                                                                                             ACCEPTED
                                                                                         03-15-00313-CV
                                                                                                 7090671
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                    9/24/2015 4:39:04 PM
                                                                                       JEFFREY D. KYLE
                                                                                                  CLERK
                  CASE NO. 03-15-00313-CV
_______________________________________________________
                                                                   FILED IN
                IN THE COURT OF APPEALS    3rd COURT OF APPEALS
                                               AUSTIN, TEXAS
       FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
                                           9/24/2015 4:39:04 PM
_______________________________________________________
                                                               JEFFREY D. KYLE
                                                                    Clerk
                              HERMENIA JENKINS,
                                  Appellant,

                                      v.

         CROSBY INDEPENDENT SCHOOL DISTRICT, and
     MICHAEL L. WILLIAMS, COMMISSIONER OF EDUCATION
                          Appellees.
_______________________________________________________
       On Appeal from the 200th District Court of Travis County, Texas;
 Cause No. D-1-GN-14-000619; The Honorable Amy Clark Meachum, presiding
_______________________________________________________

    THE COMMISSIONER OF EDUCATION’S APPELLEE’S BRIEF

KEN PAXTON                          ANDREW LUTOSTANSKI
Attorney General of Texas           State Bar No. 24072217
                                    Assistant Attorney General
CHARLES E. ROY                      Administrative Law Division
First Assistant Attorney General    OFFICE OF THE TEXAS ATTORNEY GENERAL
                                    P.O. Box 12548, Capitol Station
JAMES E. DAVIS                      Austin, Texas 78711-2548
Deputy Attorney General for         Phone: (512) 475-4200
Defense Litigation                  Fax: (512) 320-0167
                                    andrew.lutostanski@texasattorneygeneral.gov
DAVID A. TALBOT, JR.
Chief, Administrative Law           Attorneys for the Commissioner of Education
                                      TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................................................... ii

INDEX OF AUTHORITIES.................................................................................iv

STATEMENT OF THE CASE.............................................................................ix

STATEMENT ABOUT ORAL ARGUMENT ....................................................ix

ISSUES PRESENTED ...........................................................................................x

STATEMENT OF FACTS ................................................................................... 1

    The District Reassigns Ms. Jenkins to serve as an Assistant Principal ................ 1

    The Commissioner Affirms the District’s Reassignment ...................................3

    The Trial Court Affirms the Commissioner’s Decision .................................... 4

SUMMARY OF THE ARGUMENT ....................................................................5

ARGUMENT.........................................................................................................7

    I.       The Commissioner’s interpretation of section 21.206(b)’s phrase
             “same professional capacity” is reasonable and proper............................7

             A.      Standard of Review ........................................................................7

             B.      Chapter 21 of the Texas Education Code shows that a
                     principal is an administrator. ......................................................... 8

             C.      Section 21.206 does not define “same professional capacity” ...... 10

             D.      Section 21.201 does not define “same professional capacity” ...... 11




                                                        ii
           E.      The Commissioner has reasonably and consistently interpreted
                   “same professional capacity,” and the legislature has accepted
                   the Commissioner’s interpretation and not displaced it ............... 13

           F.      Legislative intent further supports the Commissioner’s
                   interpretation of same professional capacity............................... 241

           G.      Ms. Jenkins’s interpretation of same professional capacity is
                   plausible but unconvincing. ......................................................... 24

   II.     The reassignment from middle school principal to high school
           assistant principal with no change in compensation was permissibly
           within the same professional capacity. ...................................................26

           A.      Standard of Review ......................................................................26

           B.      The reassignment was permissible. .............................................. 27

   III.    The Commissioner properly concluded that according to her contract
           Ms. Jenkins may be assigned to serve as an assistant principal. ..............29

           A.      Standard of Review ......................................................................29

           B.      The Commissioner properly concluded that according to her
                   contract Ms. Jenkins may be assigned to serve as an assistant
                   principal. ...................................................................................... 32

CONCLUSION AND PRAYER .......................................................................... 34

CERTIFICATE OF COMPLIANCE ................................................................... 35

CERTIFICATE OF SERVICE............................................................................. 36




                                                       iii
                                     INDEX OF AUTHORITIES
Cases

20801, Inc. v. Parker, 249 S.W.3d 392 (Tex. 2008) ................................................. 8

AEP Tex. Cent. Co. v. Pub. Util. Comm’n, 286 S.W.3d 450
 (Tex. App.—Corpus Christi 2008, pet. denied) ................................................30

Bullock v. Marathon Oil Co., 798 S.W.2d 353
 (Tex. App.—Austin 1990, no writ) .............................................................. 20, 21

City of Abilene v. Pub. Util. Comm’n, 146 S.W.3d 742
  (Tex. App.—Austin 2004, no pet.)....................................................................30

Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) ......................................................... 28

Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587
 (Tex. 1996) ....................................................................................................... 28

Dodd v. Meno, 870 S.W.2d 4 (Tex. 1994)...................................................... 7, 13, 19

Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21,
  52 S.W.2d 56 (1932)........................................................................................... 21

Grounds v. Tolar Independent School District, 694 S.W.2d 241
 (Tex. App.—Fort Worth 1985), rev'd on other grounds,
 707 S.W.2d 889 (Tex. 1986) ........................................................................ 23, 24

Humble Oil & Ref. Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967) ......................... 20, 21

J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) .................................29

Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857 (Tex. 2000)...................29

N.E. Indep. Sch. Dist. v. Kelley, No. 03-09-00641-CV, 2010
 Tex. App. LEXIS 9792, 2010 WL 5019850 at *5
 (Tex. App.—Austin Dec. 9, 2010, pet. denied) .................................................29


                                                          iv
Nucor Steel-Texas v. Pub. Util. Comm’n, 363 S.W.3d 871
 (Tex. App.—Austin 2012, no pet.) ......................................................................7

Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440
  (Tex. App.—Austin 2011, no pet.) .......................................................... 8, 19, 25

R.R. Comm’n v. Tex. Citizens for a Safe Future & Clean Water,
  336 S.W.3d 619 (Tex. 2011) .................................................................................7

Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527 (Tex. 1987) .....................................29

Seifert v. Lingleville Indep. Sch. Dist., 692 S.W.2d 461 (Tex. 1985) ......................... 21

State v. Pub. Util. Comm’n, 883 S.W.2d 190 (Tex. 1994) .......................................26

Sw. Pharmacy Solutions, Inc. v. Tex. Health & Human Servs. Comm’n,
 408 S.W.3d 549 (Tex. App.—Austin 2013, pet. denied) ......................................7

Tex. Health Facilities Comm’n v. Charter Med.-Dallas, Inc.,
  665 S.W.2d 446 (Tex. 1984) ........................................................................ 26, 28

Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114
  (Tex. 1988) ........................................................................................................26

TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432
 (Tex. 2011) ........................................................................................................ 13

Weslaco Fed'n of Teachers v. Texas Educ. Agency, 27 S.W.3d 258
 (Tex. App.—Austin 2000, no pet.) ............................................................. 28, 29

Statutes

Act of June 17, 2011, 82nd Leg., R.S., ch. 1010, § 1,
 sec. 21.102(a-1), 2011 Tex. Gen. Laws 1010 ....................................................... 18

Act of Sept. 28, 2011, 82nd Leg., 1st C.S., ch. 8, § 9,
 sec. 21.206, 2011 Tex. Gen. Laws 5463, 5465 ..................................................... 17


                                                           v
Acts 2011, 82nd Leg., R.S., Ch. 1093 (S.B. 1383),
 sec. 1, eff. June 17, 2011....................................................................................... 9

Term Contract Nonrenewal Act, 67th Leg., R.S., ch. 765,
 1981 Tex. Gen. Laws 2847 ................................................................................. 21

Term Contract Nonrenewal Act, 71st Leg., 6th C.S., ch. 1, § 3.14,
 1990 Tex. Gen. Laws 1 ................................................................................. 15, 20

Term Contract Nonrenewal Act, 74th Leg., R.S., ch. 260 ch. 21
 subch. E and F, 1995 Tex. Gen. Law 2207 ................................................... 16, 20

Term Contract Nonrenewal Act, 78th Leg., R.S., ch. 484, § 1,
 2003 Tex. Gen. Laws 1749........................................................................... 16, 20

Term Contract Nonrenewal Act, 82nd Leg., 1st C.S., ch. 8, §§ 8-11,
 2011 Tex. Gen. Laws 5463 ................................................................................ 20

Tex. Educ. Code § 7.057(d) ............................................................................. vi, 25

Tex. Educ. Code § 11.201(d)(2) ............................................................................ 32

Tex. Educ. Code § 11.202 ............................................................................... 24, 27

Tex. Educ. Code § 11.202(b)(1) ............................................................................ 32

Tex. Educ. Code § 11.202(d)(2)............................................................................ 25

Tex. Educ. Code § 21.003 ................................................................................... 8, 9

Tex. Educ. Code §§ 21.033, .047, .061, .207, .252, .354, .355, .4032, .4511 ............. 8

Tex. Educ. Code § 21.0452(b)(4)(B) .................................................................... 12

Tex. Educ. Code § 21.046 ...................................................................................... 9

Tex. Educ. Code § 21.106(c)................................................................................. 12


                                                        vi
Tex. Educ. Code § 21.154(4)................................................................................. 12

Tex. Educ. Code § 21.201 ................................................................................. 8, 10

Tex. Educ. Code § 21.201(1) ...................................................................... 11, 15, 23

Tex. Educ. Code § 21.206 ..............................................................................passim

Tex. Educ. Code § 21.206(b) .........................................................................passim

Tex. Educ. Code § 21.354 ...................................................................................... 8

Tex. Educ. Code § 21.354(a-1) ............................................................................... 9

Tex. Educ. Code § 21.3541..................................................................................... 9

Tex. Educ. Code § 21.355(a) .................................................................................. 9

Tex. Educ. Code § 21.402(a) ................................................................................ 12

Tex. Educ. Code § 21.4541 ................................................................................... 12

Tex. Educ. Code §§ 37.002, .0181, .019 ................................................................ 25

Tex. Gov’t Code § 2001.174 ..................................................................... vi, 25, 28

Rules

19 Tex. Admin. Code § 157.1051(b) ...................................................................... 27

19 Tex. Admin. Code § 157.1058(a)(4).................................................................. 27

19 Tex. Admin. Code § 241.1(d) ................................................................. 9, 28, 31

19 Tex. Admin. Code § 241.25(a) ......................................................................... 10




                                                      vii
Other Authorities
67th Leg., R.S. 3522 (1981).................................................................................... 23

Tex. S.B. 341, 67th Leg., R.S. (1981) .................................................................... 22

Tex. S.B. 395, 73rd Leg., R.S. (1993) ..................................................................... 15

Commissioner's Decisions
Barich v. San Felipe-Del Rio Consolidated School District,
 Docket No. 117-R1a-484 (Comm’r Educ. 1985) ..........................................passim

Carpenter v. Wichita Falls Independent School District,
 Docket No. 247-R3-491 (Comm’r Educ. 1993) .............................................15, 33

Gonzalez v. Donna Indep. Sch. Dist., Docket No. 074-R10-605
 (Comm’r Educ. 2007) ....................................................................................... 19

McCoy v. Kermit Indep. Sch. Dist., Docket No. 004-R3-0908
 (Comm’r Educ. 2012) ................................................................................. 18, 19

Montgomery v. Richardson Indep. Sch. Dist.,
 Docket No. 007-R10-1008 (Comm’r Educ. 2012).............................................. 19

Murillo v. Laredo Indep. Sch. Dist., Docket No. 027-R3-0108
 (Comm’r Educ. 2012) ....................................................................................... 19

Pasqua v. Fort Stockton Indep. Sch. Dist.,
  Docket No. 011-R3-1102 (Comm’r Educ. 2004) ................................................ 19

Perales v. Robstown Independent School District,
  Docket No. 052-R10-104, 084-R3-604 (Comm’r Educ. 2006) ........................... 16

Underwood v. West Rusk County Consolidated Independent School
 District, Docket No. 062-R3-198 (Comm’r Educ. 1998) ...............................16, 19

Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3-1108
 (Comm’r Educ. 2011) ........................................................................................ 19

                                                      viii
                          STATEMENT OF THE CASE

Nature of the Case        Ms. Jenkins worked for the Crosby Independent School
                          District and was reassigned from middle school principal
                          to high school assistant principal with no change in pay.
                          Ms. Jenkins filed a grievance contesting the
                          reassignment, which the District denied. AR 324.
                          Ms. Jenkins then appealed to the Commissioner who
                          affirmed the District’s decision. AR 5-30 (App. 1).
                          Ms. Jenkins then brought a suit for judicial review of the
                          Commissioner’s decision pursuant to section 7.057(d) of
                          the Texas Education Code and section 2001.174 of the
                          Administrative Procedure Act. CR 3-8.

Trial Court               The Honorable Amy Clark Meachum, presiding in the
                          200th Judicial District Court, Travis County, Texas.

Trial Court Disposition   The trial court affirmed the Commissioner’s decision.
                          CR 376-77 (App. 2).


                 STATEMENT ABOUT ORAL ARGUMENT

   Oral argument is unnecessary because this case presents an issue of statutory

interpretation for which this Court is well equipped, an issue of substantial-

evidence review where more than a scintilla of supporting evidence is apparent, and

an issue of contract interpretation where the contract unambiguously permits the

reassignment at issue.




                                         ix
                            ISSUES PRESENTED

1.   Whether the Commissioner’s interpretation of section 21.206 of the Texas
     Education Code is entitled to deference because it does not conflict with the
     text of the statute and is a long-standing interpretation of a statute that the
     Commissioner is charged with enforcing?

2.   Whether substantial evidence shows that the necessary certification and the
     responsibilities, duties, and compensation of the principal and assistant
     principal positions are comparable and within the same professional
     capacity?

3.   According to her employment contract, may Ms. Jenkins be reassigned to
     serve as an assistant principal?




                                        x
                           STATEMENT OF FACTS

     The District Reassigns Ms. Jenkins to serve as an Assistant Principal

   For several years leading up to the end of the 2010-2011 school year,

Ms. Jenkins worked for the District as the principal of Charles Drew Intermediate

School. AR 258. Then in March 2011, Ms. Jenkins and the District signed an

employment contract that states:

      1.    The Board hereby agrees to employ the Employee and the
      Employee agrees to serve the Board by engaging in duties as assigned
      by the Superintendent of the Crosby Independent School District for
      the school years 2011-2013 . . . .

      ....

      3.    It is understood and agreed by the parties to this Contract that
      the Superintendent of the Crosby Independent School District shall
      have the right to assign such duties to the Employee as the
      Superintendent shall deem proper, and since the Employee is not
      employed to fill a specific position or assignment, the Superintendent
      may assign or reassign the Employee to other or additional duties for
      which he or she is professionally certified or otherwise qualified to
      perform.

AR 294. A few months later in June 2011, the District’s superintendent Dr. Moore

reassigned Ms. Jenkins from principal at Drew Intermediate to assistant principal at

Crosby High School. AR 291.

   Ms. Jenkins began employment as an assistant principal at the high school, and

also filed a grievance contesting her reassignment; she claimed that “removing


                                         1
[her] as campus principal change[d] [her] professional capacity without due

process” and that “[t]he position of campus principal is not a generic

administrative position . . . and is unlike any other school employee position.” AR

287-88. Ms. Jenkins requested that she be assigned to a mutually agreeable position

that, in her belief, would reflect forward career progression. AR 289.

   A short time later the District held a level-two grievance hearing. AR 284. After

the hearing, the District denied Ms. Jenkins’s grievance and noted that Ms. Jenkins

was merely reassigned from one administrative position to another. AR 284-86. In

particular, the superintendent explained the reassignment:

      I continually examine ways to improve our school district and to
      match key administrative skills with corresponding administrative
      positions. After observing your previous campus and appraising your
      skills and abilities, I determined . . . that Drew Intermediate would
      benefit from new and fresh leadership, and that your skill set could
      meet a real need at our High School. As you are aware, Crosby High
      School has been deemed academically unacceptable and will require a
      great deal of administrative support and focus to turn the school
      around . . . and meet the needs of our students. Your previous
      experiences, and skills and abilities . . . will be very valuable and
      helpful in this important endeavor.

A.R. 285.

   In her new assignment at the much larger high school campus Ms. Jenkins

continued to have significant duties and responsibilities, including:

   • Appraising and making recommendations about staff;


                                          2
   • Training teachers and assisting in staff development;

   • Providing instructional leadership;

   • Implementing student discipline;

   • Developing an effective campus improvement plan; and

   • Working directly with parents to solve problems.

A.R. 285-86. Also Ms. Jenkins’s salary was unchanged. AR 286.

   Ms. Jenkins was unsatisfied, however, so the matter proceeded to a level-three

grievance hearing before the District’s Board. AR 257. After considering the issue,

the Board voted six-to-one to deny Ms. Jenkins’s grievance. AR 267.

            The Commissioner Affirms the District’s Reassignment

   Ms. Jenkins appealed to the Commissioner. AR 155-58. Her petition for review

did not claim that her reassignment was inappropriate because the two jobs at issue

were actually dissimilar. AR 155-58. Nor did her briefing raise the claim that the

two jobs at issue were actually dissimilar. AR 129-52; 114-22. Ms. Jenkins wrote:

      Suffice it to say, both job descriptions are lacking in detail and are not
      useful to any legal analysis herein. FN2.

      FN2. State law defines and provides contour to the principal’s duties,
      therefore a local job description for principal is not necessary for this
      appeal. However, there is no definition of assistant principal in any
      state law. Realizing the CISD’s job description for assistant principal
      was wholly insufficient, the superintendent crafted one in his level-two
      decision for the purposes of this appeal.


                                           3
AR 131.

   In the end, the Commissioner issued a 26-page decision. AR 5-30 (App. 1). The

decision parses prior administrative decisions interpreting the same professional

capacity, the legislative history of the inclusion of that term in the Education Code,

and Ms. Jenkins’s contract. AR 5-30 (App. 1). Ultimately, the Commissioner

concluded:

      6.     If a school district fails to timely give a teacher notice of
      proposed nonrenewal when the teacher’s contract is about to expire,
      the school district is required to employ the teacher “in the same
      professional capacity” for the following school year. A requirement to
      employ a teacher “in the same professional capacity” for the following
      year is triggered only when a contract is about to expire and timely
      notice of proposed nonrenewal is not given. Tex. Educ. Code
      § 21.206(b).
      ....

      12. [Ms. Jenkins’s] professional capacity under Texas Education
      Code section 21.206(b) is administrator.
      ....

      15. [The District] did not reassign [Ms. Jenkins] in violation of
      Texas Education Code section 21.206(b).

See App. 1 at 28-29. Ms. Jenkins filed a motion for rehearing and then brought a

suit for judicial review. AR 339-357; CR 3-8.

             The Trial Court Affirms the Commissioner’s Decision

   After considering the administrative record and the arguments, the trial court

affirmed the Commissioner’s decision. CR 376-77 (Tab 2). This appeal followed.

                                          4
                      SUMMARY OF THE ARGUMENT

   This case presents one issue of statutory interpretation, another of substantial-

evidence review based on a comparison of the two jobs at issue, and a final issue of

contract interpretation.

   Statutory Interpretation. Chapter 21 of the Texas Education Code shows that a

principal is an administrator. But section 21.206(b)’s phrase “same professional

capacity” is undefined and ambiguous. So the Commissioner has reasonably

assessed whether the two positions at issue are in the “same professional capacity”

based on necessary certifications and on the authority, duties, and salaries of the

positions. Indeed, over the past 30 years, the Commissioner has reasonably and

consistently interpreted “same professional capacity” in this way and the

legislature has accepted the Commissioner’s interpretation and not displaced it.

The Commissioner’s interpretation is also supported by legislative intent. While

Ms. Jenkins’s interpretation of same professional capacity is plausible, it fails next

to the Commissioner’s reasonable interpretation which carries great weight and

holds expertise.

   Substantial Evidence. Principals and assistant principals are both administrators,

are both principals, and both share the same certification. And in her new assistant

principal position at a much larger school, Ms. Jenkins continued to have


                                          5
significant and comparable duties and responsibilities. Also, Ms. Jenkins’s salary

was unchanged, and she was certified to hold the assistant principal position.

   Contract Interpretation. While Ms. Jenkins’s employment contract is ambiguous

with respect to her professional capacity because it says only that she is an

employee, her contract unambiguously provides that she may be reassigned to

positions for which she is certified. Ms. Jenkins tries rewrite her contract so she

may only be employed as a principal, but doing so conflicts with the contract’s

reassignment clause, conflicts with the superintendent’s reassignment authority,

and is unworkably stiff for the contract’s aim. In contrast, the Commissioner read

the contract as a whole, and properly concluded that according to her contract

Ms. Jenkins may be assigned as an assistant principal.




                                         6
                                   ARGUMENT

I.      The Commissioner’s interpretation of section 21.206(b)’s phrase “same
        professional capacity” is reasonable and proper.

A.      Standard of Review

     While statutory construction is a question of law reviewed de novo, “an

agency’s interpretation of a statute it is charged with enforcing is entitled to

‘serious consideration,’ so long as the construction is reasonable and does not

conflict with the statute’s language.” R.R. Comm’n v. Tex. Citizens for a Safe Future

& Clean Water, 336 S.W.3d 619, 624 (Tex. 2011) (giving deference to and

upholding the agency’s interpretation of “public interest” in the statute it

administers); Sw. Pharmacy Solutions, Inc. v. Tex. Health & Human Servs. Comm’n,

408 S.W.3d 549, 559, 561-62 (Tex. App.—Austin 2013, pet. denied) (holding

agency’s interpretation and application of certain Medicaid code provisions and

agency rules was reasonable, in harmony with the statutes and rules, and entitled to

deference); Nucor Steel-Texas v. Pub. Util. Comm’n, 363 S.W.3d 871, 878-79 (Tex.

App.—Austin 2012, no pet.) (providing an agency’s interpretation of a statute it is

charged with administering only has to be reasonable and in accord with the

statute’s plain language to be entitled to deference).

     Additionally, the Texas Supreme Court has held that in education law the Court

should defer to the Commissioner’s “reasonable determination in an area where he

                                          7
possesses considerable authority and expertise.” Dodd v. Meno, 870 S.W.2d 4, 7

(Tex. 1994); Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443-44 (Tex.

App.—Austin 2011, no pet.). And when the Education Code is ambiguous or silent

as to a term, the question “is not whether an interpretation of the statute posed by

[the plaintiff] is reasonable, but whether the Commissioner’s interpretation is

reasonable and does not contradict the plain language of the statute.” Poole, 344

S.W.3d at 444.

B.      Chapter 21 of the Texas Education Code shows that a principal is an
        administrator.

     Ms. Jenkins states that the term “administrator” is not present in section

21.201 of the Texas Education Code. Appellant’s Br. at 26. That’s not the whole

truth. Statutes must be read as a whole, 20801, Inc. v. Parker, 249 S.W.3d 392, 396

(Tex. 2008), and here chapter 21 of the Texas Education Code uses the term

“administrator” twenty times, and across ten different sections. Tex. Educ. Code

§§ 21.003, .033, .047, .061, .207, .252, .354, .355, .4032, .4511. Chapter 21 shows

that a principal is an administrator. Three sections bear mentioning.

     First, section 21.354 and its history show that a principal is an administrator.

Before June 2011, section 21.354 was titled “Appraisal of Administrators,”

provided that each school district shall appraise each administrator annually, and

specifically addressed the appraisal of a principal. Tex. Educ. Code § 21.354 (2010)

                                          8
(App. 3). Then, the legislature revised the section’s title to “Appraisal of Certain

Administrators,” stated that section 21.354 “does not apply to the appraisal of the

performance of a principal,” and created a new and more specific appraisal system

for principals in section 21.3541. Acts 2011, 82nd Leg., R.S., Ch. 1093 (S.B. 1383),

Sec. 1, eff. June 17, 2011 (App. 4). Thus, the legislature originally identified

principals as administrators, and continues to identify principals as administrators

through the exclusion in section Tex. Educ. Code § 21.354(a-1).

   Second, immediately following section 21.3541’s appraisal system for principals,

section 21.355(a) states that “[a] document evaluating the performance of a teacher

or administrator is confidential.” Tex. Educ. Code § 21.355(a). Section 21.355(a)

applied in this case and was the basis for an agreed protective order covering Ms.

Jenkins’s   evaluations—“documents         evaluating   the    performance     of    an

administrator.” CR 367-69. Thus, for at least some purposes, Ms. Jenkins

recognizes that she is an administrator, and that a principal is an administrator.

   Last, section 21.003 lists employment categories that require certification, and a

principal is not a category to itself but rather falls under the term “administrator.”

See Tex. Educ. Code § 21.003 (listing categories where principal can only fit as an

administrator); see also Tex. Educ. Code § 21.046 (qualifications for certification as

superintendent or principal). Also, administrative rules governing certification


                                          9
treat principals and assistant principals as principals. 19 Tex. Admin. Code

§ 241.1(d) (providing that the holder of a principal certificate may serve as a

principal or assistant principal in a Texas public elementary, middle, or secondary

school); see also 19 Tex. Admin. Code § 241.25(a) (requiring principals and

assistant principals to undergo the same one-year induction period).

     In short, sections 21.201 and .206 must be read in the context of chapter 21 of

the Texas Education Code, which confirms that a principal is an administrator.

C.      Section 21.206 does not define “same professional capacity.”

     Section 21.206 of the Texas Education Code provides:

        NOTICE OF CONTRACT RENEWAL OR NONRENEWAL.

        (a) Not later than the 10th day before the last day of instruction in a
        school year, the board of trustees shall notify in writing each teacher
        whose contract is about to expire whether the board proposes to renew
        or not renew the contract. The notice must be delivered personally by
        hand delivery to the teacher on the campus at which the teacher is
        employed, except that if the teacher is not present on the campus on
        the date that hand delivery is attempted, the notice must be mailed by
        prepaid certified mail or delivered by express delivery service to the
        teacher’s address of record with the district. Notice that is
        postmarked on or before the 10th day before the last day of instruction
        is considered timely given under this subsection.

        (b) The board’s failure to give the notice required by Subsection (a)
        within the time specified constitutes an election to employ the teacher
        in the same professional capacity for the following school year.

        (c) This section does not apply to a term contract with a
        superintendent.

                                          10
Tex. Educ. Code § 21.206 (emphasis added).

     Section 21.206 does not define same professional capacity, nor does any other

part of the Texas Education Code, nor is common usage sufficiently precise. The

Commissioner’s interpretation of same professional capacity does not violate the

plain language of section 21.206 because that section does not define same

professional capacity. Same professional capacity was left undefined and

ambiguous.

D.      Section 21.201 does not define “same professional capacity.”

     The Commissioner has never held that professional capacities are limited to

those classes of positions set out in section 21.201(1)’s definition of teacher:

        “Teacher” means a superintendent, principal, supervisor, classroom
        teacher, school counselor, or other full-time professional employee
        who is required to hold a certificate issued under Subchapter B or a
        nurse. The term does not include a person who is not entitled to a
        probationary, continuing, or term contract under Section 21.002, an
        existing contract, or district policy.

Tex. Educ. Code § 21.201(1).

     The reasons for this are simple. Section 21.201(1) does not define same

professional capacity; it defines teacher. Nor does section Tex. Educ. Code

§ 21.206 define same professional capacity. And the two sections do not reference

each other. Thus there is no textual indication that the definition of same


                                           11
professional capacity in section 21.206 is the same as that of teacher in section

21.201. The statute is ambiguous.

   Indeed, if the legislature had intended for section 21.201(1) to define same

professional capacity, there were ample ways it could have done that consistent

with the means used in other parts of chapter 21. Very simply, the legislature could

have said same professional capacity “as defined by” section 21.201(1). E.g. Tex.

Educ. Code §§ 21.0452(b)(4)(B) (“students of limited English proficiency, as

defined by Section 29.052”), .154(4) (“is discharged for good cause as defined by

Section 21.156”), .402(a) (“the state maximum compressed tax rate, as defined by

Section 42.101(a)”). Or the legislature could have defined same professional

capacity by reference as it did frequently with other terms in chapter 21. E.g. Tex.

Educ. Code §§ 21.106(c) (“A teacher returned to probationary contract status

must serve a new probationary contract period as provided by Section 21.102 as if

the teacher were employed by the district for the first time.”), .4541 (“serving a

significant number of students identified as students at risk of dropping out of

school, as described by Section 29.081(d).”). But the legislature did not do these

things. It left same professional capacity undefined.




                                         12
     Thus, measured against the exacting and most comparable backdrop of chapter

21 of the Education Code, the term “same professional capacity” is undefined and

ambiguous.

E.     The Commissioner has reasonably and consistently interpreted “same
       professional capacity,” and the legislature has accepted the
       Commissioner’s interpretation and not displaced it.

     Because the Education Code does not define same professional capacity, the

Commissioner has been called on to interpret and apply section 21.206 in many

cases over the past 30 years. In doing so, the Commissioner, unlike Ms. Jenkins,

acts as a disinterested arbiter seeking the most textually faithful reading of the

Education Code. And the Commissioner’s interpretation, unlike Ms. Jenkins’s,

carries great weight. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,

438 (Tex. 2011) (“If there is vagueness, ambiguity, or room for policy

determinations in a statute or regulation, as there is here, we normally defer to the

agency’s interpretation unless it is plainly erroneous or inconsistent with the

language of the statute, regulation, or rule.”); Dodd v. Meno, 870 S.W.2d 4, 7 (Tex.

1994) (providing that the Commissioner’s interpretation of a statute is entitled to

serious consideration if it is reasonable and does not contradict the statute’s plain

language).




                                         13
   The Commissioner first considered what constitutes reassignment to a position

in the same professional capacity in 1985 in Barich v. San Felipe-Del Rio

Consolidated School District, Docket No. 117-R1a-484 (Comm’r Educ. 1985). There

the Commissioner considered whether the district violated the non-renewal statute

by reassigning an ROTC instructor to a teaching position, and held that an ROTC

instructor and a teacher were in the same professional capacity where there was

“no reduction in salary or status.” Barich, Docket No. 117-R1a-484 at COL #2

(App. 5). In analyzing and interpreting section 21.206, the Commissioner

explained:

      It 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 to 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 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 a 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 category (e.g., administrator), but nevertheless,

                                        14
      be invalid (e.g., from superintendent to assistant elementary school
      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.

Barich (App. 5). In other words, a reassignment is in the same professional capacity

if the district could have contracted with the employee for the reassignment, that is

a district cannot reassign an employee to a position that the employee is not

certified to hold, and when both positions are in the same category, such as

administrator, where applying such factors as authority, duties, and salary shows

that the two positions are actually similar and not in different professional

capacities.

   Since 1985, the Commissioner has applied the Barich test, examining whether

the positions have similar authority, duties, and salary. App. 6. Indeed, over the

past 30 years the Commissioner has consistently interpreted same professional

capacity and the legislature has accepted that interpretation and not displaced it.

   In 1990, following Barich and other administrative decisions, the legislature

amended chapter 21 of the Texas Education Code but did not change section

21.206. Term Contract Nonrenewal Act, 71st Leg., 6th C.S., ch. 1, § 3.14, 1990

Tex. Gen. Laws 1, 30.

   Then, in 1993, the Commissioner decided Carpenter v. Wichita Falls Independent

School District, Docket No. 247-R3-491 (Comm’r Educ. 1993) (App. 7). There, Ms.

                                          15
Carpenter brought the same argument that Ms. Jenkins brings, and the

Commissioner rejected it:

       [Ms. Carpenter] 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.

Id. at 3 (App. 7).

   Also in 1993, a bill was proposed to define same professional capacity for

probationary and continuing contracts, but the bill did not pass. Introduced Bill,

Tex. S.B. 395, 73rd Leg., R.S. (1993) (proposing to define same professional

capacity as a position substantially equal in duties, responsibility, authority,

certification, endorsement, education, and remuneration). And in 1995, the

legislature again amended chapter 21 of the Texas Education Code but did not

change section 21.206. Term Contract Nonrenewal Act, 74th Leg., R.S., ch. 260

ch. 21 subch. E and F, 1995 Tex. Gen. Law 2207, 2378-79.

   Then in 1998, the Commissioner again addressed “same professional capacity”

in Underwood v. West Rusk County Consolidated Independent School District, Docket

No. 062-R3-198 (Comm’r Educ. 1998) (App. 8). There, like here, a middle school

principal was reassigned to be a high school assistant principal, and her salary was

                                         16
not changed. Id. at 1-2. Although the principal argued that this violated section

21.206 because she was not employed in the same professional capacity, the

Commissioner noted Barich, analyzed the facts, and concluded that section 21.206

was inapplicable because a contract was not non-renewed and “[i]n addition, [the

principal] is retained in her same professional capacity . . . .” Id. 3-4. Thus, the

Commissioner interpreted same professional capacity and rejected a claim like this

one.

   In 2003, the legislature again amended chapter 21 of the Texas Education Code

but did not change section 21.206. Term Contract Nonrenewal Act, 78th Leg.,

R.S., ch. 484, § 1, 2003 Tex. Gen. Laws 1749.

   Then in 2006, the Commissioner again interpreted “same professional

capacity”—this time in Perales v. Robstown Independent School District, Docket No.

052-R10-104, 084-R3-604 (Comm’r Educ. 2006) (App. 9).

       The parties dispute the meaning of the phrase “same professional
       capacity.” The term “same professional capacity” is not defined in
       statute. Petitioner suggests that the definition of “teacher”, found at
       Texas Education Code section 21.201, is helpful . . . .

       Petitioner contends that each individual classification is a different
       professional capacity for purposes of Texas Education Code section
       21.206. There are a number of problems with this interpretation. The
       first problem is that the definition in question is that of “teacher”, not
       of “professional capacity.” The second difficulty is that the statutory
       category of “other full-time professional employee who is required to
       hold a certificate under Subchapter B” hardly seems a distinct

                                          17
      professional capacity. A third difficulty is that in a number of cases the
      Commissioner has interpreted “same professional capacity” in a
      different way.

Id. at 4-5. After noting Barich, the long-standing interpretation of same professional

capacity, and comparing the positions and their compensation, the Commissioner

concluded that the reassignment from Even Start Director to assistant principal

was permissibly within the same professional capacity. Id. at 9-12.

   In 2011, the legislature amended chapter 21 of the Texas Education Code, and

this time specifically revised section 21.206 but did not change 21.206(b) or define

same professional capacity. Act of Sept. 28, 2011, 82nd Leg., 1st C.S., ch. 8, § 9,

sec. 21.206, 2011 Tex. Gen. Laws 5463, 5465. Rather, the revision gave school

districts greater flexibility to implement staffing changes by reducing the notice

period for non-renewals in section 21.206(a). Id. Additionally, the legislature added

section 21.102(a-1) that provides that a person who voluntarily accepts an

assignment “in a new professional capacity that requires a different class of

certificate” may be employed under a probationary contract. Act of June 17, 2011,

82nd Leg., R.S., ch. 1010, § 1, sec. 21.102(a-1), 2011 Tex. Gen. Laws 1010. Thus,

the legislature again adopted “professional capacity” and for purposes of

probationary contracts coupled it with a specific trigger based on certification.




                                          18
   Then in 2012, the Commissioner again interpreted section 21.206(b)’s phrase

“same professional capacity.” McCoy v. Kermit Indep. Sch. Dist., Docket No. 004-

R3-0908 (Comm’r Educ. 2012) (App. 10). A well-formed habit at this point, the

Commissioner noted that same professional capacity is not defined, and that from

his earliest decision concerning this provision he has held that an “administrator”

is a professional capacity. Id. at *4. Noting Barich, that principals and assistant

principals are both principals under administrative rules, and that the employee’s

salary was unchanged, the Commissioner concluded that “[a]dministrator is a

professional capacity as that term is used in Texas Education Code section

21.206(b)” and that the school district did not violate section 21.206(b) when it

reassigned the principal to be an assistant principal. Id. at *11-12 (COL #7, 11).

Thus, the Commissioner previously interpreted same professional capacity as he

did here, and he previously rejected a claim like this one.

   In summary, following Barich the Commissioner has consistently interpreted

same professional capacity. The Commissioner has decided whether a principal

was improperly reassigned to another position. Underwood v. Rusk Indep. Sch. Dist.,

Docket No. 062-R3-198 (Comm’r Educ. 1998); Pasqua v. Fort Stockton Indep. Sch.

Dist., Docket No. 011-R3-1102 (Comm’r Educ. 2004); Montgomery v. Richardson

Indep. Sch. Dist., Docket No. 007-R10-1008 (Comm’r Educ. 2012); Murillo v.


                                          19
Laredo Indep. Sch. Dist., Docket No. 027-R3-0108 (Comm’r Educ. 2012); McCoy v.

Kermit Indep. Sch. Dist., Docket No. 004-R3-0908 (Comm’r Educ. 2012). The

Commissioner has applied the Barich test to other types of reassignments—for

example, from a central office position to an assistant principal position. E.g.,

Gonzalez v. Donna Indep. Sch. Dist., Docket No. 074-R10-605 (Comm’r Educ.

2007). The Commissioner has declared reassignments improper because the

reassignment was outside of the same professional capacity. E.g., Wheeler v. Austin

Indep. Sch. Dist., Docket No. 008-R3-1108 (Comm’r Educ. 2011). In sum, the

Commissioner has experience determining whether an assignment is proper based

on the statute, facts, and contracts at issue. As in Dodd v. Meno, 870 S.W.2d 4, 7

(Tex. 1994) and Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443-44 (Tex.

App.—Austin 2011, no pet.), this Court should affirm the Commissioner’s

decision that is based on his technical knowledge and expertise in applying section

21.206 of the Education Code to teacher and administrator contracts.

   In addition, the Commissioner’s interpretation is so long-standing that it should

not be changed in the absence of clear statutory authorization. See Humble Oil &

Ref. Co. v. Calvert, 414 S.W.2d 172, 180 (Tex. 1967). In Humble Oil, the court noted

that “a statute of doubtful meaning that has been construed by the proper

administrative officers, when re-enacted without any substantial change in


                                        20
verbiage, will ordinarily receive the same construction.” Id. The statute in question

had been uniformly construed in a particular manner for 46 years. Id. at 173. Here,

section 21.206(b)’s phrase “same professional capacity” is ambiguous, the

Commissioner has uniformly construed the provision for 30 years, and the

legislature has amended the TCNA without changing section 21.206(b).1 An

administrative officer’s construction of statutory language is entitled to great

weight when the construction has continued for a long time. Bullock v. Marathon

Oil Co., 798 S.W.2d 353, 357 (Tex. App.—Austin 1990, no writ). And if an agency

interpretation is in effect at the time the legislature amends the law without making

any substantial change in the statute, the legislature is deemed to have accepted the

agency’s interpretation. Humble Oil & Ref. Co. v. Calvert, 414 S.W.2d 172, 180

(Tex. 1967); Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56,

62 (1932); Marathon Oil Co., 798 S.W.2d at 357.

    In sum, the Commissioner has reasonably and consistently interpreted section

21.206(b)’s phrase “same professional capacity,” and the doctrine of legislative

1The legislature amended the TCNA in 1990, 1995, 2003, and 2011. Term Contract Nonrenewal
Act, 71st Leg., 6th C.S., ch. 1, § 3.14, 1990 Tex. Gen. Laws 1 (allowing the hearing to be heard by
a board designated impartial hearing officer); Term Contract Nonrenewal Act, 74th Leg., R.S.,
ch. 260 ch. 21 subch. E and F, 1995 Tex. Gen. Law 2207 (making many changes including
modifying the definition of “teacher” and allowing boards to use the Independent Hearing
Examiner Process); Term Contract Nonrenewal Act, 78th Leg., R.S., ch. 484, § 1, 2003 Tex.
Gen. Laws 1749 (concerning distribution of district employment policies); Term Contract
Nonrenewal Act, 82nd Leg., 1st C.S., ch. 8, §§ 8-11, 2011 Tex. Gen. Laws 5463 (allowing
districts to hire their own hearing examiners and making several changes concerning notice).


                                                21
acquiescence supports the Commissioner’s interpretation and the conclusion that

the reassignment from a principal to assistant principal is within the same

professional capacity.

F.      Legislative intent further supports the Commissioner’s interpretation of
        same professional capacity.

     Legislative intent shows that same professional capacity falls short of covering

all demotions and that school districts have some discretion in reassignments.

     The Term Contract Nonrenewal Act (TCNA) was passed by the 67th

Legislature in 1981. Term Contract Nonrenewal Act, 67th Leg., R.S., ch. 765, 1981

Tex. Gen. Laws 2847. The law fundamentally changed teachers’ contracts: it

required school districts to establish policy reasons for ending a contract and to

identify the reasons why it was proposing to end the contract, and it gave teachers

the right to a hearing where the administration bore the burden of proof. See

generally Seifert v. Lingleville Indep. Sch. Dist., 692 S.W.2d 461, 462 (Tex. 1985). But

as originally filed, Senate Bill 341 was more ambitious than what was enacted.

     Under SB 341 as filed, a term contract could only be ended for “just cause”

after written notice of deficiencies, assistance, a time for improvement, and a

hearing. Significantly, SB 341 as filed also defined “demotion” as

        an involuntary reduction of a teacher to a position of lesser rank,
        responsibility, or compensation, or the reassignment of a teacher


                                          22
      outside the scope of the teacher’s teaching certificate or major or
      minor field of study.

Introduced Bill, Tex. S.B. 341, 67th Leg., R.S. (1981). Demotion could only occur

for just cause after following the process for ending a term contract (notice,

assistance, time for improvement, and a hearing). In that form SB 341 passed the

Senate but not the House.

   The House Education Committee passed its substitute for SB 341 with this

language:

      In the event of failure to give such notice of proposed nonrenewal
      within the time herein specified, the board of trustees shall thereby
      elect to employ such employee in the same capacity for the succeeding
      school year.

House Committee Report, Tex. S.B. 341, 67th Leg., R.S. (1981). As the

Commissioner explained in his decision, “same capacity” permits a range of

interpretations—the fifth grade English teacher at Davis Elementary, or any

classroom teaching position. Ultimately, the matter was not clarified: on second

reading the word professional was added to make “same professional capacity” but

no definition was provided. H.J. of Tex., 67th Leg., R.S. 3522 (1981). The House

version went on to become law.

   What is clear, however, is that the legislature knew how to restrict

reassignments   with   specific   triggers—lesser   rank,   or   responsibility,   or


                                        23
compensation, or reassignment outside the scope of certification—but ultimately

chose to give school districts some flexibility. This legislative intent informs and

supports the Commissioner’s interpretation of same professional capacity: the

Commissioner considers similar factors—the Barich test of authority, duties,

salary, and certification—to those originally proposed by the Senate, but does so in

a more rounded way true to the enacted law than the Senate’s restrictive version.

G.     Ms. Jenkins’s interpretation of same professional capacity is plausible
       but unconvincing.

     Ms. Jenkins’s interpretation of same professional capacity is plausible. In

Grounds v. Tolar Independent School District, 694 S.W.2d 241, 244-245 (Tex.

App.—Fort Worth 1985), rev'd on other grounds, 707 S.W.2d 889 (Tex. 1986), the

Fort Worth Court of Appeals came close to adopting her interpretation after

surveying the Education Code and concluding that the only two parts which appear

to classify professional capacities are section 21.201(1) which defines “teacher”

and the then section 16.056 which authorized school districts to use certain

professional positions for determining state base pay. But that court lacked the

Commissioner’s expertise and the Commissioner’s input (he was not a party), and

that court’s decision was flawed, vacated for lack of jurisdiction, and the

Commissioner’s decision was reinstated. Grounds v. Tolar Indep. Sch. Dist., 707

S.W.2d 889, 29 Tex. Sup. Ct. J. 307 (Tex. 1986). Additionally, after the first

                                        24
Commissioner’s decision, the Commissioner issued another decision the following

year and concluded that Grounds was employed as a teacher/football coach and

entitled to be rehired in that same professional capacity. Grounds v. Tolar Indep.

Sch. Dist., Docket No. 340-R3-786 (Comm’r Educ. 1986); see also Grounds v. Tolar

Indep. Sch. Dist., 856 S.W.2d 417, 421 (Tex. 1993) (Gonzalez, J., concurring)

(succinctly explaining factual history). After that the Commissioner continued on

to consistently interpret same professional capacity. Put simply, Ms. Jenkins’s

argument would be more convincing if this case were presented on a basic slate.

But law, like life, carries its history forward, and that history matters. Here, that

history is the Commissioner’s long-standing interpretation and the legislature’s

acquiescence. Additionally, the Commissioner’s interpretation carries great weight

and its subject falls squarely within his expertise.

    Ms. Jenkins also correctly notes that that the Texas Education Code gives a

specific and important role to principals but not to assistant principals. Section

11.202 makes the principal “the instructional leader of the school” and specifies a

principal’s duties, and a principal has specific duties under chapter 37 of the Texas

Education Code concerning student placement. Tex. Educ. Code § 11.202; e.g.,

Tex. Educ. Code §§ 37.002, .0181, .019. No doubt there are differences between

principals and assistant principals. But principals and assistant principals are both


                                           25
administrators, are both principals, and both share the same certification. And the

legislature gave school districts some flexibility in reassignments, and the

superintendent has statutory authority to assign principals and assistant principals.

Tex. Educ. Code § 11.202(d)(2).

      Ultimately, Ms. Jenkins’s interpretation of same professional capacity is

unconvincing. Where the Education Code is ambiguous or susceptible to multiple

reasonable interpretations this Court has held that the Commissioner’s reasonable

interpretation prevails. Poole v. Karnack Indep. Sch. Dist, 344 S.W.3d 440, 444

(Tex. App.—Austin 2011, no pet.). Here, the Commissioner’s interpretation does

not conflict with the text, is long-standing, is supported by legislative acquiescence,

and gives effect to legislative intent; it should therefore be followed.


II.      The reassignment from middle school principal to high school assistant
         principal with no change in compensation was permissibly within the
         same professional capacity.

A.       Standard of Review

      Judicial review of the Commissioner’s decision is governed by the substantial

evidence rule, as described in section 2001.174 of the Administrative Procedure

Act (APA). Tex. Educ. Code § 7.057(d); Tex. Gov’t Code § 2001.174; Poole v.

Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443-44 (Tex. App.—Austin 2011, no

pet.). Under this standard, the Court may not substitute its judgment for that of the

                                           26
agency. State v. Pub. Util. Comm’n, 883 S.W.2d 190, 203-204 (Tex. 1994). The

agency’s decision is presumed valid, and the opposing side has the burden to prove

its invalidity. Id. Although substantial evidence is more than a mere scintilla, the

evidence in the record may preponderate against the agency decision and still

amount to substantial evidence. Tex. Health Facilities Comm’n v. Charter Med.-

Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). See generally Texas State Bd. of

Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988) (describing

substantial evidence standard as whether the evidence as a whole is such that

reasonable minds could have reached the conclusion that the agency reached).

B.      The reassignment was permissible.

     Ms. Jenkins did not exhaust administrative remedies as to whether a comparison

of the two job assignments shows they differ in professional capacity. Before the

Commissioner, Ms. Jenkins merely argued that the Commissioner should “revisit”

the Barich test. A.R. 129-53. Her petition for review did not claim that her

reassignment was inappropriate because the two jobs at issue were actually

dissimilar. AR 155-58. Nor did she brief that the two jobs at issue were actually

dissimilar. AR 129-52; 114-22. As the Commissioner put it, “[Ms. Jenkins’s claim

is not that in her particular circumstance, comparing authority, duties,

compensation and other relevant factors, the two positions were in separate


                                         27
professional capacities. [Her] claim is that a principal can only be assigned to

another principal position.” AR 26 (Tab 1). That is, Ms. Jenkins merely challenged

the Commissioner’s long-standing interpretation of “same professional capacity”:

she did not contest that should the Commissioner’s interpretation apply, her

reassignment fell within the same professional capacity. As a result, Ms. Jenkins

failed to raise the factual comparison as required by Rules 157.1051(b) and

157.1058(a)(4). 19 Tex. Admin. Code § 157.1051(b) (““all issues relied on … must

be raised in the petition for review, and the commissioner will not consider any

issues not raised in the petition for review.”); 19 Tex. Admin. Code §

157.1058(a)(4) (“Argument. The brief must contain clear and concise argument for

the contentions made with appropriate citations to authorities and to the record.”).

   Regardless, here the reassignment was within the same professional capacity.

Principals and assistant principals are both administrators, are both principals, and

both share the same certification. And in her new assistant principal position at a

much larger school, Ms. Jenkins continued to have significant and comparable

duties and responsibilities—appraising and making recommendations about staff,

training teachers and assisting in staff development, providing instructional

leadership, implementing student discipline, developing an effective campus

improvement plan, and working directly with parents to solve problems. Compare


                                         28
Tex. Educ. Code § 11.202 (listing some duties of principles) with AR 285-86

(listing Ms. Jenkins’s responsibilities as assistant principal). Also, Ms. Jenkins’s

salary was unchanged. AR 286. And her principal certification was sufficient for the

assistant principal position. 19 Tex. Admin. Code § 241.1(d) (providing that the

holder of a principal certificate may serve as a principal or assistant principal).

Thus, substantial evidence shows that the reassignment was proper. See Tex. Gov’t

Code § 2001.174 (substantial evidence standard); Tex. Health Facilities Comm’n v.

Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984) (substantial evidence is

more than a mere scintilla). That is, a reasonable person could conclude that the

reassignment from middle school principal to assistant principal at a much larger

high school and with no change in compensation was permissible.


III.   The Commissioner properly concluded that according to her contract
       Ms. Jenkins may be assigned to serve as an assistant principal.

A.     Standard of Review

     The interpretation of an unambiguous contract is a question of law. See

Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.

1996); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). An administrative

interpretation of an unambiguous contract does not carry deference. See Weslaco

Fed'n of Teachers v. Texas Educ. Agency, 27 S.W.3d 258, 263-64 (Tex. App.—Austin


                                        29
2000, no pet.) (rejecting district’s argument that employment contracts should be

reviewed under the substantial-evidence standard, rather than de novo); see also

N.E. Indep. Sch. Dist. v. Kelley, No. 03-09-00641-CV, 2010 Tex. App. LEXIS 9792,

2010 WL 5019850 at *5 (Tex. App.—Austin Dec. 9, 2010, pet. denied) (mem. op.)

(finding similarly and following Weslaco). “[A]n agency’s interpretation of an

unambiguous contract is not binding on a district or appellate court.” Weslaco, 27

S.W.3d at 264.

   In construing a contract, the Court must ascertain and give effect to the parties’

intentions as expressed in the document. J.M. Davidson, Inc. v. Webster, 128

S.W.3d 223, 229 (Tex. 2003); Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d

857, 861 (Tex. 2000). The Court will consider the entire writing and attempt to

harmonize and give effect to all the provisions of the contract by analyzing the

provisions with reference to the whole agreement. J.M. Davidson, Inc., 128 S.W.3d

at 229. Contracts are construed “from a utilitarian standpoint bearing in mind the

particular business activity sought to be served” and “will avoid when possible and

proper a construction which is unreasonable, inequitable, and oppressive.” Reilly v.

Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987). If, after the pertinent rules of

construction are applied, the contract can be given a definite or certain legal

meaning, it is unambiguous and the court construes it as a matter of law. J.M.


                                         30
Davidson, Inc., 128 S.W.3d at 229. On the other hand, if the contract is subject to

two or more reasonable interpretations after applying the pertinent rules of

construction, the contract is ambiguous, creating a fact issue on the parties’ intent.

Id.

      In the context of administrative determinations involving the factual issue of the

parties’ intent, this Court has explained that if an agreement is ambiguous the

agency’s interpretation will be affirmed so long as it is supported by substantial

evidence. See City of Abilene v. Pub. Util. Comm’n, 146 S.W.3d 742, 748 (Tex.

App.—Austin 2004, no pet.) (stating court will affirm the agency’s interpretation

of a settlement agreement if the interpretation is supported by substantial

evidence); AEP Tex. Cent. Co. v. Pub. Util. Comm’n, 286 S.W.3d 450, 471 (Tex.

App.—Corpus Christi 2008, pet. denied) (“If the agreement is ambiguous, we will

affirm the [agency’s] interpretation of it, so long as the interpretation is supported

by substantial evidence.”).

      Here, the contract unambiguously states that Ms. Jenkins may be reassigned to

other duties for which she is professionally certified. But the contract is ambiguous

as to the professional capacity in which Ms. Jenkins was employed: the contract

states that she is an employee; however, employee is not a professional capacity

under Texas Education Code section 21.206.


                                            31
B.      The Commissioner properly concluded that according to her contract
        Ms. Jenkins may be assigned to serve as an assistant principal.

     Employment contracts need not specify an employee’s professional capacity.

Here, Ms. Jenkins’s employment contract is ambiguous with respect to her

professional capacity; it says only that she is an employee. AR 294 (App. 11). While

Ms. Jenkins would prefer to rewrite her contract from “employee” to read

“principal” instead of “administrator,” doing so conflicts with the contract’s

reassignment clause, conflicts with the superintendent’s reassignment authority,

and is unworkably stiff for the contract’s aim.

     The reassignment clause in Ms. Jenkins’s employment contract provides:

        3.     It is understood and agreed by the parties to this Contract that
        the Superintendent of the Crosby Independent School District shall
        have the right to assign such duties to the Employee as the
        Superintendent shall deem proper, and since the Employee is not
        employed to fill a specific position or assignment, the Superintendent
        may assign or reassign the Employee to other or additional duties for which
        he or she is professionally certified or otherwise qualified to perform.

A.R. 294 (emphasis added). As a principal, Ms. Jenkins was certified and qualified

to serve as an assistant principal. 19 Tex. Admin. Code § 241.1(d) (a holder of the

principal certificate “may serve as a principal or assistant principal in a Texas

public school.”). Thus, the superintendent was specifically permitted by contract

to reassign Ms. Jenkins to be an assistant principal. Yet Ms. Jenkins’s preferred

contractual rewriting to “principal”—apparently excluding assistant principal—

                                            32
prevents this, while the Commissioner’s interpretation reconciles Ms. Jenkins’s

professional capacity with the contract’s reassignment clause (and statutes and

administrative decisions). For this reason, the Commissioner’s interpretation is

reasonable and gives meaning to the contract as a whole, while Ms. Jenkins’s

preferred reading fails.

   Similarly, Ms. Jenkins’s reading conflicts with the superintendent’s assignment

authority. Section 11.201(d)(2) provides:

      (d) The duties of the superintendent include:

      (2) except as provided by Section 21.202, assuming administrative
      authority and responsibility for the assignment, supervision, and
      evaluation of all personnel of the district other than the
      superintendent.

Tex. Educ. Code § 11.201(d)(2). Although there is an exception for section 21.202

involving personnel decisions made by principals, this merely ensures the

superintendent need not make each and every personnel decision. In other words,

although section 11.202 (b)(1) provides that principals “shall approve all teacher

and staff appointments for that principal’s campus,” the superintendent has

statutory authority for the assignment of principals and assistant principals. Tex.

Educ. Code § 11.202(b)(1).      Ms. Jenkins ignores this, and her interpretation

conflicts with and restricts the superintendent’s assignment authority.




                                         33
   Finally, Ms. Jenkins’s preferred contractual reading is unworkably stiff given

the contract’s business aims—supplying personnel to meet needs. As the

Commissioner has explained, “the [Term Contract Nonrenewal Act] balanced its

grant of limited tenure rights against the considerable personnel management

problems it might cause if imposed inflexibly,” and “[t]he need for flexibility in

making personnel changes is strongest, and the argument for a rigid tenure system

weakest, at the administrative level.” Carpenter v. Wichita Falls Indep. Sch. Dist.,

Docket No. 247-3-491 (Comm’r Educ. 1993). And Ms. Jenkins’s reading would

prevent school districts from assigning talented administrative personnel to address

local concerns like those here. See A.R. 285 (noting need at Crosby High School).

   In short, the Commissioner properly interpreted the contract as a whole.


                        CONCLUSION AND PRAYER

   This case presents a settled issue. The Commissioner has repeatedly held that

principal and assistant principal are in the same professional capacity and that a

school district need not provide notice and a hearing to non-renew a principal’s

contract when reassigning a principal to be an assistant principal. This Court

should not overturn nearly 30 years of precedent in formal adjudications,

particularly where the Commissioner’s interpretation of the Texas Education Code

is reasonable, longstanding, supported by the legislative intent, and entitled to

                                        34
deference. The Commissioner respectfully requests that his decision and the trial

court’s judgment be affirmed.

                                Respectfully submitted,

                                KEN PAXTON
                                Attorney General of Texas

                                CHARLES E. ROY
                                First Assistant Attorney General

                                JAMES E. DAVIS
                                Deputy Attorney General for Civil Litigation

                                DAVID A. TALBOT, JR.
                                Chief, Administrative Law Division

                                /s/ Andrew Lutostanski
                                ANDREW LUTOSTANSKI
                                Assistant Attorney General
                                State Bar No. 24072217
                                OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                                Administrative Law Division
                                P.O. Box 12548, Capitol Station
                                Austin, Texas 78711-2548
                                Phone: (512) 475-4200
                                Fax: (512) 320-0167
                                andrew.lutostanski@texasattorneygeneral.gov

                     CERTIFICATE OF COMPLIANCE

      I certify that the brief submitted complies with Texas Rule of Appellate
Procedure 9.4(i)(3) and the word count of this document is 7,649. Word 2013 was
used to prepare this document and count the words in it.

                                             /s/ Andrew Lutostanski
                                             Andrew Lutostanski

                                        35
                        CERTIFICATE OF SERVICE

      I hereby certify this document was served on September 24, 2015 to

Kevin F. Lungwitz                           Via e-service
State Bar No. 12698790
Elizabeth Poole
State Bar No. 24051201
The Lungwitz Law Firm, P.C.
3005 S. Lamar Blvd
Suite D-109-362
Austin, Texas 78704-4785
Kevin@LungwitzLaw.com
Elizabeth@LungwitzLaw.com
Attorneys for Plaintiff Hermenia Jenkins

David B. Hodgins                            Via e-service
State Bar No. 09775530
Frances Broussard
State Bar No. 24055218
Amber K. King
State Bar No. 24047244
THOMPSON & HORTON LLP
3200 Southwest Freeway, Suite 2000
Houston, TX 77027
dhodgins@thompsonhorton.com
fbroussard@thompsonhorton.com
aking@thompsonhorton.com
Attorneys for Defendant Crosby ISD

                                            /s/ Andrew Lutostanski
                                            Andrew Lutostanski




                                       36
                           INDEX OF APPENDICES

Specifically Listed

1.    Commissioner’s Decision

2.    Final Judgment

3.    Tex. Educ. Code § 21.354 (2010)

4.    Acts 2011, 82nd Leg., R.S., Ch. 1093 (S.B. 1383), Sec. 1, eff. June 17, 2011

5.    Barich v. San Felipe-Del Rio Consolidated School District, Docket No. 117-R1a-
      484 (Comm’r Educ. 1985)

6.    Summary of Administrative Decisions

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

8.    Underwood v. West Rusk County Consolidated Indep. Sch. District, Docket No.
      062-R3-198 (Comm’r Educ. 1998)

9.    Perales v. Robstown Indep. Sch. District, Docket No. 052-R10-104, 084-R3-604
      (Comm’r Educ. 2006)

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

11.   Ms. Jenkins’s employment contract

Legislation

1.    Act of Aug. 31, 1981, 67th Leg., R.S., ch. 765, 1981 Tex. Gen. Laws 2847
      (current version at Tex. Educ. Code § 21.206(a)).

2.    Act of Sept. 28, 2011, 82nd Leg., 1st C.S., ch. 8, § 9, sec. 21.206,
      2011 Tex. Gen. Laws 5463, 5465.
3.   H.J. of Tex., 67th Leg., R.S. 3522 (1981).

4.   House Committee Report, Tex. S.B. 341, 67th Leg. R.S. (1981).

5.   Introduced Bill, Tex. S. B. 341, 67th Leg., R.S. (1981).

6.   Term Contract Nonrenewal Act, 71st Leg., 6th C.S., ch. 1, § 3.14,
     1990 Tex. Gen. Laws 1, 30.

7.   Term Contract Nonrenewal Act, 74th Leg., R.S., ch. 260 ch. 21 subch. E and
     F, 1995 Tex. Gen. Law 2207, 2378-79.

8.   Term Contract Nonrenewal Act, 78th Leg., R.S., ch. 484, § 1,
     2003 Tex. Gen. Laws 1749.
                                    DOCKET NO. 043-Rl0-1211

HERMENIA JENKINS                                      §           BEFORE THE
                                                      §
                                                      §
v.                                                    § COMMISSIONER OF EDUCATION
                                                      §
CROSBY                                                §
INDEPENDENT SCHOOL DISTRICT                           §       THE STATE OF TEXAS


                             DECISION OF THE COMMISSIONER

                                         Statement of the Case

           Petitioner, Hermenia Jenkins, appeals the denial of her grievance by Respondent,

Crosby Independent School District. Christopher Maska is the Administrative Law Judge

appointed by the Commissioner of Education to preside over this cause. Petitioner is

represented by Kevin F. Lungwitz, Attorney at Law, Austin, Texas.                       Respondent is

represented by David B. Hodgins, Attorney at Law, Houston, Texas'.

           The Administrative Law Judge issued a Proposal for Decision recommending that

Petitioner's appeal be denied in part and dismissed in patt. Exceptions and replies were

timely filed and considered.

           The central issue in this case is whether a principal serving under a term contract

can be reassigned to an assistant principal position in the year after the principal's

contract has been renewed.              By statute, such a reassignment must be in "same

professional capacity." Petitioner contends that a bright line rule should be established so

that a principal may only be reassigned to another principal position.                             For the

Commissioner to so rule would require the Commissioner to overrule a string of cases

going back to the Commissioner's earliest decisions under the Term Contract

Nonrenewal Act.          Further, such a ruling is not consistent with the intention of the

Legislature which passed the statute in question.               The Legislature did not create the

purposed bright line rule, but instead used language that allows the Commissioner to


1
    The Texas Association of School Board's Legal Assistance Fund filed a Briefof Amicus Curiae.


043-RI0-1211




                                                                                               H. Jenkins v. Crosby ISD
                                                                                                         TEA #: 000005
exercise his broad experience in education to determine just what 1s the "same

professional capacity" in each individual case.

                                          Findings of Fact

          After due consideration of the record and matters officially noticed, it is

concluded that the following Findings of Fact are supported by substantial evidence and

are the Findings of Fact that best support Respondent's decision 2 .

          1.     In March 2011, Petitioner and Respondent signed a contract that provides

in relevant part:


                 l.        The Board hereby agrees to employ the Employee and the
                           Employee agrees to serve the Board by engaging in duties as
                           assigned by the Superintendent of the Crosby Independent School
                           District for the school years 2011-2013 with beginning and ending
                           dates as set by the Board.

                 3.      It is understood and agreed by the parties to this Contract that the
                 Superintendent of the Crosby Independent School District shall have the
                 right to assign such duties to the Employee as the Superintendent shall
                 deem proper, and since the Employee is not employed to fill a specific
                 position or assignment, the Superintendent may assign or reassign the
                 Employee to other or additional duties for which he or she is
                 professionally certified or otherwise qualified to perform

          2.     Petitioner served as the principal of Charles R. Drew Intermediate School

from 2003 to the end of the 2010-2011 school year.

          3.        On June 28, 20 l l, Petitioner was reassigned from the position of principal

at Charles R. Drew Intermediate to the position of assistant principal at Crosby High

School.

          4.     The local record does not indicate with specificity what Petitioner's duties

as assistant principal at Crosby High School are.




2
 See 19 TEX. ADM IN. CODE § 157.1073(h); Bosworth v. £as/ Central Independent School District, Docket
No. 090-lU-803 (Comm'r Educ. 2003).


043-Rl0-1211                                       2




                                                                                            H. Jenkins v. Crosby ISD
                                                                                                      TEA #: 000006
                                                Discussion

         Petitioner asserts that Respondent improperly reassigned her. Respondent denies

this claim.       In particular, Petitioner alleges that Respondent's actions violated Texas

Education Code section 11.202, which designates a principal as the instructional leader of

a campus; section 11.20 l, which grants supervisory rights to superintendents, and section

2 l .206(b) which requires a school board that does not timely give notice of proposed

nonrencwal to hire the teacher in the same professional capacity for the following school

year. Petitioner also alleges that Respondent violated 19 TEX. ADMtN. CODE § 150.1021,

which concerns the Commissioner's Recommended Appraisal process for administrators

and policy DN(LOCAL). Respondent denies these claims.

Rights

         Petitioner claims her reassignment violated her rights under Texas Education

Code section 11.202, 19 TEX. ADMIN. CODE§ 150.1021 , and policy DN(LOCAL). Texas

Education Code section 11.202 is entitled "Principals." It provides that a principal is the

instructional leader of a school. It lists seven duties of a principal. It requires school

boards to adopt a policy for selecting principals. It gives a superintendent or designee

final authority to assign teachers transferred due to enrollment shifts or program changes.

Texas Education Code section 11.202 does not give Petitioner the right to a principal

position. Likewise, 19 TEX. ADMIN. CODE§ 150.1021, and policy DN(LOCAL) do not

give Petitioner a right to a principal position. However, if Petitioner were entitled to a

principal position, she would be entitled to the rights provided by this statute and rule, but

not local policy. Under Texas Education Code section 7.057(a)(2)(A), the Commissioner

lacks jurisdiction over violations of school district policies. Reeves v. Aledo lndepende/11

School District, Docket No. I 06-Rl 0-496 (Comm'r Educ. 1999)

TEX.   EDUC. CODE § 11.20 I

         Texas Education         Code   I 1.201 (d)(2)    provides that superintendents have

responsibility      for   most   assignments.         Petitioner   contends   that   Respondent's


043 -RI0- 12 11                                   3



                                                                                        H. Jenkins v. Crosby ISD
                                                                                                  TEA #: 000007
superintendent reassigned her in an arbitrary and capricious manner and, hence, the

reassignment is invalid. However, a superintendent does not violate Texas Education

Code 11.20 I (d) when a superintendent poorly exercises an authority granted by this

section. The Commissioner has held that:


       The provisions in question do not require this responsibility to be exercised fairly
       or wisely. The provisions also do not prohibit a district from taking action against
       superintendents who act rashly or unfairly.
S.l?.S. v Groesbeck Independent School District, Docket No. 025-R5-105 (Comm'r Educ.

2006). Texas Education Code l l.20l(d) could only be violated by a refusal to exercise

the statutory grant of authority.

        A board's decision may be overturned for being arbitrary and capricious.

However, this is only the case when the board's decision itself is arbitrary and capricious.

That a superintendent's action was arbitrary and capricious does not make a school

board's decision arbitrary and capricious. If any action of a superintendent that was

alleged to be was arbitrary and capricious could be appealed to the Commissioner, the

Commissioner's docket would greatly expand. This would be contrary to the intention of

the Legislature of limiting the Commissioner's jurisdiction, which can be seen by

comparing Texas Education Code section 7.057 to the prior jurisdictional statute, Texas

Education Code section 11.13.        The Commissioner lacks jurisdiction under Texas

Education Code section 7.057(a)(2)(A) over a claim Respondent's superintendent

arbitrarily and capriciously reassigned her.

Same Professional Capacity

        Petitioner contends that her reassignment is not proper because the positions of

principal and assistant principal are not in the same professional capacity. The phrase

"same professional capacity" occurs twice in the Texas Education Code.            In Texas

Education Code section 21.206 provides:




043-Rl0-1211                                   4



                                                                                  H. Jenkins v. Crosby ISD
                                                                                            TEA #: 000008
    (a) Not later than the 10th day before the last day of instruction in a school year, the
    board of trustees shall notify in writing each teacher whose contract is about to expire
    whether the board proposes to renew or not renew the contract. The notice must be
    delivered personally by hand delivery to the teacher on the campus at which the
    teacher is employed, except that if the teacher is not present on the campus on the
    date that hand delivery is attempted, the notice must be mailed by prepaid certified
    mail or delivered by express delivery service to the teacher's address of record with
    the district. Notice that is postmarked on or before the l 0th day before the last day of
    instruction is considered timely given under this subsection.

    (b) The board's failure to give the notice required by Subsection (a) within the time
    specified constitutes an election to employ the teacher in the same professional
    capacity for the following school year.

    (c) This section does not apply to a term contract with a superintendent.


If a school district fails to timely give a teacher notice of proposed nonrenewal when the

teacher's contract is about to expire, the school district is required to employ the teacher

in the "same professional capacity" for the following school year.         A requirement to

employ a teacher in the "same professional capacity" is triggered only when a contract is

about to expire and timely notice of proposed nonrenewal is not given. The other time

the phrase "same professional capacity" is used in the Texas Education Code is found at

Texas Education Code section 21.212. This provision is very similar to Texas Education

Code section 21 .206.       The major distinction is that it applies exclusively to

superintendents.

        In the present case, it would seem that no violation of Texas Education Code

section 21.206 could occur because when Petitioner was reassigned her contract was not

about to expire.   Petitioner's contract will not expire until the end of the 2012-2013

school year. Petitioner's claim concerning Texas Education Code section 21 .206 would

not appear to be ripe.      However, Petitioner points out that she was employed by

Respondent as a principal just prior to her signing her 2011-2013 contract. Hence, during

the 2011-2012 school year, Respondent was required to employ Petitioner in the same

professional capacity as Petitioner held during the 2010-2011 school year. However, if




043 -RI0- 1211                                5



                                                                                    H. Jenkins v. Crosby ISD
                                                                                              TEA #: 000009
Petitioner were to prevail on this claim, she would only be entitled to be employed in the

same professional capacity for the 2011-2012 school year and not for the 2012-2013

school year. While this may be viewed as a result that does not favor teachers, some

implications of multiple year term contracts favor teachers.

        As the Commissioner pointed out in Smithwick v. Castleberry Independent School

District, Docket No. 085-Rl-0711 n. 2 (Comm'r Educ. 2011), multiple year contracts can

also benefit teachers. A multiple year contract may only be nonrenewed when it is about

to expire. A school district that wishes to end a multiple year contract at the end of the

fist contract year must proceed by the more difficult process of termination as opposed to

nonrcncwal. In such a case, the district is required to prove good cause and the case is

heard by an independent hearing examiner. TEX. EDUC. CODE§§ 21.211, 21.251 et seq.

Must Principals Remain Principals?

        Petitioner argues that the Commissioner should overturn precedent and conclude

that if a principal 's contract is not nonrenewed, a school district is limited to reassigning a

principal to another principal position for the next school year. Petitioner argues that the

only position that is in the same professional capacity of a principal is the position of

principal. Precedent should not be lightly overturned. Teachers and school districts base

important decisions in reliance on Commissioner's Decisions.                   But the fundamental

principle of statutory construction is to give effect to the intention of the Legislature. If

the Commissioner's long standing interpretation of the statute is in conflict with the

intention of the Legislature, the Commissioner's interpretation should change.


                                                                                                         111
        The Term Contract Nonrenewal Act3 ("TCNA") was passed by the 67

Legislature in 1981 4 • Term Contract Nonrenewal Act, 671h Leg., R.S., ch. 765, 1981 Tex.


1
   Section I of SB 341 itself provided that "this act shall be known as "The Term Contract Nonrenewal
Act."
 1
' The TCNA became effective on August 31, 1981. However, because most contracts for the 1981-1982
school year had already been signed by that date, the TCNA really became operational for the 1982-1983


043 -RI0-1211                                       6




                                                                                              H. Jenkins v. Crosby ISD
                                                                                                        TEA #: 000010
Gen Laws 2847. This law fundamentally changed teacher 5 contracts. Before the TCNA

many districts hired teachers and administrators on one-year contracts.                    When the

contract term expired, the district was not required to offer a contract for the new school

year. Seifert v. Lingleville Jndep. Sch. Dist., 692 S.W.2d 461, 462 (Tex. 1985). Prior to

the passage of the TCNA, school districts were not required to establish policy reasons

for ending a contractual relationship, to give teachers the reasons why ending the

contractual relationship was proposed, and to provide teachers with the opportunity for a

hearing where the administration had the burden of proof to show that the teacher's

contract should be nonrenewed. A key passage of the original TCNA, then numbered as

Texas Education Code section 21.204, required a district that did not nonrenew a

teacher's contract to hire the teacher for the next school year:

    Notice
       (a) In the event the board of trustees receives a recommendation for nonrenewal,
           the board after consideration of written evaluations required by Section
           21.202 of this subchapter and the reasons for the recommendation, shall in its
           sole discretion, either reject the recommendation or shall give the teacher
           written notice of the proposed nonrenewal on or before April I proceeding the
           end of the employment fixed in the contract.
       (b) In the event offailure to give such notice ofproposed nonrenewal within the
           time herein spec!fied, the board shall thereby elect to employ such employee
           in the same professional capacity.for the succeeding school year.
       (c) The notice of proposed nonrenewal required in this section shall contain a
           statement of all the reasons for such proposed action.
(Emphasis added). If a teacher's contract was not noticed for nonrencwal, the school

board was not only required to hire the teacher for the next school year but also to

employ the teacher in the same professional capacity for the next school year.                    The

fundamental dispute in this case is over the meaning of the phrase "same professional

capacity."




school year. That makes the 1984-1985 school year, the first time the issue of whether a teacher was
rehired in the same prol'cssional capacity could actually be raised.
5
  From the beginning, the TCNA has used an expansive definition of"teacher" that includes many who are
not normally referred to as teachers.


043-RI0-1211                                       7



                                                                                            H. Jenkins v. Crosby ISD
                                                                                                      TEA #: 000011
Legislative History

         The legislative history of the TCNA 6 sheds some light on the meaning of the

phrase "same professional capacity." Senate Bill 341 created the TCNA. As originally

filed, SB 341 was far more ambitious than the TCNA which became law. Under SB 341

as filed, a term or continuing contract could only be ended for 'just cause." The contract

could only be ended after the teacher was given written notice of deficiencies, assistance,

and reasonable time for improvement. Evidence against a teacher could only be used if it

was promptly brought to the teacher's attention. The hearing was to be held before an

attorney selected by both parties. The hearing examiner's decision was final in that there

was no appeal to the board or the Commissioner, but the hearing examiner's decision was

appeal able to district court under the Administrative Procedures and Texas Register Act.

         More to the point of the current controversy, SB 341 as filed defined "demotion"

in an expansive manner:


                   an involuntary reduction of a teacher to a position of lesser rank,
         responsibility, or compensation, or the reassignment of a teacher outside the scope
         of the teacher's teaching certificate or major or minor field of study.
Any loss of rank, responsibility, or compensation constituted a demotion.                        All of the

procedures for ending a contract described in the preceding paragraph also applied when

a teacher \Vas proposed for demotion. Demotion could only occur after just cause was

proved at a hearing. Demotion would apply to a change in professional capacity as well

as many more situations. SB 341 made it through the Senate in substantially the same

form as it was filed.

         In the House, SB 341 became the TCNA.                     The House Education Committee

passed its substitute for SB 341 with the following language in section 2 l .204(b ).




(, The relevant legislative history may be found at the website for the Legislative Reference Library of
Texas. http://www.lrl.state.tx.us/index.cfm.


043-RI0-1211                                          8



                                                                                                  H. Jenkins v. Crosby ISD
                                                                                                            TEA #: 000012
        In the event of failure to give such notice of proposed nonrenewal within the time
        herein specified, the board of trustees shall thereby elect to employ such
        employee in the same capacity for the succeeding school year.
The meaning of the phrase "same capacity" is not defined in the Committee Substitute.

"Same capacity" could perhaps be interpreted broadly to mean in a particular case: the

fifth grade English teacher at Davis Elementary School. It could perhaps be interpreted

strictly to mean any classroom teaching position. When SB 341 was heard by the House

on Second Reading an amendment was made to include the word "professional" between

the words "same" and "capacity."       No definition was added for the phrase "same

professional capacity."



        The Commissioner has on numerous occasions ruled on the issue of whether a

particular assignment was in the same professional capacity. There being no statutory

definition of "same professional capacity," the Commissioner has described the meaning

of the term.    The seminal case as to the meaning of the phrase "same professional

capacity" is Barich v. San Felipe-Del Rio Consolidated Independent School District,

Docket No. 117-Rla-484 (Comm'r Educ. 1985):


                Petitioner argues that he did not receive an offer of employment in the
        "same professional capacity," because he was never offered the same position he
        had held during the 1982-83 school year; i.e., ROTC teacher. It would not be
        reasonable, however, to conclude that the legislature intended that every teacher
        who does not receive notice of his or her proposed nonrenewal by April 1 is
        entitled to be employed in the exact same position the following school year.
        Such a holding would require a school district to actually begin nonrencwal
        proceedings by April 1 against every teacher it might conceivably wish to assign
        to a different position the following year, or face a nonrenewal claim with any
        reassignment effected after April I.
                fl is more reasonable to conclude that the legislature, by using the term
        "same pn~fessional 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 word~, the district may place a teacher whose employment has
        been renewed by operation of law in a position different ji-om that to ·which the
        teacher was assigned the previous year, as long as the position is one to which the



043-Rl0- 1211                                9




                                                                                 H. Jenkins v. Crosby ISD
                                                                                           TEA #: 000013
       discricc could have reassigned the teacher had the parties voluncarily entered into
       a contract for the following year. Jn some instances, the validity of a particular
       placement will be clear. For example, an administrator lvho does not receive the
       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 1nay not be placed in the capacity of a nurse; a nurse may not be placed
       in the capacity of a librarian; etc.
                Jn 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
       pr<~fessional categmy (e.g., administra/01~. but nevertheless, be invalid (e.g. , .fom
       superintendent to assistant elementmy school 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.
                 In the present case, Petitioner was employed during the 1982-83 school
       year as an ROTC teacher. The district's offers of employment ranged from the
       general (i.e., a statement that the district would comply with the Commissioner's
       Order and that Petitioner should "report to work" at once) to the relatively - -
       though not completely - - specific (i.e., references to teaching an elementary
       grade, eighth grade social science, high school psychology, or high school
       industrial arts). Nevertheless, it is clear - - and Petitioner concedes (Tr. 77-79) - -
       that, although the district at no time offered to reinstate Petitioner as ROTC
       teacher, it did offer to place him in a teaching position of some sort. Further, the
       uncontested testimony is that Petitioner would not suffer any loss of salary due to
       the placement. (See Finding of Fact No. 4). In his Post-Hearing Brief, Petitioner
       asserts that the other positions "are substantially different, involve different
       responsibilities, and require different skills." (p. 3).         However, Petitioner
       introduced no evidence which would support this contention. More importantly,
       no evidence was introduced which would support a holding that it would be
       improper to reassign an ROTC teacher to one of the positions referred to by the
       district.
                 Under the circumstances, it is concluded that the school district
       unconditionally offered Petitioner a position in the "same professional capacity"
       for the 1983-84 school year and that Petitioner rejected that offer. Petitioner was,
       therefore, not employed by the district during the 1983-84 school year by choice,
       and he has no cognizable claim against the district for correctly noting, on March
       28, 1983, that he was not then employed by the district, and for advising him that
       it did not intend to employ him during the 1984-85 school year.
(Emphasis added)

        As shown above, the Commissioner's interpretation of the Legislature's intent is

supported by the legislative history.     As the bill went through the Legislature more

flexibility was granted to school districts. The Commissioner held that the first question

to be asked to determine whether a reassignment is in the same professional capacity is



043- RI0-1211                                 10




                                                                                    H. Jenkins v. Crosby ISD
                                                                                              TEA #: 000014
whether the district could have contracted with the teacher for that position. This results

in several conclusions. An administrator cannot be reassigned as a classroom teacher. A

classroom teacher cannot be reassigned as a counselor. A counselor cannot be reassigned

as a nurse. A nurse cannot be reassigned as a librarian. It should be noted that as the

TCNA then read, classroom teacher and counselor were listed as such in the definition of

"teacher" found at Texas Education Code section 21.201(1):


        "Teacher" means a superintendent, principal, supervisor, classroom teacher,
        counselor or other full-time professional employee, except paraprofessional
        personnel, who is required to hold a valid certificate or permit.
Administrator, nurse, and librarian were not listed as such in the definition of "teacher"

found at Texas Education Code section 21.201(1). From the first substantive decision

made in the first year the issue could be addressed by the Commissioner, the named

positions found at Texas Education Code section 21.20 l (1) were not held to be

professional capacities as the Commissioner used the term "administrator" that is not

listed to include superintendents and assistant principals.

        The Commissioner goes on to find that employing one in the same professional

category is not sufficient to constitute same professional capacity in some instances.

While a superintendent and an assistant elementary school principal might be in the same

professional category of administrator they are not in the same professional capacity

because of major distinctions in authority, duties, and salary.       The Commissioner

acknowledges that other factors could be considered. As to the issue directly presented in

Barich, it was found that reassigning an ROTC teacher to another teaching position was

valid because the positions were in the same professional capacity.



        Decided just months after Barich, Hester v. Canadian Independent School

Dislrict, Docket No. 106-R 1-585 (Comm 'r Educ. 1985) further sets out what is meant by

"same professional capacity."     Hester was employed under contract for the position


043-Rl0- 121 l                                11



                                                                                 H. Jenkins v. Crosby ISD
                                                                                           TEA #: 000015
teacher/coach. The Commissioner found that Hester was employed in the professional

capacity of teacher/coach and that since there was not substantial evidence to support the

nonrcnewal of his contract that Respondent was required to employ Hester in the same

professional of teacher/coach for the next school year. It should be noted that coach was

not listed as such in the definition of "teacher" found at Texas Education Code section

21.201 ( 1). Nonetheless, the Commissioner found that by contract the district had made

teacher/coach Hester's professional capacity.      How a teacher's contract defines the

teacher's professional capacity is significant but not necessarily dispositive. Carpenter v.

Wichita Falls Independent School District, Docket No. 247-R3-49l (Comm'r Educ.

199 l ). The Commissioner has held in several cases that a school district is bound by

professional capacities such as teacher/coach and teacher/dean that it creates in its

contractual relationships. If a school district hires a teacher under a term contract in a

particular capacity, even if such capacity is not specifically listed in the definition of

"teacher'' in the TCNA, the district must rehire the teacher in that capacity for the next

school year if the district does not nonrenew the teacher's contract.

Progeny of Barich

        Through the years since 1985, the Commissioner has consistently applied the

principles enunciated in Barich.     Contracted to be a teacher or a coach, the district

properly reassigned the employee from the position of middle school teacher and high

school coach to the position of physical education teacher with scheduling and budgeting

responsibilities.   Lieberman v. Eagle Mountain-Saginaw Independent School District,

Docket No. 192-R3-785 (Comm'r Educ. 1985).              Contracted to be Teacher/Coach

Football (Head football coach), the district improperly reassigned the employee to a

teaching position. Grounds v. Tolar Independent School District, Docket No. 340-R3-

786 (Comm'r Educ. 1986). Contracted to be a teacher and head coach for duties as

assigned, the district properly reassigned the employee from teacher and head coach for

football, basketball, and track to the position of teacher and head coach for boys'


043 -RI0-1211                                12



                                                                                  H. Jenkins v. Crosby ISD
                                                                                            TEA #: 000016
basketball. Reyes v. Culberson County Independent School District, Docket No. 229-R3-

787 (Comm'r Educ. 1987).                 Contracted to be a teacher/coach, the district properly

reassigned the employee from being a teacher and football coach to being a teacher and

baseball coach. Satcher v. Florence Independent School District, Docket No. 363-R3-

786 (Comm 'r Educ. 1987).               Contracted to be teachers/deans, the district improperly

reassigned the employees from teacher/dean positions to teacher positions. Abbott et al.

v. Eclor County Independent School District, Docket No. 081-R3-1287, 105-R3-288

(Comm ' r Educ. 1991 ). Contracted for 220 duty days, the district properly reduced duty

days to 188 days for the following school year. Marshall v. Seguin Independent School

District, Docket No. 177-Rl-690 (Comm'r Educ. 1991). Contracted as an administrator,

the district properly reassigned the employee from the district wide position of Science

Support Specialist to the position of high school assistant principal. Carpenter v. Wichita

Falls Independent School District, Docket No. 247-R3-491 (Comm'r Educ. 1991). The

district properly reassigned employee from the position of high school assistant principal

Lo the position of middle school assistant principal. Andrews v. Houston Independent

School District, Docket No. 236-Rl-897 (Comm'r Educ. 1997).                            Contracted as a
                           7
professional employee          ,   the district properly reassigned the employee from the position

of athletic director to the position of teacher/assistant principal.               Keith v. Tarkington

Independent School DisLrict, Docket No. 459-R3-89l(Comm' r Educ. 1992). Contracted

as teachers, the district's reduction in salary by itself did not place the teachers in

different professional capacities. Goedeke v. Smyer Independent School Dislrict, Docket

No. I l l-R3-l 292 (Comm'r Educ. 1997). Contracted as teacher/assistant band director,

the district improperly reassigned the employee to a teaching position. Salinas v. Roma

Independent School District, Docket No. 058-R3-l l 96 (Comm'r Educ.                                 1997).

Contracted as an administrator, the district properly reassigned the employee from

7
  Keith does not discuss whether "professional employee" is a legitimate professional capacity. It does not
conclude that because the two positions at issue were professional that the reassignment is allowable. Keith
simply mentions what the contract at issue states.


043-RI0-1211                                         13




                                                                                                 H. Jenkins v. Crosby ISD
                                                                                                           TEA #: 000017
principal of an independent middle school campus to the position of principal or assistant

principal for grades 7 to 9 at a unified junior high/high school campus. Underwood v.

Rusk independent School District, Docket No. 062-R3-l 98 (Comm'r Educ. 1998).

Contracted as a teacher/coach, the district properly reassigned the employee from the

position of varsity coach and teacher to the position of junior high school coach and

teacher.     Young v. Leggett Independent School District, Docket No. 175-R3-898

(Comm 'r Educ. 1999). Contracted as an administrator, the district properly reassigned

the employee from the district wide position of attendance coordinator to the position of

middle school assistant principal. Veliz v. Donna Independent School District, Docket

No. Ol 1-R3-999 (Comm'r Educ. 2000). The district properly transferred the employee

from one principal position to another. Yturralde v. El Paso Independent School District,

Docket No. 001-Rl0-900 (Comm'r Educ. 2002). The district properly transferred the

employee from the position of high school principal to the position of elementary

principal.     Ramos v. El Paso Independent School District, Docket No. 002-Rl 0-900

(Comm 'r Educ. 2002). Contracted as an administrator, the district properly reassigned

the employee from the position of high school principal to the position of middle school

assistant principal. Pasqua v. Fort Stockton Independent School District, Docket No.

011 -R3 -1102 (Comm'r Educ. 2004). Contracted as an administrator, the district properly

reassigned the employee from a district-wide Director of Even Start to the position

middle school assistant principal.   Perales v. Robstown Independent School District,

Docket Nos. 052-Rl0-104, 084-R3-604 (Comm' r Educ. 2006).               Contracted as an

administrator, the district properly reassigned the employee from a central office position

to an assistant principal position. Sanchez v. Donna Independent School District, Docket

No. 075-Rl0-605 (Comm'r Educ. 2007). Contracted as an administrator, the district

properly reassigned the employees from a central office position to an assistant principal

position.    Gonzalez v. Donna Independent School District, Docket No. 074-Rl0-605

(Comm'r Educ. 2007). Contracted as an administrator, the district properly reassigned


043-Rl0-1211                                 14




                                                                                 H. Jenkins v. Crosby ISD
                                                                                           TEA #: 000018
the employee from a central office position to an assistant principal position. Perez v.

Donna Independent School District, Docket No. 086-Rl-705 (Comm'r Educ. 2007).

Contracted as an administrator, the district properly reassigned the employee from the

position of Executive Director of Special Education to the position of elementary school

assistant principal. Lehr v. Ector County Independent School District, Docket No. 003-

R3-0908 (Comm'r Educ. 2011 ).        Contracted as professional employee, the district

improperly reassigned the employee from the position of assistant principal to the

position of classroom teacher.   Wheeler v. Austin Independent School District, Docket

No. 008-R3-l 108 (Comm'r Educ. 2011). Contracted as a professional employee, the

district properly reassigned the employee from the position of middle school principal to

the position of Human Resources Coordinator. Murillo v. Laredo Independent School

District, Docket No. 027-R3-0108 (Comm'r Educ. 2012).             The district properly

reassigned the employee from the position of elementary school principal to the position

of Program Specialist II.    Montgome1y v. Richardson Independent School District,

Docket No. 007-Rl0-1008 (Comm'r Educ. 2012).              Contracted as a professional

employee, the district improperly reassigned the employee from the position of Career

Specialist to the position of teacher. Tuck v. Alief Independent School District, Docket

No. 008-R 10-1007 (Comm'r Educ. 2012). Contracted as an administrator, the district

properly reassigned the employee from the position of principal to the position of

assistant principal. McCoy v. Kermit Independent School District, Docket No. 004-R3-

0908 (Comm'r Educ. 2012).

Administrators

        As can be seen from the above, a great many of the same professional capacity

cases involved administrators.     In Carpenter v. Wichita Falls Independent School

District, Docket No. 247-R3-491 (Comm'r Educ. 1991) the Commissioner held:

        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



043- RI0-1211                               15




                                                                               H. Jenkins v. Crosby ISD
                                                                                         TEA #: 000019
        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 ( l) 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 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-Rla-484 (Comm'r Educ.
        May 1985). It is possible to imagine situations where the transfer clause of an
        employment contract would be held to be unenforceable under § 2 l .204(b) 8•
        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 this 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 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.
Administrators can often be reassigned to different administrator positions, but that does

not mean that they may be assigned to any administrator positions. Districts can by

contract establish broad professional capacities. However, professional capacities that

arc too broad will not be allowed. Tuck v. A lief Independent School District, Docket No.

008-RI0· 1007 (Comm'r Educ. 2012).

Deference

        If the Commissioner were to decide to issue a new interpretation of "same

professional capacity" it would seem to be because his long standing interpretation was

incorrect.     To determine whether the Commissioner's interpretation is correct, some



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


043-RI0-1211                                       16




                                                                                             H. Jenkins v. Crosby ISD
                                                                                                       TEA #: 000020
cannons of statutory interpretation will be considered. The standards for deferring to an

agency's interpretation have been set by the Texas Supreme Court:


        If there is vagueness, ambiguity, or room for policy determinations in a statute or
        regulation, as there is here, we normally defer to the agency's interpretation unless
        it is plainly erroneous or inconsistent with the language of the statute, regulation,
        or rule. See Pub. Viii. Comm'n v. Gulf States Utils. Co., 809 S.W.2d 201, 207
        (Tex. 1991); Stanfordv. Butler, 142 Tex. 692, 181S.W.2d269, 273 (Tex. 1944).
TGS-NOPEC Geophysical v. Combs, 340 S.W.3d 432, 439 (Tex. 2011).                   There is

ambiguity about what the phrase "same professional capacity" means. The phrase is not

defined in statute and is susceptible to multiple interpretations. The Commissioner's

interpretation should be deferred to.

        Further, as the Commissioner's interpretation is a long standing interpretation, the

doctrine of legislative acquiescence applies:


        If an ambiguous statute that has been interpreted by a court of last resort or given
        a longstanding construction by a proper administrative officer is re-enacted
        without substantial change, the Legislature is presumed to have been familiar with
        that interpretation and to have adopted it. See Grapevine Excavation, Inc. v. Md.
        Lloyds Ins. Co., 35 S.W.3d 1, 5, 43 Tex. Sup. Ct. J. 1086 (Tex. 2000) (Once the
        Texas Supreme Court and courts of appeals "construe a statute and the Legislature
        re-enacts or codifies that statute without substantial change, we presume that the
        Legislature has adopted the judicial interpretation."); Sharp v. House of Lloyd,
        Inc., 815 S.W.2d 245, 248, 34 Tex. Sup. Ct. J. 652 (Tex. 1991) ("'[A] statute of
        doubtful meaning that has been construed by the proper administrative officers,
        when re-enacted without any substantial change in verbiage, will ordinarily
        receive the same construction.' This rule is only applicable where there has been
        an affirmative long-standing administrative policy.") (quoting Humble Oil & Ref
        Co. v. Calvert, 414 S.W.2d 172, 180, 10 Tex. Sup. Ct. J. 254 (Tex. 1967)); Tex.
        Employers' Ins. Ass'n v. Holmes, 145 Tex. 158, 196 S.W.2d 390, 395 (Tex. 1946)
        ("There is another well-settled rule to guide us in the construction of a statute
        which is uncertain and ambiguous ... : 'Where a statute which has been construed,
        either by a court of last resort or by executive officers, is re-enacted without any
        substantial change of verbiage, it will continue to receive the same construction."')




043-RI0- 1211                                   17




                                                                                   H. Jenkins v. Crosby ISD
                                                                                             TEA #: 000021
Tex. Dept. of Protective & Regula/my Services v. Mage Child Care, 145 S.W.3d 170,

I 7 5 (Tex. 2004 ). The Commissioner's interpretation is long standing. It goes back over

one-quarter century. It has been repeatedly affirmed.

        The statute at issue has been amended multiple times since the Commissioner has

issued his interpretation. The TCNA has been amended by the Legislature in 1990, 1995,

2003, and 2011. Term Contract Nonrencwal Act, 7ls1 Leg. 6111 C.S., ch. I § 3.14, 1990

Tex. Gen. Laws l (allowing the hearing to be heard by a board designated impartial
                                                        111
hearing officer); Term Contract Nonrenewal Act, 74 Leg. R.S., ch. 260 ch. 21 subch. E

and F, 1995 Tex. Gen. Law 2207 (making many changes including modifying the

definition of "teacher" and allowing boards to use the Independent Hearing Examiner

Process); Term Contract Nonrenewal Act, 78 111 Leg R.S., ch. 484 § 1, 2003 Tex. Gen.

Laws 1749 (concerning distribution of district employment policies); 82 11d Leg. 151 C.S.,

ch. 8 §§ 8-11, 2011 Tex. Gen Laws 5463 (allowing districts to hire their own hearing

examiners and making several changes concerning notice).              The Legislature has

acquiesced in the Commissioner's interpretation of the phrase "same professional

capacity."

Must Principal be a Professional Capacity?

        Petitioner contends that her theory that a principal may only be reassigned to

another principal position is compatible with Barich although she does recognize that it

would require overruling other Commissioner's Decisions. Petitioner's theory rests on

the premise that because the definition of "teacher" found in the TCNA references the

position "principal'' that "principal" is a professional capacity.

        Petitioner's theory is not compatible with Barich. Under Barich, the first question

is could the teacher contract for the position at issue. A principal can contract for an

assistant principal position as a principal certificate is needed for either a principal or

assistant principal position. 19 TEX. ADMIN. CODE § 241(d). The next question is that

even if the position could be contracted for are differences in authority, duties, salary and


043-Rl0- 1211                                  18




                                                                                   H. Jenkins v. Crosby ISD
                                                                                             TEA #: 000022
other factors so great that the reassignment is actually in another professional capacity.

This second consideration is set out right after the issue of reassigning a superintendent to

the position of assistant elementary principal is raised. Texas Education Code section

21.20 l (I) in the original TCNA read as follows:


         "Teacher" means a superintendent, principal, supervisor, classroom teacher,
         counselor or other full-time professional employee, except paraprofessional
         personnel, who is required to hold a valid certificate or permit.
If Petitioner' s theory was compatible with Barich, the Commissioner would have said the

determination of whether a superintendent may be reassigned to the position of

elementary school assistant principal is a simple issue, not an issue that is "not . . . so

clear." Under Petitioner's theory, since "superintendent" is found in the definition of

21 .20 I (I), "superintendent" is a professional capacity.     The result would be that a

superintendent cannot be reassigned to any position that is not a superintendent position.

There would be no reason to apply the standards set out in Barich to determine whether a

superintendent could be reassigned to an assistant principal position.

         Petitioner's theory does have the virtue of simplicity. lf a position is named in the

definition of "teacher" any reassignment would have to be in that same position.

However, it would be just as simple to apply the rule that if one holds an administrator's

position one can be reassigned to any administrator's position. The Commissioner's

solution is more complex than Petitioner's theory, but is more faithful to the statute at

issue.   If the Legislature intended "same professional capacity" to mean any position

listed in the definition of "teacher," the Legislature would have said so. Instead, the

Legislature used an undefined phrase that it intended the Commissioner to interpret using

his experience in how schools operate. The Commissioner has consistently done so since

the first opportunity to interpret the phrase at issue.




043-RI0-1211                                   19




                                                                                    H. Jenkins v. Crosby ISD
                                                                                              TEA #: 000023
Like a Superintendent?

         There are no Commissioner's Decisions that directly address whether a

superintendent may be reassigned to another position.                    There is no Commissioner's

Decision that finds that a superintendent was improperly reassigned. While Barich holds

that a superintendent cannot be reassigned to the position of assistant elementary school

principal, Barich was not a superintendent and was not reassigned to an assistant

principal position.       There is a pre-TCNA case, Board of frustees                     ql Crystal City
Independent School District v. Briggs, 486 S.W.2d 829 (Tex. App. Beaumont 1972, writ

ref'd n.r.e), which determined that a reassignment from superintendent to teacher was not

allowed:


         Briggs was hired as superintendent of the public schools; under the statute, it is
         clear that there is a vast difference in the position of superintendent of a district
         answerable only to the Board of Trustees and that of a teacher in the schools. §§
         I 6.07, 16.08 Education Code.
The court in Briggs found the fact that a superintendent was only answerable to the board

of trustees to be highly significant.

         In the recent case of Lehr v. Ector County Independent School District, Docket

No. 003-R3-0908 (Comm'r Educ. 2011), the issue was raised whether it was appropriate

to reassign the Executive Director of Special Education to the position of assistant

principal. The Commissioner held:


                 The change in postttons is unlike the move from superintendent to
         assistant principal described in Barich. A superintendent according to statute is
         "the educational leader and chief executive officer of the school district." TEX.
         EDUC. CODE § l 1.20l(a). The position of superintendent is sui generis. There is
         no administrator position that compares to it. The position of Executive Director
         of Special Education is not mentioned in the Texas Education Code. In fact, the
         certification mentioned in the job description for the position is
                                                                 9
         "midmanagement/supervisor" is no longer awarded.            Currently, the only

" Hence, it is a good thing that the job description allows for alternative qualifications. While those who
received midmanagement and supervisor certifications retain them, it is not perhaps wise to limit
employment to those who have achieved a certification that is no longer issued.


043-RI0-1211                                          20




                                                                                                   H. Jenkins v. Crosby ISD
                                                                                                             TEA #: 000024
            certifications for administrator are superintendent and principat. 10 There is no
            certification that an Executive Director of Special Education is required to hold
            under the Texas Education Code or the rules adopted under the code.
Here like in Briggs, the Commissioner noted that the position of superintendent is unique.

A superintendent is the chief executive officer of a school district. It almost goes without

saying that a superintendent is answerable only to the board of trustees. Only the board

of trustees has the authority to direct a superintendent. It is not the fact that the Texas

Education Code specifies many of the superintendent's duties and creates unique

procedures to nonrenew a superintendent's contract that makes the superintendent's role

sui generis. TEX. EDUC. CODE §§ 11.201, 21.212. It is instead the fact the superintendent

is only answerable to the school board as the chief executive officer of the school district

that makes the office of superintendent sui generis.

            Petitioner is correct that principals have many duties spelled out in the Texas

Education Code.           This does not make the position of principal sui generis. That the

Texas Education Code defines many duties of a principal makes the principal position a

well defined species. It does not make the principal position a genus all to itself. A

principal is answerable to the superintendent and often to other high administrators such

as deputy and assistant superintendents. A principal is answerable to the school board as

the school board can nonrenewal or terminate a principal's contract.

            Further, while there is a principal certification, it is required for both being a

principal and an assistant principal. 19 TEX. ADMIN. CODE§ 241(d). That the same

training is required to be either a principal or an assistant principal is a further indication

that the position of principal is not sui generis.                   It is true that one who holds a

superintendent's certificate also is qualified to hold the positions of principal and

assistant principal. 19 TEX. ADMIN. CODE § 242. l (d). It is not surprising that the training

required to be a superintendent would also prepare one to a principal or an assistant

principal. But a superintendent is required to have more than a principal's certificate.

111
      19 Tr:x. ADMIN. Com: ch. 241 and 242. All other administrator certifications were not issued after 2000.


043-RI0-1211                                            21



                                                                                                   H. Jenkins v. Crosby ISD
                                                                                                             TEA #: 000025
One who holds only a principal's certificate is not qualified to be a superintendent. A

superintendent's certificate requires significantly more training than a principal 's

certificate. When a principal is reassigned, a school district is not limited to assigning the

principal to another principal position. Underwood v. Rusk Independent School District,

Docket No. 062-R3- I 98 (Comm'r Educ. 1998), Pasqua v. Fort Stockton independent

School District, Docket No. Ol l-R3-1102 (Comm'r Educ. 2004), Murillo v. Laredo

independent Sclwol District, Docket No. 027-R3-0108 (Comm 'r Educ. 2012),

Monlgomery v. Richardson independent School District, Docket No. 007-Rl 0-1008

(Comm'r Educ. 2012), and McCoy v. Kermit Independent School District, Docket No.

004-R3-0908 (Comm'r Educ. 2012).

Present Reassignment

       In the present case, Petitioner was reassigned from the position of principal of an

intermediate school to the position of assistant principal of a high school. There is little

in the record that indicates what duties Petitioner had at those two positions. The record

docs not demonstrate that applying the Commissioner's precedent as to what is the "same

professional capacity" results in a conclusion that the two positions were in different

professional capacities. However, Petitioner has not raised this issue. Petitioner's claim

is not that in her particular circumstance, comparing authority, duties, compensation and

other relevant factors, the two positions were in separate professional capacities.

Petitioner's claim is that a principal may only be reassigned to another principal position.

This is not the law. As the two positions are not shown to be in different professional

capacities, Respondent did not violate Texas Education Code section 21.206.

Possible Consequences

       Petitioner contends that if the Commissioner does not to change his interpretation

of "same professional capacity" this could lead to a situation where a school district could

reassign a principal to a position that does not require a chapter 21 contract and then

make the principal an at-will employee for the following school year. It should be noted


043-RI0-1211                                  22




                                                                                    H. Jenkins v. Crosby ISD
                                                                                              TEA #: 000026
that this is not the situation the Commissioner is presented with in this case. After her

reassignment Petitioner retains a chapter 21 contract.

       But assuming without finding that this issue was properly raised, there are at least

two major problems with this claim. Petitioner chose not to contest her reassignment

under Commissioner's precedent but instead to solely argue that she could only be

reassigned to a principal's position. Whether or not Respondent reassignment meets the

Commissioner's standards has not been contested or ruled upon.           Not contesting a

reassignment based on the standards previously established by the Commissioner could

result in not receiving a Chapter 21 contract, but the fault would not be with the

Commissioner's interpretation of Chapter 21.

       Further, the case Petitioner relies on Harris v. Royse City Independent School

District, Docket No.     057-Rl-0506 (Comm. Educ. 2009) had a very different fact

situation. Harris began his employment with Royse City Independent School District by

signing a contract for a non-certified administrator position that provided for renewal or

nonrcnewal under chapter 21 of the Texas Education Code. This is not the type of

contract that Petitioner holds. Petitioner in her original assignment and her reassignment

was required to hold a principal's certificate.

Conclusion

       The Petition for Review should be dismissed in part and denied in part. In many

cases, principals may be assigned to other administrative positions. In the present case, it

is determined that Petitioner was properly reassigned in the same professional capacity.

                                    Conclusions of Law

       After due consideration of the record, matters officially noticed, and the foregoing

Findings of Fact, in my capacity as Commissioner of Education, I make the following

Conclusions of Law:

        I.     The Commissioner, under Texas Education Code section 7.057(a)(2)(A),

has jurisdiction over the claims that Respondent violated Texas Education Code section


043-RI0-1211                                  23



                                                                                  H. Jenkins v. Crosby ISD
                                                                                            TEA #: 000027
2 l.206(b) and based on such a violation also violated Texas Education Code section

11.20 and 19 TEX. ADMIN. CODE § 150.1021.

        2.      The Commissioner, under Texas Education Code section 7.057(a)(2)(A),

lacks jurisdiction over violations of school district policies.

        3.      The Commissioner, under Texas Education Code section 7.057(a)(2)(A),

lacks jurisdiction over the claim Respondent violated its policy FN(LOCAL).

        4.      A superintendent does not violate Texas Education Code 11.20 I ( d) when

a superintendent poorly exercises an authority granted by this section.

        5.      The Commissioner lacks jurisdiction over the claim that Respondent's

superintendent arbitrarily and capriciously reassigned her in violation of Texas Education

Code section l 1.20l(d) TEX. EDUC. CODE§ 7.057(a)(2)(A).

        6.      If a school district fails to timely give a teacher notice of proposed

nonrenewal when the teacher's contract is about to expire, the school district is required

to employ the teacher in the "same professional capacity" for the following school year.

A requirement to employ a teacher in the "same professional capacity" for the following

school year is triggered only when a contract is about to expire and timely notice of

proposed nonrenewal is not given. TEX. EDUC. CODE§ 21.206(b).

        7.      Petitioner's claim that Respondent failed to employ her in the same

professional capacity is ripe only as to the 2011-2012 school year.

        8.      One can be entitled to the protections of Texas Education Code Chapter

21, subchapter E based solely on a contract or district policy. One does not need to hold

a position described in the first sentence of Texas Education Code section 21.201 (I) to be

entitled to a Chapter 21 term contract.

        9.      The positions described in the first sentence of Texas Education Code

section 21.20 I ( 1) may or may not be professional capacities for purposes of Texas

Education Code section 2 l.206(b ).




043 -RI0-1211                                  24



                                                                                 H. Jenkins v. Crosby ISD
                                                                                           TEA #: 000028
        10.     The fact that the position of "principal" is listed in the first sentence of

Texas Education Code section 21.201(1) does not mean that if one is employed by a

school district as a principal under a tenn contract that one is employed under the

professional capacity of principal. TEX. Eouc. CODE § 21.206(b ).

        11.     A contract can establish a teacher's professional capacity under Texas

Education Code section 21.206(b) if the professional capacity is not impermissibly broad.

Whether a professional capacity is impennissibly broad is determined by comparing

differences in authority, duties, and salary and other relevant factors. ln many cases, a

professional capacity of "administrator" will not be impem1issibly broad for a

reassignment.

        12.     Petitioner's professional capacity under Texas Education Code section

2 l.206(b) is administrator.

        13.     As Petitioner did not contest that her contractual professional capacity of

administrator is impermissibly broad under the standards set out in Conclusion of Law

No. 11, Petitioner has not raised this issue.

        14.     As the fact that a term contract employee is employed in a principal

position does not make the employee's professional capacity "principal," Respondent did

not improperly reassign Petitioner to a non-principal position in violation of Texas

Education Code section 21.206(b).

        15.     Respondent did not reassign Petitioner in violation of Texas Education

Code section 21.206(b)

        16.     The Petition for Review should be denied in part and dismissed in part.




043-RI0-1211                                    25



                                                                                  H. Jenkins v. Crosby ISD
                                                                                            TEA #: 000029
        After due consideration of the record, matters officially noticed and the foregoing

Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Edcuation,

it is hereby

        ORDERED that the Petitioner's appeal be, and is hereby, denied in part and

dismissed in part.                                    (\A
        SIGNED AND ISSUED this       ~ay of ~~                              , 2013.




043-Rl0-1211                                 26



                                                                                 H. Jenkins v. Crosby ISD
                                                                                           TEA #: 000030
376
377
§ 21.352                                                                           PUBLIC EDUCATION
                                                                                                      Title2
§ 21.352. Local Role
                                       Research References
Encyclopedias                                              TX Jur. 3d Scimols § 333, Right to An0her
                                                             Appraisal anti Rebuttal.
 TX Jut. 3d Schools § 331, Frequency of Ap-                                                                        LI
   praisal: Advance Notice.                                TX Jur. 3d Schools § 335. Appraisal of Teaeher•
 TX Jm" 3d Schools § 332, Confidentiality; Re-               and Administrators.
    tention and Distribution of Appraisal Copies.

§ 21.353.     Appraisal on Basis of Classroom Teaching Performance
                                       Research References
                                                                                                                   B
Encyclopedias
  TX Jut. 3d Schools • 335, Appraisal of Teachers
    and Administratom.

§ 21.354. Appraisal of Administrators
   (a) The commissioner shall adopt a recommended appraisal process and criteria on
                                                                                            •hict
to appraise the pertbrmance of various classifications of school administrators.
                                                                                      The criteria
must be based on job-related performance.
   (b) The commissioner may solicit and consider the advice of teachers and administratorsm
developing the appraisal process and performance criteria.
   (e) Each school district shall appraise each administrator annually using either:
                                                                                 criteria; or
      (1) the commissioner's recommended appraisal process and purformanee
      (2) an appraisal process and performance e•-iteria:
                                                                                     campus-le•'d
         (A) developed by the district in consultation with the district- and
       committees established under Section 11.25l: and
         (B) adopted by the board of trustees.
                                                                                     h• not been
    (d) Funds of a school district may not be used to pay an administrator who
 appraised under.this section  in the preceding  15 months.
    (e) The a PP raisal of a P ldncipat  shall include  considenttion ".of the performance                 o!.a
                                                                                er Section 39,t•of
                                                                     "    '
                                    -       ¯
                                                     ,'
                                                                                         und
                    "



 principal's campus on the student achievement mdwators estabhshed pertorma-•
                                                                 ¯


                                                                                           •ins
                                                                                     ,•--e •-
                                                                  including
 and tlae campus's objectives established under Section 11.25;•,
 the campus and the maintenance of those gains.                                            Leg,,¢•
                                                                                   by Acts 2009,   81st
 Added by Acts 1995. 74th Leg., ch. 260,   •    l. eft. May 30. 1995.    Amended
 895, § 21, elf. June 1O. 2009.

                                         Research References
                                                                                       Appraised     of Teach•-•
 Encyclopedias                                               TX Jur. 3d Schools • 335,
                                                               and Administrato•.
   'IX Jm', 3d Schools • 334. Recommended Ap-                                           Apprau•al of S•h•
      praisal Process and Performance Criteria for           TX Jut. ,•d Schools § 336,
      Teachers and Administrators.                             Principals.

 § 21.355.      Confidentiality


 Encyclopedias
                                           Research References

    'IX Jur. 3d Administrative Law § 67, Construe-
                                                             "




                                                             'IX Jur. 3d •qchools §
                                                                                     .
                                                                                        9
                                                                                      "•-,
                                                                tention and Dist•ribution
                                                                                            Confidentiality;
                                                                                               •,.•i:-•l C0pl
                                                                                           ox. •r,v'-"
                                                                                                               •
       tion of Requirement.
    TX Jur. 3d Administrative Law § 69, Type of
       Information Subject to Disclosure--Categories
       Classified as Public Information.
                                                       104
9/24/15                            82(R) SB 1383 - Enrolled version - Bill Text




                                                                                        S.B. No. 1383



                                                           AN ACT
                       relating to an appraisal and professional development system for
                       public school principals.
                              BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
                              SECTION 1. The heading to Section 21.354, Education Code,
                       is amended to read as follows:
                              Sec. 21.354. APPRAISAL OF CERTAIN ADMINISTRATORS.
                              SECTION 2. Section 21.354, Education Code, is amended by
                       adding Subsection (a-1) to read as follows:
                               !a-ll This section does not apply to the appraisal of the
                      performance of a principal.
                              SECTION 3. Subchapter H, Chapter 21, Education Code, is
                       amended by adding Section 21.3541 to read as follows:
                              Sec. 21.3541. APPRAISAL AND PROFESSIONAL DEVELOPMENT
                       SYSTEM FOR PRINCIPALS. !al  The commissioner by rule shall
                      establish and shall administer a comprehensive appraisal and
                      professional development system for principals.
                              (bl The commissioner may establish a consortium of
                      nationally recognized experts on educational leadership and policy
                      to:
                                   (1)  assist the commissioner in effectively
                      researching and developing the comprehensive appraisal and
                      professional development system described by Subsection !al: and
                                   121  evaluate relevant research and practices and make
                      recommendations to the commissioner to improve the quality of the
                      training. appraisal. professional development. and compensation of
                      principals.
                              !cl If the commissioner establishes the consortium. the
                      commissioner shall select a presiding officer of the consortium.
                      The presiding officer:
                                   fl)  must be an expert on educational leadership and
                      policy;
                                   !2l must have a demonstrated ability to lead a
                      statewide school leadership reform initiative: and
                                   !3l may not be employed by a school district in this
                      state.
                              !dl The commissioner shall establish school leadership
                      standards and a set of indicators of successful school leadership
                      to align with the training. appraisal. and professional development
                      of principals.
                              (el In carrying out the commissioner's powers and duties
                      under this section. the commissioner may use only money available
                      from private sources that may be used for that purpose.
                              !fl In appraising principals. each school district shall
                      use either:
                                   Ill   the appraisal system and school leadership
                      standards and indicators developed or established by the
                      commissioner under this section; or
                                   l2l  an appraisal process and performance criteria:
                                           !Al developed by the district in consultation

www. legis.state. tx. us/tlodocs/82R/billtext/htm l/SB01383F. HlM                                   1/3
9/24/15                            82(R) SB 1383 - Enrolled version - Bill Text

                      with the district-level and campus-level committees established
                      under Section 11.251; and
                                             (Bl adopted by the board of trustees.
                               lgl   Each school district shall appraise each principal
                      annually,
                               lhl   Not later than December 1 of 2012 and 2014. the
                      commissioner shall submit a written report to the governor.
                      lieutenant governor. speaker of the house of representatives. and
                      presiding officer of each standing legislative committee with
                      primary jurisdiction over public education of;
                                      Ill  any action taken under this section; and
                                      (2)  any recommendations for legislative action
                      concerning the training. appraisal. professional development. or
                      compensation of principals.
                               til   Subsection lhl and this subsection expire January 1.
                      2015.
                               SECTION 4.   Section 21.451, Education Code, is amended by
                      amending Subsections (a) through (d) and adding Subsection (a-1) to
                      read as follows:
                               (a)   The staff development provided by a school district 1.Q
                      an educator other than a principal must be:
                                      (1)  conducted in accordance with standards developed
                      by the district; and
                                      (2)  designed to improve education in the district.
                               (a-1)   Section 21,3541 and rules adopted under that section
                      govern the professional development provided to a principal.
                               (b)   The staff development described by Subsection (al must
                      be predominantly campus-based, related to achieving campus
                      performance objectives established under Section 11.253, and
                      developed and approved by the campus-level committee established
                      under Section 11.251.
                               (c)   For staff development under Subsection (al, a [~] school
                      district may use district-wide staff development developed and
                      approved through the district-level decision process under Section
                      11. 251.
                               (d)   The staff development:
                                      (1) may include training in:
                                             (A) technology;
                                             (B) conflict resolution; and
                                             (C) discipline strategies, including classroom
                      management, district discipline policies, and the student code of
                      conduct adopted under Section 37.001 and Chapter 37; and
                                      (2)  subject to Subsection (e) and to Section 21.3541
                      and rules adopted under that section, must include training based
                      on scientifically based research, as defined by Section 9101, No
                      Child Left Behind Act of 2001 (20 U.S.C. Section 7801), that:
                                             (A) relates to instruction of students with
                      disabilities; and
                                             (B) is designed for educators who work primarily
                      outside the area of special education.
                               SECTION 5. Subsection (e), Section 21.354, Education Code,
                      is repealed.
                               SECTION 6. Notwithstanding Sections 21.354 and 21.451,
                      Education Code, as amended by this Act, until an appraisal and
                      professional development system for principals under Section
                      21.3541, Education Code, as added by this Act, is implemented,
                      public school principals shall be appraised under Section 21.354,
www. legis.state. tx. us/tlodocs/82R/billtext/htm l/SB01383F. HlM                               2/3
9/24/15                            82(R) SB 1383 - Enrolled version - Bill Text

                      Education Code, as that section existed before amendment by this
                      Act, and the staff development of principals is governed by Section
                      21.451, Education Code, as that section existed before amendment by
                      this Act.
                             SECTION 7.  This Act takes effect immediately if it receives
                      a vote of two-thirds of all the members elected to each house, as
                      provided by Section 39, Article III, Texas Constitution.  If this
                      Act does not receive the vote necessary for immediate effect, this
                      Act takes effect September 1, 2011.




                             President of the Senate                                Speaker of the House

                             I hereby certify that S.B. No. 1383 passed the Senate on
                      April 26, 2011, by the following vote: Yeas 31, Nays 0.



                                                                                  Secretary of the Senate

                             I hereby certify that S.B. No. 1383 passed the House on
                      May 25, 2011, by the following vote: Yeas 147, Nays 0, one
                      present not voting.



                                                                                  Chief Clerk of the House



                      Approved:


                                               Date



                                           Governor




www. legis.state. tx. us/tlodocs/82R/billtext/htm llSB01383F. HlM                                            3/3
                                                                                                                      Page 1




                                           SAMUEL BARICH
                                                 v.
                    SAN FELIPE-DEL RIO CONSOLIDATED INDEPENDENT SCHOOL DISTRICT

                                                 DOCKET NO. 117-R1a-484

                                         Copyright (c) 1985 Texas Education Agency

                                               1985 TX Educ. Agency LEXIS 91

                                                         May 6, 1985

PANEL: [*1] W. N. KIRBY, COMMISSIONER OF EDUCATION

OPINION: DECISION OF THE COMMISSIONER
       Statement of the Case
    Samuel Barich, Petitioner, brings this appeal concerning his employment relationship with San Felipe-Del Rio
Consolidated Independent School District, Respondent. A hearing on this matter was conducted on September 24, 1984
before Mark W. Robinett, the Hearing Officer appointed by the Commissioner of Education. Petitioner is represented by
Dean A. Pinkert and Leonard J. Schwartz, Attorneys at Law, Austin, Texas. Respondent is represented by William C.
Bednar, Attorney at Law, Austin, Texas, and Haygood Gulley, Attorney at Law, Del Rio, Texas.
     On February 25, 1985, the Hearing Officer issued a Proposal for Decision recommending to the State Commission-
er of Education that Petitioner's appeal be denied. Our records reflect that a copy of the Proposal for Decision was re-
ceived by both parties. Petitioner filed Exceptions to the Proposal for Decision on March 25, 1985. No reply to the ex-
ceptions was filed.
       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. In a previous [*2] case between the same parties, Barich v. San Felipe-Del Rio Consolidated ISD, No.
086-R1a-483 (Comm. Educ., May 1983), the Commissioner held, in Conclusion of Law No. 2, that the school district
had, pursuant to Tex. Educ. Code Ann. § 21.204, "elected to employ Petitioner in his current professional capacity for
the 1983-84 school year."
     2. The Commissioner's Decision was affirmed by the State Board of Education on September 10, 1983. A Motion
for Rehearing was not filed by either party.
       3. It is uncontested that, during the 1982-83 school year, Petitioner served the district as an ROTC teacher. (Pet. Ex.
15).
     4. After the State Board of Education had entered its decision, the school district's attorney, Mr. Gulley, called Peti-
tioner's attorney, Mr. Schwartz. Mr. Gulley represented that Petitioner could not be reinstated as ROTC teacher, because
the school district did not believe that he could be certified by the Air Force in that position, inasmuch as Petitioner was
past retirement age and had already received the maximum one year extension of his certification. (Tr. 41-42). Mr. Gul-
ley further stated that reinstatement in another position [*3] would be at the salary of an ROTC teacher. (Tr. 52). Pe-
titioner's attorney replied that he wanted his client to return to work in the exact same position he had held during the
1982-83 school year. (Tr. 41-42).
                                                                                                                        Page 2
                                            1985 TX Educ. Agency LEXIS 91, *


     5. On October 3, 1983, Petitioner's attorney sent a letter to the school district's attorney, which reads, in pertinent
part, as follows:
     Thank you for offering to settle the above-referenced case. However, while we appreciate your offer of immediate
reinstatement, we must reject it as it is, in our opinion, incomplete.
     Mr. Barich has authorized us to extend to you the following counteroffer. Mr. Barich will report to school and un-
dertake his duties if the district will comply with the following:
    1. Mr. Barich must be assigned in the "same professional capacity," Tex. Education Code subsection 21.204(b), as
he was previously employed; i.e., as the head of the R.O.T.C.;
    2. Mr. Barich must be made whole for all lost salary and benefits for the period that he has been unemployed;
    3. Mr. Barich must be paid his attorneys' fees and court costs. The fees are currently, at our normal billing rate, $
9,337.50, while costs are $ 2,644.84. We think that $ 10,000 is a reasonable compromise [*4] of attorneys' fees and
costs. Of course, this offer on attorneys' fees is only if this settlement offer is accepted within the next thirty (30) days;
and
    4. All references in Mr. Barich's personnel files to the wrongful breach of his employment contract must be ex-
punged.
    (Pet. Ex. 1).
    6. On October 21, 1983, Michael C. Boyle, attorney at law, San Antonio, Texas, sent a letter to Petitioner's attor-
ney, which reads, in pertinent part, as follows:
     This firm will be working as co-counsel with Mr. Haygood Gulley in the above matter. In that regard, as attorneys
for the School District, I would like to reiterate what Mr. Gulley expressed to you in your telephone conversation of
September 26, 1983. The School District is quite willing to abide by the Order of the Commissioner that Mr. Barich be
retained in his same professional capacity for the present school year. As you know, that Order is now final; no appeal
has been taken to the District Court by either party. Mr. Gulley's conversation with you of September 26, 1983, is not an
offer of settlement as you seem to indicate in your correspondence to him of October 3, 1983. Mr. Gulley merely ex-
pressed the sentiments of the District to abide [*5] by the Commissioner's Order and permit Mr. Barich to remain as a
teacher for the current year.
     Mr. Gulley likewise expressed to you the very real problem that the United States Air Force has refused to sanction
Mr. Barich as a R.O.T.C. teacher. We would welcome any suggestions that you have whereby the School District can
permit Mr. Barich to function in the same professional capacity when the Air Force has taken the position that he is not
qualified to act as an R.O.T.C. teacher. Mr. Gulley suggested that you contact the Air Force directly and attempt to ob-
tain a reversal of that decision.
    Nevertheless, as indicated herein, the School District is willing to abide by the Commissioner's decision to retain
Mr. Barich for the present year. Thus, the School District expects Mr. Barich to report for duty at once.
    (Pet. Ex. 2).
    7. On October 25, 1983, Petitioner's attorney sent a letter to Mr. Boyle, which reads, in pertinent part, as follows:
     As soon as you can assure my client, Samuel E. Barich, that he will be returned "to the same professional capacity,"
as ordered by the Commissioner of Education, he will report for duty. Until then, you are not completely abiding by the
decision of [*6] the State Board of Education. Furthermore, Mr. Barich is entitled to be made whole for the breach of
his contract.
    In your letter of October 21, 1983, you state that you would welcome any suggestions that we have regarding the
problem with the Air Force. We do, indeed, have a suggestion: Write the Air Force and request a waiver for Mr. Barich.
The Air Force routinely grants the requests of school districts for a waiver of the age requirement. In fact, I have been
advised that the Air Force told your client this several months ago.
     As soon as you receive the official waiver and the school notifies my client that he is to report to work "in the same
professional capacity" as he held prior to the breach of his contract, we are sure that he would be willing to sign a new
one-year contract and report to work. Of course, he will still proceed to obtain redress for the prior illegal termination of
his employment.
                                                                                                                      Page 3
                                           1985 TX Educ. Agency LEXIS 91, *


     In order to give the school district an opportunity to obtain a waiver from the Air Force, we will not take any fur-
ther action on this matter for forty-five days. If you have not made Mr. Barich whole (including reinstatement to his
prior position with the R.O.T.C.) at the expiration [*7] of that period, we will file suit for breach of contract. We will
seek damages, attorneys fees, and injunctive relief.
    As we are sure you are aware, the question of liability is now finally decided and may not be relitigated.
     We believe that our position in this matter is clear and has been consistent throughout the litigation. Our client is
entitled to full relief; not just a cryptic promise that the school will "permit Mr. Barich to remain as a teacher for the
current year." After being unemployed for several months, having litigated in the courts and the administrative agency
which oversees the operations of local school systems and having won throughout the course of this matter in every
forum, the school's refusal to completely abide by the State Board of Education's Order affirming the Commissioner, we
believe that our stand is entirely justifiable.
    In particular, the Commissioner ordered that "Petitioner's appeal be, in all things, GRANTED." Emphasis added. If
you will refer to the Prayer for Relief in Petitioner's Petition for Review, you will find that the appeal included the re-
quest that the teacher be made whole for all damages arising out of the wrongful discontinuation [*8] of Petitioner's
employment, including attorneys' fees. We expect nothing less.
    (Pet. Ex. 3).
    8. On November 7, 1983, Mr. Boyle sent a letter to Petitioner's attorney, which reads, in pertinent part, as follows:
    Thank you for your letter of October 25, 1983. I have discussed the same with Mr. Gulley and with Superintendent
Evins.
    I have been advised to report the following:
    1. By telephone conversation on September 21, 1983, you were advised by Haygood Gulley, local counsel for the
School that the School would abide by the decision of the Commission (sic) and further, that Lt. Col. Barich should
report to work forthwith.
     Six weeks have now elapsed and Lt. Col. Barich has not reported for work as instructed. In fact, Lt. Col. Barich has
not communicated with the School in any manner whatsoever.
    2. Lt. Col. Barich's qualifications to hold any particular position with the School is within the realm of his personal
responsibilities. Lt. Col. Barich should have requested the required Department of Air Force authorizations long ago.
However, you now desire to place this responsibility upon the school. The School denies any such responsibility.
Nonetheless, in a continuing effort to resolve [*9] this matter, the School is requesting such authorization from the
Department of Air Force. You will be furnished a copy of this request.
    3. The fact remains that Lt. Col. Barich has totally failed to report for work. Again, demand is hereby made that Lt.
Col. Barich report immediately to the School for a work assignment.
     4. Should Lt. Col. Barich fail to report for work immediately, you are advised that the School will take under con-
sideration the termination of Lt. Col. Barich's relationship with the School. You will be advised, in accordance with the
law, of any such consideration.
     Lastly, as I interpret the order of the Commissioner, after a review of all evidence presented, the only issue litigated
concerned the reinstatement of Lt. Col. Barich. Thus, his reinstatement is the only issue before us, which issue, if you
wish to call it an issue, was resolved long ago when Mr. Gulley advised you that the School would abide by the ruling
of the Commission (sic). Therefore, I do not understand your offer not to take further action "within forty-five days"
when compliance with the Commission's (sic) order rests squarely with Lt. Col. Barich, not the School.
    (Pet. Ex. 4).
     9. On November [*10] 14, 1983, Petitioner's attorney sent a letter to Mr. Boyle, the substance of which reads, in
its entirety, as follows:
    As soon as we are furnished the authorization from the Department of the Air Force and the school agrees to fully
comply with the Commissioner's Order, Mr. Barich will report to work. However, he will not report until the school
remedies its breach of contract.
                                                                                                                     Page 4
                                           1985 TX Educ. Agency LEXIS 91, *


     As to your review of the Commissioner's Order we feel that you are incorrect in your interpretation. Our Petition
for Review set out the following prayer for relief:
     that the Respondent is required to set aside and disregard its announced decision to consider the non-renewal of Pe-
titioner's contract for the School Year 1983-84;
   that Respondent be required to expunge any reference in any personnel file of Petitioner's to said discontinuance of
employment;
    that Respondent be required to offer Petitioner a contract to continue Petitioner's professional employment as a
teacher for the Respondent School District unless and until the at (sic) employment is discontinued under circumstances
which fully comply with applicable law;
     that Respondent be required to make Petitioner whole for all damages arising out of the [*11] wrongful discon-
tinuation of Petitioner's employment, including attorneys fees pursuant to Title 42, United States Code Section 1988;
and
    that Petitioner have such other and further relief to which he may show himself entitled.
    The Commissioner's Order reads as follows:
    After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and Conclu-
sions of Law, in my capacity as State Commissioner of education, it is hereby
    ORDERED that Petitioner's appeal be, in all things, GRANTED.
    Emphasis added.
     If you really wish to "resolve this matter" as you state in your letter of November 7, 1983 you need only to agree to
make Col. Barich whole for all lost salary and benefits for the period that he has been unemployed, reinstate him in the
"same professional capacity" which he previously held, expunge his personnel file and agree to pay him his reasonable
attorneys fees.
     On the other hand, if you wish to prolong this matter and needlessly waste taxpayers money, proceed to terminate
him on the grounds that he refuses to return to work in the absence of a complete settlement. We will litigate this issue
for the next few years -- then, if we are successful, [*12] the backpay award will be in excess of $ 75,000.00. I, for
one, cannot undertand (sic) the benefits to be derived by the school system by taking this course of action. We will be
paid our fees, nevertheless, as I am sure you will. Hence, the only losers will be the taxpayers and the students within
the system. Mr. Barich may lose the termination question but he will still be entitled to the backpay due him until he is
terminated. Given the amount of money he may ultimately have coming by the school's recalcitrance in fully complying
with the Commissioner's Order, Col. Barich is willing to stand firm.
    Even if it successfully terminates Col. Barich, the school district will expend more in attorneys fees in litigating the
question of the termination's validity than it will spend in simply abiding by the Commissioner's Order.
    If you wish to discuss settlement, please call me. Thank you.
    (Pet. Ex. 5).
     10. On December 21, 1983, Mr. Boyle sent a letter to Petitioner's attorney, the substance of which reads, in its en-
tirety, as follows:
    Thank you for your letter of November 14, 1983.
    In addition, since that time we have had an opportunity to talk over the telephone.
     If I understand your position [*13] correctly you are arguing that the District elected to retain Mr. Barich "in the
same professional capacity" for the current year and that as such the District must pay his salary despite the fact that he
is unable to perform his duties as an instructor in the ROTC program. I have discussed your view with Mr. Gulley, and
he with the District. They are not in agreement with your argument; however, as I have mentioned in past correspond-
ence to you and as Mr. Gulley has stressed to you over the telephone, the District is willing to employ Mr. Barich in
some other position if he would kindly report to them. It is my understanding that Mr. Barich is qualified to teach the
following subjects:
                                                                                                                     Page 5
                                           1985 TX Educ. Agency LEXIS 91, *


    1. Any elementary grade;
    2. Eighth grade social science;
    3. High school psychology; and
    4. High school industrial arts
    Of course the district cannot be sure as to where he will be placed but if he would report for duty that uncertainty
could be cleared up at once and Mr. Barich could begin earning a salary for the current year and mitigating his own al-
leged damages.
     It is the position of the District that they are not attempting to evade whatsoever the Order of the Commissioner.
However, because of [*14] the impossibility of performance and the inability to perform by one of the contracting
parties, namely Mr. Barich, he cannot be employed in the same professional capacity. This inability of Mr. Barich to
perform is a result of the position taken by the Air Force, a party over whom neither Mr. Barich nor the District has
control. The District firmly believes it is not in breach of any contractual duty it owes to Mr. Barich and is more than
willing to go the extra step by offering him a position in one of the other areas of education if Mr. Barich would merely
report to the District that he wishes to return and continue. Surely, Mr. Barich should be interested in at least mitigating
the damages you have alleged he shall sustain in your letter of November 14, 1983. Please have Mr. Barich contact the
District at once.
    (Pet. Ex. 6).
     11. On March 28, 1984, Joe L. Sanders, President of the school district's Board of Trustees, sent a letter to Petition-
er, the substance of which reads, in its entirety, as follows:
    You are not now an employee or teacher in the San Felipe-Del Rio Independent School District.
    Nonetheless, and out of an abundance of precaution, you are hereby advised that you [*15] shall not be an em-
ployee or teacher in the San Felipe-Del Rio Independent School District during the 1984-85 school year.
    (Pet. Ex. 8).
    Discussion
    In his Petition for Review, Petitioner argues that the letter he received from the school district dated March 28,
1984 did not comply with the requirements of the Term Contract Nonrenewal Act (TCNA), Tex. Educ. Code Ann. §§
21.201 - .211 (Vernon Supp. 1984), and, therefore, his contract was renewed by operation of law for the 1984-85 school
year.
   The first issue that must be considered is whether Petitioner had a valid claim to employment with the district on
March 28, 1984. If so, the notice he received could be construed as a nonrenewal notice. If not, it constitutes nothing
more than a statement of the school district's understanding of the status of the dispute.
      If Petitioner had an employment relationship with the school district on March 28, 1984, it was directly attributable
to the Decision of the Commissioner in Docket No. 086-R1a-483, in which the Commissioner held that the school dis-
trict had, as a matter of law, "elected to employ Petitioner in his current professional capacity for the [*16] 1983-84
school year." What that holding entitled Petitioner to was an offer from the school district of continued employment in
the "same professional capacity." That holding did not create a contract between the parties or bind Petitioner to accept
any offer from the district that did not comply with the Order. It only required the school district to make a valid offer,
which Petitioner was free to accept or reject. His acceptance would create a contract binding on both parties. His rejec-
tion of a bona fide offer of continued employment in the "same professional capacity" would end any cognizible claim
he might have to continued employment with the school district. See e.g., Gosney v. Sonora Independent School Dist.,
603 F.2d 522, 524-25 (5th Cir. 1979); Jordan v. Board of Regents, Univ. System, 583 F. Supp. 23, 25-27 (S.D. Ga.
1983).
     Petitioner argues that he did not receive an offer of employment in the "same professional capacity," because he
was never offered the same position he had held during the 1982-83 school year; i.e., ROTC teacher. It would not be
reasonable, however, to conclude that the legislature intended that [*17] every teacher who does not receive notice of
his or her proposed nonrenewal by April 1 is entitled to be employed in the exact same position the following school
year. Such a holding would require a school district to actually begin nonrenewal proceedings by April 1 against every
                                                                                                                       Page 6
                                           1985 TX Educ. Agency LEXIS 91, *


teacher it might conceivably wish to assign to a different position the following year, or face a nonrenewal claim with
any reassignment effected after April 1.
     It 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 dis-
couraging 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 to 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 par-
ticular placement will be clear. For example, [*18] an administrator who does not receive the 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 a
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 category (e.g., administrator), but nevertheless, be invalid (e.g., from
superintendent to assistant elementary school 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.
     In the present case, Petitioner was employed during the 1982-83 school year as an ROTC teacher. The district's of-
fers of employment ranged from the general (i.e., a statement that the district would comply with the Commissioner's
Order and that Petitioner should "report to work" at once) to the relatively -- though not completely -- specific (i.e., ref-
erences to teaching an elementary grade, eighth grade social science, [*19] high school psychology, or high school
industrial arts). Nevertheless, it is clear -- and Petitioner concedes (Tr. 77-79) -- that, although the district at no time
offered to reinstate Petitioner as ROTC teacher, it did offer to place him in a teaching position of some sort. Further, the
uncontested testimony is that Petitioner would not suffer any loss of salary due to the placement. (See Finding of Fact
No. 4). In his Post-Hearing Brief, Petitioner asserts that the other positions "are substantially different, involve different
responsibilities, and require different skills." (p. 3). However, Petitioner introduced no evidence which would support
this contention. More importantly, no evidence was introduced which would support a holding that it would be improp-
er to reassign an ROTC teacher to one of the positions referred to by the district.
     Under the circumstances, it is concluded that the school district unconditionally offered Petitioner a position in the
"same professional capacity" for the 1983-84 school year and that Petitioner rejected that offer. Petitioner was, there-
fore, not employed by the district during the 1983-84 school year by choice, and he has no cognizable claim [*20]
against the district for correctly noting, on March 28, 1983, that he was not then employed by the district, and for ad-
vising him that it did not intend to employ him during the 1984-85 school year.
    Respondent's Request for Additional Findings of Fact
    Subsequent to the issuance of the Proposal for Decision, the school district filed a request that the Finding of Fact
No. 8 be renumbered as 10, Findings of Fact Nos. 9 - 11 be renumbered as 12 - 14, respectively, and that the following
additional Findings of Fact be made:
    8. On March 19, 1983, Jesse L. Mathews, Deputy Director for Operations and Training, Air Force Reserve Officer's
Training Corps, had written a letter to Mr. R. S. Evins, Superintendent of the district, in substance as follows:
    "This is a follow-up on a phone conversation I had with Mr. Jac Mota, principal at Del Rio High School, regarding
your Air Force JROTC Aerospace Education Instructor."
    "Air Force ROTC Regulation 30-1 contains job specifications which state that the aerospace education instructor
must be less than 65 years of age, however, a one-year waiver may be granted for exceptionally well-qualified appli-
cants. In the case of Lt. Col. Samuel Barich, a waiver [*21] was granted to approve his continuation through the
1982-83 school year. The Commandant's current policy is that no waivers be granted beyond one year. Therefore, in
view of this policy, Lt. Col. Barich is no longer eligible for instructor duty beyond the expiration of his current contract.
We will not entertain additional waiver requests." [P's Exh. 24].
     9. Superintendent Evins wrote to Jesse L. Mathews on November 2, 1983, requesting another age waiver for peti-
tioner, in substance as follows:
                                                                                                                     Page 7
                                           1985 TX Educ. Agency LEXIS 91, *


    "Lt. Col. Samuel Barich was employed by the San Felipe-Del Rio Independent School District for the school year
1982-1983 in the ROTC Program. So that Lt. Col. Barich may fulfill the same duties for school year 1983-84, the San
Felipe-Del Rio Independent School District does hereby request the following:
    "1. That the Department of the Air Force authorize Samuel Barich to fulfill such duties for the San Felipe-Del Rio
Independent School District for school year 1983-1984 as he fulfilled in school year 1982-1983;
    "2. That the Department of the Air Force waive any problems which it may have concerning the fact that Lt. Col.
Barich is not more than 65 years of age.
    "Your immediate reply to this [*22] request would be appreciated."
    11. On November 9, 1983, Jesse L. Mathews wrote back to Superintendent Evins in substance as follows:
    "Reference your 2 November 1983 request to waive the age 65 requirement on Lt. Col. Samuel Barich, USAF, ret.,
former Aerospace Education Instructor at Del Rio High School.
     "Age waiver requests are entertained on an individual basis and are applicable to current instructor personnel who
will attain age 65 during the academic year. Further, these instructors must consistently conform to Air Force standards
to include dress and personal appearance. They must be recommended for waiver by the principal of the school and the
appropriate Area Commandant.
    "Additionally, the A.F.J.R.O.T.C. Unit at Del Rio High School is currently fully manned with three instructors and
an approximate cadet enrollment of 214. Since Lt. Col. Barich was terminated as an A.F.J.R.O.T.C. Instructor effective
27 May 1983, and is no longer affiliated with A.F.J.R.O.T.C., we have no reason to consider an age waiver." [P's Exh.
14]
     The requested Findings of Fact will not be made. They are relevant to one of the school district's defenses -- that
Petitioner could not have been offered reemployment [*23] as R.O.T.C. instructor because he could not have obtained
an age waiver from the Air Force to serve in that capacity during the 1983-84 school year -- but that issue need not be
reached, inasmuch as the issue concerning Petitioner's rejection of a valid offer of employment is dispositive of this
appeal. Further, if the age waiver issue were reached, it would be necessary to conduct further proceedings for the pur-
pose of receiving evidence on that issue, because Petitioner has asserted at all times that Air Force regulations would
have allowed a waiver to have been granted by the Air Force if the school district had requested one. (See Tr. 73-74;
Prehearing Conference Tr.: 16-17; and Petitioner's Response to Respondent's Request for Additional Findings of Fact).
    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 school district was required, pursuant to § 21.204 of the Education Code and the Commissioner's Decision in
Docket No. 086-R1a-483, to offer Petitioner a position for [*24] the 1983-84 school year in the "same professional
capacity" in which he was employed during the 1982-83 school year.
     2. The school district, by offering Petitioner a position for the 1983-84 school year as a teacher, with no reduction
in salary or status, complied with § 21.204 of the Education Code and the Commissioner's Order in Docket No.
086-R1a-483.
     3. Any claim by Petitioner to continued employment with the School District ended when he rejected the district's
offer to employ him in the same professional capacity.
    4. Because Petitioner was not employed by the school district on March 28, 1984, he has no cognizable claim
against the district for its alleged nonrenewal of his employment on that date.
    5. Petitioner's appeal should be DENIED.
    ORDER
    After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and Conclu-
sions of Law, in my capacity as State Commissioner of Education, it is hereby
    ORDERED that Petitioner's appeal be, and is hereby, DENIED.
                                                                 Page 8
                              1985 TX Educ. Agency LEXIS 91, *


SIGNED AND ENTERED this 6th day of May, 1985.
                        Case                                                     Application of Barich Principles
Lieberman v. Eagle Mountain-Saginaw Independent School Contracted to be a teacher or a coach, the district properly reassigned the employee
District , Docket No. 192-R3-785 (Comm’r Educ. from the position of middle school teacher and high school coach to the position of
1985)                                                  physical education teacher with scheduling and budgeting responsibilities.

Grounds v. Tolar Independent School District , Docket         Contracted to be Teacher/Coach Football (Head football coach), the district
No. 340-R3-786 (Comm’r Educ. 1986)                            improperly reassigned the employee to a teaching position.

Reyes v. Culberson County Independent School District ,       Contracted to be a teacher and head coach for duties as assigned, the district properly
Docket No. 229-R3-787 (Comm’r Educ. 1987)                     reassigned the employee from teacher and head coach for football, basketball, and
                                                              track to the position of teacher and head coach for boys’ basketball.

Satcher v. Florence Independent School District , Docket      Contracted to be a teacher/coach, the district properly reassigned the employee from
No. 363-R3-786 (Comm’r Educ. 1987)                            being a teacher and football coach to being a teacher and baseball coach.

Abbott et al. v. Ector County Independent School District ,   Contracted to be teachers/deans, the district improperly reassigned the employees
Docket No. 081-R3-1287, 105-R3-288 (Comm’r                    from teacher/dean positions to teacher positions.
Educ. 1991)
Marshall v. Seguin Independent School Distric t, Docket       Contracted for 220 duty days, the district properly reduced duty days to 188 days for
No. 177-R1-690 (Comm’r Educ. 1991)                            the following school year.

Carpenter v. Wichita Falls Independent School District, Contracted as an administrator, the district properly reassigned the employee from the
Docket No. 247-R3-491 (Comm’r Educ. 1993)               district wide position of Science Support Specialist to the position of high school
                                                        assistant principal.
Andrews v. Houston Independent School District , Docket The district properly reassigned employee from the position of high school assistant
No. 236-R1-897 (Comm’r Educ. 1997)                      principal to the position of middle school assistant principal.

Keith v. Tarkington Independent School District , Docket Contracted as a professional employee , the district properly reassigned the employee
No. 459-R3-891(Comm’r Educ. 1992)                        from the position of athletic director to the position of teacher/assistant principal.

Goedeke v. Smyer Independent School District , Docket         Contracted as teachers, the district’s reduction in salary by itself did not place the
No. 111-R3-1292 (Comm’r Educ. 1997)                           teachers in different professional capacities.

Salinas v. Roma Independent School District , Docket          Contracted as teacher/assistant band director, the district improperly reassigned the
No. 058-R3-1196 (Comm’r Educ. 1997)                           employee to a teaching position.

Underwood v. Rusk Independent School District , Docket Contracted as an administrator, the district properly reassigned the employee from
No. 062-R3-198 (Comm’r Educ. 1998)                     principal of an independent middle school campus to the position of principal or
                                                       assistant principal for grades 7 to 9 at a unified junior high/high school campus.

Young v. Leggett Independent School District , Docket     Contracted as a teacher/coach, the district properly reassigned the employee from the
No. 175-R3-898 (Comm’r Educ. 1999)                        position of varsity coach and teacher to the position of junior high school coach and
                                                          teacher.
Veliz v. Donna Independent School District , Docket No. Contracted as an administrator, the district properly reassigned the employee from the
011-R3-999 (Comm’r Educ. 2000)                            district wide position of attendance coordinator to the position of middle school
                                                          assistant principal.
Yturralde v. El Paso Independent School District , Docket The district properly transferred the employee from one principal position to another.
No. 001-R10-900 (Comm’r Educ. 2002)

Ramos v. El Paso Independent School District , Docket         The district properly transferred the employee from the position of high school
No. 002-R10-900 (Comm’r Educ. 2002)                           principal to the position of elementary principal.

Pasqua v. Fort Stockton Independent School District ,         Contracted as an administrator, the district properly reassigned the employee from the
Docket No. 011-R3-1102 (Comm’r Educ. 2004)                    position of high school principal to the position of middle school assistant principal.

Perales v. Robstown Independent School District , Docket Contracted as an administrator, the district properly reassigned the employee from a
Nos. 052-R10-104, 084-R3-604 (Comm’r Educ.               district-wide Director of Even Start to the position middle school assistant principal.
2006)
                        Case                                                         Application of Barich Principles
Sanchez v. Donna Independent School District , Docket    Contracted as an administrator, the district properly reassigned the employee from a
No. 075-R10-605 (Comm’r Educ. 2007)                      central office position to an assistant principal position.

Gonzalez v. Donna Independent School District , Docket Contracted as an administrator, the district properly reassigned the employees from a
No. 074-R10-605 (Comm’r Educ. 2007)                    central office position to an assistant principal position.

Perez v. Donna Independent School District , Docket No. Contracted as an administrator, the district properly reassigned the employee from a
086-R1-705 (Comm’r Educ. 2007)                          central office position to an assistant principal position.

Lehr v. Ector County Independent School District ,       Contracted as an administrator, the district properly reassigned the employee from the
Docket No. 003-R3-0908 (Comm’r Educ. 2011)               position of Executive Director of Special Education to the position of elementary
                                                         school assistant principal.
Wheeler v. Austin Independent School District , Docket   Contracted as professional employee, the district improperly reassigned the employee
No. 008-R3-1108 (Comm’r Educ. 2011)                      from the position of assistant principal to the position of classroom teacher.

Murillo v. Laredo Independent School District , Docket   Contracted as a professional employee, the district properly reassigned the employee
No. 027-R3-0108 (Comm’r Educ. 2012)                      from the position of middle school principal to the position of Human Resources
                                                         Coordinator.
Montgomery v. Richardson Independent School District ,   The district properly reassigned the employee from the position of elementary school
Docket No. 007-R10-1008 (Comm’r Educ. 2012)              principal to the position of Program Specialist II.

Tuck v. Alief Independent School District , Docket No.   Contracted as a professional employee, the district improperly reassigned the employee
008-R10-1007 (Comm’r Educ. 2012)                         from the position of Career Specialist to the position of teacher.
McCoy v. Kermit Independent School District , Docket     Contracted as an administrator, the district properly reassigned the employee from the
No. 004-R3-0908 (Comm’r Educ. 2012)                      position of principal to the position of assistant principal.
                         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-
                                                                                                                       Page 1




                                     JANIS K. UNDERWOOD
                                               v.
                  WEST RUSK COUNTY CONSOLIDATED INDEPENDENT SCHOOL DISTRICT

                                                DOCKET NO. 062-R3-198

                                       Copyright (c) 1998 Texas Education Agency

                                              1998 TX Educ. Agency LEXIS 93

                                                            1998

PANEL: [*1] MIKE MOSES, COMMISSIONER OF EDUCATION

OPINION: DECISION OF THE COMMISSIONER
    Statement of the Case
    Petitioner, Janis K. Underwood, appeals the denial of her grievance concerning her reassignment from junior high
school principal to either principal of the seventh through ninth grades or to assistant high school principal by Re-
spondent, West Rusk County Consolidated Independent School District, subsequent to the merger of the junior and
senior high school campuses.
    The Administrative Law Judge appointed by the Commissioner of Education is Paula Hamje. Petitioner is repre-
sented by Kevin F. Lungwitz, Attorney at Law, Austin, Texas. Respondent is represented by John C. Hardy, Attorney at
Law, Tyler, Texas.
     On February 17, 1998, the Administrative Law Judge issued a Proposal for Decision recommending that Petition-
er's appeal be denied. Exceptions and replies were timely filed and considered.
    Findings
    It is determined that the following findings are supported by substantial evidence:
    1. Petitioner, Janis K. Underwood, was employed by Respondent, West Rusk County Consolidated Independent
School District, as West Rusk Junior High principal for six years prior to filing her appeal to [*2] the Commissioner.
    2. A proposed merger of the West Rusk Junior High and High School resulted in Respondent's notice, on or about
September 30, 1997, to Petitioner of a reassignment from her position as junior high principal under the immediate su-
pervision of Superintendent of schools to "seventh through ninth grade principal" or to assistant high school principal
under the immediate supervision of the high school principal.
     3. On February 18, 1997, Petitioner and Respondent entered into a written contract pertaining to Petitioner's em-
ployment with Respondent in the position of "administrator" for the term of July 1, 1997 to June 30, 1999. At the time
of the appeal, the contract remained in effect. The contract provides that Petitioner is subject to reassignment of posi-
tions or duties, additional duties, changes in responsibilities or work, transfers, or reclassification at any time during the
term of the contract.
     4. The reassigned position includes responsibility for more students and teachers, but with similar duties as Peti-
tioner's previous position. As a result of the reassignment, Petitioner's salary remains the same, her professional respon-
sibilities are not lessened, and the [*3] degree of skill required is not lessened.
    5. Petitioner remains an administrator after the reassignment and continues to function in that same professional
capacity at the merged junior and senior high schools.
                                                                                                                       Page 2
                                           1998 TX Educ. Agency LEXIS 93, *


    Discussion
     Petitioner seeks reinstatement as head principal of West Rusk Junior High School, reporting directly to the superin-
tendent of schools, and seeks an award of compensation for actual or potential economic and other losses. Relief is
sought due to her reassignment to either "seventh through ninth grade principal" or to assistant high school principal at
the newly merged junior and senior high school in West Rusk CISD. Petitioner argues that the reassignment is a demo-
tion and breach of her employment contract. In addition, she argues that the reassignment will have a negative impact
on her future earning potential; however, no evidence was offered in support of that argument.
     Petitioner has a written contract with Respondent for employment as an administrator which is not intended to
mean she always retains the "exact same position" she occupied prior to the reassignment. Barich v. San Felipe-Del Rio
Consolidated Independent School District, Docket No.117-R1a-484 [*4] (Comm'r Educ.1985). The reassigned posi-
tion is very similar to the previous position with regard to duties and responsibilities. Petitioner is expected to function
as principal to seventh, eighth and ninth grade students instead of seventh and eighth grades only. Petitioner's salary
does not change. Petitioner's written contract provides in paragraph "2" that Petitioner is subject to "...reassignment of
positions or duties, additional duties, changes in responsibilities or work ...at any time during the contract term." Re-
spondent has acted within the parameters of Petitioner's contract while attempting to accomplish the merger of two
school campuses. There is no evidence that Respondent intended to demote Petitioner, and Petitioner suffered no reduc-
tion in pay, responsibilities, or required skills, all important elements to consider in determining whether a reassignment
constitutes a demotion. Reyes v. Culberson County Independent School District, Docket No. 229-R3-787 (Comm'r
Educ. 1989) and Cody v. Graham Independent School District, Docket No. 247-R3-787 (Comm'r. Educ. 1989). Peti-
tioner remains an administrator at the same pay.
     Respondent considered the needs of the district [*5] in the decision to reassign Petitioner. There was no evidence
presented that Respondent failed to consider criteria for personnel decisions set out in its local board policies as asserted
by Petitioner; therefore, there is no need to address the issue of whether local board policy is a school law as defined by
statute. Petitioner argues that Respondent violated the Texas Education Code § 21.206 which requires a school district
to employ an employee in the same professional capacity from one year to the next. Pertinent portions of the rule read
as follows:

       (a) Not later than the 45th day before the last day of instruction a school year, the board of trustees shall
       notify in writing each teacher whose contract is about to expire whether the board proposes to renew or
       not renew the contract.

       (b) The board's failure to give the notice required by Subsection (a) within the time specified constitutes
       an election to employ the teacher in the same professional capacity for the following school year.

This case does not concern renewal or nonrenewal of a contract; therefore the above provision does not appear applica-
ble. In addition, Petitioner [*6] is retained in her same professional capacity as previously addressed in this proposal.
    Conclusions of Law
   After due consideration of the record, matters officially noticed, and the foregoing Findings, in my capacity as
Commissioner of Education, I make the following Conclusions of Law:
    1. The Commissioner of Education has jurisdiction over the instant matter pursuant to Tex. Educ. Code § 7.057.
    2. Respondent's reassignment of Petitioner to an administrator position in the newly merged junior and senior high
school was not a violation of the school laws of this state.
     3. Respondent's reassignment of Petitioner was not a demotion and was not in violation of any provision of her
written employment contract with Respondent that caused or would cause monetary harm to Petitioner.
    4. Petitioner's appeal should be DENIED.
    ORDER
   After due consideration of the record, matters officially noticed, and the foregoing Findings and Conclusions of
Law, in my capacity as Commissioner of Education, it is hereby
    ORDERED that Petitioner's appeal be, and is hereby, DENIED.
                                                                  Page 3
                               1998 TX Educ. Agency LEXIS 93, *


SIGNED AND ISSUED this ___ day of ___, 1998.
                                                                                                                   Page 1




                                           FOCUS - 10 of 11 DOCUMENTS

                                            LAURA PERALES
                                                  v.
                                 ROBSTOWN INDEPENDENT SCHOOL DISTRICT

                               DOCKET NO. 052-R10-104, DOCKET NO. 084-R3-604

                                      Copyright (c) 2006 Texas Education Agency

                                            2006 TX Educ. Agency LEXIS 63

                                                   November 28, 2006

PANEL: [*1] ROBERT SCOTT, CHIEF DEPUTY COMMISSIONER, BY DESIGNATION

OPINION: DECISION OF THE DESIGNEE OF THE COMMISSIONER
    Statement of the Case
     Petitioner, Laura Perales, appeals the action of Respondent, Robstown Independent School District, concerning her
grievances. Christopher Maska is the Administrative Law Judge appointed by the Commissioner of Education. Petition-
er is represented by Mark W. Robinett, Attorney at Law, Austin, Texas. Respondent is represented by John D. Bell,
Attorney at Law, Corpus Christi, Texas.
    The Administrative Law Judge issued a Proposal for Decision recommending that Petitioner's appeal be denied.
Exceptions and replies were timely filed and considered.
    Findings of Fact
    The following Findings of Fact are based upon Petitioner's pleadings:
    1. Respondent employed Petitioner under term contracts for the 2001-2005 school years. Respondent has not non-
renewed Petitioner's contract.
    2 Respondent employed Petitioner as the Director of the Even Start Program for the 2001-2002 and 2002-2003
school years and the beginning of the 2003-2004 school year.
     3. Even Start is a federal program designed "to help break the cycle of poverty and illiteracy by improving the edu-
cational [*2] opportunities of the Nation's low-income families by integrating early childhood, adult literacy, or adult
education, and parenting education into a unified family literacy program."
     4. The Even Start program is district-wide and at the time of the January 2004 board hearing served 64 part-time
students. As the Even Start Director, Petitioner directed three teachers, a secretary, two daycare workers, and a custodi-
an. Petitioner's position of Director of Even Start is similar to the position of a principal of a very small school.
    5. On November 17, 2003, Petitioner was notified that she would be reassigned to the position of assistant principal
at Ortiz Intermediate School. For the full 2003-2004 school year, Petitioner continued to receive her salary of $ 58,840.
As assistant principal, Petitioner lacked the final decision making authority of a principal.
    6. On April 8, 2004, Petitioner was notified that for the 2004-2005 school year, Petitioner received a salary of $
51,090.
    7. For the 2002-2003 and 2003-2004 school years, Petitioner was employed under a teacher term contract for the
position of administrator. This contract provides:
                                                                                                                       Page 2
                                           2006 TX Educ. Agency LEXIS 63, *




       Employee agrees that the Superintendent of [*3] Schools shall have the right to assign such duties to
       the Employee as the Superintendent shall deem proper, and the Superintendent may, from time to time,
       assign or reassign the Employee to other or additional duties or assignments to the fullest extent permit-
       ted by state law and board policy.
     8. On the September 9, 2003 organizational chart, the Even Start Director is shown to be at Level II along with oth-
er directors and principals. Assistant principals are found on Level III along with coordinators and facilitators.
     9. The salary schedule for the 2003-2004 school year lists the position of Even Start Director at Job Level 5 which
has a minimum salary of $ 38,120, a midpoint of $ 46,380, and a maximum of $ 54,640. Junior high school principals
are listed at Job Grade 4 with a minimum salary of $ 35,660, a midpoint of $ 43,380, and a maximum of $ 51,090.
    Discussion
     Petitioner contends that Respondent failed to employ her in the same professional capacity and demoted her. Peti-
tioner contends that removing her from her position as Director of the Even Start Program violated a federal grant.

Jurisdiction
    Texas Education Code section 7.057 [*4] grants the Commissioner jurisdiction over written employment contracts
and "the school laws of this state." "The school laws of this state" are defined as portions of the Texas Education Code
and rules adopted under the Texas Education Code. This does not give the Commissioner jurisdiction to determine
whether a school district has complied with federal grant requirements.

Same Professional Capacity
     Petitioner notes that Texas Education Code section 21.206 requires Respondent to employ her in the same profes-
sional capacity during the 2003-2005 school years as she held during the 2002-2003 school years because Respondent
has not nonrenewed her contract. Respondent does not disagree with this claim. The parties dispute the meaning of the
phrase "same professional capacity." The term "same professional capacity" is not defined in statute. Petitioner suggests
that the definition of "teacher", found at Texas Education Code section 21.201, is helpful:

       "Teacher" means a superintendent, principal, classroom teacher, counselor, or other full-time profession-
       al employee who is required to hold a certificate [*5] under Subchapter B or a nurse.

Petitioner contends that each individual classification is a different professional capacity for purposes of Texas Educa-
tion Code section 21.206. There are a number of problems with this interpretation. The first problem is that the defini-
tion in question is that of "teacher", not of "professional capacity." The second difficulty is that the statutory category of
"other full-time professional employee who is required to hold a certificate under Subchapter B" hardly seems a distinct
professional capacity. A third difficulty is that in a number of cases the Commissioner has interpreted "same profes-
sional capacity" in a different way. In Barich v. San Felipe - Del Rio Consolidated Independent School District, Docket
No. 117-R1a-484 (Comm'r Educ 1985), the Commissioner did not rule that the definitional categories created distinct
professional capacities:

       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 category (e.g. administrator), but nevertheless,
       be invalid (e.g., from superintendent to [*6] assistant middle school principal).

In Abbott v. Ector County Independent School District, Docket No. 081-R3-127, 105-R3-1287 (Comm'r Educ. 1991),
the Commissioner found that one hired as teacher/dean could not be reassigned to a pure teacher position. The Commis-
sioner noted that as deans the employees in question had administrative duties. While there is no defined category of
teacher/dean, the Commissioner found that such an employee had to be retained in the capacity of teacher/dean. In
Carpenter v. Wichita Falls Independent School District, Docket No. 247-3-491 (Comm'r Educ. 1993), Carpenter was
employed under an administrator's contract. She was first assigned as the science supervisor. She was then reassigned as
an assistant high school principal. The Commissioner determined that the two positions were in the same professional
capacity:
                                                                                                                      Page 3
                                           2006 TX Educ. Agency LEXIS 63, *


       It has been the consistent view of the Commissioner that the TCNA n1 balanced its grant of limited
       tenure rights against the considerable personnel [*7] 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 the public policy 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 to be consistent with the TCNA.

In Keith v. Tarkington Independent School District, Docket No. 459-R3-891 (Comm'r Educ. 1992), the Commissioner
found that a transfer from athletic director to teacher/assistant principal was a reassignment in the same professional
capacity even though athletic director and assistant principal are not listed in Texas Education Code section 21.201(1).
In Veliz v. Donna Independent School District, Docket No. 011-R3-999 (Comm'r Educ. 2000), the Commissioner found
that the professional capacity of certified administrator legitimately encompassed both attendance coordinator and mid-
dle school [*8] assistant principal. These cases are incompatible with Petitioner's claim that the same professional
capacity is determined in reference to the definition of "teacher" found at Texas Education Code section 21.201. Since
the language in question was first enacted in 1981 and the Education Code was reenacted without change in 1995, the
Commissioner's long standing construction is affirmed by the doctrine of legislative acceptance. Texas Dept. of Protec-
tive and Regulatory Services v. Mega Child Care, 145 S. W. 3d 170, 176-177 (Tex. 2004).

Comparison of Positions
     The Commissioner has held that in determining whether two positions are within the same professional capacity,
the first question is whether both positions are within the professional capacity stated in the contract and the second
question is whether the professional capacity is a legitimate professional capacity. Young v. Leggett Independent School
District, Docket No. 175-R3-898 (Comm'r Educ. 1999). The professional capacity stated in Petitioner's contract is "ad-
ministrator." In the present case, the two positions are administrator positions. Whether [*9] "administrator" is a le-
gitimate professional capacity that encompasses the positions in question is determined principally by comparing pro-
fessional skills and responsibilities.
     In the present case, Petitioner first held the position of Director of the Even Start Program. Even Start was a small
program, but a district-wide program. The program was designed to combat illiteracy by keeping the whole family in-
volved. Petitioner was responsible for 64 part-time students. Petitioner directed three teachers, a secretary, two daycare
workers, and a custodian. In effect, Petitioner's position was the equivalent to that of a principal of a very small magnet
school. For the 2003-2004 school year, as Even Start Director, Petitioner earned $ 58,840. On the district's organiza-
tional chart, Even Start Director was on the same level as principals.
     Petitioner's second position was that of an assistant middle school principal. Petitioner's duties as assistant principal
impacted more students, teachers, and other employees, but as assistant principal she had less authority. Except in the
absence of the principal, in many situations, Petitioner lacked final authority. For the 2003-2004 school year, [*10] as
an assistant principal, Petitioner earned $ 58,840. On the district's organizational chart assistant principals are on the
level below principals.
     The positions of Even Start Director and assistant principal are within the same professional capacity. While the
duties and responsibilities are not identical, they are sufficiently similar. Petitioner went from a position that was the
equivalent of being the principal of a very small school to being a middle school assistant principal. Petitioner's pay
remained the same for the 2003-2004 school year. While there was movement on the organizational chart, the move-
ment was only one level. This case seems most similar to Keith v. Tarkington Independent School District, Docket No.
459-R3-891 (Comm'r Educ. 1992). In Keith, the movement was from a central office position to the position of assistant
principal. The Commissioner held that the two positions were in the same professional capacity.

Demotion/Reduction in Salary
     For the entire 2003-2004 school year, Petitioner continued to receive her salary of $ 58,840. On April 8, 2004, Peti-
tioner was notified that for the 2004-2005 school year, she would receive a salary of $ 51,090. [*11] Petitioner main-
tains that the reduction in salary plus the reduction in responsibilities constitutes a demotion. This claim is a contract
claim. The Commissioner has stated that in addition to reductions in pay, such factors of reduction in responsibilities
and required skills are relevant factors when considering a demotion claim. Underwood v. Rusk Independent School
District, Docket No. 062-R3-198 (Comm'r Educ. 1998). However, since any reduction in responsibilities or required
                                                                                                                    Page 4
                                          2006 TX Educ. Agency LEXIS 63, *


skills is in accordance with Petitioner's contract, Respondent has not violated Petitioner's written employment contract.
Tex. Educ. Code § 7.057(a)(2)(B). Further, even if Petitioner could identify a violation of her contract, Petitioner cannot
show that this caused or would cause monetary harm. Smith v. Nelson, 53 S.W.3d 792 (Tex. App.-Austin 2001, pet. de-
nied). The only contract in evidence is Petitioner's contract for the 2002-2004 school years. This contract does not re-
quire that Petitioner receive the same or greater compensation for the 2004-2005 school year. While Petitioner may
have expected to receive the same or a higher [*12] salary, she had no contractual right to receive such a salary.
When a school district informs a teacher of a salary reduction at a time when the teacher can unilaterally withdraw from
the contract, the district may reduce compensation from one school year to the next as long as the compensation com-
plies with the state minimum salary schedule. Tex. Educ. Code § 21.402-21.403.

Conclusion
     Petitioner's reassignment from Even Start Director to assistant middle school principal was a reassignment within
the same professional capacity. Respondent has not impermissibly reduced Petitioner's salary or demoted her.
    Conclusions of Law
    After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity
as Designee of the Commissioner of Education, I make the following Conclusions of Law:
    1. The Commissioner has jurisdiction to hear this cause under Texas Education Code section 7.057, except as noted
in Conclusion of Law No. 3.
     2. Texas Education Code section 7.057 grants the Commissioner jurisdiction over written employment [*13] con-
tracts and "the school laws of this state."
    3. The Commissioner lacks jurisdiction to consider whether Respondent violated the requirements of the Even Start
grant under Texas Education Code section 7.057.
     4. "Same professional capacity", as used in Texas Education Code section 21.206, is not limited to the individual
classifications used in Texas Education Code section 21.201(1). This interpretation of the Commissioner is affirmed by
the doctrine of legislative acceptance.
    5. "Administrator" is a legitimate professional capacity under Texas Education Code section 21.206.
    6. Whether the professional capacity of "administrator" properly includes two positions is determined principally
by comparing the professional skills and responsibilities of the two positions.
    7. Petitioner's positions of Even Start Director and middle school assistant principal both legitimately fall under the
professional capacity of administrator.
     8. Respondent did not violate Texas Education Code section 21.206 [*14] by reassigning Petitioner from Even
Start Director to middle school assistant principal.
    9. Petitioner's claims of demotion and reduction in salary are contract claims. Texas Educ. Code § 7.057(a)(2)(B).
    10. Reassigning Petitioner from Even Start Director to middle school assistant principal did not violate her contract.
    11. Even if reassigning Petitioner from Even Start Director to middle school assistant principal violated Petitioner's
contract, it did not cause nor would it cause monetary harm.
     12. Reducing Petitioner's salary from the amount received for the 2003-2004 school year to the amount for the
2004-2005 school year did not violate Petitioner's contract as the salary offered was not below the salary required by the
state minimum salary schedule. Tex. Educ. Code § 21.401-21.402.
    13. Petitioner was not demoted in violation of her contract.
    14. 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 Designee of the Commissioner of Education, it is hereby
    ORDERED [*15] that Petitioner's appeal be, and is hereby, DENIED.
                                                                                                          Page 5
                                     2006 TX Educ. Agency LEXIS 63, *


  SIGNED AND ISSUED this 28<th> day of November, 2006.

FOOTNOTES:

        n1 "TCNA" stands for the "Term Contract Nonrenewal Act." Prior to the rewrite of the Education Code in
    1995, the statutory provisions concerning term contracts were officially known as the Term Contract Nonrenew-
    al Act.
                                                                                                                      Page 1




                                               HOLLY McCOY
                                                    v.
                                    KERMIT INDEPENDENT SCHOOL DISTRICT

                                               DOCKET NO. 004-R3-0908

                                       Copyright (c) 2012 Texas Education Agency

                                              2012 TX Educ. Agency LEXIS 2

                                                       April 13, 2012

PANEL: [*1] ROBERT SCOTT, COMMISSIONER OF EDUCATION

OPINION: DECISION OF THE COMMISSIONER
    Statement of the Case
     Petitioner, Holly McCoy, appeals the action of Respondent, Kermit Independent School District, concerning her
grievance. Christopher Maska is the Administrative Law Judge appointed by the Commissioner of Education. Petitioner
is represented by Mark W. Robinett, Attorney at Law, Austin, Texas. Respondent is represented by Christine Badillo,
Attorney at Law, Austin, Texas.
     The Administrative Law Judge issued a Proposal for Decision recommending that Petitioner's appeal be dismissed
in part and denied in part.
    Findings of Fact
    After due consideration of the record and matters officially noticed, it is concluded that the following Findings of
Fact are supported by substantial evidence and are the Findings of Fact that best support Respondent's decision n1.
    1. Petitioner was employed by Respondent under a term contract for the 2007-2008 school year in the position of
principal. This contract expired [*2] at the end of the 2007-2008 school year.
    2. For the 2008-2009 school years, Petitioner signed a term contract with Respondent. The contract is entitled "For
Certified Administrator."
     3. For the 2008-2009 school year, Respondent assigned Petitioner to the position of assistant principal. Petitioner's
salary or benefits for the 2008-2009 school year were not decreased from that received for the 2007-2008 school year.
    Discussion
     Petitioner contends that Respondent changed her professional capacity when it reassigned her from the position of
principal to the position of assistant principal. In particular, Petitioner maintains that the position of a campus principal
is a distinct professional capacity. Petitioner also contends that she was demoted. Respondent denies Petitioner's claims.

Demotion
     The Texas Education Code does not prohibit a school district from demoting a teacher. Petitioner has not alleged
that any section of the Texas Education Code prohibits demotions. To the extent the Commissioner has jurisdiction over
demotions, that authority must come from Texas Education Code section 7.057(a)(2)(B) which gives the Commissioner
jurisdiction over violations of written employment [*3] contracts that cause or would cause monetary harm. Because
Petitioner has not lost salary or benefits Petitioner cannot show the requisite monetary harm. Smith v. Nelson, 53 S.W.3d
792 (Tex. App.-Austin 2001, pet denied). The Commissioner lacks jurisdiction over Petitioner's demotion claim.
                                                                                                                     Page 2
                                           2012 TX Educ. Agency LEXIS 2, *




Same Professional Capacity
    A "teacher n2" who holds a term contract under Texas Education Code chapter 21, subchapter E that is about to
expire cannot be reassigned to new a position for the next school year unless the position is within the same professional
capacity as the position the "teacher" held in the current school year:

       (a) Not later than the 45th day before the last day of instruction in a school year, the board of trustees
       shall notify in writing each teacher whose contract is about to expire whether the board proposes to re-
       new or not renew the contract.
       (b) the board's failure to give the notice required by Subsection (a) within the time specified constitutes
       [*4] an election to employ the teacher in the same professional capacity for the following school year.

Tex. Educ. Code § 21.206. The term "same professional capacity" is not defined in the Texas Education Code. Howev-
er, the Commissioner from the earliest substantive decision concerning this provision has held that "administrator" is a
professional capacity.

      It is more reasonable to conclude that the legislature, by using the term "same professional capacity" (in-
      stead of "exact same position"), intended to allow school districts to be flexible in their personnel as-
      signments while discouraging the abuse of the district's inherent or contractual 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 to
      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 required notice by April 1 n3
 [*5] may not be placed in the capacity of a classroom teacher. . .
     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 category (e.g., administrator), but nevertheless be invalid (e.g., from
superintendent to assistant elementary school principal). Factors to be considered in determining the validity of such an
assignment include, but are not limited to differences in authority, duties, and salary.

Barich v. San Felipe-Del Rio Consolidated Independent School District, Docket No. 117-R1a-484 (Comm'r Educ.
1985). Further, the Commissioner has found that the professional capacity of "administrator" is to be broadly interpret-
ed:

        It is possible to imagine situations where the transfer clause of an employment contract would be held to
        be unenforceable under § 21.204(b) n4
. However, this is not such a case. It has been the consistent view of the Commissioner that the TCNA balanced its [*6]
grant of limited tenure rights against the considerable personnel management problems it might cause if imposed in-
flexibly. Districts have responded to this 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 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.

Carpenter v. Wichita Falls Independent School District, Docket No. 247-R3-491 (Comm'r Educ. 1993). In many cases,
it will not constitute a violation of Texas Education Code section 21.206, for a district to reassign a term contract ad-
ministrator from a position with one administrative job title to a position that has a different administrative job title.

Principal and Assistant Principal Certification
     Texas Education Code section 21.046 provides guidance for the State Board for Educator Certification in creating
standards for principal certification. The [*7] State Board for Educator Certification issues only one type of certificate
for both principals and assistant principals:

       Principal Certificate.
                                                                                                                        Page 3
                                            2012 TX Educ. Agency LEXIS 2, *


       (a) Due to the critical role the principal plays in campus effectiveness and student achievement, and con-
       sistent with the Texas Education Code (TEC) § 21.046(c), the rules adopted by the State Board for Edu-
       cator Certification will 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 TEC § 21.046(b)(1)-(6), the standards identified in § 241.15 of this title (relating to
       Standards for the Principal Certificate) emphasize instructional leadership; administration, supervision,
       and communication skills; curriculum and instruction management; performance evaluation; organiza-
       tion; and fiscal management.
       (c) Each individual serving as a principal or assistant principal is expected to actively participate in pro-
       fessional 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 [*8] Certificate issued under the provisions of this chapter may serve as
       a principal or assistant principal in a Texas public elementary, middle, or secondary school.

19 Tex. Admin. Code § 241.1. Both principals and assistant principals are treated by the State Board for Educator Certi-
fication as principals:

Requirements for the First-Time Principal in Texas

       (a) Principals or assistant principals employed for the first time as campus administrators (including the
       first time in the state) shall participate in, at least, a one-year induction period.
       (b) The induction period should incorporate the assessment and professional growth requirements con-
       tained in § 241.30 (b) of this title (relating to Requirements to Renew the Standard Principal Certificate).
       (c) The induction period should be a structured, systemic process for assisting the new principal or assis-
       tant principal in further developing skill in guiding the everyday operation of a school, adjusting to the
       particular culture of a school district, and developing a personal awareness of self in the campus admin-
       istrator role. Mentoring support must be an integral component of the induction period.

19 Tex. Admin. Code § 241.20. [*9] The fact that principals and assistant principals are both required to have the
same certificate and to undergo the same one-year induction period is significant evidence that principals and assistant
principals normally share the same professional capacity.

Principal's Role
     Petitioner is correct that an assistant principal reports to a principal. Petitioner is also correct that the Texas Educa-
tion Code gives specific and important roles to principals but not to assistant principals. Texas Education Code 11.202
makes clear that "the principal of a school is the instructional leader of the school" and goes on to specify duties of a
principal. A principal has specific duties under Texas Education Code chapter 37 concerning the placement of students.
There are real differences between principals and assistant principals. However, principals and assistant principals are
both administrators. Principals and assistant principals share the same certification. The mere fact that a term contract
"teacher" is reassigned from the position of principal to the position of assistant principal does not mean that a "teacher"
is being employed in a different professional capacity.
     In certain cases, [*10] it may be the case that a "teacher" would be employed in a different professional capacity
when a "teacher" is reassigned from being a principal to a position of assistant principal. A district could give an em-
ployee the title of "assistant principal" but give that individual none of the duties normally associated with the job of
assistant principal. In such a case, the factors set forth in Barich and perhaps additional factors might result in a conclu-
sion that a change of professional capacity has occurred. However, in the present case Petitioner's argument is that the
change from principal to assistant principal alone is sufficient to show a violation of Texas Education Code section
21.206(b). It is not.

Conclusion
    A change from a position of principal to a position of assistant principal does not necessarily involve a change of
professional capacity as that term is in Texas Education Code section 21.206(b).
    Conclusions of Law
                                                                                                                       Page 4
                                            2012 TX Educ. Agency LEXIS 2, *


    After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity
as Commissioner of Education, I make the following Conclusions of Law:
    1. The Commissioner has jurisdiction to over Petitioner's [*11] Texas Education Code section 21.206 claim under
Texas Education Code section 7.057(a)(2)(A).
    2. The Commissioner lacks jurisdiction over Petitioner's demotion claim. Tex. Educ. Code § 7.057(a)(2)(B).
    3. The Commissioner does not have jurisdiction over demotion claims based on Texas Education Code section
7.057(a)(2)(A).
      4. The Commissioner may have jurisdiction over a demotion claim if a violation of a written employment contract
is alleged that causes or would cause monetary harm. Tex. Educ. Code § 7.057(a)(2)(B).
     5. The monetary harm referred to in Texas Education Code section 7.057(a)(2)(B) must be a contract damage. If an
employee does not lose salary or benefits based on an alleged violation of a written contract, the employee has not suf-
fered monetary harm.
    6. Because Petitioner did not suffer monetary harm as that term is used in Texas Education Code section
7.057(a)(2)(B), the Commissioner lacks jurisdiction over Petitioner's demotion claim.
    7. Administrator is a professional capacity as that term is used in Texas Education Code section 21.206(b).
    8. The professional capacity of administrator, as it applies to Texas Education Code section 21.206(b), is a broad
professional [*12] capacity.
   9. The positions of principal and assistant principal are normally within the same professional capacity. Tex. Educ.
Code § 21.046, 19 Tex. Admin. Code § 241.1, and 19 Tex. Admin. Code § 241.20.
    10. The fact alone that a principal is reassigned to the position of assistant principal is not sufficient to show a
change of professional capacity as that term is used in Texas Education Code section 21.206(b).
    11. Respondent did not violate Texas Education Code section 21.206(b) when Petitioner was reassigned from the
position of principal to the position of assistant principal.
    12. The Petition for Review should be dismissed in part and denied in part.
    Order
    After due consideration of the record, matters officially noticed and the foregoing Findings of Fact and Conclusions
of Law, in my capacity as Commissioner of Education, it is hereby
    ORDERED that Petitioner appeal be and is hereby dismissed in part and denied in part.
    SIGNED AND ISSUED this              day of     , 2012.

FOOTNOTES:

             n1 See 19 Tex. Admin. Code § 157.1073(h); Bosworth v. East Central Independent School District, Docket
         No. 090-R1-803 (Comm'r Educ. 2003).
 [*13]

              n2 The definition of "teacher" found at Texas Education Code section 21.201 is truly a creature of statute. It
         includes individuals who would never in common speech be referred to as teachers.

              n3 In the original Term Contract Nonrenewal Act, a district had to propose nonrenewal on or before April 1,
         instead of the current requirement of "the 45th day before the last day of instruction." Term Contract Nonrenew-
         al Act, 67th Leg., R.S., ch. 765, § 2, 1981 Tex. Gen Laws 2847.

              n4 The old Texas Education Code section 21.204 is the predecessor of the current Texas Education Code
         section 21.206.
                                       CROSBY INDEPENDENT SCHOOLDISTIUCT
                                          TWO-YEAR TERM CONTRACT
8[01c atTe1a1)
Counly    ore.ma}
Thlt - - Is eulr:!:d lnlo by =! b e - ll>c n....i or 'l'Ns- or u.. OD1bJ ~ Soboo• c1.irtcc (Board) ...s
  11. Mag Jenld.Jul                                      (lklploy..) Ulldor Iha n.no..uia term od coodi~<W:

I.     Tho Bmnf hezdit 4Sft>t' ta mploy Iha l!mplD)'<O ..d Iha lOliployoo IJP'll"S lo """' Ibo Board by aiJ!lllin11 lo d:W.. u         amSD'd by      ti..
Slljl<rinrmdmt at lho Cl'mh)' lndopetul:ol Sdiool D!urli:t tor !be ldlool yan ...al!Y.....:--29.!:L wllb bcgizmi:sg Ibid =iditJs dalel u     tel   by lhc
BOdrd.
.2,    Tllo BoanhllT"'" lol":l'lhoBmploy=farllioaavims l1"1dcnd m1 ll:llllW mW)'e=rtl!n110 lllceom!"'IJWfon ph11 adopted by Ilic llDOJ'd. Th•
Employee 1111dorltands 1J1d 'Bl"'!I thAr .,.1y Iha llotrd Is wthocbd to =llhU1b u tmillAl Alazy &Ill! IJTll np"""'lallom llWlo by Ill)' olhor ~
Rgudlag mW)' It oflKl o!Ted "'"11111111 aDI be nlkd 11pon.

).       IC IJ vmlcmood acd 1s-f by Ille fl'llles Ill Clils Camd lhlt Ibo SllJICrlm.mdOZ1! at Iha Ch>lby ~ Sc:bt>OI DIJ!ricl dllJI li&v6 llit risllt
fll .t.nf1111 sucli dudCf la Ilia E=pfoy.. LI Iha ~ WJ1 datm pmpc; &lid tiiloo Ibo Easpl01li0 a not employed IO !DI • rptc:i.lla poaidaa at
wlJIDZll&:ll~ 111.o s~1 lllll)' adsn arRUdp Illa Bmplll)'llO 1<>ctbctcr addldllllll dJUlu lbt""1Llh ~ orw u portafooallycenU!od ci
allu:rwloo ~Q8cd 10 pcrliiim. lulm!n4iro.lln du,tct will bo lll&da lridt IM llpplDYll otlhcr Boan\.
~.                                                            for""""".
      8Qppl1:111a11al dlll!BI "'">'be ... 1gn.oc1 ID Iha llmployoe dj>mld 1rt1t'/ or IJlllYllOC be pel4. No ~rlJ)ll IO =ntlnued l::lllp!oyml!lll
llllsta Ill m:b sappJ""""tal dod01 reBlltllort or~ lllp<adl.,. pold, and IUOh dutli:s....,. bo i.nntoalad fat ""1 .....,. ct lot.,., n:um. et 1111:
..1cdl&crdloucrlbriS~ ll>'llb 0... 11..nhpprom
S, It II ~ mid apt.cd lha1 IC Iha Employee Ii 01Dplo,..i hi 1110to dl.ai oac pcllfdon tuth u lu.cbalDDlob ct ~d dlrtdcr, tho
Employee'• por{onmlleb will bo <Mlltmttd In a1:.b toflinmonl. lll!l! th! wu.lll.d'm:lcry pcr6111nsm:e in ellh<r wl,Bllllll!lll COllJdlUler l!llilllds for
nOtll'Cll.tW1ll ar lambu6GO    or
                            U:ll CGtlrlol. The flll~iayM c:amol Jeoi&n Cllb Jl<llljloo wii!iwt IClfllJllnl both lJlltu. wiib Iha •ppn1Y1l of tho
BoptdataWa!.
d. 11IsIOllbsloc.J11111 qrctd by~ pon1., ti>thls Ccnncl th&l 1116.l!mployeo Jhall c:any Oil! hll orhtr olul!m to !Im boll nrbtJ or hlrd:fll qd
abtll:y -ilhlll tJICl!azgn lb du!la "'l"&td by lh• ft:dcnl ,..,,, 1oy atbool Ian orIlda a.i., w lrylhla Dt.nicl. tho ecm-i. 'f'OOll!c:olly fRldl!CI
111 tbepollclot, ~'4mbilllnllve ~ nz!nslld lq11JAl!Ollfaflho Dblrict whl<:b ...                   la oa..:taulu time, llll)'.......i-tJ1"lildt inay
ht:Rallabo aw:ud or1111)' wb!cb may bo l4opl<d durlo1 I.he CClm atlhl.t Coatnal.

7, Thlt Cot:i1n1111s caadllloaod oo Ibo l'mployoo l'fl"lldlaa th ata:u11y Cl!ldllcalllll 11111 QJ>tTI...,. -m. midlcal ioeoti!s, a.tis oraffic4 and
odn:r......U nqWcd by lb# DW:lct. Al dul beslmda.r crlh!1Caallv:I,a.od&1q1!11111 dmloglht. 0.mnct, thlo Ealployee api:c1Jlcall)' GjpKa IO
"'1miltID • n:vi- or hfl "' ,_ 11111•1111 mimlml hlalOly ._..i lnltinnllloa (NCHlll} If ftllUln:d by lb Dlattltl. TBA. or 8BBC. AZJ'f
taltnp~ ~ la Ill)' orlb=.. .......ta lhsll bo ,._.i, J'ar tho tamlllOllcri a( ""'l'ioyaaaiL

L Ar(/ aclioo ... .-1 lhu Iha Board ~ -             • lllwlW.l mll"DOY &Ill! • C!O<i ID rtdlll:o Clptndlllftl for pemim~ mt.b u, bUI 1IO!
lbltid"" doi:IW.. la ......nmw er iu rev-. nduclloti11111\mdlca. "'dw>ao 11rp1<1pm ehJlJ mudlu!D cat111 fbtlmnimllC111 oL""'J ~
durlas ll>: l':ml orllilt C4lllraot.
9, l!mpkrymccl la a fmlmlty or~y llmdal podllaa I.a~ c=dltlll!led llJ>CI! lho1Vlllahllity a!IWI lllmilll& t\rlbo poddol1, llliacy
"""1<1llDI cfsaol! limdlq:C0111tllul= saod aw.. li>rlmab.Wlmi afdiit ~

10. 1haBoW otTnutculholl 11<11lfy llmploym to 'llllitl:qi, ao1 !nlQ' llmnllia ~s" illy beme lhA lu!duy of1-llc:tl= la u.. oohaol fW'covcn:d
bylbl1 Ccalnu:t, wliclhu l1lnto:ldt111 n:nnor11111l'Dlle!V Ibo ecmn..L llm:wal or~ will bo luw:bn!l!ICll wtll1thtBllllllpolll:y111111111111
low.
11, Tha&.nllut.snot~011Yp<1lk:y, rale,n:;ullld1111, lnrorpiutlup111ridlqli:ir 1.0m1:o. No rlehfo!l>Dln!lsaaltd bylhl1 Co:mct. Tuls
Caatra<t rhoU not 11111n or c:raia 1111)' ...oin.:!ual czrctborcpccllllcy ctCODlb111ed =iiloym<DI i:zrololm ori:mldcmail ti> cmplO)'llll:o.t beyolid ll>a
!ml! c!Uio O:oalOI:(.

ll. DudZQI lhalatm •flhls Calllract. thol!inplayao lllll)'l>crlerallaaod 111taood colll6 udclettalned bylho Boud, lill&lltld =daeccy lhalroqulnu
h:ductlDll la pc1111Z1111~ lll'WN'f:/l'OOIOa llllal f!I BoudpoUoy fottliltCmillaal. 1ha BoardtDllf lllllpmid l!mpl"7"0 wllllout pll)' !bl' aocd -.au
dcl.crmlacd hy1hc Botnl lOra period notll> a1=1d bayDIHI lhctlld otllle ..i..ot yCN"........t la dilr CUllllUl:s-liur;dhcliatp otllmp!oy•ur In
Um.1 otwmhmllon.

13. h Ir W>dtnlooc! llllCI lljlrocd by Iha Baud l:id lh• Eti.ploycc, lflll llpoll "'""l't=.o Qf lhJs Cwtmt by IM Empll7)'tc. 1111 prcv!DW1 aialmtJ or
~twltb Iha Board 1111 svpmcdtd wt ltmilIW&d !lad 1111 orm lhnoi lllld r.lrcet.                           •.-

 Joi. Tho   '"'"Y                       or
             lbr Iha !art DKmlh Ill• itrm o! Ihle Cculnl:I WlJ be i"'}'lhl• only 1q>011 r=dpt lium ti= Employoo ot all Dlnlcl p-oporty,
loxllJoo.b, ~ llld ropotfl reql>!nod by lh• Dlllzlc:I.                                    •
                                                                                            ,,1
IS. Tho Employi::a may tt.Sfa:i atlho cad ort1s11c:lio0lyw llDwn:d bt Ibis Ccnilr&cl by l!IJai a wri11e1 realgn11!on wltb Iha Boan! ia loag u Ille
~ "'laaod•n I& lllcd &]' th• 43• day ~ lln! 11111 "'Y ct Iha follow!a1 sebOlll you. A 'Wtlllc h:Glsmtlon malled by prrpold tud1tcd t1t
~ a...11 ti> Ilse Ptmldml of tluJ Boan! 11 lhc pClll ome11 lddiao or 1llo Dlmli:t It C06lldetcd llled ai lho tlma af mall!ag. Ir dlt l!mplO)ll:O
Mlcmpl! 111talgn &t lll>Y allu:r l&nc, lhc.BniplO)'Hwl!l lit releual &om.tldrCaabutcnly wlill lllci wrltlell CllllUlllotlho Bolllli. !Clhe !loud doa
~ PlllltDt la mloue Illa !!mployco lllld Iha J!mployca =vathtlosl lhudoo.i llm C4almcl, Illa          nwno1 may   lila • compfalnL KC!da.a uncdona
a.,.Jml dm ED!j>lo;yta>. 'lrilh Iha Slalo l'loatd tor llduClllbl C6nUlc:alloll.
 I(       lavslWtyotll\l' J10111= oftbb ~ct lllldo: lllo la1n Dl'lllo Siiia orTaw or of Ibo !JlllU>d Staid          &ball.,., .m:ct tbc Vil.Id!!)' ar Iha
n:malm!:r o!tho Cwll'Dcl.                 •
 17.      'lbia o~ ot 111q1IO)'llW!t exi:l:u   tr lhh   Comnot la not 1laaal sl:d ra1IJnla! 111 di. lluporlmcmdait by lho l!mploycc C111 or bct1X11
      Harth 31                                             1!1.!L__,




                                                                                                                                                                   ( \~

                                                                                                                                                        H. Jenkins v. Crosby ISD
                                                                                                                                                                  TEA #: 000294
                             Appendix -- Legislation

1.   Act of Aug. 31, 1981, 67th Leg., R.S., ch. 765, 1981 Tex. Gen. Laws 2847
     (current version at Tex. Educ. Code § 21.206(a)).

2.   Act of Sept. 28, 2011, 82nd Leg., 1st C.S., ch. 8, § 9, sec. 21.206,
     2011 Tex. Gen. Laws 5463, 5465.

3.   H.J. of Tex., 67th Leg., R.S. 3522 (1981).

4.   House Committee Report, Tex. S.B. 341, 67th Leg. R.S. (1981).

5.   Introduced Bill, Tex. S. B. 341, 67th Leg., R.S. (1981).

6.   Term Contract Nonrenewal Act, 71st Leg., 6th C.S., ch. 1, § 3.14,
     1990 Tex. Gen. Laws 1, 30.

7.   Term Contract Nonrenewal Act, 74th Leg., R.S., ch. 260 ch. 21 subch. E and
     F, 1995 Tex. Gen. Law 2207, 2378-79.

8.   Term Contract Nonrenewal Act, 78th Leg., R.S., ch. 484, § 1,
     2003 Tex. Gen. Laws 1749.
1   o
                67th I,EGISLATT'RE-REGULAR                SEITSION             Ch.    ?6õ


      TENM CONTRACT NONRENEWAL ACI-TEACHNRS
               AND SUPERINTENI}ENTSI
                                  CHAPTER       706

                                  S. B. No.341
   An Aot r.l¡tlng to .tañd¡?d. rnd prôoaduF.a toF lh|l rþnranawtl of oont?¡ot¡ lor
       t æhc?. tnd .uDælntlndant. urrdôr tlrot oonl?¡otr tnd to Drob¡tlon ln låa
       publlo .thool¡ ol thl. ¡t¡tr¡ rddlng !.ctlon.8t.l01 thrluth ll.l11 to tub.
       oh¡pt r O ln Ch¡Þt.r 2l ot th. Lrtr lduo¡tlon Cod., ¡¡ ünrñd.d.

8o åt nneote¡l bU the Leghla,tue ol the Stote of Teaøe :
   Section 1.0¡ Thls Act shall be k¡iown a¡ "The Term Contr¡ct Nonre-
new¡l Act."
   Sec. 2. Subchapter G, Chapter 21, Tex¿s Educatlon Code, ar amend-
ed, ls amended by adding{. Sections 21.201 through 21,2U to re¡d 4s fol-
Iow¡:
    "Sec. 21.201. Deflnltlon¡
   "A¡ used in this subchaDter, the fotlowins term¡ sh¡ll have the mean-
lng ascrlbed to them ln thl¡ aectlon.
        "(l) 'Teacher' means a superintendent, prlncipal, supervisor,
    classroom teacher, counselor, or other full-tlme professlonal em.
    ployee, except paraprofeaslonal perronnel, who l¡ requlred üo hold a
    valld certlflcate or teaching permit.
        "(2) 'Bo¡rd'cnd'board of tru¡tees'me¡n¡ the governlng board ot
    a publlc ¡chool dlstrlct.
        "(8) 'School dlstrlct' means any publlc rchool dl¡trlct ln thla
    ¡tate.
         "({) 'Term contrect' mean¡ sny contract ol employmenü for a
     flxed term between the school dlstrlct Bnd a teach€r.
   "8ec. 21.202. Te¡chcr Ev¡lu¡tlon¡
    "The board of trustees of each school dlstrlct shall provlde by wrltten
pollcy lor the perloillc written evaluatlon of each teacher in ltr employ at
ennual or more frequent Interval¡. Such evaluatlon ¡hall be con¡ldered
by the board of trustee¡ pr¡or to any decislon by the board not to renew
the term contract of eny teacher.
   "Sec. 21.209. Nonrenew¡l of Tcrm Contr¡ct¡
    "(a) The board of trustee¡ of each ¡chool dlstrlct may chooae not to
renew the employment of any teaeher employed under a term contract ef-
fectlve at the end of the contr¡ct perlod.
   "(b) The board ol tru¡tee¡ of each ¡chool dl¡trlct shall e¡tabllsh poll-
cle¡ conslst€nt wlth this subchapter whlch sh¡ll e¡tsbllsh re¡¡on¡ for non-
renowal.
   "(c) the board of ürustees of oach ¡chool digtrlct ¡hall ertabllrh poll.
cle¡ and procedurer for recelvlng recommendetlon¡ from lt¡ school ad-
mlni¡tratlon for the nonrenewal of teacher term contr¡ctr, exceptlng only
the general superlntendent of ochool¡.
   '€ec. 21.204. Notlce
   "(a) In the event the board ol trustee¡ recolve¡ a recommendatlon tor
nonrenewal, the board, ¿fter conslder¡tion ol tho wrltten evaluatlon¡ re-
qulred by Soctlon 2L,202 of thla subchapter and the reasone for tho rec-
tù V.Î.C,Â. Eduo8tlon Codc, | ¡1,¿0¡ Of. V.T,C,À          Educrtlon Codr,   ll ll,l0l   to
 noto,                                8l,l1l'
                                        2t47
Ch.   ?Oõ        OTth LEGISLATURE-NEGUL/IR SESSION

ommendatlon, rhall, ln lte sole dlocretion, either reJect the recommend¡-
tlon or ¡hall give the teacher written notlce of the propored nonrenewat
on or beforp April I precedlng the end of the employnent term tlxed in
the contract.
   "(b) In the event of fallure to give ¡uch notlce of propoeed noDrenew-
¡l wlthin the time herein rpeclfted, the board of trustee¡ ¡hall thereby
elect to employ ruch employee in the same profesaional capacity for tbe
succeedlng school ye¡r.
   "(c) The notlce of proposed nonrenewal requíred ln thl¡ ¡estlon sh¡ll
contaln ¡ statement of all the reasons for ¡uch propoBeal sctlon.
    "Sec. 21.20õ. Hearlng
    "(a) If tbe te¿cher de¡lre¡ a hearlng after recelvlng notlce of the pro-
poeed nonrenewal, the teacher shall notlfy the board of tn¡¡tee¡ ln wrlh
ing wlühln 10 dayo ¿fter recelvlng the notlce of nonrenew¡I. The boeril
shall provide for e hearlng to be held wlthln lõ dayo alter recelvlng wrlL
ten notlce from the teacher regueating a hearlng. Such heerlng shell be
closed unles¡ an open hearlng ls requeated by the employee.
    "(b) The he¿rlng shall be conducted ln ¡ccordance wlth rulec promul.
gated by the    dl¡t¡ict.
     "Scc" 21.200. Decl¡lon of Bo¡rd
     "(¡) If
           the teacher fail¡ to requert a hearlng, the bo¿rd sh¡ll tske
¡uch actlon as lt deemo lawful and approprl¡te ¡nd rhall notlfy the em-
ployee ln wrlting of thet actlon wlthln lõ daya of the explratlon of the
lO-day perlod  for requeetlng ¡ he¡rlng.
     "(b) Ifthe teacher requerta s hearlng, the board ¡hall t¡ke ¡uch ac-
tion as lt deems lawful end approprlat¿ and shall notlfy the toacher ln
wrltlng ot th¡t action wlthln lõ dayr followlng the conclu¡lon of the
hesrlng.
   "Sec. 21.207. Appcal
   "(s) If the teacher lr aggrievod by the decislon of the board of tru¡Þ
eer, he may appeal to the St¡te Commlasloner of Educ¡tlon purõuant to
Sectlon 11.18 of thi¡ code. îhe comml¡sloner may not sub¡titute hi¡
Judgment for thet of the board of tru¡tee¡, unles¡ the decl¡lon below wa¡
¡rblt¡ery, ceprlclour, unlawlul, or not rupported by ¡ub¡t¡nülal evldence.
   "(b) The State Bo¡rd ol Educatlon ¡h¿ll h¡ve Jurhdlctlon to hear ap-
pealr from ¡ush decl¡ion¡ ol the Stat¿ Commlssloner of Educatlon.
   "Sec. 21.208. Superlntondente
    "Il a maJorlty of the bosrd of trugtee¡ ol any ¡chool dl¡trlct ¡hsll de-
termlne that the term controct of the general euperlntendent ol ¡chools
should be considered for nonrenewal, the provlslons of thls eubchapter
rhall appl¡ ercept th¡t tbere need not be s recommendstlon trom the
de¡lgnated school Âdmlnl¡tratlon.
    "8oc. 21.209, Prob¡tlon
    "The boa¡d ol tru¡tee¡ of any school dlsürlct may provide by written
pollcy for a probatlonary porlod not to exceed the fir¡t two yeara of con-
tlnuou¡ employment ln the dl¡trlct, ln whlch case the provlrlonr of thl¡
rubch¡ptor rhall not apply rlurlng ruch probatlonary perlod.
   '€oc. 2lJl0. Ill¡ch¡rge lor C¡u¡e
    "Nothlng ln thls subchapt€r shall prohlblü a board of t¡ustees from
dl¡ch¡rging s toacher lor csuse durlnS the term ol the contr¡ct.
   "SGc. 21.211. Erernptlonr
    "Thl¡ subchepter doer not aDDly to teecher¡ who are employed under
the provlslon¡ of the probatlonary or continutnr contrect l¡w a¡ ¡et out
ln Subchaphr C of Chaptar 18 of thl¡ code."
                                   2f,/,8
                         O?Th      LEGISLATURE_REGUTI\R               SESSION              Ch.     ?OO


    Sec. 8. The importance ol thia legisletion a¡rd the crowded condition
of the calendars in both hou¡ee create an emergency and an imperatlve
publlc neceealùy that the constitutional rule requiring bill¡ to be read on
three ¡ever¿l d¡y¡ in each hou¡e be auepended, ¿nd thls rule i¡ hereby
ruspended, and that thls Act t¿ke effect and be in force from and ¡fter
ita paerage, and lt i¡ ¡o enacted.
    Paseed the Sen¡te on May 12, 1981: Yeas 80, Nayr 1; Sen¡te con-
      curred ln Hou¡e amendments on May 26, 1981, by r vlva-voce vote;
      passed the House, wlth amendments, on May 2õ, f981. by ¡ non-rec-
      ord vote.
    Approved June 17, 1981.
    Effectlve Aug. 81, 1981, 90 daye after date of adJournment.




             PSYCHOLOGISTII-LICENSURE, CERTIFICAIION,
                        AND REGULATION
                                               CITÂPTER 760

                                                S. B. No. 869
      An Act rclltlng to tha oonllñu¡tlon ol th. Î.xr¡ ¡trt. Ðor?d ol ¡r¡mlna¡l ot
          Payoholoelab, ltr orernllltlon, pow.¡., tnd dut¡rì .n.l th. r.eulatlon ot
            provldara       ol pryohologlc¡l a.¡vlca¡lamandlne ¡aollona ¡l' arr õ, ar l, 11, lt'
             14, 1ó,     tl, ll,
                              m) 2I ¡1, rnd ¡!, Paycholoelatat C.Éltlortlon .nd Llo.ñ¡l¡e
             Act,   rr   rnondrd (Artlalc {¡11o, Vtlnon'r T.x¡. Clyll atrtut.¡).

Be    it
      enaated by the Legiela,tutc of the Støte ol Tenøe:
           l. Sectlons 4, 4a, õ, 0, 8, 11, 12, 14, 1õ, 10, l?, 20, 21,22, and
      Sectlon
29, Prychologlst¡' Certiflcation and Llcenelng Act, as ¿mended (Artlcle
4õ12c, Vernon's Texas Clvll Statutes), are amendedol to reed as follow¡¡

        ßt¡to llo¡¡d of E¡arÍlnor.¡ memben; appolntrncnt rnd tcrmr¡ oetlr
   "Sec. l. (a) The Texa¡ St¡te Board of Examlnsrs of PcycholoSl¡t¡
shatl con¡fst of nlne qualtfied p€rsonr appolnted by the governor wlth the
¡dvlce and consenù ol the ¡anate, for regular term¡ of eir years.
   "(b) Before enterlng upon the dutle¡ of hlr offlce, each member of ùhe
Board ahall t¡ke the con¡tltutlonal oath of offlce and llle lt with the ¡ec-
retary of etate.
   "(c) Appolntments to the Bo¡rd ¡hall be made wlthout re8ard to thc
race, creed, sex, rellglon, or national origln of the appolnteee,

                                          Âppllcetlon ol Sun¡ot Acù
      "Sec, 4¡. the Texa¡St¡te Board of Examinerg of P¡ychologlrtr lr
rubJectto the Texa¡ Sunset Act, as amended (Artlcle õ429k, Vernon'r
Îe¡a¡ Clvll Statutes); and unlesr continued ln exlstence as provlded by
thst Act the Board                 l¡   aboll¡hed, ¡nd thls Act explree effectlve Septembçr
1, 1998.

tö.   Vornon'. Ann,Clv,Bt. r¡t, aõl¡c'         ll { to
 6,   I, tl, 1¡, tl to 17, 80 to ll,
                                                    2849
2   o
82nd LEGISLATURE-FIRST CÂLLED SESSION                                                      ch.8,$l
            (B)   the woma,n's 21st birThda'y.

                      ARTICLE 16. IMPLEMENTATION; EFFECTIVE DATE
   SECTION 16.01. It is the intent of the legislature that the Health and Human Services
Commission take any action the commission determines is necessary and appropriate,
including expedited and emergency action, to ensure the timely implementation of the
relevant provisions of this bill and the corresponding assumptions reflected ín H.B. No. 1,
82nd Legislature, Regular Session,2011 (General Appropriations Act), by Septæmber L,20tL,
or the effective date of this Act, whichever is later, including the adoption of administrative
rules, the preparation and submission of any required waivers or state plan amendmenLs, and
the preparation and execution ofany necessary contract changes or amendments.
   SECTION 16.02. Except as otherwise provided by this Act, this Act takes effect on the
91st day aft,er the last day of the legislative session,
  Passed the Senate on June 3, 201 1: Yeas 31, Nays                0; June 1 3, 201 1 , Senate   refused to
            concur in House amendments and requested appointment of Conference Commit-
            tee; June 15, 2011, House granted request of the Senate; June 27,2011, Senate
            adopted Conference Committee Report by the following vote: Yeas 22, Nays 8;
            passed the House, wilh amendments, on June 9, 2011: Yeas 89, Nays 41, one
            present not vot¡ng; June 15, 2011, House granted request of the Senate for
            appointment of Conference Committee; June 27, 201 1, House adopted Conference
       Committee Report by the following vote: Yeas 96, Nays 48, one present not voting,
  Approved July 19, 2011.
  Efiective as shown in S 16.02



                                                 CIIAPTER      8

                                                  S.B. No. 8
                                                     AN ACT
relating to the flexibility of the board of trustees of a school district in the management and operation of
public schools in the distrlct,

  Be   it   enacted by the Legisl.ature of th,e Stnte of Teras:
  SECTION     1. Section 21.0031, Education Code, is amended by amending Subsections (a)
and (b) and adding Subsection (b-1) to read as follows:
  (a) An employee's probationary, continuing, or term contract under this chapter is void if
the employee:
     (1) does not hold a aalid, certificate or permit issued by the State Boa¡d for Educator
  Certification; [e+]
    (2) fails to fulfill the requirements necessary ta rennw ør extend the employee's
  temporary, probøtionørg, or emergency certificate or ong other certificøte or permit issu,ed,
  under Subchapter B; ør
    (3) føil,s to cømplg with any requ,iremnnt unÀer Subchapter C, Chapter 22, if tha føi,lure
  results in suspension or reaocøtion of the emplngee's certificale unìpr Secti,sn
  22.0831(Í)(2).
  (b) Il ø school district has krwwlndge thnl an t
employee's contract is void under Subsection (a):
     (l)the t+sehsell district may, eøcept os prouid,eil W Subsectinn (b-1):
       (A) terminate the employee;
       (B) suspend the employee with or without pay; ot
       (C) retain the employee for the remainder of the school yeax on an at-will employment
     basis in a position other than ø positiøn required to be hpli by on em,playee undnr ø
                                                    5463
ch.g,$1                                   82nd LEGISLATURE-FIRST CALLED SESSION

     contra.ct und.er Section 2f .009 lelass+€em-teå€h€]l at the employee's existing rate of pay
     or at a reduced rate; and
     (2) the empìoyee is not entitled to the minimum salary prescribed by Section 21.402.
   (b-1) A sch,ool d,istrict møy not tenwinate or suspend, undnr Subsectiøn (b) an enryl.oyee
wlwse contront is aoid, und,er Subsection (o,)(1) or (2) because th,e emplogee fuil,ed to renew ar
ertenà the ernpbyee's certificate ør perrnit if the empl,oyee:
     (1) requests an ertension from the State Board fvr Edurator Cør'tifi,cøtion to reww,
  ertend,, qr othnru¡ise aøIidnte the em,plogee's certificate w perrnit; and'
     (2) not la,ter thøn the 10th døy øfi,er th¿ døte the crmtra.ct ß uoid, takes necessøry
  mßøsures to rennw, entend. qr othatwise aal;idnte the employee's certiftcate w permit, os
  iÌptennined bg the State Boørd for Ed,ucøtqr Certiftcation
  SECTION 2. Section 21.051, Educabion Code, is amended to read as follows:
  Sec. 21.051. RULES REGAkDING FIELD-BASED EXPERIENCE AND OPTIONS
FOR FIELD EXPERIENCE AND INTERNSHIPS. (ø) In this sectiøtt, "teo*her of
recqrd," m.e&ns ø person em,plaged fu ø school district who teo,ch,es thn ma:jøritg of the
instru,ctiqna,l iløE in an a,cademic instructi,onnl setting ønd, is responsiblc før euo,Iuntíng
 stuilent achieaement and assigning gra'dcs.
    þ) Befure o, school d,ßtrict møy emploE a cand:idate far certificøtion os ø tea,ch,er of record,
 th,e co,nd,idøte m,ust complete at l,east 15 h,ours of Jield,-ba.sed erpørience in wlvích thp
 cøndidntø ß ontiaelg engaged in instrurtionøl or ed,ucoliqnøl a,ctittities unil,ar supvrvi,siqn øt:
       (1) ø public school camVus oncred,iteil or øpprouedfør th,e purVose by the agency; or
       (2) a priaøtn school recognized sr øpprwed,for the purpose fu the øgency.
    (c) Subsection (b) applies only to on initiøl certi,ficøtiun issuecl on or afi,er Septem,bør 1,
2012. Subsection (b) dnes not affect:
       (1) the aalid,íty of ø certification i.ssupd, before September 1, 2012; ar
       (2) the eligibility of a person who holds a certification issued before September 1, 2012,
    to obtøin a subsequent renewal of the cørtificalion in a,ccqrdz,nce with boa.rd ntln.
    (d,) Subsectiun (b) dnes not øffect the period w¿thin which an ind,iaidual must cotttplete
ftelil-bosed enperience hsurs øs d,etermineil fu board rule if thp indiaiùual is not ancepted
 into on ed,ucalor prepøration ptogra.rn befare the d.eod,l;ir¿e presvibeil fu board ru,ln onil, is
 hired, for ø tearhi,rry øssignment by a sclwol d,istri,ct øfi,er th,e d,ead,l;íne prescribed, by board
rul,e.
   (e) Th,e boørd shøII propose ru,l,es relating to the field-based, eæperience required, by
Subsection   (b). The commissioner bg rulc shøII arlnpt procedures an¿I standard,s fvr
recognizing ø priuate school und,er Subsection (b)(2).
    (fl The board shall propose mles providing flexible options for persons for any field,-based
 [field] experience or internship required for certification.
    SECTION 3. Subsection (a), Section 21.103, Education Code, is amended to read as
follows:
    (a) The board of trustees of a school district may terminate the employment of a teacher
employed under a probationary contract at the end of the contract period if in the board's
judgment the best interests of the district will be served by terminating the employment.
The board of trustees must give notice of its decision to terminate the employment to the
teacher not laþr than the 10th 145ùl day before the last day of instruction required under
the contract. The notice must be d,eliaered personallE by hond del:iuery to the teanh,er un the
ca,rnyus qt, which the tes.cher is emploEed,, ercept thøt if the tearher is rnt present on th,e
cùnxpus on th.e døte that hand, d,eliuery is øttempted, th.e notice mast be mail,ed, bg yrepaid,
certified møil or dnliuered, by eupress rl,eliaery seruice to thn teaßher's odd,ress of recørd with
the district. Notice that is postmarked on or befme the 10th d,ag beþre th,e last dary oÍ
instructiqn i,s considered timely giuen und,er this subsection. The board's decision is final
and may not be appealed.
   SECTION      4.   Subsection (b), Section 21.104, Education Code,        is   amended   to read   as
follows:
                                                 5464
82nd LEGISLATURE-FIRST CALLED SESSION                                                ch. g, $ 10
  (b)   In lieu of discharge or   pend,ing dischnrge, a school district may suspend a teacher
without pay for good cause as specified by Subsection (a) for a period not to extend beyond
the end ofthe curent school year.
  SECTION 5. Subchapter C, Chapter 21, Education Code, is amended by adding Section
2L.l04l to read as follows:
  Sec. 21.101¡1. HEARING UNDER PROBATIONARY CONTRACT. Atea,cher is entitled
to:
    (1) ø h,earing as prwid,ed, by Subcluapter F,      if   the teanhør is protesting proposed antion
  und,er Section 21.104i or
    (2) ø hearing in a man'tùer yrouid,eil urtÅ,er Section 21,207 fm nØùrenewcil of ø tenn
  conl,røct ør a h,eøring Wouid,ed fu Subchøpter F, as dptennitwd, W the boørd, of trustees of
  the d,istricl if the teø,ch,er is protesl;íng yroposed a¿ti,on to terrnfumte a yrobationary
  contrøct beforc the end, of the cqntrs.ct period, on thp bq,si,s of a fi,wnniøI erigenty d,ecløred
  und,er Section 44.011 that reqwires ø red,uctiqru in persønnnl.
  SECTION 6. Subsection (b), Section 21.L56, Education Code, is amended to read as
followsl
   (b) In lieu of discharge or pend,i,ng d,isclørge, a school district may suspend a teacher
without pay for good cause as specified by Subseetion (a) for a period not to extend beyond
the end of the current school year.
   SECTION 7. Section 2L.L57, Education Code, is amended to read as follows:
   Sec. 21.157. NECESSARY REDUCTION OF PERSONNEL. A teacher employed
under a continuing contract may be relea.sed at the end of a school year and the teacher's
emplo¡rment with the school district terninated at that time because of a necessary reduction
of personnel by the school dístrict, with those reductions made primørily based, upøn, tea,cher
øpprøisøls adminßtered, unl,er Section 21.352 ti@l                                      in the
specific üeaching fields o,nd oth,er criteriø øs d,etenni,rwil, by the boøril.
   SECTION 8. Subsection (b), Section 21.159, Education Code, is amended to read as
follows:
  (b) A teacher who notifies the boa¡d of trustees within the time prescribed by Subsection
(a) is entitled to;
     (1) a heanng as provided by Subchapter F, i,f the tearhnr is protesting proposed, ar,tion
  wndpr Saction 21.156; er
     (2) o, h.eøri,W i,n ø m,anwr provülcd, und,qr Sectiøn 21.207 for nønrerwwøI of a terrn
  contrq.ct vr ø h,eøríng proaidcd, bg Subchnpter F, e.s dptermi,n¿d ba the boørd, if thn tnanher
  is yrotesting proposeil action und,er Sectiqn 21.157 or proposed, o,ction to terminnte a term
  oontrant øt ong time on the basis of ø frirwncio,I enigencg dpclnred, uninr Secti,an 41.011
  thøt røqui,res a reduction i,n personnel.
  SECTION 9. Subsection (a), Section 21.206, Educatíon Code, is amended to read as
follows:
   (a) Not later than the 10th [45ih] day before the last day ofinstruction in a school year, the
board of tmstees shall noti$r in writing each teacher whose contract is aboub to expire
whether the board proposes to renew or not renew the contract, Th,e notice must be
deliuered, persanally W hfrnn, dnkaery tn tlte tna,chør on the co,m,pts o,t wltich th,e teanhpr is
employed,, eøcept thøt if the teach,er is not present on the cs,m,pus on the date that hond,
d,eliaery is øttemptedo the not'i,ce rnust be muiled, by prepaid, certifi,ed muíl ør dcliuered, by
efiyress dcli,aør-y seruice to the teachnr's a.dd,ress of recørd, with tlw d,ßtrict Notice that is
postmnrked, on ur befwe the 10th døy beþre thp lnßt day of instructiar¿ is consid,ered, tim.e,Ig
giaen und,er this subsection.
   SECTION 10. Section 21.207, Education Code, is amended by amending Subsections (a)
and (c) and adding Subsection (b-1) to read as follows:
  (a) If the teacher desi¡es a hearing aft,er receiving notice of the proposed nonrenewal, the
teacher shall notifo the board oftrustees in writing not later than the 15th day a.fter the date
the teacher receives hørú, d,el,iaery o/ the notice of the proposed actio¡t or if the notice is
muiled by prepøid, certifi.ed' mail or d.eli,aered, by eæpress deliuery seruice, rnt l,ater tho"n the
                                                5465
ch. 8, $ 10                                 82nd LEGISLATURE-FIRST CALLED SESSION

15th day øfi,er the døte tlte notice   is
                                       deli.uered to thp teanher's odd,ress of recørd with the
d,istrict. The board shall provide for a hearing to be held not later than  bhe lSth day after
the date the board receives the request for a hearing unless the parties agree in writing to a
different date. The hearing must be closed unless the teacher requests an open hearing.
    (b-1) Notwithstønd,ing m,y other provisi.øn of thß codn, thß subsection ø'pplies only to ø
school district with on enrollmpnt of at least 5,000 stud,ents. The board of trustees møg
il,esignøte on attorney licensed to prontice Imt in this støte to hald the h,eøring on behøIf of
the board, to qreøte a hnøring recwd, for the board,'s consid,eration ønd antio'no and. to
recqrnmend qn aÊtion l,o the boørd. Thn øtturnay seruíng as the boøril's dcsignae møg not be
employed by a school d,istrict ønd neith,er th.e dnsignee nar a law firm with which the
desi4nee is a,ssociøted møy be serving as an øgent or reyresentøtiae of a school d;istrírt, of ø
teonhpr in ø d:is'pu,te between a district and, a teachnr, or of øn mganization of school
emplnyees, sch,ool ad,ministrøtvrs, qr sch,ool boørils of trustees. Not lnter th,an the 15th døy
afi,er the completion of the h,earing under this subsectiono the boørd's dcsignee shøIl prwi.dn
to the boørd a. recùrd of the hearing ønd, the dcsignce's recqrnn¿end.øtion of whether the
contrant should, bø reneweil sr not renpwed,. Thp boørd, shall considzr the record' of th,e
heøring and, the ilnsignne's recvrnmend,ation at the first boørd m.eeting far which notice con
be posted, i,n campliance with Clw,pter 557, Gwernment Cod,e, foll.owiW the receipt of th'e
recoril ønil recvrnmendøtion frøm the boøril's il.esignee, unless the parties agree in utriting to
ø d,ifferent dnte. At thß m,eeting, the boørd, shuJl consid,er tlte h,earing record, ond,       the
il,esignee's recommeni,atiøn ønl, oJlmt eanh pørty to yresent an oral argumnnt to the boørd
The board, by rnitten policy rnøg limit th,e ø,mpunt of time før ørøl wgument. The policy
must yrouidn eWnl tim,e for eanh pørty. Th.e board, møg obtøin ad,vice concørning IngøI
møtters from an attvrney wh,o has not been inuolued in thn proceeùings. ?he bowd, ma'y
arcept, rejectn ar modify tha d,esignea's recomm,endøtion. Th,e boa.rd shøll rwtifg th,e tea,cher
in urriting of thn board,'s d,ecísinn rnt later than thn 15th day øfi,er the date of th.e mceting.
  (c) At the hearing beþre the boørd, ar the board's dnsignee, the teacher may:
    (1) be represented by a representative of the teachey's choice;
    (2) hear the evidence supporting the reason for nonrenewal;
    (3) cross-examine adverse witnesses; and
    (4) present evidenee,
  SECTION      11.   Section 21.272, Education Code,   is amended by adding Subsection (f) to
read as follows:
  A On th,e basis of ø finaneiøl eæigency d¿cl,øred, under Section 44.011 thu,t requzres ø
redtntion in personnelo the boøril of tuastees of a school d,istrict rnq,A ch,oose to o,rnend, the
terms of the contrart of ø superintendnnt employed und.er ø term conhutt. A superintend,ent
wh,ose contrant, is amendpd und,er tluis subsection møy resign without perwlty by prwiding
reaßonøble rwtice to the board, ønil may continu¿ employment þr tlwt notice perioil undnr
the yri.ør contratt.
  SECTION 12. Section 21.251, Education Code, is amended to read as follows:
  Sec. 21.251. APPLICABILITY. (a) This subchapter applies if a teacher requests a
hearing aft,er receiving notice ofthe proposed decision to:
    (1) terminatæ the teacher's continuing contract       at   any lime, eøcøpt as provid,ed, by
  Subsecùion (b)(3);
    (2) terminate the teacher's probationary or term contract before the end of the contract
  period, eucept øs prouided by Subsøction (b)(3); or
    (3) suspend the teacher without pay.
  (b) This subchapter does not apply to:
    (1) a decision to terminate a teacherrs employment at the end of a probationary eontract;
  lerl
    (2) a decision not to renew a teacher's term contract, unless the board of trustees of the
  employing districb has deeided to use the process prescribed by this subchapüer for that
  purpose;   of
                                                M66
82nd LEGISLÁ,TURE-FIRST CALLED SESSION                                             ch. 8, $ 16
    (3) ø il¿cßioA on the bosis of ø finøncial eæþencg dncl,ared' un'dnr Secti.on 44.011 that
  requires a red,ucti,qn tn persannalo to tertninate ø probaiionnry m tenn contra'ct befme th'e
  end, of the contrsßt pynod, ør to terrninnte ø continuing contrq.ct øt uny tim.e, unless the
  boørd, of trastees has desid,ed to use th,e Wcess prescribeil by this subchøpter for that
  wrpose.
   SECTION 13. Section 2L.257,Education Code, is amended by adding Subsection (a-l) to
read as follows:
   (a-1) A determino,tion Ay th.e heori,ng euarniner regørd,ing gooil cøuse far the suspensinn
of ø teøcher withvut pW ùr thp termhation of ø probøtiowrA, continui.ng, or terrn, contrøct
is ø conclusion of law ønd, may be qìppted, rejecteil, qr chlnqe¡J W the boa'rd, of trustees ør
boøril subcamrr,-ittee as prwidnd, Ay Sectinn 21.259(b).
   SECTION 14, Subsecüion (b), Section 2L.259, Educatíon Code, is amended to read as
follows:
   (b) The board of trustees or board subcommittee may adopt, reject, or change the hearing
examiner's:
     (1) conclusions of law, incluÅ,ing a il,etermi,rntion regørùí,ng good, cøtse for tuspension
  withuut pW ur terrninntiun; or
    (2) proposal for granting relief.
  SECTION 15. Subsection (a), Section 2t.402, Edue¿tion Code, is amended to read                  as
follows:
   (a) Except as provided by Subsection t(d),1 (e)hl or (Ð, a school district must pay each
classroom tnanhet, ñ¡ll-time librarian, full-time counselor cerüified under Subchapter B, or
fi¡ll-time school nurse not less than the minimum monthly salary, ba.sed on the employee's
level of experience ür addition to other factors, as determined by commissioner ruìe,
determined by the following formula:

                                           MS:SFXFS
where:
   "MS" is the minimum monthly salary;
   "SF" is the applicable salary factor specified by Subsection (c); and
   "FS" is the amount, as determined by the commissioner under Subsection (b), of st¿te and
Iocal funds per weighted student, including funds provided under Section 42.2516, available to
a district eligible to receive state assisüance under Section 42,302 :lurth a maintenance and
operations tæ< rate per $100 of taxable value equal to the product of the state compression
percentage, as determined under Section 42.2616, multiplied by $1.50, except that the amount
of state and local funds per weighted student does not include the amount attributable to the
increase in the guaranteed level made by Chapter 1187, Acts ofthe 77th Legislature, Regular
Session, 2001.
  SECTION        16.   Subchapter   I, Chapter   21, Education Code, is amended by adding Sections
21.4021, 21.4022, and 21.4032 to read as follows:
    Sec. 21.4021. FURLO\¡GHS. (ø) Notwi.tlætønding Sectiqn 21.401 ønd subject to Section
 21.1022, the boørd, of tru,stees of a school district mø9, in aßcordarwe with, district pol;iea,
 i,m,plernent ø fu,rlouglt, progrotn øn(l reiluce the number of days of seruice otherwße requireil
 und,er Section 21.1t01 W not m.ore thøn sin døUs ol service ùuring o' schaol, yeør if th'e
 commissioner certifies in øccvr(lance with Secti,or¿ 1t2.009 tlnt th'e di,strict unII be yrwid,ed
 uith, l,ess sto,te and, løcøl fund,i,ng far that yeor than was protti.iled' t'o th¿ district Íor thø
 2010-2011 schoolyear.
    (b) Notwitltstand,ing Secti.on 21.402, thp boaril of tntstees mng reduce th'e sølory of an
 em,plogee who i,s finlaughed, in yropurtion to the rtumber ol da,As by which service is red.uce$
provideil, thøt thæ fudqugh progrûrn is implemented             incømpliancn with' tlais sectiøn.
    (b-1) A furlough prograinr wust subject øIL contraú pørsønnel, to the so,mp number of
furløugh dnys.
    (c) An educo,tor mag not be furlougheil on ø døy that is irwludpd in th¿ number of dnys of
 instruction required, und,er Section 25.081,
                                                  5467
ch. 8, $ 16                                 82nd LEGISLATURE_FIRST CALLED SESSION

  (d,) An ed,ucøtor møy not use personølo sick, or øny other paid leøae whil,e th,e educøtor is
on afurlough.
   (e)   A furlough imposed undnr this section does not canst:itute a Areøk in service før
Wx'poses of the Tearher Retirement System of Teæas. A fudough døy d,oes not constitute a
day of serlice for yurposes of th,e Teacher Ret;irempnt System of Tenas.
   (l) Implementøtion of ø fuilough progro,m møy not result in an increa,se in the number of
require d. teøc her workdag s.
   ø) If a board of trustees adopts a finlø,gh Wgrarn øfier the døte by which a teacher
must giae notice of resignøtion und,er Section 21.105, 27.760, or 21.210, øs øpplicablq a
teo,cher who subsequently resigns is rnt subject to sanctiotts imposed Ay the Støte Board, for
Ed,ucøtør Certificatian os otherwise authorizeil by thnse sections.
  (h) A decision by the boørd. of trustees to implemnnt øfinlvugh progrø,m,:
      (1) is frnøI and, may not be appealed; and,
      (2) d,oes rwt crea,te & co,use of anti,on or require collectiae børguining.
  (i,) AnU reduction ur¿dpr this section i.n the an¿ount, of th,e ønnuøl sølory pail, to an
ernployee rnust be equolly d,isfui\ufud, ouer the course of thn employee's cu,ment contrant with
the school district.
  Sec. 21.1022. RDQUIRED PROCESS FOR DEVELOPMENT OF FUBLOUGH PRO-
GRAM On OTHER SALAÈY REDUCTION PROPOSAL. (u) The boørd of trustees of a
sch,ool d,istrict møy not impl,ement a furlnugh Wogram undpr Section 21.4021 or red,upe
salaries until the district høs camplied with this section.
  (b) A school distríct nx'ust use ü Wcess to d,eaelop a fii,rlough yrogrotn or other salo,ry
red,uctivn Tnoposal, as ayplicøble, thøt:
     (l) íncludes the inuoløem¿,nt of the ilistrict's professionøI støff; ønl,
     (2) prouides district ømplnyees with thþ opportunity to eæyress opinions regørding the
  furlw,gh yrogro,rn or sal,ory reduction proposal as applicøble, øt the pu,blic meeting
   required, ba Subsectiøn (c),
  (c) The board, of tru,stees mu,st hold,   a,   ptbli,c meeting øt whi,ch the boørd    s.nd, school   d.istríct
ad,mini str øtion pre s ent:
      (1) infonnøtion regarding the options          consid,ered,   for monaging the d,istrict's a.auila,ble
   resources, i,nclud,irry considera,tiþn of ø taø rate increase and, use of thn d,istrict's a.ao,il.ablp
  fund bølonce;
     (2) a,n enplonntion of hqw the d,ßtrict intends, throu,glù implem,entation of ø furl.augh
  program under Section 21.1021 or thrøtgh oth,er søløry reductions, øs øpplicøble, to lim,it
  th,e rrumber of d,i,strict empl,oyees who will be d,ischarged qr whose contra,cts will not be
   renewed; and,
     (3) infonnation regørdùt4 the lncal option residence homesteaÅ, eremption
  (d,) AnA erplønøtion of ø furluugh yrograltvt undpr Subsection (c)(2) nLust stq,te the speci,Jíc
number offurlough døgs proposed to be required.
  (e) Th,e public ond school district em,ployees must be provid,ed wíth øn opporlunity to
comment at th,e public mneting requi,red und..er Subsection (c).
   Sec. 21.40e2. REDUCTIONS IN SALARIES OF CLASSROOM TEACHERS AND AD-
MINISTRATORS. (ø) This          secti,on øpplins only to a wid,espread, rødru.ctisn in the Mnuunt
 of the annuøl salqr¿es paid, to school district clossroom tea,ch.ers bosed, yrimørily on d,istrict
finønciøl conditions røther than on teacher performonce.
  (b) For any schnol year in which ø school district høs red.uced, the ømount of the ønnual
sølaries pøid, to d.istrict classroom, teo¡hers from the ømount pa:id for the preced,ing school
Eea,r, the district shall reduce the øm,ou,nt of thn annuøl salaty pøid, to ew,h district
ød,ministrq.tw or other professionøl employee fu a percent w frontion of a percent that is
equal to the auerage percent ur fractiøn of a percent ba which teqßher søIøries haue been
reiluced,.
  SECTION       17.    Subsection (a), Section 38.101, Education Code,             is amended to read as
follows:
                                                     5468
82nd LEGISLATIJRE_FIRST CALLED SESSION                                              ch. 8, $ 21(2)
    (a) Except as provided by Subsection (b), a school district annually shall assess the physical
fitness of students e¡rolled in grod,e three qr higher in a course thøt satisfies the currículum
requirements for phgsiea,l eil,u,cøtion und,er Sectiun ZA.C02@)(2)(C) tg+sd€s++À*eugå=lSl.
  SECTION 18. Subchapter A, Chapter 42, Education Code, is amended by adding Section
42.009 to read as follows:
  Sec. 12.009. DETERMINATION OF FUNDING LWELS. (a) Not Inter than JuIy I of
earh gea¡ the cornmissioner shøll d,etertnine for eo,ch school il,istrict wh.ether the esti.mnted
omaunt of state ønd, Iocal fund,irry per studpnt in weþhted, ailerage daily attendnnne to be
prwidail to the d,ßtrict under thp Founlntiøn School Progrom for ma:tntenance and,
øperøtions før thn follmtùng school yeør is Less tltpn tlw amøtnt pwl¿dßd to the d,istrict lor
the 2010-2011 schnol yeør. If the ørnwnt estimøted to be yrwidnd,'is less, thn commissioner
slnll cert;ify the percentoge ilpcrease in fund,ing to be prwi,iìnil to th,e d.istrict.
   (b) In m.ohing the d,eterminnti,ons regard,i,n4 fund,ing lerrcls required, bg Subsection (ø), thp
com,missiorwr shall:
    (1) make a'djustmants oß t?ßcessor7 to reflnct chnnges in a sch,ool d,istrict's mnintnnnnce
  and, operøtians ton rate;
    (2) Íor ø d,istríct required, to tøke actiqn und,er Cha,ptør 41 to red,uce its weølth per
  sktil¿nt to th,e eqnlized weøIth l,eael base the deterrnfuø,tiøns on th,e d,istrict's net fund,irry
  Leaels afinr dnfu,cting any amwmts reqwi,red, to be etpendcd, by th,e district ln comply with
   Clto,pter 11; anit
       (9) ilpterrtuine ø d,istrict's weighted, øn)eroge dnily aftendnnce     in   ancordnnce   with this
   cLwpter os    it enisted, on January 1, 2011.
   SECTION f9. Subchapter A, Chapter 44, Education Code, is amended by adding Section
44.011  to read as follows¡
   Sec. 44.011. FININCIAL EXIGENCY. (a) The boørd, of trastees of a school d,ßtrict
may oÅ,opt ø resoluti.on declnring ø financiø|, enigerwg fur the ùistrict. Thp ilpclmntion
eupires øt thp end, of the rt,scøl geør d,uríng wh,ich the declara,f;ion is m,oìp u,nle,ss the boaril
ol,opts ø resol,u,tion befme thn end, of th,e fiscal yeør d,eclar'tng cøntimta,tion of tha finawid,
erígmcy for the foil,owi,ng fiscøJ gear.
   (b)   Th,e board,   is twt limiteil in   th,e   number of ti,rnes tlw boørd, møy alnpt ø resolutisn
ileclari.ng cøntirutntiot¿ of the frnanci,øl erigøncy.
   (c) A boørd mng terni,nøte a fi:nønciø|, euigency dpclarøtian q,t arry time            if   thn   boørd,
consid.ers   it apprapriøtø
                                    a resolution und¿r this søctior4 the boørd must nntifu thn
   (d,) Eaêh, ti,me the boørd ad,opts
commissiuwr. Thn commissioncr         Ay rul.e shøll yrescribe the timp ønl, manwr in whiclu
 notice must be giuen to th¿ commissiorùer undßr this subsectiøn.
   (e) The comrrt;ßsionpr Uy ru.Ie sh,a.ll oÅopt mtntmum stønìørds concerrving school, d;istrict
finøncial cqnd,ili,ons thøt must erßt før d,eclørqti,øn of ø firwncial erigencg W tlw boøril of
trustees of the district
   A fhß cømmissioner mnA use emþrgencu rul,emaking procedures fu anøfi rul¿s und.¿r
Subsectinn(e). Thi,s subsection eøpi,res September 1, 2019.
   SECTION 20. Subchapter F, Chapter õõ2, Government Code, is amended by adding
Section 552.2661to read as follows:
   Sec. 552.2661. CHARGD fOR COPY OF PUBLIC INFORMATION PfuOVIDED BY
SCHOOL DISTRICT. A school d,i.strict th.at receiaes ø reqt'est to yroiluce yubli,c inførmø-
tion for inspection or publicati,on ør to prod,uce cøpies of public infurmntiun in respowe to a
requnstvr wlw, within the yrøced,ing 180 days, høs a'ccepted Uut failed to pøg written i,t¿mized,
statem,ents of estimated, chnrges fturn the dístrict as protidnd, unlpr Section 552.261þ) ma,g
require the requestur to pøA Lhp estimøted, charges fqr th¿ request before thn reqtest ß
fulfilled,
   SECTION      21.     The following provisions of the Education Code are repealed:
     (1) Section 12.1331;
     (2) Subsection (d), Section 2L.402; and
                                                       5469
ch. 8, $ 21(3)                        82nd LEGISLATURE_FIRST CALLED SESSION

    (3) Subsections (b) and (c), Section 33.902.
  SECTION 22. On or before January L,2072, the Slate Board for Educator Certiñcation
shall propose rules relating to educator certification as prescribed by Section 21.051,
Educ¿tion Code, as amended by lhis Act.
   SECTION 23. The changes in law made by this Act apply only to a hearing examiner's
determination regarding good cause that is contained in a written recommendation under
Secfion 21.257, Education Code, issued on or after lhe effective date of this Act.
   SECTION 24. This Act takes effect immediately if it receives a vote of two-thirds of all
the members elected to each house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary fbr immediate effect, this Act takes effect on
the 91st day after the last day ofthe legislative session.
  Passed the Senate on June 6,2011: Yeas 18, Nays 12; June 20,201.l, Senate refused
      to concur in House amendments and requested appointment of Conference Commit-
      tee; June 21,2011, House granted request of the Senate; June 27,2011, Senate
      adopted Conference Committee Report by the following vote: Yeas 19, Nays 11;
      passed the House, with amendments, on June'l 6,201 1: Yeas 88, Nays 55, one
      present not voting; June 21,2011, House granted request of the Senate for
       appointment of Conference Committee; June 27, 2011 , House adopted Conference
       Committee Report by the following vote: Yeas 80, Nays 63, one present not voting.
  Approved July 19, 201 1 .
  Effective September 28, 2O1 1.




                                             5470
3   o
Journal of the House of Representatives of the Regular Session of the Sixty-Seventh                                                                       Legi...   Page   I of 2



 Journal of the House of Representatives of the Regular Session of
 the Sixty-Seventh Legislature of the State of Texas, Volume 2



                 3522                       ó?TH L'CISLATURË-RECULAR SFSSION

                      CSSB 34t was rc*d sccond lime.

                      Reprrscnlativc Atkinson off¿red tho following am¿ndmenl toCSgÐ 3,1t;

                      Amcnd CSSË 34¡, SECTION                              I,   by amending Scction 21.204{b) on psge 2 to
                 rcad as follows:

                      (b)  In lhc cvcnt offailurc to give such notic¿ of pro¡nscd ilonrenewal within lhe
                timc herein sppcificd, the board of trusrces sh¿ll thercby clcct to cmploy such employeo
                in thc samr profcssionsl cepacity for thc succecding school year.

                      Thc amcndmcnt was adopled wlthout objection.

                      R epresenla t ivc        Atk   i   nson of   fcred   t   he   fotlow   in   g   a   me nd mcn t to CSS B   l4   I   :

                     Àmco¿l tSSfl 341.                   SECTION 2, by amending Section 21.205(a) on pngc 3 lo
                read ¡s follows:

                     (a) lfthe teachtr desíre.e a hcaring aftcr rcceíving notice of thc proposed nonra
                ncwel. thc te¡chcr shall norify the board of lrùste¿s in witirrg within l0 days eflcr
                ræeiving !hç noticc of nonrcneual. Thc board stall provide for a hearing to bo held
                within      ti
                           days aflcr rcccíving writtcn notíce from tho teachrr rcqursting r hearing.
                Such hearing¡h¡Il bc closcd lnless an opcn hearing is requætcd by thc cmployee.

                     Thc ¡mcndmcnt vas adopted r+ithoul objcctíon.

                     Representativc Atkiasqn offcred lhe following amendment to ÇSSB,]41:

                     Amcnd €SSB              MI,SECTION               ?, by nmeading Scction 21.20ó on pagc 3 1<r reâd as
                follot+s:

                     Sec. 2l "206. Dccisionof Boa¡d
                     {¿) lf the teachcr fails io r4que$t å hc.aring, t hc board shall takc such actìon as it
                dccms lawful and appropriatc, and shsll notify thc employcc in *riting ol that acl¡on
                within l5 d¡ysoftbeelpiration ofthc l&day period for rcquestinga hearing.
                     {b}   If thc reacher rçquests a hearirrg, the board sha}l taks s uch action ås ¡t dcem$
                lewf¡l -and appropriatc, andshall notify thc tc¿cher in writingof thatactiaû tríthin l5
                days following thc conclusion of the hearing,

                     Thcameqdmcnt wac adopted without objcction.

                     Rcptæcntativc r\tkinson offcred the lollowing amendmcnt to CSSB J4l:

                     ¡\mend          C"SSB 341,   SECTION 2, by amcnding Secrion 21.209 on                                 page 4 to          rcad   as
                fiollows:

                     SrÃ,,21.2O9, Probation
                                      tccs Of any school districr nray provídc by rvrincn policy firr a
                                      t to Êxcaúd the first 2 years of conlinuou¡ cmploymcnt in the dis.
                                      provisions of this subchapter ehall not apply during such proba"
                tionary period.

                     Thc amcndment was adopted without objccrion.

                     Represçí!álivó /\tkinson oflered the l'ollowing amendment to CSSB 3¡lt:




http //texashi story. unt
    :                            .   e   dul ark. I 67 5 3 1 /m etapthl 23 828 I ml I |                               724   I                                        913120t4
Journal of the House of Representatives of the Regular Session of the Sixty-Seventh            Legi... Page2 of 2

  Texas. Legislature. House of Representatives.. Journal of the House of Representatives of the Regular
  Session of the Sixty-Seventh Legislature of the State of Texas, Volume 2, Legislative Document, [19811; digital
  images, (http://texashistory.unt.edu/ark:/67531/metapth123828l : accessed September 03,2014), University of
  North Texas Libraries, The Portal to Texas History, http://texashistory.unt.edu; crediting UNT Libraries
  Government Documents Department, Denton, Texas.




http ://texashistory.unt .edul ark.l 67 53 | I metapthl23828   lml I 17 24 I                                 91312014
o
     ,




                                   H@USE
                  G@MMITTEE REP@RÏ
                                     lST   PRINTING




         By Caperton, et al. (Atkinson)                               S.B. No.   341

         Substitute the following for S.B. No. 341:
         By Àtkinson                                               C.S.S.B. No.341


                                   A BILL TO BE EMITLED
1                                            Àl'¡ ÀcT
2        relating tg the standards and procedures for    the nonrenewal of
3        contracts for teachers under term contracts in the public schools
4        of this statei adding Section(sl 2t.2OI-21.211 to Subchapter G in
5        Chapter 2l of the Texas Education Code, as     amended.

 6             BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 7             SECTION 1.   This Act shall be knohrn as ttThe Term Contract
 I       Nonrener¡al Act.rt
 9              SECTION   2.   Chapter 21, Subchapter G, Texas Education Code,
10       as amended, is amended by adding Section(s) 2L.2OI-21.211 to read
11       as follows:
12              Sec. 2l.2Ol Definitions
13              Às used in this Subchapter, tÌ¡e following terms shall have
L4       the meaningr ascribed to them in this section.
15              (1) ItTeacherrr means a superintendent, principal, supervisor,
16       cl.assroom teacher, counselor, or other full-time         professional
T7       enployee, except paraprofessional personnel, who is required to
18       hold a valid certificate or t,eaching pernit.
19             (21 rrBoardtt and rrBoard of Trusteesrt means the governing
20       board of a public school district.
2t             (3) rrschool districtrr means any public     school district       in
22       this state.
23             (4) ttTerm contractrr meanÊ any contract of employment for          a

24       flxed term between the school district and a teacher.


                                                  1
                                              '            C.S.S.B. No.341
 1         Sec. 2I.2O2 Teacher Evaluations
2          The board of trusteeg of each echool district      shall   provide
 3   by written policy for the periodlc written evaluation of each
 4   teacher in its enploy at annual or more frequent lntervals,  Such
 5   evaluation shall be conEidered by the board of trustees prior Èo
 6   any decision by the board not, to renew the   term contract      of   any
 7   teacher.
 I         Sec. 21.2O3 Nonrenewal of, Term Contracts
 9          (a) The board of truetees of each school distrÍct nay choose
10   not to renevr the employment of any teacher employed under a term
11   contract effective at the end of the contract perlod,
t2          (b) Tl.e board of trustees of each school district     shall
13   establish policles consistent with this Subchapter which shall
l4   establísh reasons for nonrenewal-
15          (c) The board of trustees of each school district      shaLl
16   establish policies and procedures for receiving recornrnendations
!7   fro¡n its school admi.nistration for the nonrenewal ofteacher term
18   contracts, excepting only the general superintendent of schools.
19         Sec- 2l-2O4 Notice
20         (a) In the event the board of trustees receives a
21   recommendation for nonrenewal, the board,     after
                                                       consideration of
22   the written evaluations required by Section 21.2O2 of this
23   Subchapter and the reasons for the recommendation, shall, in its
24   sole discretion, either reject the recommendation or shall give the
25   teaclrer written notice of the proposed nonrenewal on or before
26   April 1, preceding the end of the employnent term fixed in the
27   contract.


                                       2
                                                         C.S.S.B. No.   341
 1         (b)   In  the event of fai.Iure to give such notice of proposed
 2   nonrenewal within the time herein specified, the board of trustees
 3   shall thereby elect to enploy such employee in the same capacity
 4   for the succeeding school year.
 5         (c) The notice of proposed .non-renewal. required in this
 6   section shall contain a statement of arl the reasons for such
 7   proposed action.
 I         Sec.21.2O5 Hearing
 9         (a) If, after receipt      of the notice of the proposed
10   nonrenewal the teacher desires a hearing on the same, he shall
11   notify in writing the board of trustees within 10 days of the
L2   receipt of the notice of his desire to be heard, and the board
13   shall provide a hearing within 15 days, which may be closed unless
I4   otherwise requested by the employee.
15         (b) The hearing shall be conducted in accordance with rules
16   pronulgated by the district.
L7         Sec. 2I .206 Decisi.on of Board
18         (a)  If the teacher fails to request a hearing withj.n the 10
19   days as hereinabove provÍded, or after a hearing, the board of
20   trustees shall take such action and shaLl enter a written decJ.sion,
2T   if adverse to the teacher, as it deems lawful and appropriate.
22         (b) The decision of the board of trustees not to reneur the
23   teacherrs term contract shall be communicated in writing to the
24   teacher within 15 days following the conclusion of the hearing.
25          Sec. 2I.2O7 Appeal
26          (a) If the teacher is aggrieved by the decision of the board
27   of trustees, he may appear to the state commissioner of Education


                                       3
                                               '              C.S.S.B. No.341
1    pursuant to   Section 11.13 of this Code. The Commissioner may not
2    substitute his judgment for that of the board of trustees, unless
3    the decision below was arbitrary,      capric5.ous, unlawful, or not
4    supported by substantial evidence.
5         (b) The State Board of Education shall have jurisdiction to
 6   hear appeals fro¡n such decisions of the State Commissioner of
 7   Education.
 I         Sec. 2t.2OB SuperÍntendents
 9          If a majority of the board of trustees of any school district
10   shall determine that      the term contract       of   the general
11   superintendent of schools should be considered for nonrenewal, the
T2   provisions of thls Subchapter shall apply except that there need
13   not be a recommendation from designated school administration.
t4         Sec. 2t.2O9 Probation
15          The board of trustees of any school district may provide by
16   written policy for a probationary period not to exceed 2 years of
t7   continuous employment, in which case the provisions of this
18   Subchapter shall not apply during such probationary period.
19         Sec. 21.21O Discharge for   Cauee

20          Nothing in this Subchapter shall prohibít a board of trustees
2L   fro¡n discharging a teacher for cause, as determined by board
22   policies, during the term of the contract.
23          Sec. 2I.2Il   Exemptions
24         This Subchapter does not apply to teachers who are empJ.oyed
25   under the provisions of the probationary or continuing contract law
26   as set out Ín Subchapter C, Chapter 13 of this Code.
27         SECTION   3.   The irnportance of       this   legislation   and the


                                          4
                                               '   C.S.S.B. No.341
1   crowded condition of Èhe calendars in þoth trouses create an
2   emergency and an lmperative publlc necessity that the
3   constitutÍonal rule requlring blIIe to be read on three several
4   days ín each house be suspended, and thlg rule fs hereby suspended,
5   and that thís Act take effect and be Ln full force from and after
6   its passage, and it is so enacted.




                                     5
                                                                                     r G\r-

                                                                       COMMITTEE REPORT                                        o 8
The Honcirable Bill CtaYton
Speaker of the House of Representatives                                                                                        ldatel

Si¡:

We, your COMMITTEE ON PUBLIC EDUCATION, to whom was referred
                                                                                                s,   ß 3+t                 have had the same under
consideration and beg to report back w¡th the recommendation that il                                 {measurel


I l               do pass, w¡thout amendment.
( I               do pass, with amendment(sl.
I V.f             do pas and be not pr¡nted; a Complete Comm¡ttee Substilute is recommended in lieu of the original measure,

A fiscal notewas       requested. I r'l           yes                  (         ,

An author's fiscal statement         was   requeled' I             )       yes


An astuar¡al       analysls was     requeled, (       I      yes


Tho Commill6e recommends that th¡s measuro be placed on the                          Hdll     or (Çsæl       Calendar


This    measure I ./ I
                               ,/     proposes new law.
                        (      )      amends exlstlng law,


House Sponsor of Senate Measure
                                                 tfrt¿r",
The measure was reported from Commlttee by the followlng vote:
                                                   AYE                                 NAY                   PNV                ABSENT

       Atklnson, Ch.

       Elanton, V,C.

       Haley, C,B.O,

       Barton

       Bryânt

       Evans

       Fox

       Glossbrenner

       Hall, L,

       Hanna

       Psveto




                      aye

                      nay
          O           presenl, not voting

          0           .ur"n,
                                                                                                            COMM        E COORDINATOR
5   o
"¡




                                                                  J"       No



                                       A BILL TO BE ENTITLED
     1                                        AN ACT

     z    reJ.ating to standards for          the employment of   public        school

     3    professional personnel.
     4           BE IT ENACTED BY THE LEGISLATURE OF lHE STATE OF TÐ(ÀS:
     5           sEcTIoN 1.   chapter 13, Texas Educatj.on Code, as emended, iS
     6    amended      by adding Subchapter E to read as follows:
     '7                 SUBCHAPTER E. PROEESSIONÀL EMPLOYMENT STANDARDS

     I          Sec'13.25l.PoLIcY.Inordertomaintainaneffective
     9    system     public education, highly qualified professional educators
                 .of
 10       must be attracted, retained, and stj.mulated to optimum performance'
 11       These objectives can be accomplished onLy if the employees are
 I2       evaluated and retained on the basis of their performance of
 13       assigned teaching duties,        afforded due process prior to
 t4       termination, and protected against unjustifj.able actions by the
     15   boards that employ them. It is the purpose of this subchapter to
     16   provide that evaluation of and protection        for   professional
     T7   educators employed in the public schools in the state of Texas by
     18   providing for evaluation and quaranteeing due process. This
     19   subchapter does not establish or grant tenure to any teacher.
     20           Sec. l.3.252. DEFINITIONS. In this subchapter:
     21                  (1) t'Boardt' means the board of trustees of a school
     22   di strict.
     23                    (2)     "Teacher" means a Person employed in a
     24   professional           capacj,ty by , a board to instruct, supervise,


          67R2409 SRC-F                           1
 I   administer, or direct an educational program, but does not incLude
 2   a superintendent, an assistant superintendent, an associate
 J   superintendent. or another executi.ve officer of equivalent rank,
 4               (3 ) rrTeacher organizationrt means an     organization,
 5   agency, committee, council, or group of any kind in which teachers
 6   participate and which exists for the purpose, in whoLe or in part,
 7   of   conferring,  discussing, and consulting with a board over the
 8   terms and conditions of professional service and other matters of
 ô   mutuaL concern.
10                  (4)  rrDismissalt' means an involuntary termination o¡
1L   interruption    of the employment relationship between a teacher and
I2   the employing board during the teacherrs professional or
13   probationary status,
t4               (5) rrProfessional statusrr means the employment status
15   granted teachers after probationary service rendered in accordance
16   with the terms of this subchapter.
T7               (6) ttNonre¡levralrr means a faj. Iure to reemploy a teacher
18   after the expiration of probationary status.
19                (7, rrTerminationt' means a dismissal or a nonrenewal.
20                (8) rrDemotion" means an involuntary reduction of a
2t   teacher to a position of lesser rank, responsibi lity,           or
22   compensation, or reassignment of a teacher to a position outside
23   the scope of the teacherrs teaching certificate or major or minor
24   field of study.
25                (9) rrsenioritytr means length of service as a teacher
26   in a particular school district computed from the most recent date
27   of hire.


     67R2409 SRC-F
 I          Sec. 13.253. PRoBATIoNARY STATUS AND PRoFESSIONAL STÀTUS.
 2   On initial  employment by a board, a teacher has probationary status
 3   and retains that status until he or she has been employed by the
 4   board as a teacher for 210 days in each of two consecutive school
 5   years. Beginning on the 211th day of employment in the second
 6   school year,    a teacher acquires professional status unless the
 7   board prevj.ously notifj.ed the teacher 1n accordance with Section
 I   13.258 of this code of its intention to dismiss the teacher at or
 9   prior to the conclusion of the school year,
10         Sec.73.254.   EVALUATION PROCEDURE.    (a)   Each board     by
11   resolution or directive, after avaiLing itself of the advice of its
I2   practicing   cLassroom teachers, shall adopt a procedure for
13   evaluating the performance of i-ts teachers. ?he board may include
I4   the procedure in a written agreement with a recognized teacher
15   organization.  At a minimum, the procedure shall:
76               (1) provide for the preparation of peri.odic written
t7   evaluation reports by appropriate supervt sorsi
18               (2) afford the teacher an opportunity to review each
19   evaluation report and submit a written response to it, whlch
20   response shall be attached to the report; and
2t               (3) include the criteria and guj.delines to be used j.n
))   determining whether or not to continue probationary status or to
23   grant or continue professlonal status.
24         (b) The procedures adopted under this section must comply
25   with Section 13.256 of this code. The board shâLl provide a copy
26   of the procedures to the central Education Àgency and to each
27   teacher at the time of initial employment.


     67R2409 SRC-F                    a
1          Sec. 13.255. PRoFESSIONÀL STATUS IN ANOTHER SCHOOL DISTRICT.
2    Notwithstanding the provisions of Section 13'253 of this code, a
3    board may grent professional status as of the date of employment to
4    any teacher who previously acquired professional status in another
5    school district in the State of Texas or another jurisdiction.
6          Sec. l.3.256. BASES FOR IERMINATIoN OR DEMOTION. (a) A
7    professional teacher may not be dismissed or demoted, and a
 I   probationary teacher may not be dismissed, other than for just
 9   cause. trJust causett must be established on the basis of factors
10   that: (1) relate to the performance of assigned teaching duties
11   or the effective operation of the school systern; ot (2) require a
l2   reducti.on or realignment of the teaching staff. The exercise of a
13   IegalIy protected right does not constitute an elernent of just
t4   cause.
15          (b) À probationary teacher may noÈ be nonrenewed or demoted
16   arbitrarily,   discriminatorily, or because of the exercise of a
17   legally prote.cted right.
18          (c) Except as provided by Subsection (d) of this section, if
19   one or more teachers are to be terminated or demoted because of    a

20   substantial change in the size and nature of the student population
2t   or unavoidable budgetary limitations          in   funding existing
22   educational programs, those teachers in the affected job categories
23   who have the least seniority shall be terminated or demoted first.
24   For three years from the effective date of termination or demotion,
25   a teacher terminated or demoted pursuant to this subsection is
26   entitl-ed to be recalled to the job category that the teacher was in
zt   immediately prior to the termination or demotion.    Teachers shall


     67P.2409 SRC-F                   4
I    be recalled to available positions in each job category in reverse
2    order to termination or demotion. During the three-year period, â
3    board shall offer the teacher any available posltion for which the
4    teacher is qualified in another job category before the position is
5    offered to a teacher with less seniority who does not have recall
 6   rights to that job category.
 7          (d) A teacher may be terminated, demoted, or recaLled in a
 8   manner inconsistent with Subsection (c) of this section in order to
 9   implement the provisions of a board-approved or court-ordered
10   affj.rmative  action program designed to provide employment
11   opportunities for      womenor for members of an ethnic minority group
T2   or to      elininate   the effects of past discrimination against those
13   persons.
t+          Sec. 13.257. NOTIFICATION OF DEFICIENCIES. A board may not
15   terminate or demote a teacher for ineffective performance of
16   assigned teachíng duties'or ineffective   operation of the scl.ool
77   system unless the teacher was previously notified in wríting of the
18   specific deficiencies and given assistance and a reasonable period
19   of time to correct the specified deficiencies and to show adequate
20   j.mprovement, If the teacher fails to correct the deficiencies
2t   within the time allotted,      the board shall   notify   the teacher in
22   wri ting.
23        Sec. 13.258. NOTICE OF TERMINÀTION OR DEMOTION; RIGHT TO
24   HEÀRING. ( a) The board, by certified       mail, return receipt
25   requested, shall send a written notice, signed by the president of
26   the board, of its intention to terminate or demote tbe teacher.
27   The notice shall:


     67F.2409 SRC-E                        5
 1                (1) advise the teacher of the proposed action and the
 2   date on which it is to become effective;
 3               (2) contain a clear and detailed statement of the
 4   reasons for the proposed action, including the time and place of
 5   any particular incidents or acts alleged;
 6               (3) indicate the portion or portions of any rules of
 7   the school system alleged to have been violated;
 I               (4) inform the teacher of            rights under this
 9   subchapÈer, including the right to a hearing; and
10                (5) set forth the name, address, and telephone number
11   of   a representative of the board to notify if a hearing is
l2   requested.
13          (b)   If a teacher wishes to challenge the proposed action of
l4   the board, the teacher shall file with the board a written request
15   for a hearing. The request must be filed not later than the lOth
16   day after the day on which the teacher received notice. Not later
t7   than the fifth day after the day on which the board receives the
18   request, the parties shall select a person to serve as a hearing
I9   officer and shal-l obtain a commitment from the person to serve. If
20   the parties are unable to agree on a hearing officer or to obtain a
2T   commitment within that time, either party may request the         Central
22   Education Agency to submit a Iist       of hearing officers in accordance
23   vrith Section 13.263 of this code.
24          Sec. 13.259. STATUS OF TEACHER AFTER NOTICE. (a) Except as
25   provided by Subsection (b) of this section, if a teacher requests a
26   hearing under Sectj.on t3.258 of this code, the board shall_ keep the
27   teacher in his or her teaching assignment until the assignment ends


     67R2409 SRC-r                       6
             ,t




 1   or until the hearing officer renders a decision, whichever occurs
 2   first.
 3          (b) A board may remove a teacher from an assignment if the
 4   removal is necessary for the effective operation of the school
 5   system. A'disagreement over vrhether removal is justified  may be
 6   submitted by either party to the hearing officer selected to hear
 7   the underlying dispute.
 I         (c) If a teacher does not reguest a hearing under Section
 9   13.258 of this code, the board shall:
10                (1) keep the teacher in his or her teaching assignment
11   until   the assignment ends or for 1O days after the last date for
t2   fíling a request for a hearing, whichever occurs first; or
13                (2, remove the teacher and grant pay for the time that
l4   the teacher would have worked.
15          Sec. 13.260. HEARINGS. (a) The hearing officer shall fix a
16   mutuaLly agreeable time and place for the hearing, which shall be
t7   not later than the 30th day after the day on which the board
18   receives the request. If a stenographic record of the hearing is
19   requested by one or more parties, the hearíng officer shaII arrange
20   for a stenographer to make an official transcript of the hearing.
2t         (b) The hearing officer shall inquire fully into the facts
22   as they relate to the matter of the hearing and may:
23                (1)  admini ster oaths;
24                (2') issue subpoenas for the attendance and testimony
25   of v¡itnesses and the production of books, papers, and documents
26   relating to any matter under investigation;
27                (3) authorize depositions to be taken whenever the


     67R2409 SRC-F                    7
 1   ends of justice would be served thereby;
 2               (4)    receive evidence and Ii¡nit lines of questioning or
 3   testimony t¡rhich are repetitlve, cumulative, or irrelevant;
 4                (5) call, examine, and cross-examine witnesses and
 5   introduce into the record documentary or other evidence; and
 6                (6) regulate the course of the hearing and dispose of
 7   procedural requests, motions and si¡niIar matters.
 I          (c) A subpoena issued under Subsection (b) of this section
 o   must be signed by the hearing officer.     On request of the hearing
10   officer, a peace officer shall serve the subpoena in the same
11   manner in which a subpoena issued by a district court is served.
12   If the person to whom a subpoena is directed fails tq comply, the
13   hearing officer may sue in district court to enforce the subpoena.
14   The court shaLl order compliance if it determines that good cause
15   exists for the subpoena. the court may nodify the requirements of
16   a subpoena that the court determines are unreasonable. Eailure to
I7   comply wlth the order of the court is punishable as contempt. The
18   hearing offj.cer may provide for the compensation of subpoenaed
19   witnesses in   an amount not to exceed the amount paid to a witness
20   subpoenaed by a district court in a civil proceeding.
2T         (d) The hearing shalL be closed to the public unl.ess the
22   teacher reguests a public hearing, and the hearing shalI be
23   confined to the reasons given in the notice for termination or
24   demotion.
25         (e) Each party ís entitLed to appear at the hearing in
26   person/ by counseJ-, or by other representative; to call, examine,
27   and crosó-exami.ne relevant witnesses; and to introduce into the

     67R2409 SRC-E                     I
 1   record relevant documentary or other evidence, The hearing officer
 2   sharl i.ssue a subpoena on application by either party and a showing
 3   of general rel-evance and reasonable scope.
 4         (f)    The part,ies are not bound by ruJ.es of evidence, whether
 5   statutory,         lard, or adopted by the rules of court. prior to
                   co¡nmon
 6   the hearing, within a mutually agreeable time, the board shall
 1   provide the teacher or teacher's counser with a list of witnesses
 I   and a statement of the testimony that the wi.tnesses are expected to
 o   present at the hearing, a list of documents Èo be presented as
10   evidence with copies of same, and a statement of all other evidence
11   to be used by the board to support the allegations set forth in Èhe
L2   notice from the board to the teacher. After the teacher or counsel
13   receives from the board the rist of witnesses and a statement of
14   the tesÈimony that the boardrs witnesses are expected to present,
15   the teacher or counser sharl, within a mutualry agreeabre time,
16   notify the board of the witnesses to be callecl to oppose the
17   board's evidence and a statement of the testimony that the
18   witnesses are expected to present.   Except for nerr/ly discovered
19   evidence that by due diligence could not have been discovered in
20   time, neither party may introduce evidence that has not been given
2T   to    the opposing party or counsel in compliance with          the
22   reguirements of this section.     Testimony may not be qiven or
23   evidence introduced rerating to the ineffectiveness of the teacher
24   if it is not relevant or material to the allegati.ons set forth in
25   the notice or if it is based on procedures not in compriance with
26   Sections 13.253-13.257 of. this code.
27         (S) Evidence detrimental to a teacherrs conduct, service,


     67R2409 SRC-F                      9
 1   character, or personality nay not be introduced as a basis for
 2   termination or demot,ion unless the evidence vJas called to the
 3   attention   of tl.e teacher promptly after the board knew or
 4   reasonably should Ìrave known of       its
                                             existence and unless the
 5   teacher was given an opportunity to respond to or rebut it,
 6           (h) The hearing officer shall- give effect to the rules of
 7   privilege required by Iaw,
 I         (i)   Each party is entitled,     on request,    to     a reasonable
 9   period for oral argument prior to the close of the hearing,
10          (j) Each party is entitled,     on request made before the
11   conclusion of the hearing, to file a written brief,    The hearing
t2   officer shall fix a reasonable time for that fiLing not later than
13   the 20th day after the last day of the hearing unless otherwise
I4   agreed to by the parties.
15          (k) The hearing officer shalL promptly render a decision,
16   UnIess otherwise agreed by t}'e ¡>arties, ttre hearing officer sÌ¡alI
t7   render the decision not later than the 30th day after the last day
18   of the hearing or, if an oral hearing has been waived, after the
19   date of transmitti.ng the fj.nal. statements and proofs to the hearing
20   officer.
2l           (f) The decision of the hearing officer must be in writing,
22   be based on the record of the hearing, and setforth findings of
23   fact, reasoning, and conclusions on the issues submitted. The
24   hearing officer shaLl require the board to take remedial action
25   appropriate to effect the purposes of this subchapter, including:
26                (1) rej.nstatement of a teacher;
27                (2') payment of    lost    salary,   benefits,     or   other


     67R2409 SRC-E                     10
 1   compensatory damages; or
 2               (3)   if the officer finds that the board acted in bad
 3   faith in renderlng an arbitrary or capricious decision not
 4   supported by the record, paynent of punltive damages.
 5         (m) A hearing officer may not reguire the commission of an
 6   act prohibited by 1aw. the decision of the hearing officer shall
 7   be submitted to the board, the teacher, and the Central Education
 I   Àgency and is fÍnal    and binding on the parties unless appealed to a
 9   court in the manner provided for appeal of contested cases under
10   the Àdministrative Procedure and Texas Register Act (ArticIe
11   6252-I3a, Vernonrs Texas Civil Statutes).
T2         Sec. 73.261. COST OF HEARING. The cost for the services of
13   the hearing officer,    including actual and necessary travel and
T4   subsistence expenses, and any other mutually incurred costs shall
15   be borne equally by the parties. Àny other costs incurred shalL be
16   borne by the party incurring thern, except that if tl.e Ìrearing
17   officer falls to sustain the position taken by the board, the
18   entire cost of the hearing, including reasonable attorneyrs fees
19   incurred by the teacher, shaLl be borne by the board.
20         Sec. 13.262. APPLICÀBILITY OF HEARINc PROCEDURE. (a)
2t   Except as provided by this section, the procedure set forth in
22   sections 13,258-13.267 of this code is the exclusive method for
z3   resolving disputes betvreen a board and a teacher in regard to
24   termination or demotion.
25          (b) If a board enters into a written agreement with a
26   recognized teacher organization containing a procedure for
27   resorving disputes that is     inconsistent   with   the procedure set

     67R2409 SRC-F                      11
              L.,   ¡




 1   forth    inSectÍons 13.258-13.261 of this code, the board may apply
2    to the Central Education Agency for an exemption from those
 3   sections.   7f the agency determines that the procedure established
 4   by the agreement is substantially equivalent to the procedure
 5   established in those sections, it shalI grant the requested
 6   exemption for the teachers covered by the agreement. The exemption
 7   takes effect on a date fixed by the agency. A person aggrieved by
 I   a decision of the agency granting or denying the request for an
 9   exemption may obtain a revie$, of the decision by filing a request
10   for a hearing with the agency not later than the lOth day after the
11   day on which the decision is rendered. If a hearing is requested,
t2   the hearing officer shall be appointed and the hearing conducted in
13   the manner provided by this subchapter for hearings relating to an
14   action of a board.
15          Sec.13.263. SELECTION OF A HEÀRING OFFICER. For the
16   purpose of the hearings required by this subchapter, the Central
T7   Education Agency shalL maintain a list of members of the American
18   Arbítration Association. If either party requests the agency to
19   submit a list of hearing officers, the agency shall submit a list
20   of not less than nine names drawn by lot or rotation from the
2T   entire                  maintained. The list must be submitted not
               membership Iist
22   later than the fifth day after the day the agency receives the
23   request. Not later than the fifth day after the day on which the
24   Iist is received, the parties shall select a hearing officer by
25   alternately striking names frorn the list unti.l one name remains.
26   That individual shall- be the hearing offÍcer. A hearing officer
27   may not be a member of or an empÌoyee of any board or related by


     67R2+O9 SRC-F                   12
 1   consanguinity or marriage to any of the parties. A person may not
 2   be appointed to hear more than tu¡o employment termination or
 3   demotion cases in the same school district in any school year.
 4         SECTION    2.    Subchapter C, Chapter 13, Texas Education Code,
 5   is repealed.
 6         SECTION    3.(a) A teacher enployed on a continuing contract
 7   on the effective date of this Act is entitled to professional
 I   status.
 9          (b) A teacher who is employed on a probationary contract on
10   the effective date of this Act and will be eligible          for a
11   continuing contract under prior Iaw is entitled to reemployment on
t2   professional status unless there is just cause for termination or
13   demotion as provided by Section 13.256, Texas Education Code, as
I4   added by this Act.
15          (c) A teacher who is designated as a probationary teacher by
16   the employing board of education on the effective date of this Act
t7   and v¡ho will have compJ.eted a probationary teaching period under
18   the provisions of a local agreement in effect prior to the
19   effective   date of this Act is entitled to reemployment on
20   professional status at the end of the proUati.onaqy period unless
2I   there is just cause for termination or demotion as provided by
22   Section 73.256, Texas Education Code, as added by this Act.
23         SECTION 4.   The importance of this legislation       and the
24   crowded condition of the calendars in both houses create an
25   emergency and an imperatì.ve public          necessity that     the
26   constitutional        ruLe requiring   bills
                                              to be read on three several
27   days in each house be suspended, and this rul-e is hereby suspended,


     67R2409 SRC-F                          13
ë
                f4 Ei¡




    L   and that this Act take effect and be in force from and after   its
    2   passage, and it is so enacted,




        67R2409 SRC-F                    t4
6   o
        TEXAS SESSION LAVS 1990
                          GENERAL AND SPECIAL
        Seventy-First Legislature, Sixth Called Session

                                       CHAPTER          T

                                         S.B. No.   1


relaüng to publlc educatlon
  Be   íl   enacled by lhe Legislature of the Stale ol Tæas:

                                  ARTICLE    I,   FINANCE
   SECTION 1.01. Section 16.001, Education Code, is amended t¡r re"rd as followe:
   Sec. 16.001. STATE POLICY. (a) lt is the policy of the State of Texas tlrat tl¡e
provision of publie education is a stst€ responsibility and that a thorough and efficient
aystem be provided and substant¡ally financed thmugh stste revenuo sources so that each
studenù enrolled in the public school system shall have accegs to programs and servicea
thst are appropriate to hig or her educatíonal needs and that are substsntially equal to
those available to any similar student, notwitìstsnding varying local economic facüors.
   (b) The public school finance syslem of the State ol Tøæ shall adherc to ø stondord
of fucol.neutrølity whích provìdes lor substanlíolly equal accæs to símilor rquenue
per sludmt al símìlar lar etlorL
  (c) The progroln of stata finoncìal supporl desíoned and implement¿d lo aúíeue
lhæe policies shell include adherence to the lollowin¡ principlæ:
    (I) the yield olstate and local educational progron re,)enue per pupíl per cent of
  ef/eclìue tas ellort shøll nol be statíslícally sìgnifcantlg relol¿d to local ta.roble
  ueallh per studenl tor ot least those distrícts ín which 05 percent of sludenß altend
  school; and
     (2) the lnel ol stnte ønd, local reænues lor whích equølizatíon is eslnblished shall
  include funds necessory þr the efficíent operatìon and ad,minislrotíon of appropri-
  ale educotíonal progroms ond the provision offnoncíng lor adeqtale lacílities and
  equipmetL
                                                           o a¿hieae subelantially equal
                                                            elforL These methods moy
                                                               i::,,:*íi":i,"i:#,::iå::::i.
   SECTION 1.02. Section 16.004, Educstion Code, is amended to read as follows:
   Sec. 16.$4. SCOPE OF PROGRAM. Under the Foundation School Program, a school
dishict may receive state finan                        seruices, læílitíes, ond equipmenl
íncluding personnel salaries,                          penses, caüegorical progmms, and
hansportation services. The a                          ach school district shall be based on
the districl's abiliby to support its public echool.s.
   SECTTON 1,03. Section 16.006, Edue¡tion C,ode, is amended to read as follows:
   Sec. 16.ffi6. AVERAGE DAILY                          lal In this chapüer, average daily
attendance is determined by the daílg        allendance os
                                       ^TTENDANCE.                      ea.ch month ol lhe
mtumum school gear as descñbed under Seclion I                          lhis code [fuL-f*

                                              I
ch. 1, $ r.03                             71st LEGISLATURE-SIXTH CALLED SES8ION




    (b) For the school geor 1990-1901 only, the number of studmh in øuørøgg doíly
ollcndance under lhe definílìon described in Subsection (a) of thís eection shall not be
 lesa thon 08 percenC of tha number of al'udents thøt would be obtained under lhe
definìlíon wed for the 1989-1990 echool yeor,
    (c) A school dislrict lhot æperiencæ ø decline of two percent or moro ín ouerøge
døily øtlendance aa ø rewlt of lhe closing or reiluclíon in personnel ol a militotg
bøae eholl be funded on the basís of lhe øctuol øaerage doíly oltendønce ol lhe
ìmmedìøtely preceding sc hool year.
    SECf,ION 1,04. Subchaptcr A, Chapüer 16, Education Code, is amended by adding
Section 16.008 to read as follows:
    Sec. 16.008. EQUALIZED fuNDING ELEMENTS, (a) The Lesíslatbo Educotìon
Board, shøll ailopl, ntlec, subjecl, to øppropriate notice ond opportuníty for public
comnten¿t lor lhe oalculøtion for eøch year of ø bimniutn of the quolified funding
elements flecessory lo ochíne lhe stote funding polícg under Seclíon 16.001 of thk
code not loter thon lhe 1091-1905 school gear and tor coch school yeor thereofier,
    (b) The funding elemenß shall include:
      (1) a basìc allolmentfor the putoses of Sectíon 16,101 of this code thot represenla
    the cosl par etudent of a regular education prograrn that meeß the bosic críteriøfor
    øn accredíled progÌam ìncluding oll møndatee of løw ond regulotion;
      (2) the lornulø or other prottbíon for the cosl of educølìon ìndæ dedgned lo
    reflect the geogrøphic aariolíon ín known resource cosß ønd coots of educol,íon
    bcyortd the control ol school diatrícls Íor lhe purosea of Sectìow 16,102 ønd 16,103
    of thís code;
      (3) oryropriale progrøm cost ùíflerentíala and other funding ele¡nentc for the
   progroflB authorized under Subchoplør D of lhía ohopter, wilh the progrøm fund-
   íng leael wpreæed øs dollar amounts and as ueighß opplied to the odjwlnd basic
    øllotment for the øppropria¿e Uear;
       6) the merímum guoronteed Inel oÍ quaËrted stote and locøI funth per student
   tor the purpoles ol Subchapter H of thís chapter lhal represmk the coala oß
    determined ønd limilcd under Subchapler F ol                                 øry pro-
  grdms incluùíng the cost oltocílitíes ønd. equípm                                 lundíng
  lormulø for capítal ouiloy ønd debt sen ¡ce ís dd                                 I of this
  chapler;
    (5) the total lø rates lor lhe local fundíng requírements of Seclion 16,252 of thís
  code ond. Subchapter H of this chopte¡ including ta.a rates for capital outløy ønd
  debl sen ice untíl such tíme as ø ¡ùndíng formulo tor copítol outloy ønd dcbt
  eeníce ís adopled under Subchøpter    I of this chopter; ond
     (6) the lormula elemenls for the fundìng formulas for copital outloy ønd debt
  sentice under the provìsíoru ol Subchopter I of lhh chøpter,
  (c) Begínníng ìn 1992, not loler than Oclober I preceding eoch regular sæsion of lhe
legìsloture, the boørd by rule sholl rtport the equalized fundíng elemmls calc.u.loled
under Subscclíon (b) ol lhh sectíon to lhe loundøtíon school fund budget commitlee,
lhe commìssioner of educolion, ond lhø legíslalure,
   (d) Nol,wíthstanding other provbìonl of this seclíon, the report ond recommendø-
tíow oÍ the Legislatíle Educotíon Boørd lor the 1998-1994 school yeor ond, lhe
 1991-1995 school geor ehall provide for oppropríøte trawítíon from the progrom in
ellect   lor   the 1992-1008 school yeor.
  SECTIOII 1,06, Section 16,101, Education C,ode,     is amended to reod as follows:
  Sec, 16.101. BA.SIC ALLOTMENT. For each student in average daily attendance, not
including the time students apend each day in epecial educetion or vocational education
programs for which en additional allotment is made under Subchapter D of this chapter, a
di¡trict   ie entitled bo an   allotmentol $1,910 t$$Afg¡ îorlhe 1090-199I [f98ff090] school
                                                  2
?lst LEGISL\TUBE-SIXTH CALLED               SESSION                                    Ch. l' $         1.09

                                                                                                      mo[nl
                                                                                                      oî thia
                                                                                                      .a[rer

  SECTION 1,06. Subeection (a), Section 16.161' Education Code, ie amended to read as
followe:
   (a) For each ful
education progmm
an snnual allotme
determined accord
199tr1991 school years is 88 follows:

  Homebound
  Hospiùol class   ,                                      .:   :: ::   ::   :::   ::::   :::: :. : : : : å.3
  Speech therapy                                                                                      7.11
  Resource room                                                                                       .2.7
                                              crmpus                                                    2,5
                                                                                                        8,6
                                                                                                        2,7
                                                                                                        8.õ
                                                                                                        8.õ
                                                                                                      .2.8
                                                                                                        8.õ
                                                                                                       3,01
                                                                                                      0.2õ

  SECTION 1.ù7. Subsection (a), Section 16.162' Education Code, is amended to re¿d as
follows:




   SECf,ION 1.08. Subsection (c), Section 16.1õ2, Edue¡tion Code, is amended to resd Bs
followe:
   (c) Funds allocat¿d under this eection, other than an indirecb cost sllobnent established
under Statp Board of Educ¿tion rruJe, uhich shall not æceed I5 percaTtr' must be used in




80urce8.
  SECÎION 1.09. Section 16.2õ2, Education Code, is amended                        to   read as follows:
  Sec. 16.262. LOCAL SHARE OF PROGRAM COST. (a) Each school district's share
of its Foundstion School Program shsll be an amount determined by the following
formula:
                                    LFA=TRXDPV
  where:
  "LFA" is the district'e local ahare;
  "TR" is a tsx rate whích for the 109F1901 school yeør ehøll be compuÞd by        the
commigsioner of education beîorc the 199È1991 [eeeh] echool year ø{¡ the role that will
raise a totsl local ehare, prior to adjustments, equal to l/
                                                          [CCA] percent of the current
year Foundation School Prog¡am estimat€d coets under Subchaptere C and D of thls
chapter other thsn tùe adjustment¡ made under Sections 16.102(d) and 16.108(d) of thie
                                             3
ch. t, $ r.09                         ?lst LEGISLATURE-SIXTH CALLED                 SESSION

code, ond,   uhich shall be $0.70 per hundred
lhereofior, or o role as adopted bg lhe foundat
the 199C-1904 ond 1994-1995 school yeørs under
ol thís code¡ and
  "DPV" is the taxsble value of property in the district for the prior lax year det¿rmined
under Section 11.86 of this code.
  þ) The commis¡ioner of educ¡tion ehall adjust the values reportcd in the official reporü
of the Stat¿ Property Tax Board to reflect reductions in taxable value of property
resulting from natural or economic diseBtÊr aftær January I in the year in which the
valuations are determined. The decision of the commissioner of education ehall be final.
An adjustment does not affect the local fund assignment of any other district.
  (c) Appeals of district values ehall be held punuant þo Subsection (e) of Section 11,86 of
this code.
   (d) A dietrict shall raise its ùotÂl local share of its program cost in order tn qualify for
aid from the foundation school fund.
   (e) The commissioner of education shall hear appeals from local school districts which
                                            base used in calculating the local fund assignment,
                                           , that is beyond the cont¡ol of the local board of
                                           tion may adjust the loc¿l school district's taxable
                                           rloses for such losees in value exceeding eight
percent and thereby adjust tho local fund asaignment ùo reflect the local current year
taxable value. The decision of the commissioner of education shall bs final. Àn
adjustment does not affect the local fund assignment of any other district.
   SECTION 1.10. Section 16.2õ6, Education Code, is amended by adding Subsections (d),
(e), (f), and (g) ùo read as followa:
   (d.) The.toundotion school tund. bwlgel, committee shøll adopt rules for the colcula-
                                            the

                                            iiz
                                            the
prescrìbød under Seclion 16,008 of lhis code,
  (e) The lunding elemenß shall include:
    (1)                                                          of thís code that represenß
  thec                                                           meeß lhe bosìc criterío   for
  on a                                                       nd regulal,Ìon;
    (2) the Íormulo or olher prouisíon þr the cost ol education índex dedgned to
  retlect lhe geogrophíc uoríation ín hnown resource costs ønd cosß ol educølion
  beyond the conl,rol ol school distrícts lor the puryoses of Sectiotts 16,102 ond 16,108
  ol thís code;
     (3) øppropriøle progrøm cost dffirentiah and other tunding elemenls lor the
  progr&rns oulhorized. under Subchøpler D of thít chapler, wilh the prograrn fund.-
  ing leael erpressed. as dollor omounß o,nd as weighh øpplìed to the adjusled basíc
  allotmcnl lor the oppropriale yeør;
     (Ð lhe mositnum guoranleed lnel of quølìfied sløle ønd local funds per sludent
 for  the puryoses of Subchapter H ol this chøpter lhøt rcpresenls the cosh os
  detcrmined and limiled under Subchapter F of lhis chøpter tor eremplary pro-
 grams includíng lhe cost, of focilílies and eqvipment unlìl such tíme a.s a tunding
 formulø lor copítal oulløy ond debt sen¡ice is adopted under Subchopter I of thìs
  chapter;
    (5) ¿he lotal las rotes for the localtunding requiremenß of Secl,ion 16,252 ol this
  cod,e ond Subchopler H of this chøpte¡ íncludìng la.u roles for capítal outlay ond
  d,ebl sen ice until such lime as ø fundíng Íormulo for copìlol oullog ønd debt
  service is adopled under Subchapter I of this chapler; ond
    (6) lhe lormula elements for the fundìng formulas tor capìtol oulloy ønd debt
  sen¡ice under lhe provbion oJ Subchøpter I of thìs chøpter.
                                                  4
?l¡t LEGISLATURE-SIXTH             CALLED SESSION                          ch. t, $ l.u
  @ Begínning in 1902, nol laler than Noaember I preceding each regulør sessíon ol
lhe legislalure, lhefoundatíon schoolfund budget comrtíttee by rule shall adopt ond
report lhe equalìzed lundíng elemenls colculaled under lhis seclìon lo the commìs-
síoner ol educalíon ond lhe legislolure. Beþre the co¡nmíttee adopk the elemenls,
lhe comnillee or lhe commílteeþ decígnees shøll hold ø public heoring on the
recommendatiow of the Legìslatíue Educatíon Boørd,
  (g) Notwíthstondíng other provisiow of thís section, the lunding elemenh ødopted
by the foundation school fund budget commil.tee þr the 1993-1994 school yeør ønd the
1991-1995 school year sholl protíde lor opproprìale tronsítìon from the progrøm ín
    tor the 1992-1998 school yaon
eflecl
  SECTION 1.11. Subchapüer H, Chapter 16, Educstion Code, is amonded by amending
Sections 16.302 and 16.308 and adding Section 16.804 to read as follows:
  Sec, 16.302. ALLOTMENT. (o) Esch district is guaranbeed a specified amount per
weighted student in statp and local funds for each cent of tax effort, over that required
for the loe¿l fund assignment up üo the maximum level specified in this subchapter. The
amount of süat¿ support, subject onlg la lhe ma.rí¡nu¡n øtnount under Seclion 16.303 of
this code, is deüermined by the formula:

                      GYA     =   (GL X l4rADA X DTB X 100)         LR
                                                               -
  where:
  "GYA" is the guarantced yield amount of stste funds to be allocated        ùo   the dishict;
  "GL" is the dollar amount
student per cent of tax effort,
tor each school year lhereatle
appropriatio4 or øn ørnou,nt ø
under Sectíon    16.256(d)   of thìs code for lhe 1993-1904 or     1091-1905 school year or
thereatler';
  'rIryADA" is the numbcr of weighted students in average daily atüendance, which is
calculat€d by dividing the sum of the districdg allotments under Subchapt¿rs C and D of
this chapter, less any allotmente to the districù for transportation or for career ladder
supplements and 60 percent of the adjuslmenl te¿iustmentsl under Søalíon tS€etiensl
16.102 [enÈf6,f0Í]l of this code, by the basic allotment for the applicable year;
  rrDTR" is the district enrichment t¡x rat¿ of the dishict, which is determined
                                                                                           by
subtracting the loe¡l fund assignment of the district, from the amount of üaxes collected
by the district for the applicable school year and dividing the result by the quotient of the
district's taxable value of propcrty (DPÐ under Section 16.2õ2 of this code divided by 100;
and
  "LR" is the local revenue, which is determined by multiplying "DTR" by the quotient of
the districfs üaxable value of property (DPV) under Section 16.262 oî. thie code divided by
100.
  þ) Beginníng with the 1992-1993 sahool geor, ìf the cost of educøtíon ìndea ønd
progra,m cost díllerenlíals dneloped joinl,lg bg lhe Legìslalíae Educq,lìon Board ønd




  (c) Begínníng wílh the 1991-1992 school yeør, lhe Legislotíoe Educølíon Board
under Sectìon 16.M8 of this code ond lhe foundøtion sohool lund budgel, comm,iilee
under Seclion 16,256 oft                            leslor "GL"                ílølìon
on "DTß" under Seclion                             ø percentìle                lth per
weighled sludent lhat is                            rcentile, Th               ed luíll
rep-loce lhe roles elaled ín Subsectìon (o) oî lhis seclion ønd Seclion 16,300 of this
code.
                                             5
Ch. l, $ l.ff                       ?lst LEGtstÁTURE-sIxrH cALLED sEssIoN

  Sec. 16.303. LIMITATION ON ENRICHMENT TAX RATE.                 (a)   The di¡trict enrich'
ment t¿x rat¿ ("DTR")
199Þ1991 ochool geor,
1991-1995 school geors
cotnmillee under Sectì
                                                 '




    (l) øn amount cqual to 25 percent of the díflererlce beluem the ma,rhnum rote
  ond the 199È1991 distríct rate lor the 1991-1902 school yeor;
    (2) on omount equøl to 50 percent ol the dffirence belueen lhe ma,timum role
  ønd lhe 199Þ1991 distrícl' rale for lhe 1992-1008 school yeøt; ønd
    (8) an omount equol to 75                                     the masi¡nu¡n role
  ønd the I99FI99I distrìct'

  19881"989-{0heel+s¡Ë1.
  Sec, 16.301, COMPUTATION OF AID FOR DISTRICT ON MILITARY ÈESEîVA'
TION OE AT STATE SCHOOL. Støte assístonce under thís rubchøpler for ø æhool
                                                            Slale School is
                                                                         ofscltool dìslrìcß

  SECf,ION 1.12. Section 16;165, Education Codo, is amended by amending Subsections
(a) and (e) ond adding Subsection (g) to read as followe:
  (a) For
vocational
lhe hondí
allotmenb
allotment
  (e) Funds sllocatÆd under this section, other t}an an indirecü cost allotment est¿blished
under Stat¿ Board of Educstion rule, musü be used in providing voc¡tional edue¿tion
programo ín grødæ níne through 12 or aocøtionol education tor the høndôcopped
þrlgrons in grødes sewn through l2 under the provisions of Sections 21.111, 21.1111'
and 21.112 of thia code.
  (g) The con',nksioncr shall conduct a cosl'benefit comparison between aocølional
edù,cotion ptogror/ts ond møthematiæ and science progrottts'
  SECTION 1.13. Subchapter F, Chapter 16, Educution Code, ig amended to read as
follows:

      SUBCHAPTER      F.   TPROOB¡,T4] ACCOUNTABLE COS1S OF EDUCATION

  Sec. 16.201. PAÈPOSE. The accounløble cosß ol educølìon atudíee øre dedgned to




  qt¡nCsrds preger¡bsC b
                                             6
Tlat LEGISLATURE-SIXTH CALLED SESSION                               ch. t, $ r.13




  $ieaàsptslt


    I.
  Sec, 16.202. STUDIES, (a) On ø    bimnìol basìs, lhe Legìsløtíae Ed,ucalìon Board
and the Legislotiue Budget Boørd, wilh lho ascistønce ol the Educøtíonal Economic
Policg Cenler ønd lhe Centrol Educotion Agmag, shall complete each of lhe following
gtudies ønd develop recommended ømounls uhere øppropriøta lor each yeor ol lhe
nert bìennium:
                                                     to delermíne thc stal.w of lhe
                                                       ,:!###:i!:i:#
                                                                          #tt¡l!;
   (2) the occountable cosliper student lo school dìsúrícß of prouidìng ed,ucatìonol
 progrqnß, personnel, and other operoting cosß thøl meel, accredítalíon critcrio ond
  lhe protrísions ol low ond reguløtion;
    (3) o cost of educotíon indeø desígned to reflecl lhe geogrophìc aoríatìon ìn
  known resource cosls ønd cosß of educølíon due to factors beyond lhe conlrol of
 school dístrìcts;
    (l) progrorn cost dillerenlìals dedgned bg progran to provide supporl, lor lhe
  added espense of high-cost co1r.fttes or progrønw for atudenE portícìpatìng ìn such
  courses or progroma, with the progrøm funding lcaøl erpressed os dollor ømounß
  and as weighß øpplíed lo the ad.jwted basíc øllotment lor lhe øppropriate yeor;
    (5) trønsportation and cøreer ladder øllolmenh;
    (6) the occounloble cosß per student to dìstrìcts raled øs eremplary under lhe
  provísìons of Subchopter T oJ Chøpter 21 of this code lor lhe provísion of penonnel,
  progrom$ ønd other operoling erpenaas, wilh the li¡nilalion thalJor the 1908-1991
  ond the 199l-1995 school gears lhis leael may not be less thon 95 percent nor Ìnore
  thøn I(M percent o/ the 95th percenlíle of slnte ond locol reuenue per pupíN
    (7) lhe leueLs ol ta.r effort necessory þr eoch tíer of the Foundation School
  Progrøm nece*sary to fulfill the requirements ol Seclíons 16.001 ønd 16.008 of thìs
  code; ond
     (8) copítøl outlay ond debl, seruíce requiremenls ond lormulo elemenß þr the
  requírernenß of Subchapter I of thís chapter or olher provisions of thís chopter.
  (b) In the delerminalion olcosß ønd reaenues under this chaple¡ the boørds shøll
co¡tsider those costs and. reuenues necessory for operalìo4 møintenonce, ond. sdmìn¡s-
trotíon ond lhose costs necessory tor ødequøte lscilìties ond equípment ønd shall
erclude oll olher cosls IADVISORw €OMMITTEE (g)Thgs+eteBe0rfle
ch. t, $ 1.r3                         Ttet LEGISLATURF-SIXTH CALLED $ESSION

                                    In t
                                     (a)                          e slalislicol mecutureg
                                 Inautral                         e only tho'se meosures
                                 I ponel                           lhe use of slatklícs
appoínted bg the boørds.
                                                           more models thol co¡wider
                                                          cost otpublic education           in
                                                           be   divided into ø aøríelg of
                                                          duca    tionol   c   horac terh tics,
                                                           lor    specífic resourcc cost
                                                                     lo ìnclude pe'ñton-
                                                                        Factorc thot ore
                                                                      I Progrøm are nol
                                                                      nt sentice deliuery




øllolmenL
  (c) The cosl of educatíon inder deueloped jointlg by I                          tìon Board
ond the Legisløtìae Budget Boord sho,ll be subni¿led                              ohool   fund
budget commítleelor adoplion. The cost oløducølíon                                 commitlee
shall be ellecliae beginníng wíth the 1991-1992 school




diflerentiols.
  (e) The commíssioner     ol educøtion shøll províde øppropriote q.ssistance to           the
                            of thea                                      ta review by lhe
                            rd, lhe                                     retoin lrom lhe
                             16.102                                     høpter D of lhis
chapter øtnounß appropriole to fnonce necessøry add,ìtìonal coaß           for lhe slu,díes
 required undcr thìs subchøpter,
   (l) The boørds ma.g øppoint advisory commíttees to a*sist in the dewlo|tment of the
 uørious lunding elemenß a,nd. studies required under lhis lubchopler. Aduìsory
 com¡nittee members sente withoul compensalíon bul arc entitled to reimbursement
lor øctual and necessory eîpenses incurred ìn the perþrmtnce          of lheír dutìes,
 Reimburscment sholl be from, lunds oaaílable under Subseclíon (e) ol lhía seclíon or
lrom olherfunds auoílable lo the boørds,




                                            .

  Sec. 16,204, NAVAL MILITAÈY FACILITy IMPACT. (o) The model on whích o
cosl of educalion indø is based must specítically corwíd.er lhe impact ol a dgnìficant
neu naual military tacililg on each dìstrict ìn øn ímpacled region,
                                           8
7l¡t LEGISLATURE-SIXTH CÂLLED             SESSION                          Ch. 1' $         1.17




   In(c)                                  aal ¡nilíla                                ed.regío.n"
  the
hoae                                      Artícle 1,                                 ted Regíon
Assistan                                  Vernon's
   Sec. 16.205. EFFICIENCY IN ADMINISTRATION ÈEPORT. (o) The ( )nmísdon'
er ol educølíon sholl conduct o study to determinø the mosl øppropríate ønd elficíent
meíhod ¡or reporling ønd monitoring lhe ollocalíon of resources by school distrícß.
                                  the                                       íng, monitoring,
o                                  .oÍ                                      llocøte tor theír
a                                 lnc
  (c) The sludy shøll include a descríption ol querage etficíent ad¡nínislraliue crpend'
ítures by dístiìcß wíth consíderotíon ofdístríct size ønd demographícl
  (d) Prior to the beginnìng ol eøch regular sædon of the legisloture, the øgencg shall
piovìde a reporl wiih recommendotìotu to the Legislati¡¡e Educølìon Board ønd the
legíslalure.
  (e) The study is øn elemenl ol tho study of øccounlable costs ol educøtíon under this
subchapler,




shsll be completcd not latcr than January l, 1991.
  (b) In addition, specific studies of the impact o                         daily attendance'
appropnsbe mechanisms for the funding of vocati                             e cost of aerving
al-ilsli students shall be included in the studies co                        prior   üo   January
I,   1991.
     SECÎION 1.16. Section 13.368, Education     C,ode,   is amended by adding Subsection (e)
to read os follows:




  SECf,ION 1.16. Section 29.05, Education Code, ie amended 0o read ae followe:
  Sec. 29.06. ALLOCATION OF COSTS. A formula for the allocation of professional
units and                                                                      ncy
  appro
and                                                                                           ¿4,
    ¡he
199t,-                                                                                        829
míllíon.                                                                                      lhe
Teras Deportment      ol Crí¡ninal Juslicesha.ll propose lo lhe 72nd Legislaturø o
lormulo for funding lhe schools aulhorized by Svclion 20,01 of this code, wing the
lund required by Seclíon 29.Ø of thìs code,
   SECTION 1.17. Chapter 1, Title 22, Revised Statutee, is amended by addíng Article
?l?t-l to read as follows:
  Art, 7t7t-L PUBLIC SCHOOL FACILITIES DEVELOPMENT GRANTS.                                     (ø)
From funds opproprialed     for   the pul?ose,   in   lhe 190l-1002 school gear, lhe board
                                             I
Ch.     l, $ f.l?                    ?r¡r LEGtsIt\TURE-sIxrH cALLED sEgsIoN

                                                                                        f,9,


                                                                                        ":,
                                                                                        his
orticle.
  (b) The boørd, by rule sholl estøblìsh procedures and quolificatiotts for obløining o
grønt under thìs ørtícle, Under the nt lee, ø príorìty shøll be gìten to achool diøtr¡cts




non's Teras Ciuil Stalutes),
                                                                               renoltalion,
                                                                               nol, be used
                                                                               any port   ol
                                                                               recetung o
gront under thís artìcle,
  (d)  In ¿hìs ørlícle:
     (1) "Boørd" hos the meaning astìgned by Section 2, Public School Fac,ililìec
  Fundíng Act (Artícle 711t, Vernonb Tecas Ciuil Statutes),
     (2) "Copilal essels" meøns permonent frrtures, mechanìcol or electrícal equíp-
  menl, or other tøngible properlg thal becomes a permønent ìmprouetnenl to on
   i¡wtructional tocílity or fumishíngs, other than compulers, for on ínstntctìonal
  focility thal hoae a lile olnot lesg thøn 10 1¡eøre,
     (3) "Insh'nctional facilil,y" hos the meaning as$gned by Seclìon 2, Public School
   Facílities Funding Act (Arlícle 717t, Vernon's Tesas CíuíI Støtutes).
  (e) This arlícle erpíræ Augnst 91, 1992.
  SECTION 1.18, Chapter 314, Government Code, is amended by adding Section 314.004
 to read as follows:
    Sec. 814,00i. EQUALIZED EDUCATION FUNDING IùIPACT STATEMENT, (ø)
 The board shall prepore lor eøch bill or resolution thot øllects publíc education øn
 equolízed educotìon /undíng irnpoct stolement.
   (b) The irnpøot sla,lttnent must etøluate the etlect of the bill or re¿olulìon on oll
 slate equolízed funding requírømenls ønd polícíæ,
   (c) The ímpoct slolement musl be atlached to the bill or resolulion immedíotely
tollouíng the fiscal note ottrched under Sectíon J14,008.
  SECTION 1.19, Section 822.008, Government, Code, is amended ùo read as follows:
  Sec. 322.008. APPROPRIATTONS BILL. (a) The director, under the direction of the
board, shall prepare the general appropriations bill for introduction at each regular
legislative session.
   (b) /Voú laler than the 1901-199õ school gear, the generol øppropríalions bìll shall
include tor pur?oses of inlormolìon lhe funding elements adopted by the foundatíon
school fund budget commiltee under Sectíon 16,256(e), Educøtion Code, amluding the
tolues lor each school dìstríct calculøled under Subdìvísion (9) of thot subsectío¡t.
Ih.e fundìng elemønts under Section 16.256(eX8), Educatíon Code, shøll be reported in
dollør ømounß per pupil.
 lcl Not latcr than the fifth day after a regular legialative sesgion convenes, the direcüor
shall trsnsmit a copy of the budget of estimat€d appropriations prepared by thc director
to the governor and each member of the legisìature.
   (d) Í(et) Not lsær than the seventh day after a regular legislative seeeion convenes, the
director ehall trsnsmit a copy of the general appropriations bill ùo the governor and each
member of the legislature.
   SEC"IION 1.20. (a) Notwithst¡nding any other provision of this Act, a district's
incease or decrease in etåte aid per student due to changes made by this Act to the
                                            10
?lst LEGISLATURE-SIXTH CALLED                 SESSTON                         ch.   l,   $   2.01

Educ¡tion Code at the time of its enactment shaìl be limit¿d to the following levels for the
indie¿ted school years:
     (l) 26 percent, of the difference between the stat¿ aid per student üo which the diskici
  is otheruiise entitled under the provisiona of thie Act for the 1991-lgg2 school year and
  the etatê aid per etudent bo which the district is entitled under the provisions of this Act
  for the 199f199f school year;
                          difference
     (2) õ0 ¡,ercent of tire                                  per student to which the diet¡¡ct
                                pr
  is otherwise entitled under the                            r the 1992-1998 school yeur and
  the statê aid per student towhich                           under tùe provisions of this Act
  for the 199f1991 school year;

  b
  d
                                          nïiä"11,
                                          provisions
                                          e
                                                                                    'ffi'Jit:
                                                                                     994 gchool
  y                                       which the   di                             provieions
  of this Act for the 199F1991 school year.
   (b) Unless detBrr¡,ined to be differe¡rt amountis for the 199þ199
years by the foundation school fund budget com¡nittee under the
in Subsection (d), Section 16.256, Education Code, as added by this
be used in detcrmining eligibility for süâte aid and special program allotment smounts
beginning in the 199l-1902 school year:
     (1) the basic allotment only for purposes of determining the arnounts of funds whlch
  school districts must allot for special programs under Subchapter D, Chaptcr 16,
  Education Code, undcr provisions of thirAct shall be $1,966 for the 1991-1992 school
  year, $2,019 for the 199ã1993 school year, $2,0?4 for the 1993-1994 echool year, and
  $2,128 for the 1994-1995 school year; and
    (2) the minimum tax effort per hundred dollars of valuation required under Section
  16.252, Education Code, shall be $0.64 for the 1991-1992 school year, $0.õ4 for the
  1992-1993 school year, $0.62   for the 1993-1994 school year, and $0.?0 for the 1994-1996
  school year.
  SECTION 1,21. No district shall receive less funds for the 1990-1991 school year than
the district would               der th                       thu Etl
the exception tha                mpact                        elaHng
atbendance  under                    Educa                          be   he
commigsioner of e                    ovide                         lations
section.
  SEüIION 1,22. (a) Subsection (c), Section 16.161;      Subsec                         aB
added by Section 9, Chaptcr 816, Acts of the 71st       Iægislatu                      89;
                                                             1
Secùion 16.176; Section 16.1??; Subsections (a), (b), (c), and                         ion
16.179; ond Section 16.180, Edueation Code, are repealed effective immediobely,
  (b) Effective Sepùember l, 1991, Subsection (c), Section 16,102, Subsection (e), Section
16.103, and Subsection (d), Ser:tion 16.178, Eduuation Code, are repealed.
  SECTION 1,23. (a) Sections 1,06 and 1,0? of this article take effect Sepùember 1,
199r.
  (b) Sections 1.13 and 1.1õ of this article take effect immediaÞly.

                           ARTICLEII. ACCOUNTABILITY
  SECTION 2.01. Section 2,01, Education Code, is amended to read as follows:
  Sec. 2.01. PUBLTC DDUCATION IN GENERAIq ùOALS FOn PABLIC EDü
CATION. The objective of sLaüe support and maintenance of a system of public
education is e¡lucation for citizenahip and is grounded upon conviction that a general
diffusion of knowledge is essential for the welfare of Texas and for tlre preservation of
the liberties and rights of citi¿ens. The goals of pultlíc educolion are as Jollotus:
  GOAL Å: All studenß ehøll haae on opporluníly to benefit jron on øppropriate
educotion. The achieuemcnt gap between educalionallg disaduantagcd etudents ond
                                              11
ch. l, $ 2.ol                        ?l¡t LEGISLATURE-SIXTH CALLED                    SESSION

olher populalions uill be closed. Through enhonced dropout preuenlìon e/forts, the
graduolíon ratø tuill be raised to 95 percent of sludenls who enler the seumth grade,
  GOAL B: Tha slale shall be wiChin natíonal norms lor sludent peîÍoflnance.
  GOAL C: A well-balønced ønd øpproprìole curriculum will be províded to oli
studenlß,
  GOAL D: Qualitrctl and effeclíue personnel will be øltracted ønd reloined" Ade-
quale ønd compelitiue compeÌ¿sal¡on cotnmensurale wílh respotuibilities uill be
e¡wured. Qualí/îed staff ín crílícol shorlage øreas will be røcruíled, troined, and,
retaíned,
  GOAL      E:   The orgonizalion ond monagement of         øll   leuels   ol   the educatîonøl
tystem wíll    be producliue, eflîcienl, ønd accounlable,
   GOAL F: Insln¿ction ond odmínistration will be ímproaed lhrough reseo,rch thot
identifies creøliae otd ellectìae methods. Demonslration progrønts uíll be deueloped
ond local initiatiues encouraged for ncw iwlruclional orîongements and rnonagc-
ment lechniques. Technologg wíll be used ¿o íncrease the equity, fficiency, and
eflectiaeness of classroom inslruction, ínstructìonal manøgement, and adminìstrø-
líon.
  SEgflON 2.02. Section 3U7,005, Government Code, is amended to read as follows:
  Sec. 32?.00õ. PO1VERS AND DUTIES. (a) The board shall oversee and review the
implemenbation of legislative education policy[¡-ineluding-fisee]¡elie¡'l by state agencies
that have the stntubory duty to implement that polic¡ includìng policg reloting to:
    (1)   fiscal mallert;
    (2) academic eøpecløtions; ond,
     (3) eualuølion of prograrn cost-effectiøeness. The board may require information
  ond reports from state agenciee as necessary ùo carry out its duties,
  (b) For purposes of carrying out its duties, the board may administer oaths and issue
subpoenas, signed by the chairm¡n or vice-chairman, ùo compel the att¿ndance of
witnesses and the production of books, records, and documents. A subpoena of the board
shall be served by a peÂce officer in the manner in which district court subpoenas are
served. 0n application of the board, a district court of Travis County shall compel
compliance with a subpoena issued by the board in the same manner as for district court
subpoenas.
  (c) The board shall make recommendations         tn the legislature      conceming needed
changes in legislative education policy.
  (dl The boørd møy oppoínt aduisory commíltees composed ol cítizens of the etate to
advise lhe boord in the discharge of lhe board's dutíes, A Tnember ol on odtti¡o¡!
commitlee oppoinled under lhìs seclíon serues utithout compensølion but ia enlilled to
rei¡nbursement lor actual erpenses incun'ed in the perþrmance of the memberb
duties.
   (e) The boord møg employ alaff os necessary lor the perþrmønce of its dutíes, as
allowed, by legisløtiae oppropriøtion, or may request ønd use støll províded bg the
Tems Legislalíue Council or the Legislotíae Budget Boørd, Such slffi if any, sholl be
oaailable to all members ol lhe legísløhre,



  [O]Stat¿ agencies shall cooperabe with and aaaist the board at the board's requeet.
  SECTION 2,03. Section 82?.006, Government Code, is amended to read as followg:
  Sec. 32Í1.                                             y teUBBIeU¡,Ul4l IMPLEMEN.
TATION.                                           review the øclíons or proposed
actìons of                                       ard of Education [unde+-Seetien
¿UOf'¡¿ue¿t¡e+ge¿ql for the purpose of ensuring compliance with legislative intent,
                                            t2
?lat LEGISLATURE-SIXTH CALLED             SESSION                     ch. t, $ 2.06
  (b) Ifthe board delermines that øny actíon or proposed aclion ofthe State Boord ol
Education contlíck wilh legislatìae cducatíonal polìcy, the boord sholl submìt íts
comments on the conflict lo the Slate Boord ol Educatìon ín wrílíng.
  (c) If the board delermines that a final actíon of the boord contlicts wilh the ínlent
ol legíslatiue educolíonal policy, the board møy:
     (1) request ødditíonal intormalion from lhe Stote Boo,rd of Educatíon relaling to
  lhø inlenl ol lhe boord'a actìon;
     (2) request o joinl, meelíng wilh the Slate Board of Educatíon lo díscuss the
  conflicl belwecn the øctíon and legíslalíue educølionol polìcy;
     (l) requesl lhol the State Boord ol Education recowíder íts aclion; or
     Ø) nolílV lhe gouemor, Iieutenønl goaernoî, speøker of the house, and the
  legislølure of the conflíct presented,
  SECTION 2.04. Subchopter A, Chapter 11, Education Code, is amended by adding
Section ll.209l to read as follows;
  Sec, 11.2001. MINOHTY ûECßAITMENT PÈOGhAMS. (ø) The Teras Higher Ed-
ucal,ion Coordínølíng Boørd in cooperøtìon wilh lhe coÌnmüdoner ol educolíon aholl
establish o progrorn lo assisl ín the recrzíhnenl of tnínorílíes ìnto the educølion
prolewion. The progrøm moy ínclude, but ís nol lítniled to, the following:
    (1) luilion or grant' assístønøe prcgtøms;
    (2) incentíue acholørehip progrorìts ulílízing lunds under Subchapter G, Chøpter
  56, ol this code, lo encourage mìnorílìes to enter lhe eùtcølíon profesdon;
    (0) cooperalion wilh inslitutío¡ts oî hígher educolion to conducl Ìecnlit¡nent
  semínars, job foirs, ønd mentonhíp programs;
    (l) cooperation wíth publíc school dül'rícß lo conduct cøreer æploration pro'
  grøms ìn lhe areo ofpublíc educotíon; and
    (5) cooperation with educalìon ínterest groups ønd orgønízotions to conduct
  coreer erplorøtion progroms, recraítment semínars, job faíra, ønd mmtorahip
  progrons.
  (b) Fvnds øppropríateil lor these progranß chall be specíficølly allocaled by the
board ín íß oùnual budgel procens ønd ahall be monitored by the boørd lo delertníne
lhot thø progrøm ís meeting goøls eatoblishød by I'he boørd,
  SECTION 2.05, Subsectione (a) and (d), Section 11.28, Education Code, are amended üo
read as follows:



esesien€Ærl as msy be called by the chairman.
  (d) The governor, wìth lhe adn¡íce and consent ol lhe scnøte, appoints the chairman of
the State Board of Education from among the memberghip of the St¡t¿ Board of
Education. The chairman serves B term of üwo years,
  SECTION 2,06. Section 11.24, Education Code, is amended ùo read as follows:
  Sec. 11.24. GENERAL POWERS AND DUTIES, (s) In addition to perþrming íß
dutíes under the constilutíon, lhe påe] Stste Board of Education shall lake øctio¡rs
necessary lo implement legislatíue policg  f@¡nn¡ngSedyl                             ¡tt
the public school system of the suate. The boord shall ínclude in the record, ol iß
meetíngs lhe legislalíae authorily lor eøch actìon løhen bg the board. The boørd sholl
cowíder any commenls submìtted by the Legìsløtiue Education Boord on ø propoaed
                                                       Il
rule beþre uoling on final adoptíon ol the ntle, the board ís nnsure of the
legislaliae intenl. ol ang legislatíue enaclmanl, lhe board moy request ø joint meeling
wíth the Legìslaliae Educølìon Board lo discttss the inlenl.
  þ) The boord is tllshel¡l also  þl     the Slate Board for Vocational Education and as
such, the board shall have all the powers ond duties conferred on it by the various
ststutps relating to the Stat¿ Board for I ocational Education. The State Board of
                                           13
ch. t, $ 2.06                       ?lst LEGI9L\TURE-9IXTH CALLED                      SESSION




tional education pnograms in Texag public community colleges, public technical institutcs,
and other eligible public poetsecondary institutione.



*çlesislslu¡e,l
  SEGTION 2,0?. Subsection (c), Section     ll'26'   Education Code, is amended !o read as
followsl
  (c) S¡ith the advice and aseistance   of the stat€     commisgioner   of   education, the Staùe
Board of Education shall:
    (Ð




                                                                        ¿¡Ungrsn¿¡epeltíng+n

    (4)l muke üo the legislature biennisl reporüs covering all the activities and expendi-
  tures of the Cent¡al Education Agency;
    (2) l$ll adopt rules for tùe accreditstion of schôole;
    0/ t$l execuùe contracts for the purchase of instructionol aids, including textbooks,
  within the limit¡ of authority granùed by the legirlature;
    Ø lg)l execut¿ contracts for the investment of the permanent school fund, within
  the limits of autlrority granted by Chapter t6 of this code;
    l5l t(8)l adopt rules consisüent with Chapùer l8 of thie code for certifieation of
  tcacherr, administrsto¡r, and other professional personnel customarily employed in
  public schools;
                                                               tify parents of students of       a
                                                      certified, unless the teacher is
                                                      or the teacher has at, least 24
                                                      teaching under an emergency
  permit and is making satiafactory progress toward completion of a deficiency plan¡
                   r the                       activi                schoole of Texas
                      each                           elegi                      lly report to   the
                     thep                            onof                        ùo be devot¿d ùo
                     legal                           educs                      and
    (8) Í(LÐ) on or before Moy 16 of esch year, formulate and transmit üo the Texas
  C¡uncil on Voe¿tional Education a list of evaluation ùopics that address developing and
  future concerns of the bosrd in the field of t¿chnicsl-vocational education.
  SEOIION 2,08. Subsection (a), Section 11.29, Educ¿tion Code, is smended to resd ag
follows:
  (a)ThecommüsionerofeducolíontWshalladoptannuallya
                                                              , [th+eper*tien+{] the Central
                                                              State Board ol Educalíon has
                                                              he amount¡ rppropriatcd by the
                                                               administration and operation of
the Central Education Agency and any other necesgary expense. Beþre adoptíng lhe
budgel, the commí¿s¡oner ahall:
    (1) submit the budgel lo the State Boord ol Educalion ønd the Legislatioe
  Educøtìon Board lor rwiew and commtnN ond
                                             t4
Tlot LEGISLATURE-SIXTH CALLED SESSION                                  ch. 1, $ 2.u
    (2) afler receivíng the commenls ol those boørds, presen¿ the budget           to   the
  goûenor ønd the Leg¡slalíae Budget Boørd
  SECTION 2.09. Section 11.61, Education Code, i¡ amended üo read ro follows:




             the senote,

¡f*eofthieaed€,l
  (hl Thc comm.issioner ol educotíon senes o term ol office ollour geørs æpiring on
Mørch 1 of the øppropriate odd-numbered yeor, The gouemo¡ with the adt¡íce and
consent of the stnale, maA remoae lhe commíasíoner oJ educotion on the petition of
two-lhìrds ol lhe membershíp oÍ the Stale Boøril ol Educolíon or Ínay remoue tor good
cauae, The commissíoner of ed.ucalìon møg serne conscc,ttiao termr,
  (c) The [ete&e] commissioner of education shsll be À pe¡ron of broad and prcfessional
educational experience, with special and recognized abilities of the highest order in
organization, direction, and coordination of education syetema and programs, and in
adminishation and management of public schools and public edr¡cation generally. The
commigsioner of education sh¡ll be a citizen of the Unit¿d States.
  (d) Í(oÐ The commissioner shall execuüe ø?¡ [b¡s] official bond in a sum not, to exceed
$50,000, conditioned on the f¡ithful performance of lhe commíssíoner's [his] duties ae
required by the laws of Texas t
efJ*lue*tienl, and pursuant to the provisions of Chaptær 883, Acts of the 66th lægisla-
ture, Regular Seasion, 1959 (Article 6003b, Vernon'e Texas Civil Statutcs).
  SEGTION 2.10, Subchaptcr B, Chapter 13, Education Code, is amended by adding
Section 18.049 to read as follows:
  Sec, 13.049. MODEflN TEACHING PEACTICES, (a) Stondanl.s odopted under
Seclíon 18,092 or 18.085 of thís code tor leacher lraining sholl ínclude traíning in the
use of technology ond ellectìae teachìng practìces in the clo¡sroont,
  (b) Begionql educatíon sentice cenlers, leocher centcrc, insiítulíons of hìgher edu-
calion with øpproaed teache¡ educatíon programs, and other øppropriote educotíonal
entítìes shall olfer ìn-seruíce troìníng lor publíc school teacheæ ønd, other educøtìonal
personnel ín tl¿e use of technologg and ellectíue teachìng practíces ín the classroom
and ìn mahíng dìstrict-leuel deci.sions.
  SECTION 2.11. Subchaptcr B, Chapter 19, Education Code, is amended by adding
Section 19.0f, b read as follows:
  Sec, 19,027. ACADEMICALLY UNACC?EDITED SCHOOL DISTRICTS, (o) Tha
co¡nmíssíoner of ed,ucatíon by order mog ønntt lo one or more adjoinìng dislrícls ø
school district thal has been raled as academícally unaccrediled for a period. of two
geafg,
  þ) fne goaerning board of a district to whích terrítory ol øn acodemícollg unoc-
credíted dislrict ìs anneæd. ü the goaemíng boord lor the new diatrict,
  (c) The order of the commissíoner shall define by legal boundøry descriptíon tho
teritory of the neu dìslrict os enlarged-
  (d) Titte to the real properly ol the academicølly unaccrcdited distríct tests in lhe
               ich the property ís onnwed, Esch district                ry ìs annæed,
                   ís liable Jor any porlion ol the    ocadem             í:ed   dís¿ríct's
                  thøl ìs allocoted lo the recehtíng   district,          ß.Ag ol lhìs
  (e) Belore lhe commissioner orders o'n ønnerotion under lhis section, the co¡nmìa-
sioner shøll inaesligale lhe educalíonal and tînøncìol ímpact ol lhe onneration on the
receiving dislrict, The commissioner fircA order the annetation only if the commís-
  fo¡ Sor¡,L¡h   gd.vol.'9(Þ-lo               15
Ch. 1, $ 2.11                         ?lst LEGISLATURE-sIXIH cALLED sEssIoN

sioner fttrds thal the annetation will not substantiølly.impair the abilíly of lhe
receiving distrícl lo educate the studelß located ín the dislricl prior lo .lhe annæa'
líon ønd lo meel its financial obligationa incuned priot to lhe annøalío¡t-




 SECÎION 2,12. Section 21.258, Education C,ode, is amended to read as follows:
 Sec, 21.268. PERFORMANCE REPORT. (a) Euch board of trustees shall publísh an




 (b) The




                                 rcporl may [must] include the following information
campus:
    (l)   evaluations of the quulity of education based on the information contained in the
  report;
    (2) scores on tcsts with national norrns;
    (3) reports of performance t¡ends improvement or lsck of improvement;
    (4) st¿tements of costs for instruction, instructional administration, and central
  administration;
    (5) attendance data and dropout raùes;
    (6) reports on discipline;
    (?) data on employees, trends in employment, and turnover;
    (8) teacher ratios by grade groupings and by program; and
    (9) stat€ment of efforls to ¡educe the amount of paperwork required of teachers and
  administrators.
  (c) The report mtut also include a comporison provided by the Central Educatíon
Agency ol:
    (l) thc perþrmance ol each compw to the perþrmance of campuses vith cimilar
  u'eolth at¿d demographics and o! the distríct to districls statewide for inlonnalion
                                             16
?l¡t LEGISLATURE-SIXTH             CALLED      SESSION                      Ch. 1, $ 2.f4
  requíred under Subsections (b)(/ù, (5), (7), ond (8) of thìs scction ond all acadetnic
  indicolors undar Seclion 21.7531 of thís code; and
    (2) lhe perþrmatce ol eøclt. dislrict to the projeclion of erpected perþrmance ol
  lhal dístricl   corwíderíng lhe weallh and demographìcs         of lhe díslrict, tâ-rspelt



    t;
    tW
    t@
  (d) The St¿te Board of Education by rule shsll authorize the
with other reports and financial statements and shall restrict,
reports that school districts, [and] school district employees,
required to prepare.
  t

with the inferm¡tien reperisd b}.eeheel disHe$
  t                                                                 ¡te¿-l+¡tå-tn+f¿Si¡lstiv€
BuCget-Beerd and ths ¡pp¡epr¡st€ eemmitt€ee e' eeßh heuee,l
  SECÎI0N 2.13. Section 21.551, Education Code, is amended by adding Subsections (f),
(e), ft), and (i) to read as follows:
  (Í) The State Boord, ol Education shøll adopt one appropriote, nøtìonally recogl
nízed, norm-reterenced assessmenl, ittstrument lo be adminístered            uniþrmly to ea,ch
pupil ot each of lhe [th,  6th,                                           The norm-referenced
assessment ínstntment ødopted                                           tøte shall pay lhe cosls
olpurchasing ond scoring the a                                          and ofdístríbuting the
 resulls ol the adopled instntment lo the school districß.
   (g) The norm-referenced q.ssessment ínslrument adopted must meet all øpplicøble
lederal ntles ond regulølíoru, The normotìae døto used, by the ínslrumenl mu.st
lairly represenl all minority ond socío-economìc groups,
    The
  (h)                              essment                      s                    Ùias   infor'
     a
motion                             studíes                      e                     ønd, item
tryouß,                            aasessm                      I                    ¡tløtíon lo
enaure that sludenl lest scores    will   be as accurøle as possìble.




  SECTION 2.14, Section 21.?53, Education Code, is amended fo read as follows:
  Sec. 21.?63. ACCREDITATION STANDARDS. (a) The St¿te Board of Education
shall adopù rules for the accredit¡tion of school districts. The rules shall include crit¡eria
to evaluate the performance of school districts and to rote each district for accredit¿tion
purposes as:
    (l) exemplary;
      (2) recognized;
      (3) accredited;
      (4) accreditæd advised; or
                                               I7
ch. 1, $ 2.r4                         Tlet LEGISLATURE-SIXTH CALLED SESSION

    (6) øcødemicollg unaccredited [+r¡g¡î€dr4!
   t6)-+neea¡e¿ite¿1.
  (b)w
pereent egthe numbsr eÈ
  [(e)] The criteria in theaccreditation rules must, include considerÂtion of:
    (l) goals and objectives of the district;
    (2) compliance with statutory requirements and requirements imposed by rule of the
  State Board of Education under statuùory authority;
    (31 odequolø perlormønce under the índ,ìcatorc adopted under Seclìon 21,7591 of
  lhis code;
     (Ð lhe relation belueen lhe acodemìc eøcellence indìcoto'¡ adopled bg lhe boord
  under Sectíon 21.7581 ol lhìs code ønd the cørnpus perþrmonce objectiaes estob-
  lìshed under Seclion 21.7532 of this code, includíng lhe rnanner ín whích the
  compw perþrmønce objeclíaes wera estøblíshed ond lhe progress ol the cømpu.a ín
  meeling the objectíaes;
    (Ð fhe quality of leorning on each of the districf,B campuðea based on indicaüor¡
  ìncludíng teu€hss] Bcores on achievenrent tests;
    (6) ÍW] the quality of the districts appraisal of t¿acher performance and of admin-
  ístrator performance;
    (7) UÐ) the effectiveness of dishicü principals as inskuctional leadera;
    (8) lhe ellecliveness ol the distrìct's carnpuses on the basis ol lhe ¡nost €uûen¿
  criteriø ìdenlífied bg reseørch on ellectiue schools;
    (9) 116Ð the fulfillment of curriculum requirements;
    (0 KC)l the effectiveness of the district's programs in special education bdsed on
  the Cenlrol Eduicalion Agency's most recen¿ co,ìnpl;once revíeø of the dìstríct and
  progronw for specíal populations;
    Q1)
  t€stoi
    t$l    lhe ellectitenøss [qualþ] of ùescher in-service haining;
    t@
    t
                                                  ce   studenl achìeaemenN te$ectiv€nåss

    (13) the effectiveness of the districfs remedial and support progrsmo under Section
  2L,56'l of. thie code for students at risk of dropping out of school;
    (14) the effectiveness of the district's dropout prevention and reeovery programs;
  and
    (16) rthe eff€oÈivene"s   efthgcietf¡ggBdru                  ;ieÈprcg¡"msi
    t
    teql   efficient alloc¿tion of available resources[¡+nd


                                                  each cømpu^e   in o distríct on   the ba.sís

                                                  iiT;:imi';i;:å,!:{ïi"íiffi
  (d) The accreditolion ralíng ol a school di.slrícl or comptæ under lhis section møy
nol be lowcred solely on lhe ba.cís of tízc.
  SETIION 2.16. Section 21,7631, Edue¿tion Code, is amcnded to re¿d as follows:
 Sec. 21.?631. ACADEMIC EXCELLENCE IPERFOBM,$I€EI INDICATORS. (a)
The St¡te Board of Educatio¡t on the advice      ol the   academía ercellence indìcalors
                                            18
Tlet LEGISIJ\TURE-SIXTH CALLED SESSION                                       ch.    l,   $ 2.u
odvhory cornmíttee, the educolíonol eccellcnce commítlee, ønd, the Legíslatfue Edu-
cation Board, shall adopt a set of indicoùors of the quality of learning on a'campus ond
other perþrmonce slondards, The board biennially shall review the indicaüors for tj¡e
consideration of approprirte revisiong.
  (bl Perlormønce on lhe índicatozt requíred by thís sectìon sholl be compared to ø
projeclíon ol ecpected perþrmanco lor puroses of eaaluøtion, accrediløtìon, ond.
delermìnølion o/ emmplary stalus, The indicabors must include:
    lll lhe resulls ol crílerìon-reterenced assessmenl instruments requìred under

    (2) the results of, tesß with nalíonol   norn$ includíng lhe      Scholaslic Aptitude Test
  a.nd lhe Americon College Test;
    (8) high school groduøtíon rates;
    (l) stud.ent attcndonceì
    (5) student enrollment in aduonced academìc courses; and
    (6) the degree ol chønge lrom one æhool year I,o lhe nert,            ín the itenn under


  (c) The Stat¿ Board of Education shall report the ststus of edueation in the stst¿ as
reflect¿d by the indicators to the legialature not later than February I of each odd-num-
bered year.
  (d) The øcademic ercellence índícators ødopled under thk section chall be lhe maín
cowiderstion ol lhe Ccnlral Education Agency      ín lhe rolìng ol a dhtricl, under
Section 21,753of thís code.
  (e) The Educotìonal Economía Polícy Center shøll bíenníølly review the indicøtors
adopted under this sectíon ønd recommend changes ìn those indícølon to lhe Støle
Board of Educølion ønd lhe Legislølìue Educalíon Boørd,
  SECf,ION 2.16. Subchapter T, Chapter 21, Education Code, io amended by adding
Section ZL;1632 to read as follows:
  Sec.    21.75t2. CAMPUS PEHFOEMANCE OBJECTMS.                         (a) For    eøch school
yeør, the príncípal oleøch school cømpus,
resídenß, ønd ahe proþs$onøl          slolf of
procedure estøblished. in Section 21.980 ofl
perþrmonce objectiles of lhe compus lor each academíc excollence indícøtor adopled
under Secl.ion Llfíil ol this code. The objectiaes shall ollo adilrees lhe perþrmønce
ol specíol needs sludenls, The objecliues musl be opproaed by the dislrict's boord of
tntstees,
  þ) In     this aectíon "porent" meøtur o peftton who íc   o,   parenl of or peraon alondíng
in pørenlol relølion lo a sludenl enrolled øt a school ønd, who ü not on employee of
the school or the school dìslrict; "cotnntunìtg resídenl," rneaÍß ø peraon 18 yeøra ol
age or older residing ín lhe atlendance orea ota school bul does nol ìnclude ø person
who is o pørent of o sludent enrolled, ín that school or o peÍson who is øn employee          ol
the school or lhe school dislríct,
  SECIION 2,1?, Section 21.?64, Education Code,        is amended ùo read as follows:
  Sec. 21.?64. INVESTIGATIONS.       (a) The Cæntral Education Agency shall annually
rettìeu the perþrmønce of each distrìcl ønd camptu on lhe ìndicøtors adopted in
Section 21,7531 ol this code ønd determine íf specific actìon ís uananted- The review


necessory,
  þ) the     Stabe Board   of   Education   by rule shall establish a schedule for        on-sitc
evaluations by the Central Education Agency. The rulee must require that:
                                               19
ch.     l,   $ 2.r7                   ?lat LEGISLATURE-SD(TH CALLED                 SESSION

    (l) each district is vigit€d and all accreditation crit¿ria investigated not less than onco
  every six ye6ß, except that the board may extend that period for districts raùed:
       (A) as excmplary for an additional period not to exceed two years; and
       (B) as recognized for an additional period not to exceed one yesr;
    (2) each dist¡ict ratcd as acmedit¿d advised is visit€d and assisüed not les¡ thon once
  every two years;
    (3) each district rated as acadcmícallg unaccrediled trr,sm€d] is visiüed and assist¿d
  not less than once each year; and
    (4) each district that has a poor performance uñder the indicatore adoptcd under
  Section 21.753L of this code is investigated more frequently than otherwise required
  under this section.
  (c) Each annual review shall include an analysis of:
    (l) student performance;
    (2) attendance, promotion, and dropout ratcs;
    (3) program cost¡; o¿d
       (¿)
        t
     [(5)] other information required by the board,
                            ection 21.925 of this code, the board shall make optimum use of
th                          tion information management syst€m to minimize the written
re                           school dist¡icts.
   (e) To determine if a dietrict qualifies                                  identification of
potential problems, tbe commissioner may                                     on-siÞ investiga-
iions at any time and may raise or lower                                    [as] result of the
investigation.
  (0



                                                                igaùors shall obtain informa-
                                                                students enrolled cl [in] the
                                                                 information is obtained from

       (l) obtaining information from parents and using that information in the investiga-
  tor's report; and
      (2) obtaining information from t¿achers in a manner that prevents the cømpu.s or
   dist¡ict from screening the info¡rnation.
   @ Uhll The agency shall give writt¿n notice to the superintendent and the board of
t¡,u-st€es of any impending investigation of the distríct's acoeditstion,
  (Ð lfan annual retiew                                            ricl índicates low
performonce on one or,m                                             of lhìs sectìon ot
one or more campuses ín                                             síle eaaluatìon ol
lhose campuses onlg.
  SECTION 2.18. Section 21,757, Education Code, is amended to read as follows:
  Sec. 21.?5?. SANCTIONS. (a) If a distr¡ct does not satisfy the accreditation crit¿ria,
the commissioner of educølion shall take the lollowing actions üo the extent the
commissioner det¿rmines necessary:
     (l) confidential notice of the deficiency to any accreditation committ¿e of the board of
  trustces and to the district superintendent;
     (2) public notice of the deficiency to the board of trustees;
     (3) appointment of an agency monitor to participate in and report to the agency on
  the activities of the board of trustees; [a+d]
                                               20
?r¡t LEGISLATURE-SIXTH CALLED                SESSION                       ch.     l,   $   2.19

    (4) appointment of a mast€r üo oversee the operations of the districl azd
    (5) appoìntment of a manøgemenl team lo oaersee lhe operolíons ol the dístrícl,
  (b\ II a campus is rated accrediled adaìsed or academicøIly unaccredíled, the
commissioner shall take the lollowing actiotæ to tlw erlent lhc conmksíoner deler.
mines necessory:
    (1) appoìntment of o monitor, ntaster, or managømenl leom lo ouersee the
  operølíons oî lhe compu's; or
    (2) order the boord ol tnælees or thc superíntendent lo take certoín aclìotw
  relaling to lhe operøtions ol the cørnpus.
  (c) 11 a district fails üo satisfy accreditåtion criteria        the actions of the
commissioner under this section, the comnng$oner                                shall
revoke the districl's acueditation
  (d) Í(ell The costs of providing a moniior, [er+] master, onnanøgemonl teøm sho,ll
be paid by the district.
  (e)   A    masler   or mønagement teom    øpp                                 ratiow of    the
díslrict nxay øpproue or disøpproae ony      a                                  o campus,    the
superinlendenl of the dìslr¡ct, or lhe boørd
  @ A rnasler o             enl                     to                  rolíor¿s of o cømpus
mo! opprot)e     or             ony                 tes                and that ís taken by
the-princípol    of             the                 of                 the boord oltnælees
of the distríct.
  lgl t$l A district lhal ís røted academically unocøedited taees.+et+eÀ¡€-â^r"ting
eb{tve-€ß€rCit€d{d+is€dl for a period of fruo [three] years slzøll be ønneued lo onothar



ed+is€èåttha't-t¡sel.
  (h) Nol,withs                               ry, ø díslrict thot is
ed odttisedor                                 ríod o! lwo co¡æecu
not enler inlo                                lor ø tenn greøter
unless the admínístrøtor has not been preuiously emploged, bg the districL This
subsectìondoesn                                                           tthe
reasons lor lhe di                                                        diled
are not related. to
  SECTION 2.19. Subchapter T, Chapter 21, Education Code, is amended by adding
Section 21.?58 ùo read as follows:
  Sec.   21.758. STATE-OPERATED SCHOOL DISTRICT.                (a)   The commíssioner        of
                                                                      ol trustees of ø school
                                                                      redÌted   lor ø period of
                                                                      Legíslatìoe Educotion

  (b)   At   the time lhe cornmissioner enters lhe ord,er, lhe commissíoner shall øppoìnl o
boord of monogers t
suspensíon and shal
ent shall perþrm al
ond super'vísion ot
superìntendenl shal
that the order of suspension ìs entered,
                                            ll reporl   onnuo                           r on the
                                            eelíng the requí                            accredi-
                                            to thc Legíslali                            nnually
on lhe dístriclb progress.
  (d) Based on the onnual assessment ol progress ol llrc school distríct, but no later
than lwo years afler lhe date lhat lhe order ol uupension ìs enlcred, the commìssion-
                                              2t
Ch.     l, $ 2.19                    ?l¡t LEGTSLATURE-srxIH cALLED snsstoN

er shall order lhal the stupøwíon be tern¿inaled or lhot the díslrict be ønneced under
Seclíon 10,027 ol this code.
  (e) It the commissioner determines lhat lhe suspension should be terminated, lhe
appoinled superinlendent, and the members of lhe superíntcndent's stall shall contin-
ue to scnte þr o one-geør lrotwition períod.
                                     t møy opplg to the com
                                     uirement or prohibítío
                                     hís code, other thon a
                                     reguirement or prohíbí
11.272(b)   of lhis   code.
  SECTION 2.20. Section 21.920, Education Code, is amended by addíng Subsection (e)
to read as follows:
  (e)   An appeal to the commiscioner ol educalion ís not o conlesled   case   under the




   'ECf,lON
               2.21. Subchaptn Z, Chapter 21, Education Code, is amended by adding
Section 21,980 to read as follows:




 Q) fhe board shall eslablísh ø procedure under whích meelings øre held regularly
with represenløtíve protessìonol slølf ønd the boord or boord d,esignee,




  (d) This sectíon does not prohibít the boørd trom cond,u,cthtg meelíngs wíth teachers
or grorys ol teachers other lhøn the mcelings descrìbed by this secliott
  (e) Nolhing in thís seclion sholl be conslrued to limít or allect the pouer of ø local
school boørd ol trustees to monoge ottd gouern lhe public jree schools ol thìs slate,
  Q Nothing ìn this 1cclion shøll be conslrued os creatíng a neu carure of aclion or as
requiríng collecliae bargoining,
  SECTION 2.22. Subsection (c), Section 11.13, Education Code, is amended to read as
follows:




  SECT¡ON 2.23. Subchaptet B, Chapter 403, Government Code, is amended by adding
Section 403.020 to re¡d as    follows:
                                           Ð.)
71st LEGISLATURE-SIXTH CALLED SESSION                                    ch. 1, $ 3.01
  Sec. 403.020. SCHOOL DISTRICT BUDGET REVIEW. The comptroller mog perì-
odícally rwiew the elfectiaøness and etficimcy ol lhe budgels ond operolíow of echool
díslricß.
   SECtrION 2.24, Subsection (a), Section 11.14, Education Code, is amended üo read ae
follows:
   (a) The provisions of this chapter ehall not be construed bo give the St¿te Board of
Education, the commissioner of education, the State Department of Education, or anyone
         th
whomsoever,                      0o consolidaùe, or cause by regulation or rule üo be closed
or consolidated,                ol distr¡ct in this state. This wbseclíon does not alfecl,
          t
the pouers ol                   r under Section 10,027 of lhk code.
   SEGIION 2.26. All rules under Title 19, Texas Administrative Code, Chapters 29
through ?4 and ?6 through 93 inclusive, that were adopted by the State Board of
Educ¡tion before the effectivo date of this Act are void os of June 1, 1991, regardless of
the effective dabe of the rules. All ruìes under Title 19, Texas Administrative Code,
Chapüers 94 through 133 inclusive, that were adopted by the Staüe Board of Edueation
before September 1, 1991, are void ae ofJune 1, 1992, regardless of the effective dsùe of
the rules, All rules under litle 19, Texas Administrative Code, Chaptnre 184 through 181
inclusive, that were adopbed by the Stabe Board of Education before Sepüember 1, 1992,
are void as of June 1, 1999, regardless of the effective date of the rules. In oddition, all
rules reloting to tcoching time and methodology under Title 19, Texas Administrative
Code, Chapter ?5, that were adopted by the Stote Board of Education before tl¡e effective
dabe of this Acù are void as of SepÞmber 1, 1990, regardless of the effective daüe of the
rules,
  SE0IION 2.26. (a) Before February         l, 1991, the Stat¿ Board of Education shall
submit üo the governor the name of a person          t¡ consider for appointment as the
commissioner of educrtion. The governor shall nominate B person to serve as the
commissioner of education for a term beginning March l, 1991, and expiring Merch 1,
1995.
  (b) The person serving as commissioner of education on the effective datp of this Act
shall continue to serve until an appointment is made under Subsection (a) of this section
unless that person vacabes the position or is removed, If that person vacates the porition
before March 1, 1991, the governor shall appoint a person ùo serve in that poeition until
March   l,   1991.
  SECilION 2.??. Not later than January 1, 1991, institutions that offer teacher edu-
cation programs shall develop an initial plan under Section 13.049, Education Cnde, as
added by this Act.
  SECAION 2.28. The advisory commitüee appointed under Section 2,30, Chapter 818,
Acts of th¿ ?lst l,egislature, Regular Session, 1989, shall submit recommendations for the
academic excellence indicators bo the State Board of Education. The board ahall adopt
academic excellence indicaüors under Section 21,1631, Educetion Code, not later than
January 1, 1991,
  SECTI0N 2,29. The following sections of the Educatíon Code me iepealed:
    (1) Subsection (c), Section 11,25;
    (2) Subsection (a), Section 11,26; and
    (3) Section 21.?62.
  SECTION 2.30. Section 2.13 of this article applies beginnilrg with the 1991-1992
school year. The former low applies for the 199tr1991 echool year and is continued in
effect for that purpose.
  SECTION 2,31. Section 2.23 oî this article takes effeet September      l,   1991.

                              ARTICLE    III.    EFFICIENCY
  SECTION 3.01. Section 11,208, Education C,ode, ¡s added by Chapter 658, Acts of the
?lst lægislature, Regular Session, 1989, is rmended by amending Subsection (b) and
odding Subsections (d) through (f) to read as follows:
                                            23
Ch. 1, $     3.01                    ?l¡r LEGTSLATURE-sIxIH cALLED sEssIoN

  (b) The agreement shall include provisions for:
     (l) the commission to nssist regional educatíon service centers in providing ínservice
  training in substsnce abuse prevention for school districts¡
     (2) the joint annual review by the agency and the commission of the regional
  cducation seryice centers' substsnce abuse prevention and early intervention programs;
     (3) the exchange of information between the agency and the commigsion relating to
  students in need of substance abuse prevention services; ¡nd
    (4) r system ùo provide school districùs tpre+enl model peer ossistonce [prog+ems]   for
  substrance abuse prevention.
                      n may prottide a slalewi                                         lem
to                    ng oftrainers, clcaringh                                         e to
sc                    to traí¡t ortd provide a                                           lor
each regional educalion senice centør,
  (e) The peer progrom coordinator may:
    (I) assisl school districts and campuses lo deuelop and ímplement peer assislance
   and leadership progroms;
      (2) train teachers ond olher personnel for those progroms;
      (8) eslablísh regional peer assístonce and leadership nelworks; ønd
      6) particípale ín the slalcwide peer as$stønce ønd. leadershíp nelwork.
   (/) The Cenlral Educøtìon Agency jointly wilh lhe Tecas Conmíssíon on Alcohol
ond Drug Abuse may design ø substonce abuse assessment and inlen¡enlion progrøút
/or lhe public schools, Each school dislrict mag implement the prograrn under
guídelínes adopled by the agencg ond lhe co¡n¡nissíon,
   SECTION 3.02. Section 11.27, Education Code, as added by Chapter 287, Acts of the
 ?lst Lægislature, Regular Session, 1989, is amended üo read as follows:
   Sec. 11.2?, INNOVATM TDEMONS?R¡.æIONI PROGRAMS. (a) The St¿t¿ tsosrd
of           shall
     Education                                   rwhich
developed byschool                               be appr
ing lack of complía                              require
etlucation¿l practices.
 (bl Innonliae progranut lhat mag be øpproueil under this seclion ìnclude, but øre
nol limitet! to, programs relating lo:
    (1) school yeor reslructuríng;
    (2) alternatit e leørning eruironmenß;
    (3) parental literacü
    6) decent raliza l,ion of org onízø tiona I decisions;
    (5) ins lruc tionøl te c hno I o gy;
    (6) student and parenlal choice anong publíc schools;
    (7) child care;
    (8) earlg childhood educølion;
    (0) an e¡lended school døg;
    (10) leøcher ønd admínìslralor deuelopmenl;
    (1 1) continuour progress educatìon;

    (12) sludent-teacher ralios below 22:1 ìn elernenlary grades;
    (19) we of elententøry school guidance cou,nselors, social workers, ond other
  personnel in success/ul dropoul prcaenlíon progra'ms;
    (11) career deuelopment lor sludents;
    (15) bilingual training;
    (16) the generatíon ol more elleclìte porenlol inuotuentent uíth the schoolsí
    (17) school-age lalch-key chíldren:
                                            24
?lst LEGISLATURE-9IXTH CALLED                  SESSION                       Ch. 1' $       3.03

      (18) aolunteer   ellorß with the priaate sector;
    (19) coordinatíon ol school oclívitìes wilh con¿munìlg health a,nd humon sen ¡ces
  programs and olhet comr¡n nity re.sources;
    (20) magnel schools;
    (2 I ) ínlerdì scip linøry curriculurn;
    (22) peer tutoríng;
    (23) counseling of lomílies of ot-risk sludenß; and
    (2Ð comprelrc¡wiue coordínølìon wilh healllt ønd humøn sen ice deliuery systems.




@
  t
      t
      t
  @
      r€)   previds   Epoe¡¡                                                 .

   A
  (d)                                     applieation for approval of a program under this
section                                  idence that the cømpus tdietri€tl has adequately
planned                                  plícølíon has been approaed by tke dístrìct's boørd
of tnntee*
                                                              of øn                   under this
                                                                         un less
                                                                                 ùe+te-{Ð1r.€th€r
d¡s¡d€g

                                                                                     'r€
live Education                                               funds for the progrøm under
the øuthorily     of      xvI,                               Constilution,
                                 te¡emenstr+tíeÐ] program proposes a deviation from a
                                 äi1l,i"'fJ"'i,i,ilJå'f iíi?lårr.:"J3f ::iïäf,',"'iTtH
the duration of the program.     {   prohibition on conduct that constituteg a criminal offense
may not be waived.
  (g) A school
Seclion 11,271
Education Age
thefunding ís
  (h) The Cenlrøl Edrcølion Agency shall eaoluate each progromb ellectìueness and
shøll report ílslîndíngs to lhe Legislatíue Educalion Board and to the Stale Board of
Educotíon ',tot later llnn December I preceding each regulør session of the legísla-
lure,
  SE0IION 3,03. Subchapter B, Chapter 11, Education Code, is amended by adding
Section 11.2?1 tro read as follows:
  Sec. 11.271. PUBLIC EDUCATION DEVELOPMENT FUND, (ø) Tha public edu-
catìon deuelopment fund ìs øn accounl in the Genarol Røuenue Fund. The complrol-
ler of public accounls mog receiae gíÍl.s and grønls for the public cducatìon douelop-
menl fund.
  (b) F\tnds that may be crediled lo lhe publìc edu,colíon dcoelopment              lund include
gifls, gronß, and legíslatiac approprialions.
                                                25
ch. 1, $ 3.03                           ?lst LEGISLATURE-SIXTH CALLED                SESSION

    (c) The Slate Boord ol Education shall adminiller lhe publíc educatíon deuelop'
mnt fund.
                                                                                          ot lo
                                                                                          ublic
                                                                                          totøl
                                                                                          e the

    (e) To be eligible   lor o dísbursemen
under lhis seclíon, a school        campug
opplìcalion under Seclion 11.27 of thís
thh seclion lor lhe opproued innoaati
  Ø A gitl or granl lo the public educotion d.euelopmenl,fund thal prouides the terms
of íls dísbrnemenl mag be dhlríbuled only as specífically protríded ûy the lerms ol
the gìfi or granL




camputec as defined by rule of the Stote Board of Educotíon.
  (h)                       ted /o                                                  lund,   the
comp                         nts lo                                                 ter and to
each                                achool                                          e boord to
the complrollen
  (i) The Educølional Economíc Policy Comtnítlee shall appoínt a progtørn øútkory
com¡nitlee, contposed ol æperls in polícA research and dísciplines lhøt represenl lhe
cenler's pur?oses, lo møke recommendalions to lhe Sløle Boørd ol Educolìon ond lhe
Legìslotiae Educalìon Board on the use of the publíc educolíon deuelopmenl fund.
  SECTION 3.04. Subsection (c), Section 12.01, Education Code, is ¡mended to read as
follows:




@.
  SECTION 3.05, Section 13.3õ2, Education Code, is amended by amending Subsection
(d) and adding Subsection (f) to read as follows:
  (d) Each principal shall:
      (Il   opproae   all   leacher ønd sta/f appoinlments   t@
,   t¿e¿her¡l for that principal's campuøfrom o pool oløpplÌcants selected bg lhe díslrícl
    or of appliconls who meel the hiring requírements esløblíshed b! lhø díatr¡ct, based
    on crilerío deoeloped by the príncípal atler informal consullalíon wíth the faculty;
      (2) set specific education objectivee for his campue, involving stsff in the planning
    procesf¡;
      (3) develop budgets for his canrpus; [ånd]
      (4) work with school professionals ùo prepare individual development plans,' cæd
      (5) attend ín-se¡vice lraining reløling to mokíng díslricl-lnel decisions provided
    under Seclion 13.019(b) of lhis    code.
    (/)
     The boørd of lraslees of o school d,ístríct shall udopl o policy   /or   the celection of e
carnpust princìpal that includes qualìtícalions required /or llmt       potílion.
  SECTION 3.06. Section 13,364, Education C,ode, is amended by          dding    Subgectíon (e)
to read os follows:
                                               28
Tlet LEGTSLATURE-SIXTH CALLED SESSION                                       ch. 1, $ 3.07
                                                                              the principøl's
                                                                              d, I,he   cømpu.t't
                                                                              ce   gaíw ol    the

  SECTION 8.07. Chapber 14, Education Code, is amended by adding SubchapÞr D. bo
read as follows;

                            SUBCHAIYTER       D,   TECHNOLOGY FAND

   Sec. 11,061. PUÈPOSE, The puwosø of this subchapter ís to establish o lechnology
fund lo:
     (1) provide substantially equal access lor students throughouC the støte to í¡r,rl,ruc-
   tion ol high qualily, lo oll requìred courses ui tludy, and to inlormotìon reeources;
     (2) prouìde subslontially equal access lor leachers ond adminístrøtors throughout
  the sløte to leøching lools of hìgh qualìty, to elficient monøgemenl sgstems, ond to
  instruclion in using technology ín the classroom; ond
     (8) measure student productívìly lhroughout lhe slate.
  Sec. 14.062. ESTABLISHMENT. (o) The technology îund ía an accounl ín the
 General ßeuenue Fund. The Centrøl Educalion Agency moy rccøbe gitls ønd grønts
lor the technologg Jund,
  þ) Funds that møy be credited to lhe accounl include gìfts, granls, ond legìsløliae
oppropriolíons.
  Sec. 11.063. FUND ADMINISTRATION: TECHNOLOGY ALLOTMENT. (ø) The
Central Educalion Agency sholl ad¡ninístør the technology fund and shall make
annual dísbursømenß trom the technologg fund,
  þ) Each school dislricl ís entitled to øn annual allotmenl,for the puwoses províded
under Scclion 11.064 of lhis code equol to ìts unadjusted øaerøge daíly øltendønce
rnulliplied. bg:
    (1) 830 for lhe 1992-1993 school yeør, or o grealer o¡nount províded by oppropríø-
  lion;
    (2)   8î5   tor lhe 1993-1991   school year, or o greater amount provided bg øppropria-
  tion;
    (8) 810lor lhe 1994-1905 schoolyeor, or o grealer omounl provid,ed bg øpproprio-
  tíon;
    @     815   Íor lhe   1995-1906 school   gear, or a greatw o,mount provided by approprio-
  lion; and
    (5) $50 fior lhe 1996-1097 school geør ond tor   each school yeor thereøtle\ ot ø
  greater amount protrided by opproprialion,
  (c) The cosl of lhe lechnology øllotmenl is shared by the sløte ønd dístrict in lhø
some percentoges a:t the díslrict's Foundation School Progrøm under Chøpter 16 of
this code. The staleb shøre ís paíd from lhø løchnology fund,
  (d) The Slote Board ol Educalíon sholl establish nüea lor the adnínislrøtíon of thís
seclion, The rules shall provide lhot the equipment purchased shøll meet lhe ston-
dørds esloblished under lhis chopler.
  (e) If an ìnsullicíent omounl is øaailable in the fund lor the støte's shøre ol the
allolmcnts under Subseclìon (b) ol thís section, the ogency sholl reduce eøch dístrict's
allolment by applicøtíon ol the lormulo adopted under Section 16,251ßl) of thís code.
   Sec. 14.061. USE OF ALLOTMENT. (a) A dìslñct's øllolment under Seclíon
11,063 oÍ lhk code mag be used only for:
     (1) lhe ocquisilion ol technological equipmenl ond related senices, including
   hardwore, sofluøre, coursewøre, lroining, subscriptíonleeslor telecommunícatíons
   ond dølo base setices, ond olher related services for lhe purposea ol thìs tubchøp-
   ler; and
                                                   27
ch. 1, $ 3.07                        Tlst LEGISLATURE-SIXTH CALLED SESSION

     (2) lhe research ond deaelopmenl of emergìng instructional lechnology.
     þ)Tne Central Educalion Agencg shall monitor the we of each dislricl's allotntenl
to ensure lhøt at least 75 percent ol lhe allotmenl ìs used lo pronido clossroo¡n
inslruclional services and programs.
  Sec. 11,065. TECHNOLOGY PLAN, To be eligìble for ut allolmanl under this
chøpter,                                                                     ønd wilh the
Deporlm                                                                      o   lechnologg
allotmen                                                                     díslríct shall
report lo the agency how the use of lhc allolment reloles to lhe traìning o/ the
distríct's personnel u.úng lhe lechnology ønd lo the /íae-gear plan or to o proposed
plon to lrain         personnel.
  SECTION 3.08. Section 16.003, Education Code, is amended to read as followe:
  Sec. 16.003. STUDENT ELIGIBILITy. (a) A student is entitled to the benefit¡ of
the Foundation School Program if he is 6 year" of age or older and under 21 years of age
at the beginning of the scholagtic year and hos not graduated from hígh school.
  (b) A studenl to whom Subaectíon (o) of ühís seclion does nol opply ìs enlìlled to the
benetíts of the Foundation School Progrøm it lhe sludent is enrolled ín o prehinder-
garlen class under Seclion 2L136 ol l,hit code,
  (c) The comrníssìoner ol educalíon, ín corcullølion wilh lhe Commíssìoner ol
Human Senices, shall monìlor and eualuole prekíndergorten programs in the Sløle
ol    Tcxas as  lheír
                 lo                   appropria
of educatìon, in   c                 lh the Co
eualuale    lhc poten               natìon on
 progroms with gouemmenl-tunded earlg chíldhood core and education progrøms such
 as child cøre admínislered under Chopter ll oÍ ¿he Hutnan Resources Code ond
lederal Head Slarl prograÍts. Thís naluation sholl ulilize recommendalíons con-
 taíned in lhc reporl lo lhe 71st Legislature requìred. bg Chapter 717, Acts ofthe 70th
 Legìslalure, Regulor Sessíon, 1987. For the ptrrpose of provìdíng cost-ef/ecl'ùte core
for chíldren during lhe {ull work døy tuilh deaelopmenlally appropriale currículum,
 lhe commíssioners shall ínueslígate tl¿e use of edstíng child care program vites a.s
pre   khtdergorlen síles,
  fd) A child may be enrolled in the first grade if he is at least six years of age at the
beginning of the scholastic year or has been enrolled in the first grade or has completed
kindergarten in the public schools in another state prior to transferring to a Texas public
school,
  SECTION 3,09. Section 16.007, Education Code, is amended to read as follows:
  Sec. 16,00?, PUBLTC EDUCATION INFORMATION MANAGEMENT SYSTEM
(PEIMS). (a) Dach school district shall participate ín the Public Education Informatíon
Management Systern (PEIMS) and shall provide through that system information required
for the adminístration of this chapùer and of other appropriate provisions of this code.
  (b) Each school dislríct shall tæc ø uníform accounting sgetem adoptcd bg the
commiscioner of educalion lor the datø required          to be reported for the Public
Educalion Inlormalíon Managentenl Sgslem,
  SECTION 3.10. Section 16.066, Education Code, is amended by adding Subsection (h)
to read as follows:
  (h) In delermíning the placemenl of ø leacher on lhe salary schedule under
Subseclion (c) oÍ lhis seclíon, ø dktricl shall credit the leacher lor eøch yeør ol
eøperìence, whelher or nol lhe Ucoîs are conseculiue, Nolwithstandìng the prottision
ol thìs subsectíon, no teacher shall be placed on lhe saløry schedule øt ø slep aboue the
slep tuhcre lhe teacher uould haae been placed had that leacher remaìned in continu-
ous seruice,
     SECTION 3,11, Subsection (a), Section 21..031, Education Code, is amended to read as
follows:
  (a) All children who are citizens of the Uniþd Stat¿s or legally admittcd aliena and who
are [e+en*h+ege-sfJ five years ol age or okler and under the age of 2l years on the first
                                            28
?lst LEGISLATURE-SIXTH CALLED                 SESSION                        ch.   l, $ 3.13
day of September of any scholastic year sh
School Fund for that yeat All other ch
under Section 21,136 of this code are en¿
tr\tnd.
   SE0IION 3.f2. Subsection (a), Section 21.033, Education Code, is amended üo read ¡s
follows;
   (a) The following classes of children are exempt from the requirements of compulsory
attend¡ncc:
      (l) any child in attendonce upon o private or parochial school which shall include in
   its course a study of good citizenship;
      (2) any child who is handicapped as defined in Section 21.603 of this code and who
  cannot be oppropriately served by the resident district in accordance with the require-
   ments of Section 21,032 of. this code;
      (3) any child who has a physícal or menbal condition of a temporary and remediable
  nature which renders such child's attendance infensible and rvho holds a certificqtê
                           cian specifying the üemporary condition, indicating the tre¡tment
                           the temporary condition, snd covering the anticipated period of
                           m scÌ¡ool for the purpose of receiving and recuperating from such
  remedial treatment; [end]
      (4) any child expelled in accordance with the requirements of law;
      (5) ong child who is al. leost 17 years old and in ollendonce upon a course of
   instrrtctíon to prepore for the high school equiaolency eraminølìons; and
      (6) ang chìld who is at, leost 16 yeørs old, ond in ottenda.nce upon cL course ot
   inslructío¡t to prepare tor the hígh echool equ,íaalency etominalíons províded that,
   lhe person is reco¡nmended lo lhe course of iwl,ruction by o publíc agency whích
  hos superuìsìon or custody of the person under a court order.
  SECTION 3.13. Section 21.136, Education Code, is amended 0o read as follows:
  Sec. 21.136. PREKINDERGARTEN. (a) Any school districl may offer prekindergar-
ten classes, but I district shall offer prekindergarten classes if the dlstrict identifies 16 or
more eligible children who ore ot least lour gears ol oge. To receiae slate tunds lor
chìldren lhree years of age, the board         ol   truslees   of ø distríct møg submil      øn
opplicøtìon for the funú to the commíssioner ol educalíon. Subjecl lo the oaaìløbílì-
ty of øppropríøted funds, the commìssíoner shall approue the applìcatíon íf there arc
15 or mora øligìble lhree-geør-old children ín lhe dístríct,
  (b) 1o be eligible for enrollment in a prekindergarten class a child muet be at least
lhree Ífsl*) yeors of oge nnd must be:
     (1) unable t,o speak and comprehend the English language; or
     (2) from a family whose income, according to slandards set by the State Board of
   Education, is at or below subsistence level.
  (c) Prekindergarten classes shall be operated on a half-day basis. A distriet is not
required to provide transportation for prekindergartcn classes, but transporbation, if
provided, is included for funding purposes as part of the regular transportation systcm.
  (d) On application of a school district, the commissioner of education may exempt a
district from the application of this section if the dislrict would be required to construct
classroom facilities in order to provide prekindergarben closses.
  (e) For the [f9894$9esnC] 199F1991 school yeor [yeere] the cost of the program is
shared by the stat€ and district in the s¡me percenüages used to debermine the sLoþ/local
shares under Chapter 16 of this code, The strate's share is paid from the foundation
school fund and moy not exceed $55 million a year, If thab amount will not fully fund the
program, the commissioner shall proportionately reduce each digtrict's allocations.
  (0 Each school district shall develop a system üo notify the population in the district
with children who are eligible for enrollment in a prekindergarten class of the avnilability
of the class. The system must include publíc notices issued in English and Spanish.
                                              29
Ch.     l, $ 3.13                      ?rst LEGtsI.;truRE-sIxrH cALLED sEssIoN

  @    tpj A distr¡ct's prekindergarten prcgïam ehall b€ designed ùo rlevelop skills
necesoary     for
              guccess     in
                           the regular public school curriculum, including language,
mathematics, and sociol skills.
  SECTION S.14. Subsection (b), Section 21.205, Education Cnde, is amended to read as
follows:




argument beþre lhe board          ol lhe leacher or the leacherb represenlnlive ond   the
district b reptesentalíve.
  SECTION 3,15, (a) Subchapter Z, Chapber 21, Education Code, is amended by adding
Section 21,9012 to read as follows:
   Sec. 21.9012. ENEÊGY CONSERVATION MEASAßES. (a) The board of trustees
o/ a school dislrícl may enter inlo a conlrøcl for energg cowentalion measures lo
reduce energy conswnption or operoling cosls of school tacílitíes ìn accordance with
thís seclion.
  (b) A contract lo whích thís seclion applies íncludes a conlracttor the installation
o/:
    (1) ìwulalion o/ thc building slruclure and sgslenw wilhin the building;
    (2) slorm wíndows or doors, caulking or wealhentripping, mulliglazed utíndows
  or doors, heat absorbíng or heol refieclfue glazed ond cosled vindow or door
  syslems, or olher uindow or door sgslem modifications lhal reduce enetgg con-
  su,ntplion;
    (0) oulomatic energy control rystems, ìncludìng compuler sotlware ond lechnical
  dota     licenses;
      (Ð healing, uentilaling, o¡ oir+ondílioníng system modíficaliotts or       replace-
  menß;
      (5) lighlíng frrlures thal increose er,eîgy elficiency: or
      (6) energg recouery syslems,
  (c) Thc percon wilh whom lhe boord conlracß musl be wperímced ín lhe dedgn,
implemcnlatíon, and ínstallalíon ol energy cowentøtion meesuræ,
  (d) Belore entering into a conlracl for energy conserlalion mea.surest the board
sholl require lhe provider oJ lhe energy consentalion mco:ruræ to file wilh lhe board ø
perþrmance bond. that ís ín on amounl the board finds reosonable and necessary lo
prolcct the inlerecl.s of the school díslricl and that couers lhe ualue of tha guaranteed
savings on lhe conlract and is eondílioned on the taíthful euculion ol the lerms of lhe
contracl.
    (e) The board mag enter inlo a conlract tor a period ol more than one year for
 energy conseraation meosurcs with a percon íf lhe board finds lhat lhe amounl lhe
school districl would spend on lhe energy cowentalion meo.curee uill not æceed thc
omount lo be saaed in energy and operalíng cosß oae¡ l0 yean trom lhe date ol
 ínslallalion, Il lhe term oJ a conlracl lor energy consentølion mectsures ûceeds one
gea¡ the dìslricl's conlraclual obligalion ín any year duing the te¡m ollhe controct
 may nol erceed the lotal eneryy and operating cosl saúngs, includíng bul not limiled
 to eleclrícol, go$ or other ulility cost satíngs and operatíng cost savings resulling
from aulomolic moniloring and conlrol, as detcrmíned by lhe board in lhìs wbsec-
 líon, divided by the numbø of yean ín lhe conlract lenn. The board shall cotwíder
 all costs of the energy co¡wentalion meosuÍeq íncluding cosls ol design, mgineering,
 inslallalíoq maíntenance, repairs, and deltl seruice.
    (/) A conlract tor energy conserualion meosureE, wilh respect to eisting buildings
 or facílitíes, may be a lease/purchose contrøct, wílh o lerm nol lo erceed I0 years,
 lhal meeß lederal laz rcquirentenls lor lor-free municipøl leasing or long-lerm
fnoncing.
                                             30
Tlst LEGISLATURE-SIXTH CALLED SESSION                                     ch. 1, $ 3.16




líons, ís determined lo be the most adaontageoræ lo the school district cotwíderíng lhe
guøronteed savings and other eualuotionfactors seltorth in the requesttor proposøls,
   (h) In accordonce wilh the tenns olo request/or proposals under Subsection (g) ot




                      n a request for propo                             (Ð oî th;s aectioq
                       opmcd in o manner                                 of lhe conlenß lo
                      and keeps lhe   proposa                          |,io¡n,
                  Ietion  of                 ns, the board shall gíao                 ent lo
                   to the sel                The nolice ofíntent shall                in   the
                  lhe nolíce                 proposals, All proposals       publía
inspeclion a/ler the notice of ìntent lo ouard ís publhhed, but trode sectets and
proprìetory ìnformatìon cledrlg identífied in the proposøls are not opm tor public
ìnspection,
  (b) Section 21,90L2, Educntion Code, as added by thie section, takes effect September l,
1990, and appliee to I contract for energy conservation measures entered on or after th¿t
daþ.
  SECTION 3.16, Section 23,023, Education Code, is amended by amending Subsections
(a), (b), (c), (e), (h), (0, ¡nd (k) and by adding Subsection (m) to read as follows:
  (a) Any independent school diskict, whether created by special or general low, with
64,000 !ffit0iti)}or more students in average daily attendance ffe+-tå+1$I5-l$I$-*heel
Vear{F+he¡e*¡ter] shall be under the managernent and control of a board of nine trustces
electcd in accordance with the provisions of this section.
  þl Seuen                                                           embers of the board
of trust€es                                                          er districts and two
members, who shall be the president and vicepresident of ùhe board, shall be elecbd at
large.
  (c) At least 120 days before the y'ruú school board election at whích ø distr¡ct elecß
lruslees under thit seclion tte¡e+e¡+¡n+p+i¡-t$?81, the board sh¡ll divide the school
distríct into seven trustee districts which are compact, contiguous, and contain as nearly
as practicable an equal population according to the laet preceding federal decennial
censug.
  (e) The eandidate receiving a majority of the vot¿s cast ín each position is elect¿d, If
no candidat¿ receives a majority of the votes cast for that position, the board shall order a
runoff to be held on a døle øuthorized bg Sectíon 2,025, Electìon Code tthe-t$id
eetur¿ay ¡n ;tprill                                     lenl, and only the names of the two
candidat¿s receiving the highest number of voües in the first election shalì be lietÊd on the
b¡llot. The candidat¿ receiving the majority of the votes cast in the runoff election is
elect¿d,
  (h) In districts with seven board members on the dale the dìslrict becomes subject, lo
this seclion t¡ewoA¡+l$f8l, members of the board serving on that dat¿ sh¡ll sene for
the remainder of their terms, except those choosing to resign. At lhe      finl
                                                                            election oü
which ø dístrict first elecls lruslees under lhís seclion thdèi*AffíhJg?8l, s¡ø Éeu¡l
members shall be elecbd-the president, vicepresident, andlour [h+e] regular members.
The presídent and vic+president then elected shall serve for s têrm of two yeers. The
othcr [t+re] members then elected shall  I                                       eitrre
                                              31
ch.     l,   $   3.16                   Tlat LEGISLATURE-SIXTH CALLED SESSION

                        rve for a term of four years. The ffirrc] members of the board
                         which there was no election ehall drsw lots ùo det€rmine which
                        ll represent during the remaínder of their terms. Thereafter, all
members shall be elected 0o etaggered terms of four years.
 (i) A schoor district hsvins 6t'a00 t66'0001
                                                ïiffff:i1'.Ii,,',:,i:t"ini,,'ilrilH.'åH:
                                               ate under that plan.
  (k) A school distríct with less than 84,000 t6q000l students in average daily attændance
for the 19?tr1976 school year that lst¿r becomes subject Co this section shall begin
electing trustceg from singlemember districts in accordance with this section no lat€r
th¡n the first regular election held in tøiler+¡ngl the next calendar yeat or subsequent
leo                                        I, A school dietrict subjecü üo this section whose
ave                                         61,000 læ'åÆ,Ùl students shall continue bo be
governed by this rection, This section does nol, applg lo o dislrict which høs adopled o
plan ol elecling o boørd ol lrustees ín uhole or in porl lrom síngle-member districß
prior to Augusl 81, 1991,
  (rn) For the putoses of this seclion, øaerage daily oltendonce ís defined as the
number of studenß enrolled and ín attendance on o1)erage during the last I0 school
døys ol Seplember ín each school gear,
  SECTION 8,1?, Section 23.30, Education Code, is amended by adding Subsection (e) üo
read as follows:
  (e) A school dislrícl mog employ, relain, conlracl with, or compensale ø líce¡æed
reøl estate broker or solesmøn tor assíslance ìn lhe acquìsítìon or sale o/ real
propeily.
  SECTION 8.18. Subchapter Z, Chapter 212, I.acul Government Code, is amended by
adding Section 212.902 to read as follows:
  Sec. 212.902, SCHOOL DISTRICT LAND DEVELOPMENT STANDARDS, (a) Thís
seclíon applies lo agreentenß belueen school districts ond ony munìcìpalíly which
hos ønnered teritory lor lìmìted purpose*
  (b) On request by a school distrícl, a municipolíty shall enler on agreemml wíth
the boord ol tnætees ol the school distríct to estoblish revíeu tees, revíew períods, and
land dmelopment standords ordìnances ønd to provide alternatíae uater pollution
conlrol methodologíes lor school buildings conslrucled by the school dktrìcL The
agreement shøll include ø prouision ercmplíng lhe diatrictfrom oll lønd deuelopment
ordinonces in ca.ses where lhe district is addíng lemporary cla.ssroon buìldíngs on an
edslìng school compus.
  (c) IÍ ¿he municipalíty and the school districl do not reach on agreemenl, on or
beþre the l90lh døy otler the dole on which the m.unícipalilg rcceiaes lhe dietricl,b
requesl for on agreetnent, proposed. agreemenls by the school district ond the munìcí-
pølity sholl be submitted lo øn ìndependent arbitralor oppoínted by the presidìng
district judge whose jurhdíclìon ìncludes lhe school dìslrícl The arl¡ítrator shall,
otler o hearíng at which both the school dklríct ønd munícípolity make presenløtions
on lheír proposed. øgreements, prepqre øn agreement rerolvíng øny dffirences be-
tueen lhe proposals, The agreement prepared bg lhe arbìtrolor will be final a,nd
bìndíng upon both the school dislrict and the munìcipølity. The cost ol the arbitrø-
tíon proceeiling ahall be borne equallg bg lhe school disl,ríct ond lhe munícipalíly,
  (d) A school díslríct that requesls on agremtent under this seclion, øt lhe tíme it
makes lhe request, shall send o copg of the request to lhe commíssioner ol educolíon,
At lhe end of lhe 1204a9 period, the requeslíng dislrict shall report to lhe conmis-
sioner the slalus or result ol negotiotíons with the municípalíty. A municipølíly
mog send o seporate slølus report lo lhe commícsíoner. The dülríct shall send lo the
commissioner o cop! ol eoch agreemenl belween the districl ond a municípølíly
under this seclìon,
  (e)   In   llús section, "land deuelopmenl slandard.s" includes ímperuious coaer limito-
tìow, buìlding selbacks, tloor lo oreo ralios, building    col)erage, waler quølily conlrols,
                                               32
?lst LEGISLATURE-SIXTH CALLED              SESSION                       Ch. l, $    4.01

landscapíng, deuelopmenl aetbacks, conpatabilíly slandards, trøffic ønalyses, ønd
dríaewog cuß, íf ap¡tlicable,




Íacilítg proposed lor conslntclion by a school dìstrícl
  SEGTION 3.19. (a) Each fiscal year before the end of the Center for Educational
Technology's first three years of operation, the St¿te Board of Education shsll make
disbursements from the public education development fund under Section 11.271, Edu-
cation Code, as added by this Act, to the Cent¿r for Educational Technology in an amount
approved by the Iægislative Education Board before making disbursements to elisible
school campuses.
  (b) From funds appropriated for the fund, the comptroller of public accounts shall issue
warrants bo the center    in the amount certified by the commissioner of edue¿tion.
  SECTION 3.20, The legislature recommends that the governor, lieutenant governor,
and spelker of the house of represenüatives appoint a specíal study committee to develop
a plan for the coordination of youth seryices inüo a community effort and to remove
nonacademic-relaüed problems of youth from school responsibility and that the committce
be required bo make preliminary recommendations to the legislature before January l,
1991.
  SECf,ION 8.21. Tl¡e commissioner of education, in consultation witl¡ the Commiseion-
er of Human Senices, shall submit a report to the ?2nd lægislature, with           specific
legislative recommendations on the developmental apprcpriateness of prekindergarten
programs, the potcntial for using existing child care program sites as prekindergarten
sitcs, and the coordination of those programs under Subsection (c), Section 16.003,
Education Crcde, as added by this AcL
  SECTION 3.22. The Teaeher Retírement Systcm of Texas, the commiseioner of edu-
cation, and the Stat¿ Board of Educotion shall jointly develop a recommenrlation for a
state health insurance plan for public school employees, The retirement sysùem, commis-
sioner, and board shall report the recommendations to the ?2nd Iægislature not later than
February I, 1991.
  SECTION 3.23. Notwithstsnding any provision to the contrary:
     (1) the pilot program eståblished under Section 2.14, Chapber 813, and Section 2,
   Chaptcr ll?9, Acts of the ?lst lægislature, Regular Session, 1989, shall continue
   through the l99G-1991 school ycar only; and
     (2) the Central Education Agency shall report the findings of the study under
  Subsection (e) of those sections to the 73rd Iægislature not later than February l, 1993.
  SEüIION 3.24. (a) Sections 3.08, 3.11, and 8.18 of thie article apply beginning with
the 199l-1992 school year. The prior law applies for the 199ff991 school year and is
continued in effect for that purpose.
  (b) Section 3.0? of this article takes effect Sepüember l, 1992.

                    ARTTCLE    IV.   PERFORMANCE INCENTIVES
  SECTION 4.01. Subchaptær B, Chapter 11, Education Code, is amended by adding
Scctions 11.2?2 ond L7.n3 6 read as follows:
  Sec. 11.272. DXCELLENCE EXEMPIIONS. (ø) Ercept as províded by Subsectìon
(b) oî thia seclíon, a school camput or dislricl that is roted ercmplory under Seclíon
21.f53 of lhís code ís erempt /ron requiremenß ønd prohibítiow ímposed und,er thìs
code, including rules adopted under lhís code.
  þ) A school campur or dìslrict is not crempt under thìs seclíon lrom a prohibítion
on conduct that co¡tstilules ø crimìnol offense, A school carnpus or distríct is not
erempt under lhis seclion trom requiremenls imposed by lederal low or ntle, includ-
ing requíremenß for sTtecial edt¿calion or bilingttøl education progranß. Ercepl as
                                            33
Ch. 1, $    4.0f                     ?rsr LEGrsu\TURE-sIxrH cALLED sDssIoN

províded by Subsectìon (e) of ¿hís seclìon, a echool campus or district ìs not ewmpt
 under thìs seclíon lrom a requírcnent or prohíbílíon ímposed by elate lou or rule
relalíng to:
     (1) runìculum essentìol elemenls, øcluding the melhodology uaed by ø leacher
  ond the tíme tpønt by o teocher or o studenl on ø pørtìculor task or subject;
     (2) restrìctiotu on eilraatrrícular actiyílies;
     (3) heallh and safety;
     ft) compelilíve biddìng;
     (5) tertbook seleclion;
     (6) clemenlary school class s¡ze limils;
     (7) remoaal of ø diaru.pliue eludenl from the clqssroom;
     (8) suspercíon or erpulsìon of o sludent;
     (9) at rísk progronn;
     (1 0) pre kìndergaden progrønnß;
     (11) ¡nìnímutn graduolíon requìrements; or
     (12) educatíonol employee ønd educatíonal wpport employee ríghts ønd benefiß,
  In this seclíon, "educationøl support employee" means e full-tirne or parl-líme
  school employee not defined øs ø "leacher" bg Seclìon 21.201(I) ol thìs code,
  (c) The Central Educotion Agency shall monítor and eaaluate deregulalíon ol ø
school compus or díslricl under thís seclíon and Seclìon I 1,2/8 of thh code ond report
onnuolly on the eflect of deregulolion on sludent achíeuement to the State Boørd ot
Educalìon, the Legíslatiue Dducatìon Board, lhe gor)erflor, the lieutenønt gouemo¡
the speaker of the house of repræmtol,iues, ond the legisloture. The report must
include a list of the eremplìow utilìzed and o review of the eflectiueness ol the woíaers
ond eæmptíot.s progrønts.
   (d) The Sløle Board of Ed,ucotion ín consídering emmplions or uaiaers shall
provide os much reguløtory relíe/ os is practícal and. reøsonøble to cømpuses or
 dìstrìcß that ore cotwídered hìgh perþrmíng, beginnìng ín thø 1000-1991 school yeor.
   (e) The commissíoner møy erempt on eremplory school ca.mpus lrom elamentory
class c¡ze límìts under lhis secl,ion if the school cømpus submíta to the comtnissíoner ø
arìtten pløn showing sleps thøl will be takm to ewure thol, the eremption lrom lhe
clasc t¡ze límíß will nol be hørmlul lo the acodemic achíeuement ol the studenß on
the school compt s, The comnissíoner shall røuiew achìeuemenl lelels ønnuøIly, The
ercmption remøhw ín ellect untíl the commissioner d.etarmines thot achieaement
leuels of the cornpun houe declìned.
   Sec. 11.2f8. WAMHS AND EXEMPTIONS, (ø) Ercept as províded under Sub-
section (e) ol Lhis section, ø sahool conpus or district møy opplg to lhe Stale Boørd ot
Educatíon lor a woíoer of a requirement or prohìbítíon imposed by law or rule thøl
the compus or dìstrict determínes inhibìls studenl ochieuement,
 (b)                                                       urítten plan deaeloped by the
comp                                                       ropríale, ond facultg ol lhe
cexnp                                                       of lhe compus or distrícl ond
the inhibílion ìmposed on those objectíues   by the requìremen¿ or prohibitìon ønd shall
be øpproaed by the  dislrict's board of trustees,
  (c) The boord mag gront ø woiuer under thh seclionlor o period not lo erceed threa
geors. A prohibilion on conduct that conslilules ø crimina,l oÍIense may nol,             be
uaíoed.
  (d) A school cdlnpur or dislrict   lor   whìch a requírement   or prohibítion is   waiaeil
undør thk seclíon for   a
requiremenl, or prohíbití
fulrlled lhe øchieuement
seclion, The æemplìon
menl leuels of the cømpus or dìstricl haae declined,
                                             34
?lst LEGISLATURE-SIXTH CALLED                            SESSION                      Ch. l, $     4.04

     (e) A school campus       or dìstrícl may not           receiue an æemption or waìuer under thía
 ceclion     from requiremenb imposed             by   tederal   law or ru,\e, íncludíng requíremenß for
                                     ale                                A school conput or ditlrìct moy
                                                                      seclion   /rom ø   requírøment, or
                                     :L
      (1) cu¡riailum essmtial elemenls, ewludíng the methodology wed by a tcøcher
     ond the limc spent by o teacher or a sludsnt on ø portìculor tash or utbject;
      (2) realrictìons on eilracurrículor aclìvílies;
       (8) heollh and søfcty;
       (Ð competitile bidding:
       (5)   elementory school closs dze límits;
       (6)   ¡ninimum graduølíon requírements;
       (7)   remouql ol o dìsru,ptìae sludenl lrom the classroom;
       (8)   euspension or erpubion o/o sludenl;
       (9)   øl rish progrems;
       ( 1 0) pre kinderg ør t an p ro g Ìøtts;
       (11) educolionol employee ønd.        educøtíonol                                   and benefils,
     In   lhís seclìo4 "cducalionol supporl       emplo                                    or pørt-time
     school emplogee not dcfned           øs o "leacher"                                   ahís code;   or
       (12) ryecíal educatíon or bílíngual educalìon progrønw.




  (g) TIte Slale Boørd of Educotìon ín co¡wídering æemptiotæ or waiaers ehall
provide øs much regulalory reliel as ís practìcal and, reoaonøble to cørnptæes or
díslrícß thal, qre cotwidered hìgh perþrming, beginnìng ín the 1090-1901 schoo¿ ysor.
     SECTION 4.02. Section 21.101, Education Code, is amended by adding Subsection (h)
bo   read as follows:
  ft)     rh                                     lor th
seclion,                                         metho
nor lhe                                           o pø
  SECTION 4.03. Subchapter D, Chapùer 21, Education Code, is amended by adding
Section 21.116 to read as follows:
  Sec.2L116,                       ENÈOL
         ond
ed,ucøtìon                         higher                 t  e
dolìow lor o                                      llowíng
couraes      in   poslaecondary inslilulions           for   bo
cred,íL Ihe reconmendalio¡ts shall ínclude o
the sludenlb educalion belween the publíc sc
The commíssioners shall report theír recotnmendalio¡u to the 72nd Legíslalure not
loler than Febntory 1, I99L
  SEOIION 4.04. Subsection (b), Section 34.004, Education Code, is amended bo read as
follows:
  (b) The Stste Board of Education with the advice and approval of the educationol
excellence committee shall establish the criberia and slandarde for the awards. The
auards lor school cornpu.ses shall be based prímarilg on the índícatora eslobl¡shed
uuler Sectíon 21,7531 ol thís code and the compzts objectìaes ealablíshed, undcr Seclion
                                           36
Ch.   l, $ 4.04                     ?lst LEGtSLAflInE-stxrH caLLED sESsIoN

2L                               hall incorporate crit¿ris for the performance of student¡
in                                The criteria for schools and school districts must be
me                               ude crit¿ria relat¿d to:
    (l)   atudent achievement;
    (2) operational efficiency;
    (8) centrol sdministrstive aupport;
    (4) student and t¿acher ¡tùendance;
    (6) graduates who enter college, receive advanced training, or are employed;
    (6) principals participating in instructional leaderehip training; and
    (?) other matt¿rs eelected by the eommitt¿e that are related to scholastic gains.
  SECTION 4.05. Chapber 66, Eduqation Code, ie amended by adding SubchapÞr G üo
read as follows:

      SABCHAPTER         G,   TEXAS TAITION ASSISTANCE GEANT PEOGRAM
   Sec. 56,101, PROGEAM NÀME, The student finøncíøl oss¡clønce program øutho-
rízed by thæ wbchøpter is known as lhe Tæas l,uìtion assís¿ønce gron¿ progrørn, ond
øn indíttíduol grant owarded under this tubchøpter is knoun          ø.c   ø   Texa,s   tuitíon
asdslance granl.
   Sec. 56,102. PUÈPOSE. The purVose of thìs rubchøpter h lo provide øn elígible
person o granl olmoneg lor luitíon to enable that peæon lo øtlend øn ìnslílutíon ol
hígher educalíon,
   9ec. 56,100, ELIGIBLE PEESON, (a) To be aligíbb for ø Tera^s tuit'íon ascisl,ance
grønt, o person nusl:
    (I) be ø Teils resídent os defined by coordìnøting bodrd rules;
    (2) enroll Íor ø full coune load itt on i¡ælílutíon of hígher educatíon as defined
  by Sectíon 61.00& or 61.292 of this code;
    (3) be lrom ø lowincome or mìddle'income lomíly ond estoblísh /ínandal need qs
  defined by coordinating boord rules;
    @                                                grønl' opplìcøtion, houe graduated
  from                                               aaerøge thal ís equøl to or grcoler
  than
    (5) haae opplíed for øny oaaílable finøncíøl assíslance; ønd
    (6) haaø complìed wíth any olher requirements adopted by the coordínol,íng boørd
  under thía subchopter.
  (b) A penon ís not eligible to receíoe a Tems tuìtíon assístonce gront íl the penton:
    (1) hos betn granled, o bøccolaureole degroe; or
    (2) has been corutícted of a /elony or o crime ìnuoluíng moral tuwitude, unless
  the person has met the elígíbílíty requirements under Subseclìon (o) of thk section
  ond has:
       (A) receíued o cerlìficate of discharge by lhe Teras Deparlmenl ol Criminal
    Justice or a cotreclíonalfocilíly or compleled, o períod otprobølion ordered bg o
    court, ond at least lwo geors how eløpsed from lhe dote of the receìpt or
    completíon; or
       (B) been pørdoned or otheruríse releosed lrom lha resulting inelígibílily lo
    partícipøte ín the Tøos luìtíon assislonce gront program,
   Sec. 56,101. ADMINISTRATM AAîHORITT. Thc coordinøting boord, shall pro-
vide a Texos tuilion oscistonce grant lo on eligìble person enrolled ín an institulíon
of hígher educølion based on the ftnønciol need of thal person. The tolol ømounl of
Tetøs tuìlíon assíslonce granß distrìbuted by the coordinating boord may not etceed
lhe amounl oppropríalød for the Tesos luítíon assìetance gront program,
                                           36
Tlst LEGISLATURE-SIXTH CALLED                       SESSION                       ch.   l,   $   5.01

   Sec, 56.105. PAYMENT OF GRANT; AMOUNT.                       (a) On receipl   oto personb     Tæas
 tlitíon øssisla¡rce grant       opplicot¡on,                                                      of
hígher edttcalíon enrolling lhe     penon                                                          al
needtrom thc instítulíon ofhigher      ed                                                          le
the amounl of the grønl lor the person to the inslílutíon of higher educolíon.
  (b) The a¡nounl ol a Texas tuilíon assklance granl moy no¿ æceed lhe amounl ol
tuítion the student would be chorged at o publíc seníor íttstítulíon of hìgher edu.
calìon and, uhen added l,o other gìtl aìd, may nol erceed lhe finoncíal need ol lhe
studenL
   Sec. 56.106. LIMITATIONS ON GRANT.                      A penon entitled to o Tæos luilion
assíslonce    granl   loses   lhal person's ríght   to   luture paymenls of money from lhe grønl
progrant     i/the person:
    (I)    does not nake sleadg acndemic progress loword               o baccalaureole   degree as
  delennined under coordi¡nling board ntles;
    (2) does nol maìntoín lulblime enrollmenl slanding for al leoat lwo semeslers ín
  any academic geør;
    (3) has a grade aaerage lhal is in the lower 50 percent ofthe lotal grade oaerages
  of all full-tíme studenß cn¡olled in lhe same college or other depørlment in the
  instìlulion of higher educalíon; or
    (Ð is convíctcd, of ø lelong or o crime inuolving moral tutilade, unless lhe
  peñton hsst met eligíbilitg requiremenß as defned in Section 56,103(a) ol thís code
   and hos:
       (A) receíaed o cerlificale ol dischorge by the Teras Depørtment ol Críminol
     Jwlice or o coneclional focililg or has cornpleted a period ol probøtíon ordered
     bg o court, and al leasl luo years haue elopsed lrom the date ol the receipt or
     completion; or
       (B) been pordoned o¡ olhenuise released from the resulting ínelígibilily lo
     parlicípole in lhe Te¿øs tuílíon assístønce grcnt program.
   Sec, 56,107, ADOPTION AND DISTHBWION OF ÈALES. (o) The coordinoting
 board shall adopt ntles lo ødminisler this subchopler.
   (b) The coordínalìng boørd shall distribute to each ì¡tstitulion ol hìgher educatíon
 and to each school dìstricl copies of oll ru,les adopted, under lhís subchapter,
   Sec. 66.108. FUNDING. (a) The coordinoting boord møy accepl gifß ønd granß
trom any publíc or príaate source lor the putoses of lhis subchoptet',
   (b) Terøs tuilíon asgìslønce grants are pøyable from gìtls, granls, and funds
appropríated bg the legíslalu're.
  SECTION 4.06. The Texas Higher Education       Coordinating                                      nd
                                                          Edu
distr¡bute initial rules required by Subchapter G, Chapter 56,                                     by
this Act, not lat¿r than January I, 1991, The coordinating boa                                     to
eligible peßons under this Act beginning with the fall semest€r 1991,
   SECTION 4.0?. The following provisions of the Education Code are repealed:
     (l) Section 11.2Í1, as added by Section 2.03, Chapter 813, Acts of the Tlst lægielature,
   Regular Session, 1989;
    (2) Subsection (b), Section 21.001; and
    (Íl) Subchapter B, Chapter 56.

                              ARTICLE    V.   YEAR.ROUND SCHOOIS
  SETIION 5,01, Subsection (a), Section             21,008, Education C,ode, is amended to read as
follows:
  (a) Each school district shall operate for c                              emesters during each
school year,at the option oî. the dis'r,cf, ercep                           Seclion 21,010 of this
code or under ntles adopled under Secliotr                                   The semest€rs must
                                                    37
ch. t, $ 5.0r                            Tlst LEGISLATURE-SIXTH CALLED                       SESSION

provide the required number of days of instruction for studento ond inservice educstion
and preplration for tcacherst                                                       ].
  SECTION õ,02, Subsection (a), Section 21.009, Education Code, is nmended to read as
followg:
   (¡) The Stat€ Board of Educotion såall [mey] adopt rulea under which a school district
may operaùe its schools yeanround, íncludíng rules necessory lor the operøtion ol o
mullitrock echool yeor under Seclion 21,010 of thía code.
   SE0IION 6,03. Subchapter A, Chapber 21, Educ¡tion Code, is amended by adding
Section 21.010 to read as follows:
   Sec. 21,010. MULTITEACK SCHOOL YEAR. (o) In thía cectíon:
      (1) "Trock" meons o group of students ond teøchers scheduled to atlend school
  and take aacotion paríods on the same sclrcdule,
     (2) "Multitrack" means multiple tracks, wíth staggered inslruclìonal blocks ond
  oacatìon períods,
  (b) The boørd ol trustees ol a achool dìstrict møg operale ø school on ø ¡nul¿ítrack
school yeon
  SECTION 5.04. The St¡üe Board of Educetion shall adopt rules under Subsection (a),
Section 21.009, Education C,ode, as ame¡rded b¡r this Act, not lat¿r than January l, 1991.

            ARTICLE   VI.   SEVERABILITY; ETFEC1TIVE DATE; EMERGENCY
                                                    Act or its application bo any person or
                                                     ,Ti,"fi   å'il:f,:'ffi å1ffi"',l""ii'":lli'å","ìì:
                                               be severable.
  SECTION 6,02. This Act takes effect September 1, 1990, except as otherwise provid-
ed by this Act,
  SECtrION 6,03. The importance of this legislotion and the crowded condition of the
calendars in both houses create an emergency and an imperative public necessity that the
constitutionsl rule requiring bills to be read on three several days in euch house be
suspended, and this rule is hereby suspended, and that, this Act take effect, and be in force
according to its t€rms, and it is go enacüed.
  PassedtheSenaleonJune 5, l990,bythelollowlngvole:Yeas 29,Nays 1; passedthe
     flouse on June 6, 1990, by the lollowlng vote: Yeas 136, Nays 12.
  Approved June 7, 1990.
  Eflectlve Sept. 1,'1990 except g{i 1.06, 1.O7, 2.29 ell, Sepl. 1, 1991; SS 1,13, 1.15 efl.
June 7, 1990; and S 3,07 eí. Sept. 1, 1992.



                                         CHAPTER          2

                                          S.B. No. 12
                                                AN ACT
r€lallng to debt service on cerlaln slåle bonds,
  Be   itenacted by the Legísloture of lhe Slote ol Teu,as:
  SECTION     1. Section 5, Chapter 38?, Acb of the 'llst Iægialature, Regular Session,
1989, is amended bo read ae follows:
  Sec. 6. The Texas Pubìic Finance Authority may not issue bonds under Subdivision (2),
Subgection (a), Section 4, Chapter 696, Act¡ of the ?0th lægislature, Regular Session, 198i
(Article 601d-1, Vernon's Texas Civiì Statutes), as added by this Act, before September l,
1991, unlcss the comptroller has determined thal the ùotal amount of debb service that, the
stst€ will be required to pay during the biennium ending September 1, 1991, on thoge
                                             38
o
ch.        260, $   1                             7¡th LI)GISLÅTUIID_REGULAII SDSSION

    (b)    Il
           the ugency's finrlings in un invostigltion unrlcl Subscction (¡rXli) indicn0e thut thc
lloar'<lof trustccs hus obscrtorl n lnul'ully it(lol)tc(l polic¡', the ¡lgcncy muy not substitute its
jurl¡rrncnt lbr th.rl of thc bourd.
   (c) Il¿rscrl on thc lesults of u spccial ¿rcclcrlitntiou invcstigation, thc' commissio¡rer muy
lorvc¡'thc rlistrict's ucclcrlitution lnting anrl tnay takc u¡¡lt'oplirte lction untlcl Subch:r¡ltcr G,
   Scc. iìU,0?li. CONDUCT Oþ' INVESTIGTITIONS, (u) The ngcncy shall nrlopt urittc'n
¡l'occrlulcs lbl conducting on-sitc irrvcstig¡rtions unrlcr this strbchlpter, Thc ngcncy shall
nl¡rkc the proccrlurcs rrv¿rillblc to thc cornpluinnnt, thc nllegerl riolltor', lntl thc publie,
Agcnc.v stuff rnust be tl'aincrl in thc proccrhtrcs anrl must   fullol' the ¡rlocerlurcs in conrlucting
thc investigation,
   tb) Aftcr conr¡llcting an investigution, thc ngcncy shirll plosent prr:liminary fìnrlings to any
¡relson the lgcncy fintls hns viohrtc,rl it litl, trtle, ol policy, Bcfot'e issuing u t'cpott with ih
fìnll finrìÍngs, thc rrgcncy must ¡l'oviclc â pelson thc lgency finrls hus violutorl u l¡uv, tulc, or
¡rolicy rrn o¡r¡xrrtunity lbr ¡rn inforrn¿rl revierv by the cotnnrissiotrct or a rlesignntcd hcnring
ox¡rminer',

                         lSections 3f).07?-lì9.01n rcsctretl for cxpansioul

                    SUI]CHAPTIìR      D,   SUCC!]SSI.'UL SCHOOL .,\WÂIIDS

   Scc. 30.091. 0REr\TI0N 0¡' SYSTEM. Thc Texas Succcssful Schools Arvurds Systcm is
crcntecl !o lecognize anrl rcrvi¡rtl lhose schools und school distrícts thnt dcmonstrute progless
or succcss in lchicving the txlueation gonls of the sl¿¡tc,
  Sce. iìl).002. TYPES 0!' ÄWAIIDS. (n) Thc govcrnor muy prcscnt ¡r fin¿rnci¿rl asurd to
the schools or rlistricts Lhat thc conrmissionet'rletcrmines huvc rleuronstl'¡rtcrl the highest
lcvels ofsustlinctl succcss or'lhc glcatcst itnprovcmettt in nchicving thc cducntion goals. For
c¿rch sturlcnt in nvo'rrgc rl¡ril.v uttendancc, c¡rch of thosc schools o¡' districts ls entitled to un
irmount set tbl thc ¡¡rv¡u'd f<rr rvhich thc school ol tlistrict is sclccþtl by thc commissioner,
subjcct to ¿rn.y limit¿rtion set by the commissioue¡'on thc totnl amount that may be ¡uvarrlcd to
¿r school or <listríct.
   (b) The govetnor may prrscnt proclamations or cettificutes to arlditionul schools anrl
rlistricts detclrninerl t<¡ h¡rve mcl or excecrlcd the cdueation goals.
   (e) Thc commissioncl may csbrbllsh mldition¿rl catcgories of urvards anrl urvurd amounts for
ir school or <listl'ict determinerl to be sueccssful under Subsection (a) or (b) that u'e contingent
on the school's o¡' rlistríct's involvcmcnt u'ith pailerl, lorvcr-pcrforming schools.
   See. 39.093. AW\RDS. (a) Thc critcria that the commissioner shall use to select
succcssfirl sehools anrl distl'icts must be rclutccl to the gouls in Scction 4.002 and must inelude
considcl'ation of pcrformancc on the acudcnric e.rccllcncc inrlicators ndopted under Scction
39,051. For pulposes of sclccting schools ancl districts untler Scction 39.092(a), euch sehool's
¡rcrformnncc shall bc compnlcrl to stale stanrlartls and to its previous pcrformance.
   (b) The commissioncr sh¡r'll scleet annually schools und districts qualificrl to lcceive
succc.ssful school arv¡rrtls fol thcir pcrformance ¡rn(l report the seleetions to the govelnor and
Lhe Stnte Bo¡rrrl of Dducation.
   (c) Thc agency shull notify cach school tlistlict of the manncl in rvhich Lhe disl¡'ict or a
school in thc clistrict mry quulify for ¡r succcssful school arvurrl.
   Scc, 39.0$1, USE OF AWARDS. (¿r) In rlctcrmining thc use of a monot:uy awattl
¡'cceh'c<l undcl this subehuptcr', n school or rlistrict shall give priority to uearlcmie enhance-
ment purposcs. The urvald mu.y not be uscd fol any pulposc relaterl to athletics, and it may
not bc userl to substil.ute for or replucc funrls nlrcatly in the legllar burlget for a school or
rlistt'ict.
  (b) Thc cumpus-lcvcl committee establisherl under Section 11.253 sh.rll rletcrminc the use of
the funds arçar<lerl to a school under this subchupter, 'Ihc professionul stlff ol thc rlistrict
shall rlctermine thc usc of thc funtls arv¿urlerl to the school distric! unrler this subchapter.
  See. 39.005. FUNDING. The arvard system m¿ry be funded by donations, glanls, ol
lagislativc apploprìutions, Thc commissionel nru.v solicit and receive glants anrl donalions for'
                                                23'.t8
?.Ith I,EG ISLATURT]_RDGUI.AR SI'SSION                                                ch. 260, $ I
the ¡rurpose of nrirking au'¡¡lrls urule¡' this suhcha¡ltc¡'. A snr¡rll ¡)ortion of tl¡c urtirlrl [unrls
nr¡r.v hc lso(l by the conrrnissioncl to ¡ra¡'fbt'thc costs i¡ssocintetl u'itlr spotrsorirrg n cclcrnony
to lccognlzc ot'ln'csont il$'¡rr(ls to schools or rlistlicts unrlel this subchn¡rtcr'. Thc rlonltions,
gr'¡r¡rts, or lcgislutive ¡rl)1,¡'o¡)ri¡rtions sh¿¡ll bc ¡rccountc(l lbr anrl distributcd b¡' thc ugcncy.
The ¡rs'¡u'<ls iu'c subjcet to irudit re(luir'cnìents cst¡rblishcrl by lhe Stlte Bon¡'¡l of Educ¿rtion.
   Scc. iÌ9,0[)fi. CONl¡lDltN'Ilr\l,l'l\'. All irtfornrntion untl lcports ¡'cccivctl hy the cotnmis-
.sioner undel this suhchu¡ltc¡' frorn schools or school rlistlicts tlecurcrl conlidcnti¡rl undcr'
Cht¡lter 562, (irn'u'nnrcut Co(lc, ¡rle conlìrlc'ntiul irnrl nrl¡ not bc rliscloscrl in lny In¡blic or'
¡lrivate ¡rrtceetling,

                          lSt'ctions iì9.0!17-3!f.ll0 tcse¡rctl [ot' ex¡runsionl

                         STIBC}IAPTIìR         I.', ADI)ITIONAI,     RIIWARDS

   Sec.    :l0,lll. RIìCO(;NIT|ON ,\ND RllW¡\lll)S. Tht St¿rlc Bo¿trd of ltrduqrtiou shlll
rluvclop a ¡rlln lbl recognizirtg lnrl lcu'nxling school dist¡'icts itnd citm¡ruscs th¡rt ure lnted as
c.tern¡rlnr1 or t'ceognizcrl und lbr rlcvelo¡ring ir ncts'ot'k lirt'shurìng provcn successful plucticcs
st¿ltcrui(lc anrl regionall.v, The rorvnrd nur)' bc usc(l to plovirle etlucators uìth sunrnrar
stipends to tluvehr¡l cut'rier¡l¡r b¡rserl on thc citcrl successfttl stt'rttegÌcs, The cdrtcttot's may
co¡r¡r'lght the cu¡'riculn thcy rlcvclo¡1.
   Scc, ;lfl.ll2. IIXCELL¡INCE IIXE¡'4PTlONS. (¡r) Excc¡rt as plovidetl by Subsection (b),
¡r $chool c¡¡nrpus or <listrict thlt is lntcd exeml)l¡u'.\' is ercnr¡rt frorn lcr¡uircmcnts ¿lìd
¡rrohibitions irn¡roscrl un(ler this coclc irrclurling rules iulo¡rtcrl r¡ndel'this corlc.
   (b) A school cirmpus o¡' rlistrict is nrrt exernpt unrlcr this scction lì'omr
      (1) u plohilritir¡n orr conrlt¡ct thul constitutcs a erinrirral offensc;
      (2) r'er¡rtit'enretrts irnposerl by fetlcral lau' ol rrrle, inclurling lcquirements for s¡reciul
   erlucrttion ot' bilinpttl etlucution l)r'ogllnrs; ol
      (3) ir rcr¡uircmcnt, t'ost¡'iction, or prohibítion relnting to:
        (Â) ct¡¡riculum essenti¿ìl knou'lcdgc lnd skills untler Scction 28.002 ol nlilrimum
     ß'uduation lequilcments unrlo Scction 28.025;
        (B) ¡luhlic school ¡rceountlbility ns ¡rrovidcrl by Subchrptels Il, C, D, antl G;
        (C) cxtracunìculi¡r' actiyitics undc¡' Scction 33.081;
        (D) he¿rlth r¡n(l sufety uttrler Chapter .38¡
        (E) compctitivc bidding un(lcl Suhchupler B, Chal¡ter 44;
        (l') elc¡ncntr¡ry school cluss size linlits, exccl)t as proviclerl by Subsectíon kl) ol'Section
     2l>.112:
       (G) r'emovul of a disrrrptivc stt¡ricnt ft'ont the classt'ootn undcr Subchaptcl r\, Chnptcr'
     37i
       (H) at risk ln'og¡'ams unrlcl Subchlptel C, Chapter           20;
       (l)   ¡llckinrlcrg?u'ten progr'¿rrns undcr Subchaptel      E, Cha¡rter   29;
       (J) tights ¡rntl hencfits of school employccs;
       (K) sf¡cei¡rl educntion p¡'op'¿rms undcl Subchrrpter r\, Chapter'2!); or
       (L) bilingnl crluc¡rtion l)rof¡'rms un<ler Subcha¡rtu Iì, Chapter'2f).
   (c) The ugenc,y shnll monitol rn(l er'¡¡hrírtc dcrcgulltion of a school c¿rmpus ol rlistrict unrler
this scction lnrl Scction ?,051i.
   (rl) Thc conrmissionet m¿ry cxenìl)t irn c;tcm¡llrr.y school carn¡rus û'om elemcntuly cllss síze
limils unrle¡' this section if the school cnnìpus subnlits to the commissioncr ¿r lrittcn plan
shorrìng steps thlt uìll be tnken to ensu¡'e th¡rt the cxem¡rtion from the clnss size limits rvill
not be ltnlnrful to the acudcnric achievcmcnt ol'thc str¡rlcuts on the'school cam¡rus, The
commis.sioner shall lcricrv ¿rchicvcment lelels annually. 'l'hc excnrption remains ìn effect
until the commissioner rlctertnincs that lchicvcment levcls of the clmpus hnve rlcclined,
                         lScctions   30.1   l3ll9.l30 t'csctvcrl lot' ospansionl
                                                    2379
o
78th LEGISÍI\TURE_REGULAR SESSION                                                              ch. 485, $ I
   (g) A peone offi.cer may operøte an all-ten¿:in aehicle on ø publi.c street, rool, or fuighwag
tltøt ß tøt an intersto,te or limilpd,-o¿cess highwa4 onlg if:
      (1) the tronspo¡latiøn is in cannection wil,h tlw pørformnn*e of tha ofi.cer's officinl d.uty;
      (2) thn oÍfrcer øttanh¿s to th¿ ba¿k of thc uehi.clc on tnp of on øight-foot-Wng pola ø
   triongulør orong e fl,o4 ;
       (3)   th,e aehicl¿'s   head,lþhß ond, taill:igllk øre   illurninakrt
       (Ð    the ofrtcer hnlìs a d,riaer's licmse, os dnfi,ncd, bg Sect;ion 521.001;        o,nd,
       (5) tltp operttion of tha o,ll-terra.tn aehißle     d,oes   not   es,ceed,   a d;istonne of 25 miles from
   tlæ point of qriWn tn the dpstinøtiøn.
  SECTION 2, This Act takes effect September 1, 2003.
  Passed by the House on April 2,2003, by a non-record vote; passed by the Senate on
       May22,2003: Yeas 31, Nays 0.
  Approved June 20, 2003.
  Effective September 1, 2003.



                                                CIIÄPTER        4&T

                                                 H.B. No.      912
                                                     AN ACT
relating to the d¡stribution of school district €mployment policies          to teachers employed under     term
contracts.

  Be it øna,cted by tlw Legßlnhne of th,e Slnte of Tenas:
  SECTION 1. Section 21.204(d), Education Code, is amended to read as follows:
  (d) The boa¡d of trustees shall provide each teacher with a copy of the teachey's cont¡act
with tlre school district and, on th,e t¿onh,et's requ,est, a copy of the board's employment
policies. If th,e d,istrict ltas øn Intprnet websit¿, the d'i,strict sh.all, place thp boørd,'s
ønplngm,ent policies øn thøt website, At øanh sch.ool i.n th¿ district, tlte boaril sh,s,ll m.s.lçe a
copy of th.e boøril's ønpløym,ønt pol:i.cies auøilnbl¿ før inspectiøn at a reasonabl,e tim,e øn
request.
  SECTION 2. This Act takes effect immediately if ib receives a vobe of two-thirds of all the
members elected to each house, as provided by Section 39, Ar"ticle III, Texa.s Constitution. If
this Act does not receive the vote necessâry for immediate effect, this Act takes effect
September 1,2003.
  Passed by the House on April 8, 2003, by a non+ecord vote; passed by the Senate on
       May 27 ,2003: Yeas 31 , Nays 0.
  Approved June 20, 2003.
  Effective September 1, 2003.



                                               CHAPTER          485

                                                 H.B. No.      917
                                                AN ACT
relating to the author¡ty of counties and munic¡palit¡es to incur debt 1o participate in erosion response
projecls undertaken by the General Land Oflice.

  Be   it   er¿a,cted,   by thc Legßlnture of th.e Stale of Teuas:
  SECTION           1.    Seclion 421.002, Local Government Code, is amended to read as follows:
                                                    7749
