f




        The Attorney General of Texas
                          September      11,   1990



    Honorable Hamp Atkirr3on, Chairman                opinion No. Mw-238
    Public Education
    House of Representatives                          Re: Whether school boards
    Austin, Texas 16769                               may       discontinue     hiring
                                                      teachers cn a “probationary cr
                                                      eontinuirg contract basis.”

    Dear Representative   Atkinson:

          You have pased the followiq    question:

                     lf a board of trustees of an independent school
                district adopts Subchapter C of Section 13 of the
                Texas E&cation Code, &es it or a s&sequent board
                have the power to rescind such action, or are it and
                future boards fcwever bound to offer probationary and
                continuirrg contracts to all present and prospective
                teachers?

           Prior to 1967, independent school district boards of trustees had no
    authority to adopt permanent tenure plans fa hiriw teachers.       Promen v.
    Goose Creek Ind. School District, 146 S.W. 2d 460 (Tex. Civ. App. -
    Galveston 1941, writ dism’d., jamt. car.). Pursuant to article 2761, V.T.C.S.,
    (since repealed; E, now, E&c. Code S23.26), beards of such districts could
    only hire teachers u&r a “fixed term contract” for as many as three or five
    years, depend*     rpcn the size of the district.   Term contracts cover a
    specified time period and dD not establish tenure rights an behalf of the
    employee. Board of Regents v. Roth, 406 U.S. 564 (1972).

           In 1967, the legislature enacted article 2691-56, V.T.C.S. (now Chapter
    13, Subchapter C of the Education Code), which changed the public policy
    regardirg teacher tenure. Article 2691-50 established a tenure plan whereby
    teachers may, following a probationary period, be awarded a “continuing
    contract” which is terminable anly for specified causes and in accordance
     with prescribed procedures. See E&c. Code gll.lOl, et seq. The tenure plan
    is discretionary; a school boardmay choose to implement its pmvisions or it
    may continue to hire teachers under term contracts.              Cari v. South San
     Antonio Ind. School District, 561 S. W. 2d 560 (Tex. Civ. App. - Waco 1976,
    -rerdnr.e.);Midway                           Ind. School District, 469 S.W. 2d 706
    (Tex. Civ. App. -7orpus        Christi 1973, writ FePd n.r.e.); Attorney General
    Opinion M-123 (1967).
Honorable Hamp Atkirwon - Page Two         (NW-2381




     Section 13.101of Subchapter C of the Education Code, states, in pertinent   part:

           Each teacher hereinafter      employed by any school district...
           shall be employed mder... a contract that is either a ‘proba-
           tionary contract’ a a ‘continuitg contract’ in accordance with
           the provisions of this s&chapter if the school bcerd chooses to
           offer such teacher a ‘probationary contract’ a a ‘continuirg
           contract’     All such contracts shall be in writing... and shall
           embody the terms and conditions of employment hereinafter set
           lath,    and such other provisions not inconsistent     with this
           stichapter   as may be appropriate.

Sections 13.102 through 13.ll6 of the Education Code set forth the conditions       tmder
which such contracts may be awarded and, if necessary, terminated.

       At the outset, we note that it is mclear whether a board must actually “adopt”
the continuirg contract law. On the one hand, the language of section 13.101suggests
that adoption is innecessary and that a board may decide UI a case-by-case basis
whether to award individual teachers a probationary a continuing contract or a term
contract.      “Each teacher hereinafter     employed... shall receive... a ‘probationary
contract’ or a ‘continuirg contract’... if the school bosrd chooses to offer such teacher
a ‘probationary contract’ a a ‘contintiiig contract’.” (Emphases added). me          other
hand, mrts seem to have assumed that the tenure plan must be “adopted” in order to
be effective, and that all teachers employed after the date of adoption come under its
pipvisions.     See, e.g., Hix v. Tulaso-Midway 2nd. School District, srpra; Garcia v.
Pharr, San Juan, Alamo Ind. School District, 513 S.W. 2d 636 (Tex. Civ. App. - Corpus
Christi 1974, writ ref’d nr.e.1. A 1973 amendment to section 23.26 of the E&cation
Code states, moreover, that “This section does not apply to teacher’s contracts in...
districts which bve adopted... Subchapter C, Chapter l3....” (Emphasis added). We
deem it tmnecessary to address this question, however, since ycu Jwve specifically
asked whether a school board that “adopts” the continuing contract law thereby
 irrevocably commits that district to offer probationary and continubg contracts to all
present and prospective teachers.        Assuming that “adopts” connotes formal beard
action, we will limit our inquiry to the question whether such action, once taken, may
 later be rescinded.

       A fundamental concept lnderlyirg legislation affecting Texas school districts is
that decisions concernirg the public schools should, whenever possible, be made and
implemented at the local 1eveL The legislatw’s       lcng-stand@  commitment to local
control of public education finds expression in section 23.26 of the Education Code,
which confers lpcn school trustees “the exclusive power to manage and govern the
public free schools of the district” The United States Supreme Court has approved the
concept of local control, San Antonio Ind. School District v. Rodriguez, 4l.l U.S. 1
(1973), and Texas courts heve made clear their reluctance to interfere with school
trustees’ exercise of their authority absent evidence of n clear abuse of discretion.
Nichols v. Aldine Ind. School District, 356 S.W. 2d 192 (Tex. Civ. App. - Houston 1962,
no writ). The question whether a beard may rescind a decision to adopt the continuing
contract law must be answered in light of this public policy.




                                          P.   753
Honorable Hamp Atkinson      - Pege Three     (MW-238)




        A cardinal tule of statutory construction    is that the true meanirrr of a statute
should be determined by considers        the motives which induced the legisl&re   to enact
it. See_ 76 C.J.S. _~ls__ae-S~-~~~pistricts              Sl66. As we Mfe observed, the
leaislatwb      intent in enactit    a permissive tenure plan was clearly to give school
b&Is a choica between hiri& &hers             under that ohm a contractimc with them fa
fixed terms. See, s,        Carl v~Sc&h San Antonio In& School District, “w.      We think
the element o~oice         is cruciaL There is IY) evidence in the continuim contract law
itself a in s&sequent case law to indicate that the legislature inten&d this choice,
cmce made, to be irrevocable.        Absent such evidence, there is noth@ to srppat that
conclusion.    In this respect, it should be noted that when the legislature has intended
that a school board decision to adopt a permissive statute should be irrevocable, it has
clearly said so. For example, section 23.llff) of the Education Code, which permits
election of school trustees by pceition, provides that: “Once the bcerd... has adopted
the provisions of this section, neither the beard... nor their successors may rescind the
action.” Had the legislnture intended the continuing contract law to be irrevocable, it
could easily have provided nccordirgly.

       Moreover, it is cur opinion that the legislature       did not, in light of its
commitment to the concept of local control of public education, intend that a school
board would, by adopting the tenure plan, irrevocably            bind itself and, more
importantly, its successors to that plan, which may for any number of reasons later be
deemed tmdesirnble       If a board is to be able to fulfill its statutory   mandate to
“manage and govern the...      schools...,” Education Code section 23.26, it must have
flexibility to change its policy directions unless it has clearly been prohibited from
doing so.

      For these reasons, we conclude that a decision to adopt the provisions of Chapter
13, S&chapter C of the Education Code may be rescinded.

      You have also asked:

            If a board may rescind such action:

            a. Do teachers already employed under continuti         contracts
            have any vested right to continue tmder such contracts after the
            recission (even though all prospective teachers will enter tat&r
            term contracts)?

            b. Do teachers employed tmder probationary      contracts have
            any vested right to continue under such contracts mtil they
            have been employed three years end can receive continuirg
            contracts (even though all prospective teachers will enter under
            term contracts)?

In cur opinion, the answer to these questions     may be found in the continuitg   contract
law itself.
                                                                                             ‘.




Honorable Hamp AU&son       - Page Pour       (Mw-23a)




            Section 13.101states that:

                . ..A11 [pmbationary and continuing contracts]   shall be in
            writing, in such form as may be promulgated            by... the
            commissioner of education, and shall embody the terms and
            conditions of employment hereinafter set forth.. . .


            Section 13.102 provides, in pertinent   part:

                Any person who is employed as n teacher... la the first
            time, or who has not been employed by such district for three
            consecutive school years s&sequent to August 26,1967, shall be
            employed under n probationary     contract,’ which shall be for a
            fixed term as therein stated;... no such contract shall be fa a
            term exceed@ three school years. . . .


            Section 13.107 provides, in pertinent   part:

                Each teacher with whom a continuirg contract tms been
            made as herein provided shall be entitled to continue in his
            position or n padtion with the school district... fa future school
            years without the necessity for annual nomination a renppoint-
            ment, tmtil such time as [one of the stated conditions occurs].

       As Section 13.101 makes clear, executed probationary a continue         contracts
incorporate the provisions of the continuirg contract law, either expressly cr bg’
implication.   When a school board exercises the choice given it by the legislature and
enters into a probationary or continuirg contract with its teachers, it thereby creates
a bindirg contract which is governed by the terms of that law. See Cummins v. Banes
Ind. School District, 466 SW. 2d 913 (Tex. Civ App. - Austin l97e      writ). Thus, one
 must look to section 13.101, et seq., to determine the rights and obligations of the
parties to the antract.

       Under’ the continuitg    contract    law and, therefore,  under the employment
 contract, a continuing contract teacher -is entifled ‘to confinue %I his wition     a a
 position with the school district...    without the necessity fa annual nomination a
 reappointment” until such time as one of the stated events occurs. Educ. Code s13.107.
 A board decision to rescind its adoption of the continuirg contract law would have no
 effect upcn this entitlement,   which was created in n contract validly executed by two
 parties with full authority to so contract under n law that is still in effect    In this
 respect, the contract is no different from any other valid contract, and its terms may
 not be altered without the consent of both parties. It follows, therefore, that t?e
 relationship of the district to the teachers who have entered into continuing contrac’d
 with n school board that later rescinds its decision to adopt the continuing cont’&ct
 law till continue to be governed by that law, as incorporated in those contracts, even
 after recission. See also Indiana ex rel. Anderson v. Brand, 303 U.S. 95, reh. den., 303
 as.   667 0938).




                                         P-   755
Honorable liamp Atkinson - Page Five          (NW-23a)




       Similarly, one must look to the continuing contract law to ascertain the rights
and obligations of a teacher under a probationary contract, “which shall be la a fiied
term as therein stated... [not to exceed three a, where permitted, four school years] .‘I
Educ. Code Sl3.102. Purstmnt to the continue contract law, a teacher would be
entitled to serve art the remainder of the term stated in a probationary contract
executed prior to the date of reclusion, but, provi&d he a she is first terminated, see
Education Code sections 13.103, and 13.104, may thereafter be given a term contract.T
should be noted that a teacher under a probationary contract would, unless terminated
in accordance with sections 13.103 and 13.104, automatically be entitled to a continuing
contract.

       Accordingly,   in answer to your third question, teachers serving mder n
probationary    amtract executed before a school board rescinds its adoption of the
continuing contract law may, rpan termination of their contract, pursuant to sections
13.103 and 13.104, be awarded term contracts.  If not terminated in this manner they
would be entitled to a continuirg contract.

                                        SUMMARY

                The board of trustees of an independent school district may
            rescind n decision to adopt Chapter 13, Subchapter C of the
            Education Code. If it does so, teachers with valid probationary
            or continuirrg contracts executed prior to the date of recission
            will continue to be governed after reciesion by their contracts
            incorporatitq    the continuing contract law. Continuirrg contract
            teachers are entitled to be employed until cne of the specified
            conditions fa termination occurs, and they are entitled to the
            procedural     safeguards    afforded by the law.       Probationary
            contract teachers are entitled to serve out the balance of the
            term stated in their contract       Upan termination of the contract
            and in accordance with the procedures sat forth in the
            continue      contract law, they may be awarded term contracts.




                                                 MARK      WHITE
                                                 Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

Prepared by Susan Garrison
Assistant Attorney General




                                         p.    756
Honorable Hamp Atkinson     - Page Six     uw-238)




APPROVED:
OPINION COMMIITEE

C. Robert Heath, Chairman
Susan Garrison
Rick Gllpin
Laura Martin
Bruce Youngblood




                                     p.   757
