r Educ. 2013), and the 200th

Judicial District Court of Travis County Texas (the “district court”) Jenkins v.

Crosby Independent School District and Texas Commissioner of Education,

Michael Williams, No. D-1-GN-14-000619 (200th Dist. Ct., Travis County, Tex.

Feb. 26, 2015). This Amicus Curiae Brief is presented to the Court, on behalf of

Appellee, advocating for an affirmation of the decisions of the Commissioner and

the district court.

                                ISSUES PRESENTED

       TASB Legal Assistance Fund presents this Brief to advocate for Appellee on

issues that have been raised by the parties.

                              STATEMENT OF FACTS

       To the extent necessary, TASB Legal Assistance Fund adopts the facts as set

forth in the Appellee’s Response and Brief.

                        SUMMARY OF THE ARGUMENT

       Precedent should not be lightly overturned. It has long been established that

public school districts have the authority and flexibility to reassign school

employees, including administrators, to other positions that are within such

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD       Page 12 of 47
employees’ same professional capacity.            An “administrator” is broadly and

reasonably interpreted to include a variety of school district positions, including a

principal and an assistant principal. These two positions are historically treated

as being in the same professional capacity because both require a professional

employee to function as an administrator and require comparable professional

skills and responsibilities. School districts must be able to continue to reassign

administrators – including principals – appropriately to other positions within the

same professional capacity in order to meet the needs of the school.

       Moreover, a principal is not “unique” or fundamentally different than an

assistant principal. Consequently, a principal does not lose any property or due

process rights solely as a result of being reassigned to the position of assistant

principal.    A reassignment of a principal does not constitute a demotion,

nonrenewal, or termination. Because principals and assistant principals have the

same certification standard requirements, professional development expectations,

and many of the same job responsibilities, they have historically not been treated

as fundamentally different by the Commissioner or the courts.

       Alternatively, the categories of professional capacities have never been fully

established or limited by the Texas Legislature or the Commissioner.               A

“principal” is not a protected professional capacity simply because it is found in

the category of employees listed in section 21.201 of the Texas Education Code.

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD        Page 13 of 47
Moreover, the Legislature has acquiesced to the Commissioner’s longstanding

interpretation that “same professional capacity” in the administrative context

includes a broader range of school district positions than simply campus principal.

       Finally, long-standing public policy in Texas dictates that school districts

should have flexibility regarding personnel assignments in order to efficiently and

effectively carryout the operations of school campuses in the best interest of the

district and, more importantly, of its students. Granting the Appellant’s requested

relief would upend this long-standing policy and result in a dramatic state-wide

change affecting every public school district and every public school student in

Texas.

                                     ARGUMENTS

A.     The Court Should Not Overturn Long-standing and Well-reasoned
       Precedent that Reassignments Between Administrative Positions in
       Texas Public Schools, including the Positions of “Principal” and
       “Assistant Principal,” are Permissible as “Within the Same Professional
       Capacity.”

     1. The position of “administrator” is a professional capacity and one that
        must be broadly interpreted.

       The Commissioner, from the earliest substantive decisions concerning this

issue, has held that the term “administrator” is in fact a professional capacity. See,

e.g., Barich v. San Felipe-Del Rio Consolidated Indep. Sch. Dist., Docket No. 117-

R1a-484 (Comm’r Educ. 1985); and (most recently) McCoy v. Kermit Indep. Sch.


Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD         Page 14 of 47
Dist., Docket No. 004-R3-0908 (Comm’r Educ. 2012). Contrary to Appellant’s

arguments, the term is not defined in the Texas Education Code. However, the

Commissioner’s definition has been widely – if not universally – accepted for

decades. Without “administrators” broadly-defined, schools are hampered in their

abilities to effectively and efficiently run schools.

       In finding that the professional capacity of “administrator” is to be broadly

interpreted, the Commissioner has stated the following:

       “It is possible to imagine situations where the transfer clause of an
       employment contract would be held to be unenforceable under
       §21.204(b)1 However, this is not such a case. It has been the
       consistent view of the Commissioner that the [Term Contract
       Nonrenewal Act, “TCNA”] balanced its grant of limited tenure rights
       against the considerable personnel management problems it might
       cause if imposed inflexibly. Districts have responded to this law by
       creating broad classes within which transfers do not implicate TCNA.
       If taken to extremes, this tactic would be against public policy as
       expressed in the TCNA, but I cannot make such a finding in this case.
       The need for flexibility in making personnel changes is strongest,
       and the argument for a rigid tenure system weakest, at the
       administrative level. In short, I find the generic ‘administrator’
       position before me consistent with the policies of the TCNA.”
See McCoy, Docket No. 004-R3-0908, *4 (Comm’r Educ. 2012) and Carpenter v.

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

(emphasis added).



1
 The old version of section 21.204 of the Texas Education Code is the predecessor of the current
section 21.206 of the Texas Education Code.

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD                  Page 15 of 47
       Conversely, a narrower definition for the term “administrator” would lead to

needlessly complex procedures when a reassignment is necessary. The practical

difficulties of operating public schools with narrowly-stated professional capacities

in employment contracts are illustrated in the case of Thomas v. Board. of Trustees

of Galveston ISD, 515 F.Supp. 280, 287 (S.D. Tex. 1981). In Thomas, the

professional employee’s contract stated that he was employed in the position of

“assistant principal,” and it did not provide the school district with the right to

reassign the employee.       Under those circumstances, the court found that the

contract language conferred a property right in the position of “assistant principal.”

Since Thomas, all public school districts have strayed from such specificity when

referencing employment positions in contracts, and properly so. Instead, school

districts have trended toward employing their certified employees on contracts that

reference, generally, one of three main categories: classroom teaching,

administrative, or superintendent positions. When school districts have referenced

too broad a category in their employment contracts, the Commissioner has

restricted them from exercising their contractual and statutory reassignment rights

between the generally recognized categories of employment positions, such as

from the position of assistant principal to that of a classroom teacher. Thus,

contrary to Appellant’s assertions, the current state of Commissioner jurisprudence

holds that, when an employment contract recites an employment position that is

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD         Page 16 of 47
overly broad to define the professional capacity, such as “employee,” the

employment category within which the employee is assigned – as opposed to the

employee’s title or position – defines the scope of a lawful reassignment. For

example, If a person with principal certification executes an employment

agreement as an “employee” and is assigned to the position of principal, the

commissioner will consider that person as falling within the employment category

of an “administrator”, and that person may be reassigned to any other administrator

position for which the employee is certified and that is in a district’s and/or

students’ best interest. This circumstance is best illustrated by the Commissioner’s

Decision in Wheeler v. Austin Independent School District, Docket No. 008-R3-

1108 (Comm’r Educ. 2011). In Wheeler, the Commissioner found the professional

capacity stated in the contract to be too broad, and he, consequently, restricted the

school district from exercising its contractual and statutory reassignment rights

between categories of employment positions, such as from the position of assistant

principal to that of a classroom teacher. See id.

   2. The Commissioner of Education has not arbitrarily interpreted
      “administrator.”

       Appellant argues that the term “administrator” does not have a definition and

is therefore a “contractual black hole.” See Appellant Brief, at pgs. 26. However,




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD        Page 17 of 47
Appellant fails to acknowledge that the term “administrator” is in fact defined by

state law.

       In Chapter 229 (Accountability System for Educators Preparation Programs)

of Title 19 of the Texas Administrative Code, an “administrator” is defined as “an

educator whose certification would entitle him or her to be assigned as a principal

or assistant principal in Texas, whether or not he or she is currently working in

such an assignment.” See 19 TEX. ADMIN. CODE §229.2(3). An “administrator”

position is clearly addressed by state law and expressly includes the principal and

assistant principal positions.

       Consequently, it is incorrect to assert that the Commissioner has “arbitrarily

interpreted ‘administrator’ broadly to include assistant elementary school principal,

high school principal, middle school assistant principal, attendance coordinators,

and others.” See Amicus, Texas Elementary Principals and Supervisors

Association’s (“Amicus TEPSA”) Brief at p.12.             The professional capacity of

“administrator” was not arbitrarily interpreted by the Commissioner in this case

but, rather, it was interpreted and applied as it has been for years to include the

positions of principal and assistant principal.




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD          Page 18 of 47
   3. School districts must not be stripped of their flexibility to reassign
      administrators.

       Appellant’s attempt to tie the hands of school districts in the area of

administrative reassignments is not a novel one. In Vasquez v. Dallas Independent

School District, Docket No. 095-R3-188, (Comm’r Educ. 1991), the employee

sought to have the Commissioner review her reassignment from principal to vice

principal based on a due process violation claim. The employee’s contract did not

specify a particular job assignment. The Commissioner upheld the reassignment,

noting that “a prerequisite to any due process challenge to a reassignment decision

is that the Plaintiffs have had some property or liberty interest in her position.” See

Vasquez, Docket No. 095-R3-188 (citing Board of Regents v. Roth, 408 U.S. 564

(1972)). The Commissioner reasoned that when an employee signs a contract with

the district containing no reference to a specific job assignment, due process

protects no more than the status of being a governmental employee together with

the “economic fruits” accompanying the position. Id. (citing Jett v. Dallas Indep.

Sch. Dist., 798 F.2d 748, 754 (5th Cir. 1986)). Because the employee lacked a

property interest in her position, her claims for violations of due process failed.

       Since Jett and Vasquez, the Commissioner has repeatedly considered issues

of reassignment, professional capacity, and the need for district flexibility; he has

consistently arrived at the same conclusion. For example, in Carpenter v. Wichita


Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD           Page 19 of 47
Falls Independent School District, Docket No. 247-R3-491 (Comm’r Educ. 1993),

the Commissioner held that the professional capacity of an administrator is to be

broadly interpreted for reassignment purposes. There the Commissioner stated,

“the [Term Contract Nonrenewal Act “TCNA”] balanced its grant of limited tenure

rights against the considerable personnel management problems it might cause if

imposed inflexibly.” Id. at *3. This policy balance is prudent and must be allowed

to continue.

   4. The position of “principal” and “assistant principal” are within the “same
      professional capacity.”

       Appellant’s argument of hypothetical variances in the titles and duties of the

positions of principal and assistant principal fails. See Appellant Brief at pgs. 23-

24. The differentiation of duties between administrative positions has been

previously presented to and rejected by the Commissioner. For example, in Veliz

v. Donna Independent School District, Docket No. 011-R3-999 (Comm’r Educ.

2000), the school district reassigned the employee from attendance coordinator to

middle school assistant principal. The employee claimed that his reassignment

constituted an unauthorized change in professional capacity and that the employing

school district failed to follow the nonrenewal procedures set out in Chapter 21 of

the Texas Education Code. See id. at *2. The Commissioner concluded that

because “both positions require Appellant to function as an administrator and


Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD        Page 20 of 47
require comparable professional skills and responsibilities,” the district had not

changed the employee’s professional capacity. See id. at *2-3. The Commissioner

reasoned as follows:

       Although the positions of attendance coordinator and middle school
       assistant principal are not identical, they are in the same professional
       capacity as a certified administrator. Both positions require
       Petitioner to function as an administrator and require comparable
       professional skills and responsibilities. Petitioner’s reassignment
       comports with his contract. A reassignment from attendance
       coordinator to assistant principal comports with the ‘same
       professional capacity’ standard set forth in section 21.206.

See Veliz, Docket No. 011-R3-999, *3 (emphasis added).

       Similarly, in Underwood v. West Rusk Independent School District, Docket

No. 062-R3-198 (Comm’r Educ. 1998), the Commissioner concluded that a “junior

high school principal” reassigned to a “high school assistant principal” position

remained an administrator and continued to function in the same professional

capacity where: (1) the employment contract provided for reassignment of

positions; (2) the reassigned position had similar duties to the previous position;

(3) the salary with the assigned position remained the same; (4) professional

responsibilities did not lessen; and (5) the degree of skill required did not lessen.

See id. at *2-3.

       In a more recent example of the Commissioner’s consistent position, Pasqua

v. Fort Stockton Independent School District, Docket No. 011-R3-1102 (Comm’r

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD         Page 21 of 47
Educ. 2004), the Commissioner held that the position of principal and assistant

principal are the “same professional capacity.” In Pasqua, the employee, after

serving as high school principal for eleven years, received a two-year contract from

the district as a “Certified Administrator Position as Assigned” for the 2002-2003

school year. See id. at *1. The contract also provided for the “reassignment of

positions or duties . . . at any time during the contract.” See id. at *1. After one day

on the job, the superintendent assigned the employee to the position of assistant

middle school principal. After resigning, the employee brought a claim before the

Commissioner contending that his property rights in his contract had been violated

by the district. The Commissioner looked to the wording of the contract and held,

“Petitioner’s contract [was] not a contract for the position of high school

principal,” but rather “a contract for a certified administrator position as assigned.”

See id. at *4. The Commissioner emphasized that “the professional capacity of

administrator is to be broadly interpreted for reassignment purposes.” See id.

(citing Carpenter v. Wichita Falls Indep. Sch. Dist., Docket No. 247-R3-491

(Comm’r Educ. 1993); see also Sanchez v. Donna Indep. Sch. Dist., Docket No.

075-R10-605 (Comm’r Educ. 2007) and Gonzalez v. Donna Indep. Sch. Dist.,

Docket No. 074-R10-605 (Comm’r Educ. 2007)). The Commissioner was careful

to point out that “the contract itself allow[ed] [the employee] to be reassigned as

long as compensation [was] not reduced from that in the 2001-2002 school year.”

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD           Page 22 of 47
See Pasqua, Docket No. 011-R3-1102, at *4. Because the employee did not lose

any compensation, his reassignment did not violate his contract.


       The crux of Appellant’s argument is that the language contained in the

definition of “teacher” found in TEX. EDUC. CODE § 21.201(1) should be the only

standard of whether two administrative positions are within the same professional

capacity. But, the Commissioner has consistently rejected this argument.      For

example, in Perales v. Robstown Independent School District, Docket Nos. 052-

R10-104 & 084-R3-604, (Comm’r Educ. 2006), the school district reassigned an

employee from Even Start Director (a small district-wide program) to campus

assistant principal. In analyzing whether the two positions were in the same

professional capacity, the Commissioner reasoned that, “while the duties and

responsibilities are not identical, they are sufficiently similar.” See id. at 6.

(emphasis added).      He said, “[W]hile there was movement on the organizational

chart, the movement was only one level.” See id. (emphasis added).            The

Commissioner concluded that “‘same professional capacity,’ as used in the TEX.

EDUC. CODE § 21.206, is not limited to the individual classifications used in the

TEX. EDUC. CODE § 21.201(1).” See id. at 8 (emphasis added).                  The

Commissioner compared the Perales case to Keith v. Tarkington Independent

School District, Docket No. 459-R3-89l (Comm’r Educ. 1992), wherein            the


Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD     Page 23 of 47
Commissioner held that a reassignment from a central office position to the

position of assistant principal was in the same professional capacity.


       Appellant states that “Principal is one of several ‘professional capacities’

specifically identified in §21.201(1),” and she implies that the positions listed in

§21.201(1) are an exhaustive list of professional capacities. See Appellant’s Brief,

at pg. 15. This argument is incorrect and misleading. As discussed in more detail

infra, an individual holding the position of principal, and one holding the position

of assistant principal, must each hold the exact same certificate issued to them

“under Subchapter B,” i.e., from the State Board for Educator Certification, for

their respective assignments. Thus, the two positions in question in this case fall

under the same statutory category of “principal.” As such, Appellant’s

reassignment from principal to assistant principal was lawfully, and contractually,

permitted.


       Moreover, Appellant’s suggestion that prohibiting involuntary reassignments

outside of the categories stated in section 21.201(1) would provide for more

simplicity than currently exists also fails. Due to long-standing Commissioner

precedent, each classroom teacher should know that he or she is subject to the

reassignment clause in the teacher’s contract to the extent that he or she has

appropriate certification for the classroom teaching assignment. Similarly, each


Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD        Page 24 of 47
certified administrator should understand that he or she is subject to reassignment

to any administrative position for which the administrator is appropriately certified,

unless the contract specifically states otherwise. This professional understanding

on the part of classroom teachers and administrators is a result of the

Commissioner’s clear, consistent, and long-standing holdings relating to what

constitutes “same professional capacity.” If this Court strays from the precedent,

uncertainty and organizational paralysis, rather than certainty and consistency,

would result.

       For example, if the Court were to grant Appellant the relief she seeks,

overturning the trial court and the decision of the Commissioner, school districts

would be required to nonrenew a campus principal if he or she refused to be

reassigned to the central office where the superintendent needed the campus

administrator’s particular skill set. Under Appellant’s rationale, the principal could

simply state that the administrative position the superintendent needed the

administrator to assume required too much responsibility, and that he or she was

happier as campus principal.         Such a result would make a mockery of the

superintendent’s statutory reassignment authority as well as his or her

responsibility to utilize personnel assets in the district to their maximum effect on

student performance and in the best interests of the school district.



Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD         Page 25 of 47
       For nearly 30 years, school districts, administrators, teachers, and all other

certified professional employees, have operated under the consistent analysis and

finding of the Commissioner that “same professional capacities” are not limited to

those positions listed under the definition of a “teacher” in section 21.201 of the

Texas Education Code.         There are a multitude of consistent Commissioner’s

decisions, following Barich, that hold that a “professional capacity” may be

defined by contractual agreement.2 In many of the cases, school districts hired

professional employees under Chapter 21 term contracts for particular capacities

2
  See e.g., McCoy v. Kermit Indep. Sch. Dist., Docket No. 004-R3-0908 (Comm’r Educ. 2012);
Tuck v. Alief Indep. Sch. Dist., Docket No. 008-Rl0-l 007 (Comm’r Educ. 2012); Montgomery v.
Richardson Indep. Sch. Dist., Docket No. 007-RlO-1008 (Comm’r Educ. 2012); Murillo v.
Laredo Indep. Sch. Dist., Docket No. 027-R3-0108 (Comm’r Educ. 2012); Wheeler v. Austin
Indep. Sch. Dist., Docket No. 008-R3-l 108 (Comm’r Educ. 2011); Lehr v. Ector County Indep.
Sch. Dist., Docket No. 003-R3-0908 (Comm’r Educ. 2011); Perez v. Donna Indep. Sch. Dist.,
Docket No. 086-R1-705 (Comm’r Educ. 2007); Gonzalez v. Donna Indep. Sch. Dist., Docket No.
074-Rl0-605 (Comm’r Educ. 2007); Sanchez v. Donna Indep. Sch. Dist., Docket No. 075-R10-
605 (Comm’r Educ. 2007); Perales v. Robstown Indep. Sch. Dist., Docket Nos. 052-R10-104,
084-R3-604 (Comm’r Educ. 2006); Pasqua v. Fort Stockton Indep. Sch. Dist., Docket No. 011 -
R3- 1102 (Comm’r Educ. 2004); Ramos v. El Paso Indep. Sch. Dist., Docket No. 002-R10-900
(Comm’r Educ. 2002); Yturralde v. El Paso Indep. Sch. Dist., Docket No. 001-R10-900
(Comm’r Educ. 2002); Veliz v. Donna Indep. Sch. Dist., Docket No. 01l-R3-999 (Comm’r Educ.
2000); Young v. Leggett Indep. Sch. Dist., Docket No. 175-R3-898 (Comm’r Educ. 1999);
Underwood v. Rusk Indep. Sch. Dist., Docket No. 062-R3-198 (Comm’r Educ. 1998); Salinas v.
Roma Indep. Sch. Dist., Docket No. 058-R3-1 196 (Comm’r Educ. 1997); Keith v. Tarkington
Indep. Sch. Dist., Docket No. 459-R3-891(Comm’r Educ. 1992); Andrews v. Houston Indep.
Sch. Dist., Docket No. 236-R1-897 (Comm’r Educ. 1997); Carpenter v. Wichita Falls Indep.
Sch. Dist., Docket No. 247-R3-491 (Comm’r Educ. 1991); Marshall v. Seguin Indep. Sch. Dist.,
Docket No. l77-R1-690 (Comm’r Educ. 1991); Abbott et al. v. Ector County Indep. Sch. Dist.,
Docket No. 081-R3-1287, 105-R3-288 (Comm’r Educ. 1991); Satcher v. Florence Indep. Sch.
Dist., Docket No. 363-R3-786 (Comm’r Educ. 1987); Reyes v. Culberson County Indep. Sch.
Dist., Docket No. 229-R3-787 (Comm’r Educ. 1987); Grounds v. Tolar Indep. Sch. Dist., Docket
No, 340-R3-786 (Comm’r Educ. 1986); Lieberman v. Eagle Mountain-Saginaw Indep. Sch.
Dist., Docket No. 192-R3-785 (Comm’r Educ. 1985); and Hester v. Canadian Indep. Sch. Dist.,
Docket No. 106-Rl-585 (Comm’r Educ. 1985).

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD              Page 26 of 47
that were not specifically listed in the definition of “teacher” in the section

§21.201(1). Yet the Commissioner held in each case that the position set forth in

the contract was the employee’s “professional capacity.” See, e.g. Hester, 106-Rl-

585 (“teacher/coach”); Grounds, 340-R3-786 (“Head football coach”); Abbott et

al., 081-R3-1287, 105-R3-288 (“teacher/deans”); Salinas, 058-R3-1 196

(“teacher/assistant band director”).       Like the position of “administrator,” the

positions of “teacher/coach,” “Head football coach,” “dean,” and “assistant band

director” are also not listed under the definition of a “teacher” in section 21.201(1)

of the Texas Education Code. Nevertheless the Commissioner has appropriately

found each of those positions, as set forth the employees’ contracts, to be

“professional capacities” for purposes of application of Texas Education Code

21.206.

   5. The superintendent has been given the authority to reassign all personnel
      in the best interest of the district.

       Although Appellant suggests that Appellant’s contract does not support the

reassignment to assistant principal, the Appellant’s actual contractual language,

and years of guidance from the Commissioner of Education, indicate otherwise.

See, e.g., Vasquez v. Dallas Indep. Sch. Dist., Docket No. 095-R3-188, (Comm’r

Educ. 1991) (considering that “under the terms of the contract, the district was

expressly given ‘the right to assign the employee as [it] may determine, and may


Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD         Page 27 of 47
from time to time assign or reassign the employee,’” and “no specific job title was

provided for the contract.”).

       The    Superintendent’s      authority     and    duties     regarding    personnel

reassignments are found in the Texas Education Code and district board policies

BJA and DK.         The duties of the superintendent specifically include the

administrative authority and responsibility for the assignment of all personnel of

the District. See TEX. EDUC. CODE § 11.201(d) & BOARD POLICY BJA (LEGAL).

Moreover, most school districts have adopted a local policy like this one:

       All personnel are employed subject to assignment and reassignment
       by the Superintendent or designee when the Superintendent
       determines that the assignment or reassignment is in the best interest
       of the District. Reassignment shall be defined as a transfer to another
       position, department, or facility that does not necessitate a change in
       the employment contract of a contract employee.

See BOARD POLICY DK (LOCAL).

       In addition to statutory and local policy authority, the superintendent may be

given contractual authority to reassign employees. As previously noted, many

school districts have incorporated language into their employment contracts

regarding reassignment similar to the following:

       The Superintendent shall have the right to assign or reassign the
       Employee to positions, duties, or additional duties and to make
       changes in responsibilities, work, transfers, or classification at any
       time during the term of employment with the District.



Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD               Page 28 of 47
        Most, if not all, public school employees are working with the statutory,

local policy, and contractual awareness and acknowledgement that the

superintendent has the authority and responsibility to reassign them in the best

interest of the district. No district administrator or employee, other than the

superintendent, is “unwarned” that he or she may be reassigned to another position

of the same professional capacity for which he or she is certified.

        This Court should not overturn the trial court, the decision of the

Commissioner, nor the long-standing and well-reasoned precedent that

reassignments between administrative positions in Texas public schools are

permissible as “within the same professional capacity.”

B.      A Principal is Not Fundamentally Different from an Assistant Principal.

     1. State Board of Educator Certification requirements support the
        proposition that “principal” and “assistant principal” are within the same
        professional capacity.

        The state-mandated certification requirements of Texas further support the

proposition that a reassignment from “principal” to “assistant principal” is within

the same professional capacity.         The State Board of Educator Certification

(“SBEC”) regulates and oversees all aspects of educator certification. See TEX.

EDUC. CODE §21.031.          The SBEC has adopted rules defining the training

requirements, minimum academic qualifications, and prior experience necessary



Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD       Page 29 of 47
for each class of certificate, in accordance with section 21.042 of the Texas

Education Code. See id. at § 21.042.

       The holder of the principal certificate issued by SBEC “may serve as a

principal or assistant principal in a Texas public school.” See 19 TEX. ADMIN.

CODE § 241.1(d)(emphasis added). In other words, to be assigned to the position

of “assistant principal” or to “principal,” an individual must hold a valid “Standard

Principal Certificate.” To be eligible to receive the Standard Principal Certificate,

a candidate must:

       (1) Successfully complete the appropriate examinations required (relating to
           Assessment of Educators);

       (2) Hold, at a minimum, a master’s degree from an accredited institution of
           higher education that at the time was accredited or otherwise approved by
           an accrediting organization recognized by the Texas Higher Education
           Coordinating Board;

       (3) Hold a valid classroom teaching certificate;

       (4) Have two creditable years of teaching experience as a classroom teacher;
           and

       (5) Successfully complete a principal preparation program that meets the
           requirements of the Preparation Program Requirements; the Standards
           Required for the Principal Certificate; the Provisions for Educator
           Preparation Candidates; and Educator Preparation Programs.

See 19 TEX. ADMIN. CODE § 241.20.

       The standards for the principal certificate are the knowledge and skills that

must be used by educator preparation programs in the development of curricula

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD        Page 30 of 47
and coursework and are used by the SBEC to serve as the basis for developing the

assessments that are a vital part of the certification process. The standards for

principals as required by section 21.046 of the Texas Education Code, emphasize:

          (1) instructional leadership;

          (2) administration, supervision, and communication skills;

          (3) curriculum and instruction management;

          (4) performance evaluation;

          (5) organization; and

          (6) fiscal management.

See 19 TEX. ADMIN. CODE § 241.15.              Whether an individual is serving as a

principal or assistant principal, he or she is expected to actively participate in

professional development activities to continually update his or her knowledge and

skills.     See 19 TEX. ADMIN. CODE § 241.1(c).            The Commissioner has also

acknowledged the identical certification standard requirements and professional

development expectations for the two positions. See, e.g., Sanchez v. Donna

Indep. Sch. Dist., Docket No. 075-R10-605 (Comm’r Educ. 2007) and Gonzalez v.

Donna Indep. Sch. Dist., Docket No. 074-R10-605 (Comm’r Educ. 2007). The

SBEC Rules provide an indication that these positions entail significantly similar

duties and require significantly similar skills.             Consequently, these two

administrative positions fall within the same professional capacity.

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD         Page 31 of 47
       Moreover, the Commissioner has recognized the importance of SBEC

certification when analyzing whether two positions were the same professional

capacity. In Wheeler v. Austin Independent School District, Docket No. 008-R3-

1108 (Comm’r Educ. 2011), the Commissioner examined whether a reassignment

from assistant principal to classroom teacher was in the same professional

capacity. The reassignment had been accomplished under a Chapter 21 contract

that listed the employment position of “professional employee.” After determining

that the employment position listed in the contract was too broad, the

Commissioner examined the duties of the two positions to determine whether they

were the same professional capacity. In that analysis, the Commissioner looked to

the certification requirements of the former position (assistant principal) and the

position to which the employee was reassigned (classroom teacher). See id. at *7.

In doing so, the Commissioner, not surprisingly, determined that assistant principal

and classroom teacher were not the same professional capacity. See id. at *8.

Applying the Wheeler rationale to the present case, the Court must affirm, as the

Commissioner and the District Court concluded, that the SBEC certification for

both Appellant’s former position (principal) and her subsequent position (assistant

principal) require the identical certification and accompanying professional

qualifications and that Appellant’s reassignment was permissible as within the

same professional capacity.

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD       Page 32 of 47
       In her Brief, Appellant states that she was “effectively demoted from the

unique position of campus principle to one of several assistant principals at a

different campus, fundamentally altering her contractual relationship with the

district . . .” See Appellant’s Brief at pg. 18. This assertion is untrue. Such a

change in position is not generally considered a “demotion.”         Appellant was

reassigned from an Intermediate Principal to a High School Assistant principal

position. Some Elementary or Intermediate school campus principals aspire to be

the High School principal. Consequently, many principals consider an assistant

principal position at the high school to be a professionally advantageous move

from their current elementary or intermediate/middle school campus administrator

duties. Additionally, such principals view this move as a logical professional

“stepping stone,” since the administrator in this situation would have the best

opportunity to learn the varying vocational differences and challenges between

being an administrative leader at an elementary school to being one at a high

school, both experiences being valuable in ultimate preparation for broader district

central office responsibilities as an assistant superintendent or even superintendent

of schools.




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD        Page 33 of 47
   2. A “principal” does not lose due process rights by being reassigned to
      another administrative position.

       In her Brief, Appellant makes the assertion that she “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. . . ” See Appellant’s

Brief at pg. 12 (emphasis added). This claim is misleading. As discussed supra,

administrators assigned to the positions of principal and assistant principal must

hold SBEC-granted “principal” certification issued under Subchapter B of Chapter

21 of the Texas Education Code. Because an assistant principal must hold proper

“principal” certification, she, like a classroom teacher or a campus principal is

entitled to a Chapter 21 contract. As a holder of a Chapter 21 term contract, the

assistant principal is entitled to all the due process set forth in Chapter 21 before

being reassigned to a position that is outside the certified administrator’s

professional capacity. The Commissioner of Education and the District Court have

correctly held that “principal” and “assistant principal” are both within the same

professional capacity of “administrator; thus, Appellant was appropriately

reassigned within her professional capacity.          Appellant did not lose any due

process protections because none were warranted.




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD         Page 34 of 47
   3. The position of principal is not “unique” whereby reassignment would be
      prohibited.

       Appellant and Amicus TEPSA argue that principals are “unique” and

“indispensable, members of the campus community.” See Appellant Brief, at p.

18, and Amicus TEPSA Brief, at ps. 4-9. Although it is true that the many

principal positions, including assistant principals, may be “indispensable” to a

campus community, it is equally true that a student’s favorite coaches, band

directors, counselors, and teachers are equally indispensable.

       Like every other employee in the school district, the principal is at all times

accountable to the superintendent for the performance of his or her duties. The

ultimate responsibility to the parents, students, and community for what occurs on

any principal’s assigned campus, or for what fails to happen there, rest solely with

the superintendent of schools. See TEX. EDUC. CODE § 21.210(d).

       The truly unique position of school superintendent has been recognized by

Texas courts for over a century. As early as 1900, the Texas Supreme Court

addressed the question of whether a public school superintendent holds an “office”

in the public school systems in Texas. Kimbrough v. Barnett, 93 Tex. 301, 55

S.W. 120, 121-122 (1900). Almost four decades later, this Court confirmed as

“settled law” that the “position [of superintendent] was an office . . . .” Temple

Indep. Sch. Dist. v. Proctor, 97 S.W.2d 1047, 1052 (Tex. Civ. App. - Austin 1936)


Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD         Page 35 of 47
(citing Kimbrough v. Barnett, 93 Tex. 301, 55 S.W. 120, 121-122 (1900)). The

Texas Attorney General has also acknowledged the uniqueness of the

superintendent’s position. See TEX. ATT’Y GEN. OP. NO. GA-0123 (November

2003).     The Attorney General considered that the superintendent, as the

“educational leader and . . . chief executive officer,” has “sole authority to make

recommendations to the board regarding the selection of all personnel other than

the superintendent,” and is “responsible for, among other duties, assigning and

evaluating district personnel, and initiating an employee’s termination or

suspension. See TEX. EDUC. CODE §§ 11.163(a)(1) and 11.201(d)(2)-(4) (emphasis

added). The Attorney General reasoned that, “a superintendent who exercises final

authority to select personnel exercises a sovereign function of the government

largely independent of the school board’s control.” See id.

       In contrast, the position of principal is not unique. While there is a one-to-

one ratio between the number of school districts and the number of

superintendents, there is no such ratio for principals.             Moreover, there is no

recognition that principals occupy a position similar to superintendents. To equate

the two positions is to ignore that there is no other administrator in a school district

like a superintendent and to ignore that, in larger school districts, there are usually

several, if not multitudes, of positions that are similarly situated to the campus

principal. It is the uniqueness of the superintendent’s position that leads to the

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD              Page 36 of 47
restriction on reassigning him or her away from the professional capacity of

superintendent.     The same argument cannot plausibly be made of any other

employment position within a district, including a campus principal.

       As alluded to above, depending on which particular campus structure best

fits the needs of a school district, a Texas school district may employ one, ten, or

more than 100 principals, but, regardless of its administrative configuration, the

district will inevitably employ only one superintendent. For example, the Katy

Independent School District Web site identifies its sixty (60) campuses, including

thirty-seven (37) elementary schools, thirteen (13) junior high schools, and ten (10)

high schools. While Katy ISD employs sixty (60) principals, it employs only one

superintendent of schools. This one typical large suburban/metropolitan school

district example illustrates how quickly any attempted analogy between a campus

principal and a district superintendent fails.

       In a similar line of argument, Appellant has argued that the principal is “like

a superintendent” and “one-of-a-kind.” See Appellant Brief, pgs. 21-23. To assert

that a campus principal is analogous to the superintendent is a failure to understand

that the superintendent is the sole, one of a kind, chief executive officer (“CEO”)

of the school district. The Texas Legislature recognizes this fact and has codified

it in section 11.201(a) of the Texas Education Code. A principal is, undoubtedly, a

valuable administrative member of a school district’s administrative staff with

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD         Page 37 of 47
some duties that are set forth in statute, but “the buck” has a place to go when the

campus principal cannot handle it—the superintendent’s desk.                 It is a

misrepresentation of arguably every organizational chart in every school district in

Texas for Appellant to represent to the Court that the positions of superintendent

and campus principal are similarly unique.

   4. Due Process protects no more than the status of being a governmental
      employee together with the “economic fruits” accompanying that position.
       Appellant argues that she has a property interest in her position as

“principal.” See TEPSA Amicus Brief, at pg. 5-6. She does not. Due process

protects no more than the status of being a governmental employee together with

the “economic fruits” accompanying that position. See Jett v. Dallas Indep. Sch.

Dist., 798 F.2d 748, 754 (5th Cir. 1986); 491 U.S. 701, 708 (1989).

       In Jett, the Fifth Circuit found that, although a district employee may have

had a property interest in his salary, a contract did not give him a property interest

in the continuation of his specific duties. See Jett, 798 F.2d at 754. Specifically,

the Court stated that “[w]hen a public employee has a legitimate entitlement to his

employment, the due process clause may protect as ‘property’ no more than the

status of being an employee of the governmental employer in question together

with the economic fruits that accompany the position.” See id (emphasis added).




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD         Page 38 of 47
Therefore, according to the Fifth Circuit, a school district employee has a due

process protection to “no more than” (1) his employment; and (2) his salary.

       The Fifth Circuit added that “[a]lthough the governmental employer may

specifically create a property interest in a noneconomic benefit—such as a

particular work assignment—a property interest in employment generally does not

create due process property protection for such benefits. See id. (citing Findeisen

v. North East Indep. Sch. Dist., 749 F.2d 234, 240-41 & n. 3 (5th Cir. 1984)

(Garwood, J., concurring)). The United States Supreme Court affirmed the Fifth

Circuit decision in Jett, stating that “[s]ince petitioner had received both his

teacher’s and coach’s salary after his reassignment, the change in duties did not

deprive him of any state law entitlement protected by the Due Process Clause.”

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 708 (U.S. 1989). Appellant did not

lose her government entitlement as a school administrator nor did she lose any

salary as a consequence of her reassignment. Thus, no property interest was

affected and no due process rights were implicated.

C.     “Professional Capacities” Have Never Been Limited to the Positions
       Listed in Section 21.201(1) of the Texas Education Code.
       Appellant would have this Court create a bright line rule that a Texas public

school campus principal may only be reassigned to another campus principal

position. This would require this Court to overrule a multitude of Commissioner


Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD        Page 39 of 47
decisions, as discussed supra, and create rights never previously recognized.

Moreover, such a ruling would be inconsistent with the Act’s legislative intent.

   1. The Commissioner of Education has not conceded that “professional
      capacity” is exclusively defined by section 21.201 of the Texas Education
      Code.
       Far from the Appellant’s claim that “the Commissioner has conceded that

§21.201(1) defines the term ‘professional capacity’ used in §21.206, as to

superintendent, classroom teacher, counselor, nurse, and librarian,” and that

“without rationale, the commissioner has failed to include principal in that group,

even though it is specifically identified in §21.201(1),” the Commissioner has

actually provided a very comprehensive analysis regarding the meaning of the

phrase “same professional capacity,” while thoroughly referring to, and relying on,

statutory,   legislative,   and   administrative     history   and   precedent.      The

Commissioner, even as far back as 1985, reasoned as follows:

              “[I]t is more reasonable to conclude that the legislature, by
              using the term ‘same professional capacity’ (instead of ‘the
              exact same position’), intended to allow school districts to be
              flexible in their personnel assignments while discouraging the
              abuse of the district’s inherent or contractual reassignment
              authority. In other words, the district may place a teacher
              whose employment has been renewed by operation of law in a
              position different from that to which the teacher was assigned
              the previous year, as long as the position is one which the
              district could have reassigned the teacher had the parties
              voluntarily entered into a contract for the following year. In
              some instances, the validity of a particular placement will be
              clear. For example, an administrator who does not receive the

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD            Page 40 of 47
              required notice by April 1 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 the librarian; etc. In other instances, the validity of
              a particular placement might not be so clear. For example, a
              placement might be to another position within the same
              professional capacity (e.g. administrator), but nevertheless, be
              invalid (e.g. from superintendent to assistance elementary
              principal). Factors to be considered in determining the validity
              of such a placement include, but are not necessarily limited to,
              differences in authority, duties, and salary.”

See Barich, Docket No. 117-R1a-484 (Comm’r Educ. 1985). It is misleading for

Appellant to suggest that the Commissioner has “conceded” that professional

capacity is exclusively defined by section 21.201.

   2. The Legislative Intent is not that “Professional capacities” be limited to
      Section 21.201 of the Education Code.

       In 1985, when the Commissioner decided the Barich case – the first

substantive case on the issue of “same professional capacity” – the positions of

“classroom teacher” and “counselor” were listed under the definition of “teacher”

in section 21.201(1)); but the positions of “nurse,” “librarian” and “administrator”

were not. Nonetheless, the Commissioner did not limit “professional capacities” to

the positions listed in §21.201(1). Since Barich, the Term Contract Nonrenewal

Act has been amended several times (1990, 1995, 2003, and 2011), and the

legislature has met many more times than that. Although given the opportunity,

the Texas Legislature has not modified the language to limit the “professional

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD           Page 41 of 47
capacit[ies]” contemplated in 21.206 to those categories of employees listed in

21.201 under the definition of “teacher.”

       Although Appellant argues otherwise, the professional category of

“principal” is not a statutorily, regulatory, or contractually protected “professional

capacity”. If the Legislature would have intended for “same professional capacity”

to be limited to the positions listed under the definition of “teacher,” it could have

made its intention clear with the many opportunities that it has had during a dozen

legislative sessions over the past three decades. This fact is especially true in light

of the concurrent line of Commissioner’s decisions interpreting the term.            In

essence, the Texas Legislature has acquiesced to the Commissioner’s longstanding

interpretation that “same professional capacity” in the administrative context is a

broader category of school district positions than simply campus principal.

D.     A Favorable Ruling for Appellant Would Result in an Unfavorable
       Result for Every Public School Student in Texas.

       The public policy of the State of Texas is to provide public school districts

with flexibility regarding personnel assignments in order to efficiently and

effectively carryout the operations of each campus in the best interest of the

district.   See Carpenter, Docket No. 247-R3-491 (Comm’r Educ. 1993).                In

practice, the “best interest of the district” translates to the “best interest of the

students,” particularly when considering the abilities, skills, strengths, and even


Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD          Page 42 of 47
weaknesses, that campus administrators will bring to the education of students at

the campuses at which they are assigned or reassigned.

       Because the school laws of the state presume administrative authority to

reassign administrators employed by Texas public schools, Appellant’s arguments

attack the fundamental flexibilities that public school districts have necessarily

relied on and operated under for decades. Granting the Appellant’s requested

relief, and overturning such longstanding policy, would result in a dramatic state-

wide change to the status quo affecting every public school district in Texas, along

with the education of public school students. Leading a Texas school district

already presents a multitude of challenges to the superintendent. Stripping a

superintendent of the authority and flexibility to appropriately reassign campus

administrators to other administrative positions places a fetter on his or her ability

to do what is best for students by creating circumstances wherein campus

employees and students are shepherded by an administrator who is not the best

person to lead the campus.

                                        PRAYER

       It has long been established in Texas that public school districts have the

authority and flexibility to reassign school employees, including administrators, to

other positions that are within such employees’ same professional capacity.

School districts must be allowed to continue to reassign administrators – including

Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD         Page 43 of 47
principals – appropriately to other positions within the same professional capacity

in order to meet the needs of the school. A principal does not lose any property or

due process rights solely as a result of being reassigned from a principal position to

another administrative position, including assistant principal, because both

positions are within the same professional capacity of an “administrator.”

Granting the Appellant’s requested relief would reverse over three decades of

precedent and policy, resulting in a negative state-wide change for every public

school district and every public school student in Texas. Such precedent should

not be lightly overturned.

       Wherefore, for these reasons, TASB Legal Assistance Fund respectfully

requests the Court affirm the judgment of the district court.




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD         Page 44 of 47
                                          UNDERWOOD LAW FIRM, P.C.

                                          By:           /s/ David P. Backus

                                          David P. Backus
                                          State Bar No. 01493870
                                          david.backus@uwlaw.com
                                          Ronn P. Garcia
                                          State Bar No. 24065269
                                          ronnie.garcia@uwlaw.com
                                          1111 West Loop 289
                                          Lubbock, Texas 79416
                                          (806) 793-1711
                                          (806) 793-1723 facsimile

                                          ATTORNEYS FOR AMICUS CURIAE
                                          THE TEXAS ASSOCIATION OF
                                          SCHOOL BOARDS’ LEGAL
                                          ASSISTANCE FUND


                        CERTIFICATE OF COMPLIANCE

       I hereby certify, in accordance with Texas Rule of Appellate Procedure
9.4(i)(3), that this Brief was produced on a computer using the Microsoft Word
2010 operating software and contains 7,256 words, as determined by using word-
count function on such software, excluding the sections of the Brief listed in the
Texas Rules of Appellate Procedure 9.4(i)(1).

                                                        /s/ David P. Backus
                                   David P. Backus




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD             Page 45 of 47
                           CERTIFICATE OF SERVICE

      I hereby certify that on September 24, 2015, a true and correct copy of the
foregoing document was forwarded to all counsel of record by e-mail, mail, and/or
facsimile pursuant to the Texas Rules of Appellate Procedure 9.5 as follows:

   David B. Hodgins                               Nichole Bunker-Henderson
   Thompson & Horton LLP                          Deputy Chief, Administrative Law
   3200 Southwest Freeway, Suite 2000             Division
   Houston, Texas 77027                           Assistant Attorney General
   Facsimile (713) 583-9397                       Office of the Texas Attorney General
                                                  P.O. Box 12548, Capitol Station
                                                  Facsimile (512) 320-0167

   Kevin F. Lungwitz                              Daniel A. Ortiz
   Lungwitz & Lungwitz, P.C.                      Giana Ortiz
   3005 S. Lamar Blvd.                            The Law Office of Daniel A. Ortiz
   Suite D-109-362                                1304 W. Abram Street, Suite 100
   Austin Texas 78704-4785                        Arlington, Texas 76013
   Facsimile (866) 739-7138                       Facsimile (817) 861-8909


                                        /s/   David P. Backus
                                   David P. Backus




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD          Page 46 of 47
                                  APPENDIX INDEX

   A. Texas Commissioner Decision:

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

   B. Texas Administrative Rules:

       19 TEX. ADMIN CODE §229.2

       19 TEX. ADMIN CODE §241.1

       19 TEX. ADMIN CODE §241.20

   C. Crosby Independent School District Board Policies:

       Crosby ISD Board Policy BJA (LEGAL)

       Crosby ISD Board Policy DK (LOCAL)




Amicus Curiae TASB-LAF – Brief in Support of Appellee, Crosby ISD    Page 47 of 47
                APPENDIX
                                      A

          Texas Commissioner Decision
Carpenter v. Wichita Falls Ind. Sch. Dist., Docket No. 247-R3-491 (Comm’r Educ. 1993)
                         DOCKET NO. 247-R3-491


ROSE M. CARPENTER                 §              BEFORE THE STATE
                                  §
                                  §
V.                                §      COMMISSIONER OF EDUCATION
                                  §
WICHITA FALLS INDEPENDENT         §
SCHOOL DISTRICT                   §              THE STATE OF TEXAS


                  DECISION OF THE COMMISSIONER
                         Statement of the Case

      Petitioner was employed as an administrator by the Wichita Falls

Independent School District for the 1989-90 school year.              Her

assignment at that time was science supervisor. Petitioner appeals

the denial of her grievance claiming the reassignment was in violation of

Texas Education Code § 21.204(d).

      A hearing on the merits of this appeal was heard on January 13,

1992, before James C. Thompson, the Hearings Examiner appointed by

the State Commissioner of Education.       Petitioner was represented by

Mark Robinett, Attorney at Law, Austin, Texas.          Respondent was

represented by Roger Hepworth, Attorney at Law, Austin, Texas.

      On July 20, 1993, the Hearings Examiner issued a Proposal for

Decision recommending that Petitioner's appeal be denied. Exceptions

and replies were timely filed and considered.

                              Findings of Fact

      After due consideration of the evidence and matters officially

noticed, in my capacity as State Commissioner of Education, I make the

following Findings of Fact:
       1.       At all times relevant to this appeal Petitioner was employed

by the Respondent as an administrator in the Wichita Falls Independent

School District. (Joint Stip.; PX-1.)

       2.       Both the administrator's contract for the 1989-90 school

year and the administrator's contract for 1990-91 signed by Petitioner

contain a clause providing that

       employee shall be subject to assignment and reassignment
       of positions or duties, additional duties, changes in
       responsibilities or work, transfers, or reclassification at any
       time during the contract term.
(PX-1; RX-2.)

       3.       In June or July of 1990, the Wichita Falls Independent

School District reorganized its administrative structure. As a result of

the administrative reorganization of Wichita Falls Independent School

District, some of the area supervisors were reassigned to campus-based

administrative positions. (Joint Stip.)

       4.       In July of 1990, Petitioner received notice from the Wichita

Falls Independent School District that Petitioner would be reassigned to

the position of Assistant High School Principal. (Joint Stip.)

       5.       Petitioner received no decrease in salary or benefits from

her reassignment. (Joint Stip.)

       6.       At the time of the hearing Petitioner remained employed

with the Wichita Falls Independent School District as an administrator

in the position of Assistant Principal. (Joint Stip.)

       7.       Petitioner   voiced   disapproval   of   the   administrative

reorganization.

       8.       The Assistant Superintendent recommended that Petitioner

would not be well suited to the new role as Science Support Specialist




#0247-R3-491                               -2-
because of a problem she had working with principals and teachers in

the past.

       9.     Petitioner did not apply for the position of Science Support

Specialist.

       10.    Petitioner's former position of Science Supervisor was

among those positions abolished by the reorganization plan.

       11.    Petitioner's   position   as   Assistant   Principal   is   an

administrative position and Petitioner's prior position as Science

Supervisor was an administrative position. These positions are in the

same professional capacity. (PX-2 and RX-2.)

                               DISCUSSION

       The question presented by this appeal is the scope and reach of

the Term Contract Nonrenewal Act, Texas Education Code section

21.204(b), in the context of the reassignment of those school district

personnel coming under its protections.        Petitioner would have the

Commissioner of Education hold that the phrase "same professional

capacity" as used in the TCNA is either defined by or in some way

informed by the definition of "teacher" found in §21.201(1) of that Act. I

do not believe     the   statutory language can permit of such an

interpretation. Rather, this phrase is left undefined by the statute, and

therefore its meaning is a matter for interpretation by the Commissioner,

in the first instance, and by the courts.           The decisions of the

Commissioner (and the courts) have consistently looked to the language

of the employment contract itself and attempted to give the parties the

benefit of their bargain. In this case, the contract between the parties

provides that the position to which Petitioner was entitled was that of a

generic "administrator."     Petitioner has not proven that hers was a



#0247-R3-491                             -3-
contract of adhesion, which would clearly change the result in this case.

It is true that the Commissioner has held that §21.204(b) limits the right

of the district to transfer a term contract teacher. Barich v. San Felipe-

Del Rio C.I.S.D., Docket No. 117-R1a-484 (Comm'r Educ. May 1985). It

is possible to imagine situations where the transfer clause in an

employment contract would be held unenforceable under §21.204(b).

However, this is not such a case. It has been the consistent view of the

Commissioner that the TCNA balanced its grant of limited tenure rights

against the considerable personnel management problems it might cause

if imposed inflexibly.    Districts have responded to the law by creating

broad classes within which transfers do not implicate the TCNA. If taken

to extremes, this tactic would be against public policy as expressed in

the TCNA, but I cannot make such a finding in this case. The need for

flexiblity in making personnel changes is strongest, and the argument

for a rigid tenure system weakest, at the administrative level. In short, I

find the generic "administrator" position before me to be consistent with

the policies of the TCNA.

                              Conclusions of Law

       After due consideration of the record, matters officially noticed,

and   the   foregoing     Findings   of   Fact,   in   my   capacity   as   State

Commissioner of Education, I make the following Conclusions of Law:

       1.     The Commissioner of Education has jurisdiction over this

appeal under Texas Education Code §11.13(a).

       2.     Respondent's decision to reassign Petitioner was neither

arbitrary, capricious, nor unlawful.

       3.     Respondent's decision to reassign Petitioner was not a

violation of state law.



#0247-R3-491                                -4-
      4.     Petitioner had no contractual entitlement not to be

reassigned from Science Supervisor to Assistant Principal.

      5.     Petitioner had no property interest in the non-economic

benefit of serving as Science Supervisor.

      6.     Petitioner's appeal should be denied.

                               ORDER

      After due consideration of the record, matters officially noticed,

and the foregoing Findings of Fact and Conclusions of Law, in my

capacity as State Commissioner of Education, it is hereby

      ORDERED that Petitioner's appeal be, and is hereby, DENIED.

      SIGNED AND ISSUED this ______ day of ________________, 199_.



                                 ___________________________________
                                 LIONEL R. MENO
                                 COMMISSIONER OF EDUCATION




#0247-R3-491                            -5-
 APPENDIX
               B

Texas Administrative Rules
      19 TEX. ADMIN CODE §229.2

      19 TEX. ADMIN CODE §241.1

     19 TEX. ADMIN CODE §241.20
§ 229.2. Definitions, 19 TX ADC § 229.2




  Texas Administrative Code
    Title 19. Education
      Part 7. State Board for Educator Certification
         Chapter 229. Accountability System for Educator Preparation Programs

                                                     19 TAC § 229.2
                                             Tex. Admin. Code tit. 19, § 229.2

                                                    § 229.2. Definitions

                                                           Currentness




The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly
indicates otherwise.




(1) Academic year--If not referring to the academic year of a particular public, private, or charter school or institution of
higher education, September 1 through August 31.




(2) ACT®--The college entrance examination from ACT®.




(3) Administrator--For purposes of the surveys and information required by this chapter, an educator whose certification
would entitle him or her to be assigned as a principal or assistant principal in Texas, whether or not he or she is currently
working in such an assignment.




(4) Alternative certification program--An approved educator preparation program, delivered by entities described in
§228.20(a) of this title (relating to Governance of Educator Preparation Programs), specifically designed as an alternative to a
traditional undergraduate certification program, for individuals already holding at least a bachelor’s degree.




(5) Beginning teacher--For purposes of this chapter, a classroom teacher with less than three years experience.




(6) Campus-based mentor--A certified educator assigned by the campus administrator who has completed mentor training;
who guides, assists, and supports the beginning teacher; and who reports the beginning teacher’s progress to that teacher’s
educator preparation program.

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
§ 229.2. Definitions, 19 TX ADC § 229.2




(7) Candidate--An individual who has been admitted into an educator preparation program, including an individual who has
been accepted on a contingency basis; also referred to as an enrollee or participant.




(8) Certification field--Academic or career and technical content fields, special education fields, specializations, or
professional fields in which an entity is approved to offer certification.




(9) Clinical teaching--A minimum 12-week, full-day or 24-week, half-day educator assignment through an educator
preparation program at a public school accredited by the Texas Education Agency (TEA) or other school approved by the
TEA for this purpose that may lead to completion of a standard certificate; also referred to as student teaching.




(10) Completer--According to the Higher Education Act, “A person who has met all the requirements of a state-approved
educator preparation program.” The term completer is no longer used to define the class of educator preparation program
candidates subject to a determination of certification examination pass rate.




(11) Consecutively measured years--Consecutive years for which a group’s performance is measured, excluding years in
which the small group exception applies, in accordance with §229.4(g) of this title (relating to Determination of
Accreditation Status).




(12) Cooperating teacher--The campus-based mentor teacher for the clinical teacher.




(13) Demographic group--Male and female, as to gender; the aggregate reporting categories established by the Higher
Education Act, as to race and ethnicity. Each educator preparation program will assign a candidate to one gender
demographic group and at least one Higher Education Act-established race or ethnicity group.




(14) Educator preparation program--An entity that must be approved by the State Board for Educator Certification to
recommend candidates in one or more educator certification fields.




(15) Educator preparation program data--Data elements reported to meet requirements under the Texas Education Code,
§21.045(b).
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   2
§ 229.2. Definitions, 19 TX ADC § 229.2




(16) Examination--An examination or other test required by statute or any other State Board for Educator Certification rule
codified in the Texas Administrative Code, Title 19, Part 7, that governs an individual’s admission to an educator preparation
program, certification as an educator, continuation as an educator, or advancement as an educator.




(17) Field supervisor--A currently certified educator, hired by the educator preparation program, who preferably has
advanced credentials, to observe candidates, monitor their performance, and provide constructive feedback to improve their
effectiveness as educators. A campus mentor or cooperating teacher, assigned as required by §228.35(e) of this title (relating
to Preparation Program Coursework and/or Training), may not also serve as a field supervisor.




(18) First year in the classroom--For purposes of the Texas Education Code, §21.045(a)(4), and its implementation in this
chapter, the first year of employment as a classroom teacher.




(19) GPA--Grade point average.




(20) GRE®--Graduate Record Examinations®.




(21) Higher Education Act--Federal legislation consisting of the Higher Education Act of 1965 (20 United States Code,
§1070 et seq.) and its subsequent amendments, which requires reports of educator preparation program performance data.




(22) Institutional report--Educator preparation program data reported to the United States Department of Education and the
Texas Education Agency as required under the Higher Education Act.




(23) Internship--A supervised, full-time educator assignment for one full school year at a public school accredited by the
Texas Education Agency (TEA) or other school approved by the TEA for this purpose that may lead to completion of a
standard certificate.




(24) Pass rate--For each academic year, the percent of tests passed by candidates who have finished all educator preparation
program requirements for coursework; training; and internship, clinical teaching, or practicum by the end of that academic
year. For purposes of determining the pass rate, candidates shall not be excluded because the candidate has not been
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         3
§ 229.2. Definitions, 19 TX ADC § 229.2



recommended for certification, has not passed a certification examination, or is not considered a “completer” for purposes of
the Higher Education Act or other applicable law. The pass rate is based solely on the examinations required to obtain
certification in the field(s) for which the candidate serves his or her internship, clinical teaching, or practicum. Examinations
not required for certification in that field or fields, whether taken before or after admission to an educator preparation
program, are not included. The rate reflects a candidate’s success only on the last attempt made on the examination by the
end of the academic year in which the candidate finishes the coursework; training; and internship, clinical teaching, or
practicum program requirements, and does not reflect any attempts made after that year. The formula for calculation of pass
rate is the number of successful (i.e., passing) last attempts made by candidates who have finished the specified educator
preparation program requirements divided by the total number of last attempts made by those candidates.




(25) Practicum--A supervised professional educator assignment at a public school accredited by the Texas Education Agency
(TEA) or other school approved by the TEA for this purpose that is in a school setting in the particular field for which a
professional certificate is sought such as superintendent, principal, school counselor, school librarian, educational
diagnostician, reading specialist, and/or master teacher.




(26) SAT®--The college entrance examination from the College Board.




(27) Scaled score--A conversion of a candidate’s raw score on an examination or a version of the examination to a common
scale that allows for a numerical comparison between candidates.




(28) Texas Education Agency staff--Staff of the Texas Education Agency assigned by the commissioner of education to
perform the State Board for Educator Certification’s administrative functions and services.



Credits

Source: The provisions of this §229.2 adopted to be effective April 18, 2010, 35 TexReg 2849; amended to be effective
October 26, 2014, 39 TexReg 8395.


Current through 40 Tex.Reg. No. 5986, dated September 4, 2015, as effective on or before September 11, 2015

19 TAC § 229.2, 19 TX ADC § 229.2
End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                4
§ 241.1. General Provisions, 19 TX ADC § 241.1




   KeyCite Yellow Flag - Negative Treatment
Proposed Regulation
  Texas Administrative Code
    Title 19. Education
      Part 7. State Board for Educator Certification
         Chapter 241. Principal Certificate

                                                      19 TAC § 241.1
                                              Tex. Admin. Code tit. 19, § 241.1

                                                 § 241.1. General Provisions

                                                           Currentness




(a) Due to the critical role the principal plays in campus effectiveness and student achievement, and consistent with the Texas
Education Code (TEC), § 21.046(c), the rules adopted by the State Board for Educator Certification ensure that each
candidate for the Principal Certificate is of the highest caliber and possesses the knowledge and skills necessary for success.




(b) As required by the TEC, § 21.046(b)(1)-(6), the standards identified in § 241.15 of this title (relating to Standards
Required for the Principal Certificate) emphasize instructional leadership; administration, supervision, and communication
skills; curriculum and instruction management; performance evaluation; organization; and fiscal management.




(c) An individual serving as a principal or assistant principal is expected to actively participate in professional development
activities to continually update his or her knowledge and skills. Currency in best practices and research as related to both
campus leadership and student learning is essential.




(d) The holder of the Principal Certificate issued under the provisions of this chapter may serve as a principal or assistant
principal in a Texas public school.



Credits

Source: The provisions of this §241.1 adopted to be effective March 14, 1999, 24 TexReg 1616; amended to be effective
September 2, 1999, 24 TexReg 6751; amended to be effective July 13, 2004, 29 TexReg 6646; amended to be effective
October 25, 2009, 34 TexReg 7200.


Current through 40 Tex.Reg. No. 5986, dated September 4, 2015, as effective on or before September 11, 2015


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
§ 241.1. General Provisions, 19 TX ADC § 241.1



19 TAC § 241.1, 19 TX ADC § 241.1
End of Document                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
§ 241.20. Requirements for the Issuance of the Standard..., 19 TX ADC § 241.20




   KeyCite Yellow Flag - Negative Treatment
Proposed Regulation
  Texas Administrative Code
    Title 19. Education
      Part 7. State Board for Educator Certification
         Chapter 241. Principal Certificate

                                                      19 TAC § 241.20
                                              Tex. Admin. Code tit. 19, § 241.20

                     § 241.20. Requirements for the Issuance of the Standard Principal Certificate

                                                            Currentness




To be eligible to receive the standard Principal Certificate, a candidate must:




(1) successfully complete the appropriate examinations required under Chapter 230, Subchapter B, of this title (relating to
Assessment of Educators);




(2) hold, at a minimum, a master’s degree from an accredited institution of higher education that at the time was accredited or
otherwise approved by an accrediting organization recognized by the Texas Higher Education Coordinating Board;




(3) hold a valid classroom teaching certificate;




(4) have two creditable years of teaching experience as a classroom teacher, as defined in Chapter 153, Subchapter CC, of
this title (relating to Commissioner’s Rules on Creditable Years of Service) and the Texas Education Code, § 5.001(2); and




(5) successfully complete a principal preparation program that meets the requirements of § 241.10 of this title (relating to
Preparation Program Requirements), § 241.15 of this title (relating to Standards Required for the Principal Certificate),
Chapter 227 of this title (relating to Provisions for Educator Preparation Candidates), and Chapter 228 of this title (relating to
Requirements for Educator Preparation Programs).



Credits


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
§ 241.20. Requirements for the Issuance of the Standard..., 19 TX ADC § 241.20



Source: The provisions of this §241.20 adopted to be effective October 25, 2009, 34 TexReg 7200.


Current through 40 Tex.Reg. No. 5986, dated September 4, 2015, as effective on or before September 11, 2015

19 TAC § 241.20, 19 TX ADC § 241.20
End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
           APPENDIX
                            C

Crosby Independent School District Board Policies

              Crosby ISD Board Policy BJA (LEGAL)

              Crosby ISD Board Policy DK (LOCAL)
Crosby ISD
101906

SUPERINTENDENT                                                                       BJA
QUALIFICATIONS AND DUTIES                                                        (LEGAL)


QUALIFICATIONS       A person may not be employed as a superintendent unless the
                     person holds an appropriate certificate or permit. Education Code
                     21.003
DUTIES               The Superintendent is the educational leader and chief executive
                     officer of the District. Education Code 11.201(a)
                     The duties of the Superintendent include:
                     1.   Assuming administrative responsibility and leadership for the
                          planning, organization, operation, supervision, and evaluation
                          of the education programs, services, and facilities of the Dis-
                          trict and for the annual performance appraisal of the District’s
                          staff.
                     2.   Except as provided by Education Code 11.202 (duties of prin-
                          cipal) [see DK and DP], assuming administrative authority and
                          responsibility for the assignment, supervision, and evaluation
                          of all personnel of the District other than the Superintendent.
                     3.   Overseeing compliance with the standards for school facili-
                          ties. [See CS]
                     4.   Initiating the termination or suspension of an employee or the
                          nonrenewal of an employee’s term contract. [See DF series]
                     5.   Managing the day-to-day operations of the District as its ad-
                          ministrative manager, including implementing and monitoring
                          plans, procedures, programs, and systems to achieve clearly
                          defined and desired results in major areas of District opera-
                          tions.
                     6.   Preparing and submitting to the Board a proposed budget and
                          administering the budget.
                     7.   Preparing recommendations for policies to be adopted by the
                          Board and overseeing the implementation of adopted policies.
                     8.   Developing or causing to be developed appropriate adminis-
                          trative regulations to implement policies established by the
                          Board.
                     9.   Providing leadership for the attainment and, if necessary, im-
                          provement of student performance in the District based on the
                          state’s student achievement and quality of learning indicators
                          and other indicators as may be adopted by the Commissioner
                          or the Board. [See AIA]
                     10. Organizing the District’s central administration.
                     11. Consulting with the District-level committee. [See BQA]


DATE ISSUED: 1/29/2010                                                              1 of 2
UPDATE 87
BJA(LEGAL)-P
Crosby ISD
101906

SUPERINTENDENT                                                                       BJA
QUALIFICATIONS AND DUTIES                                                        (LEGAL)


                     12. Ensuring:
                          a.   Adoption of a Student Code of Conduct [see FO] and en-
                               forcement of that Code of Conduct; and
                          b.   Adoption and enforcement of other student disciplinary
                               rules and procedures as necessary.
                     13. Submitting reports as required by state or federal law, rule, or
                         regulation.
                     14. Providing joint leadership with the Board to ensure that the
                         responsibilities of the Board and Superintendent team are
                         carried out; and
                     15. Performing any other duties assigned by action of the Board.
                     Education Code 11.201(d)
                     In addition, the Superintendent shall, on a day-to-day basis, ensure
                     the implementation of the policies created by the Board. Education
                     Code 11.1512(a)
COLLABORATION        The Board and the Superintendent shall work together to:
WITH THE BOARD
                     1.   Advocate for the high achievement of all District students;
                     2.   Create and support connections with community organiza-
                          tions to provide community-wide support for the high
                          achievement of all District students;
                     3.   Provide educational leadership for the District, including lead-
                          ership in developing the District vision statement and long-
                          range educational plan [see AE];
                     4.   Establish District-wide policies and annual goals that are tied
                          directly to the District’s vision statement and long-range edu-
                          cational plan;
                     5.   Support the professional development of principals, teachers,
                          and other staff; and
                     6.   Periodically evaluate Board and Superintendent leadership,
                          governance, and teamwork.
                     Education Code 11.1512(b)




DATE ISSUED: 1/29/2010                                                              2 of 2
UPDATE 87
BJA(LEGAL)-P
Crosby ISD
101906

ASSIGNMENT AND SCHEDULES                                                              DK
                                                                                  (LOCAL)


SUPERINTENDENT’S     All personnel are employed subject to assignment and reassign-
AUTHORITY            ment by the Superintendent or designee when the Superintendent
                     determines that the assignment or reassignment is in the best in-
                     terest of the District. Reassignment shall be defined as a transfer
                     to another position, department, or facility that does not necessitate
                     a change in the employment contract of a contract employee. Any
                     change in an employee’s contract shall be in accordance with poli-
                     cy DC.
                     Any employee may request reassignment within the District to an-
                     other position for which he or she is qualified.
CAMPUS               The principal’s criteria for approval of campus assignments and
ASSIGNMENTS          reassignments shall be consistent with District policy regarding
                     equal opportunity employment, and with staffing patterns approved
                     in the District and campus plans. [See BQ series] In exercising
                     their authority to approve assignments and reassignments, princi-
                     pals shall work cooperatively with the central office staff to ensure
                     the efficient operation of the District as a whole.
SUPPLEMENTAL         Noncontractual supplemental duties for which supplemental pay is
DUTIES               received may be discontinued by either party at any time. An em-
                     ployee who wishes to relinquish a paid supplemental duty may do
                     so by notifying the Superintendent or designee in writing. Paid
                     supplemental duties are not part of the District’s contractual obliga-
                     tion to the employee, and an employee shall hold no expectation of
                     continuing assignment to any paid supplemental duty.
WORK CALENDARS       Subject to the Board-adopted budget and compensation plan and
AND SCHEDULES        in harmony with employment contracts, the Superintendent shall
                     determine required work calendars for all employees. [See DC,
                     EB]
                     Daily time schedules for all employees shall be determined by the
                     Superintendent or designee and principals.




DATE ISSUED: 5/20/2011                       ADOPTED:                                1 of 1
LDU 2011.01
DK(LOCAL)-A
