                                                                                        ACCEPTED
                                                                                    03-15-00313-CV
                                                                                            7078401
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                              9/24/2015 11:25:11 AM
                                                                                  JEFFREY D. KYLE
                                                                                             CLERK
                            No. 03-15-00313-CV

                 IN THE COURT OF APPEALS FOR THE        FILED IN
                                                 3rd COURT OF APPEALS
                 THIRD JUDICIAL DISTRICT OF TEXAS     AUSTIN, TEXAS
                          AUSTIN, TEXAS          9/24/2015 11:25:11 AM
                                                               JEFFREY D. KYLE
                                                                    Clerk
                         HERMENIA JENKINS,
                                                   Appellant
                                     v.

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


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


 BRIEF OF APPELLEE CROSBY INDEPENDENT SCHOOL DISTRICT


David B. Hodgins
State Bar No. 09775530
dhodgins@thompsonhorton.com
                                          THOMPSON & HORTON LLP
Amber K. King                             3200 Southwest Freeway, Suite 2000
State Bar No. 24047244                    Houston, Texas 77027
aking@thompsonhorton.com                  Telephone: 713-554-6745
                                          Facsimile: 713-583-8245
Frances Broussard
State Bar No. 24055218
fbroussard@thompsonhorton.com


    ATTORNEYS FOR APPELLANT CROSBY INDEPENDENT SCHOOL DISTRICT
                  IDENTITY OF PARTIES AND COUNSEL

       The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case. These representations are made so
that the judges of this Court may evaluate possible disqualification or recusal.

      1. Hermenia Jenkins
         Plaintiff / Appellant

      2. Kevin F. Lungwitz
         Elizabeth Poole
         The Lungwitz Law Firm, P.C.
         3005 S. Lamar Blvd.
         Austin, Texas 78704
         Attorneys for Plaintiff / Appellant

      3. Crosby Independent School District
         Defendant / Appellee

      4. David B. Hodgins
         Amber K. King
         Frances R. Broussard
         Thompson & Horton LLP
         3200 Southwest Freeway, Suite 2000
         Houston, Texas 77027
         Attorneys for Defendant / Appellee CISD

      5. Michael Williams, Commissioner of Education
         Defendant / Appellee

      6. Greg Abbott
         Daniel T. Hodge
         David C. Mattax
         David A. Talbot, Jr.
         Andrew Lutostanski
         Office of the Attorney General of Texas
         PO Box 12548, Capitol Station
         Austin, Texas 78711
         Attorneys for Defendant / Appellee Williams


                                         i
7. Texas Elementary Principals and Supervisors Association
   Amicus Curiae

8. Daniel A. Ortiz
   Giana Ortiz
   The Ortiz Law Firm
   1304 West Abram St., Suite 100
   Arlington, Texas 76013
   Attorneys for TEPSA

9. Texas Association of School Boards’ Legal Assistance Fund
   Amicus Curiae

10.David P. Backus
   Ronn P. Garcia
   Underwood Law Firm, P.C.
   1111 West Loop 289
   Lubbock, Texas 79416
   Attorneys for TASB




                                 ii
                                       TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL ............................................................ i
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES......................................................................................v
STATEMENT OF THE CASE .............................................................................. viii
STATEMENT REGARDING ORAL ARGUMENT ............................................. ix
ISSUES PRESENTED............................................................................................. ix
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................4
ARGUMENT AND AUTHORITIES ........................................................................6
I.   Standard of Review .............................................................................................6
II. The Term Contract Nonrenewal Act ...................................................................8
III. Jenkins’ Claim Did Not Involve An Expiring Term Contract And,
     Consequently, Was Not Ripe For The Commissioner’s Review, as Pled. .......10
IV. Assuming Arguendo §21.206 Applied To Jenkins’ Claim, The Commissioner
    Correctly Determined that Jenkins’ Reassignment from Principal to Assistant
    Principal was in the Same Professional Capacity and Legally Valid. ..............13
        1. The phrase “same professional capacity” is not defined in the Texas
        Education Code; therefore, the Commissioner’s interpretation must be
        afforded broad deference...............................................................................13
        2. The Commissioner has reasonably and consistently interpreted the
        phrase “same professional capacity.” ..........................................................14
        3. The Commissioner has properly declared that “administrator” is a
        distinct professional capacity. .......................................................................16
        4. Tex. Educ. Code §21.201(1) does not define “professional capacity”
        for purposes of §21.206. ................................................................................18
        5.      The Commissioner’s interpretation is entitled to deference. ................21
        6. The Commissioner’s longstanding interpretation of “same professional
        capacity” should be upheld by the doctrine of legislative acquiescence. .....22
        7. A change from principal to assistant principal is not a per se change in
        professional capacity. ....................................................................................26

                                                         iii
         8. The Commissioner considered the contract, compared the two
         positions at issue, and appropriately determined they were both within the
         professional capacity of administrator. .........................................................29
         9. Plaintiff’s argument that “once a principal, always a principal” is an
         unsound policy for school districts in the state of Texas. ..............................32
CONCLUSION AND PRAYER .............................................................................33
CERTIFICATE OF COMPLIANCE .......................................................................35
CERTIFICATE OF SERVICE ................................................................................35
APPENDIX ..............................................................................................................36




                                                           iv
                                       INDEX OF AUTHORITIES

                                                                                                                 Page(s)

Cases
Barich v. San Felipe-Del Rio Consolidated Indep. Sch. Dist.,
  Docket No 117-R1a-484 (Comm’r Educ. 1985) .........................................passim
Carpenter v. Wichita Falls Indep. Sch. Dist.,
  Docket No. 247-3-491 (Comm’r Educ. 1993) ..................................17, 19, 29, 32

City of Austin v. Pub. Util. Comm’n,
   146 S.W.3d 742 (Tex. App.—Austin 2004, no pet.) ....................................31, 32

Dodd v. Meno,
  870 S.W.2d 4 (Tex.1994)....................................................................7, 14, 25, 26
DuPont Photomasks, Inc. v. Strayhorn,
  219 S.W.3d 414 (Tex. App.—Austin 2006, pet. denied) ................................... 23
Goodie v. Houston Indep. Sch. Dist.,
  57 S.W.3d 646 (Tex. App.—Houston [14th Dist.] 2001, pet.
  denied)............................................................................................................... 6, 7
Gustafson v. Canutillo Indep. Sch. Dist.,
  Docket No. 113-R10-0812 at 6-13 (Comm’r Educ. 2014) ..........................passim
Holman v. Arp Indep. Sch. Dist.,
  Docket No. 093-R8-805 (Comm’r Educ. 2007) ...........................................12, 36

Judson Indep. Sch. Dist. v. Ruiz,
   04-13-00706-CV, 2015 WL 1501758 (Tex. App.—San Antonio
   Mar. 31, 2015, pet. filed) ...................................................................................... 7

Lehr. v. Ector County Indep. Sch. Dist.,
   Docket No. 003-R3-0908 (Comm’r Educ. 2011) ............................................... 13

Matthews v. Scott,
  268 S.W.3d 162 (Tex. App.—Corpus Christi 2008, no pet.) ............................... 6

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

                                                             v
McGilvray v. Moses,
  8 S.W.3d 761 (Tex. App.—Fort Worth 1999, pet. denied) ..........................14, 22

Miller v. Houston Indep. Sch. Dist.,
   51 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) ................... 7

Mireles v. Tex. Dep't of Pub. Safety,
  9 S.W.3d 128 (Tex.1999)...................................................................................... 6

Montgomery Indep. Sch. Dist. v. Davis,
  34 S.W.3d 559 (Tex. 2000)............................................................................... 6, 7

Murillo v. Laredo Indep. Sch. Dist.,
  Docket No. 027-R3-0108 (Comm’r Educ. 2012) .............................11, 12, 17, 36

Pasqua v. Fort Stockton Indep. Sch. District,
  Docket No. 011-R3-1102 (Comm’r Educ. 2004) ...................................17, 26, 37
Perales v. Robstown ISD,
   Docket No. 052-R10-104, 084-R-604 (Comm’r Educ. 2006)......................19, 20
Poole v. Karnack Indep. Sch. Dist.,
  344 S.W.3d 440 (Tex. App.—Austin 2011, no pet.) ........................................ 7, 8

Railroad Comm'n v. Tex. Citizens for a Safe Future & Clean Water,
   336 S.W.3d 619 (Tex. 2011) .............................................................................. 22

Ramos v. El Paso Indep. Sch. Dist.,
  Docket No. 002-R10-900 (Comm’r Educ. 1999) ...................................17, 32, 36
Tex. Dept. of Protective & Regulatory Servs. v. Mega Child Care, Inc.,
   145 S.W.3d 170 (Tex. 2004) ........................................................................23, 24

Tex. State Bd. of Dental Exam'rs v. Sizemore,
   759 S.W.2d 114 (Tex.1988).................................................................................. 6

TGS-NOPEC Geophysical Co. v. Combs,
  340 S.W.3d 432 (Tex. 2011) ........................................................................14, 22

Transcon. Ins. Co. v. Crump,
   330 S.W.3d 211 (Tex. 2010) ........................................................................23, 24



                                                       vi
Underwood v. West Rusk County Consolidated Indep. Sch. Dist.,
  Docket No. 062-R3-198 (Comm’r Educ. 1998) .....................................18, 26, 37

Wheeler v. Austin Indep. Sch. Dist.,
  Docket No. 008-R3-1108 (Comm’r Educ. 2011) ............................................... 30

Young v. Leggett Indep. Sch. Dist.,
  Docket No. 175-R3-898 (Comm’r Educ. 1999) ...........................................17, 32

Statutes
19 Tex. Admin. Code Ann. § 241.1(d) ........................................................21, 27, 31

Tex. Educ. Code Ann. § 7.057 ..................................................................................ix
Tex. Educ. Code Ann. § 11.201(d)(2) ..................................................................... 31

Tex. Educ. Code Ann. § 11.202(b) .......................................................................... 27
Tex. Educ. Code Ann. § 21.046 ............................................................................... 27
Tex. Educ. Code Ann. § 21.201(1) ...................................................................passim

Tex. Educ. Code Ann. § 21.201(3) ............................................................................ 8
Tex. Educ. Code. Ann. § 21.206(b) ..................................................................passim
Tex. Educ. Code Ann. § 21.210 ................................................................................. 2
Tex. Educ. Code Ann. § 21.211. .............................................................................. 11

Tex. Educ. Code Ann. §§ 21.251 et seq. ................................................................. 11
Tex. Educ. Code Ann. § 21.307(f) ............................................................................. 6

Tex. Gov’t Code Ann. § 2001.174 ............................................................................. 6

Other Authorities
Tex. Atty. General Op. DM-27 (1991) .................................................................... 27




                                                       vii
                               STATEMENT OF THE CASE

         This is an appeal pursuant to section 7.057 of the Texas Education Code.

On December 2, 2011, Jenkins filed a Petition for Review with the Commissioner

of Education seeking a review and decision by the Commissioner that Crosby

Independent School District improperly reassigned Jenkins from a principal

position to an assistant principal position in violation of the Education Code and

her contract.         (A.R. 155-158.1)         The Commissioner upheld the District’s

reassignment decision (“Commissioner’s Decision”). (App’x 1.) Subsequently, on

February 28, 2014, Jenkins filed an Original Petition in the 200th Judicial District

of Travis County, Texas against both the District and the Commissioner seeking a

reversal of the Commissioner’s Decision. (C.R. 32.) The parties each filed trial

briefs supporting their respective positions. (C.R. 71, 224, 263.) On December 4,

2014, the Honorably Amy Clark Meachum held an oral hearing, and then issued a

final judgment affirming the Commissioner’s Decision. (App’x 2.) Jenkins filed a

motion for new trial, which was overruled by operation of law. (C.R. 378.) On

May 22, 2015, Jenkins filed a notice of appeal. (C.R. 385.)




1
  The abbreviation “A.R.” is used for the Administrative Record that is included as Joint Exhibit
No. 1 of the Reporter’s Record. The page numbers referenced are the TEA page numbers
located at the bottom right-hand corner.
2
    The abbreviation “C.R.” is used for the Clerk’s Record.
                                                 viii
              STATEMENT REGARDING 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.



                             ISSUES PRESENTED

      Whether the Commissioner’s Decision to uphold the District’s reassignment

of Appellant/Plaintiff from principal to assistant principal is supported by

substantial evidence?




                                        ix
TO THE HONORABLE JUDGES OF THE COURT:

        The Appellee, Crosby Independent School District, submits it’s brief as

follows:

                             STATEMENT OF FACTS
        Jenkins worked as the principal of Charles R. Drew Intermediate School

within Crosby ISD from 2003 to June 2011. (A.R. 6, ¶2.) In March 2011, Jenkins’

employment contract with the District was renewed, and she signed a new two-

year term contract for the upcoming school years 2011-2012 and 2012-2013.

(A.R. 294.) The contract stated in pertinent part the following:

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

(Id.)

        On June 28, 2011, the Superintendent notified Jenkins of his decision to

reassign her from the principal position at Drew Intermediate to the assistant

principal position at Crosby High School.        (A.R. 291.)    Both positions were

                                          1
campus administrator positions, and Jenkins’ compensation remained the same.

(A.R. 286.) The District provided the reassignment notice prior to the “penalty-

free resignation date,” which for the 2011-2012 school year, was July 8, 2011.3

Jenkins did not resign, but instead accepted her new position as assistant principal

at Crosby High School.

       On July 18, 2011, Jenkins filed a grievance with the Superintendent through

the District’s board policy DGBA, which is an internal grievance/complaint

procedure available for employees. (See A.R. 331.) In her grievance, Jenkins

alleged that the Superintendent lacked the legal authority to reassign her from an

intermediate school principal position to a high school assistant principal position

because it amounted to an improper change in professional capacity in violation of

the Texas Education Code. (A.R. 287.)
       The District held a Level Two grievance hearing to address the complaint.

(A.R. 284.)      In his decision upholding her reassignment, the Superintendent

communicated his rationale for the reassignment explaining that Jenkins’ “skill set

could meet a real need at [the] High School.” (A.R. 285.) According to the

Superintendent, the high school campus was in dire need of “administrative

support and focus” and Jenkins’ “previous experiences, . . . skills and abilities with


3
  The “penalty-free” resignation period is a statutory period of time provided to an individual
employed under a term contract during which the individual may relinquish his/her position and
leave the employment of the district without penalty. See Tex. Educ. Code Ann. § 21.210.
                                              2
organization, problem solving, and attention to detail” would be “valuable and

helpful in this very important endeavor.” (Id.) The Superintendent also detailed

Plaintiff’s duties as a high school assistant principal:

      At this much larger campus, you will continue to have numerous
      administrative responsibilities, including, but not limited to,
      appraising and making recommendations regarding staff, helping
      provide instructional leadership, implementing student discipline,
      facilitating and assisting with developing an effective campus
      improvement plan based on student needs, providing leadership in the
      identification, evaluation, and election of instructional programs,
      materials, and equipment with regard to increased student
      achievement, training teachers to utilize various instructional
      strategies to meet student learning needs, assisting in the planning and
      implementation of staff development programs designed to fulfill the
      professional growth needs of the high school staff, planning and
      implementing staff development programs designed to fulfill the
      professional growth needs of the high school staff, working directly
      with parents and patrons on solving problems and addressing
      numerous issues that may be presented, facilitating the
      implementation of new assessment and working to support the
      alignment of campus and district curriculum, as well as numerous
      other administrative duties as assigned.

(A.R. 285-86.)

      Jenkins was not satisfied with the Superintendent’s decision and filed an

appeal on September 27, 2011, through a Level Three grievance. (A.R. 282.) On

October 24, 2011, the Crosby ISD Board of Trustees held a hearing. (A.R. 255.)

At the time of her Level Three grievance hearing in October 2011, Jenkins had

been performing in her role of assistant principal for Crosby High School for

approximately nine (9) weeks. At no time, nor in any grievance hearing, did


                                            3
Jenkins argue that the duties outlined for her current assistant principal position

were untrue, inaccurate, or needed further clarification. Nor did Jenkins claim that

her principal duties at the intermediate school were substantially different than her

administrative duties as an assistant principal at the much larger high school. (See

A.R. 255, 258-61; see also A.R. 155-58.)

      The Board denied Jenkins’ grievance in a six to one vote. (A.R. 324.)

Consequently, Jenkins filed a Petition for Review with the Commissioner of

Education on December 2, 2011.         (A.R. 155.)    On December 19, 2013, the

Commissioner issued his Decision denying Plaintiff’s petition in part and

dismissing in part. (App’x 1.) The Commissioner rejected Jenkins’ arguments and

concluded that being employed by a school district as a principal under a term

contract does not mean that the person is employed under the professional capacity

of “principal.” (A.R. 29, ¶10.) The Commissioner went on to find that Jenkins’

professional capacity was “administrator,” and that the District’s reassignment of

Jenkins to an assistant principal position was within the same professional

capacity; therefore, the District did not violate the Texas Education Code. (App’x

1, p. 25, ¶¶12, 14.)

                       SUMMARY OF THE ARGUMENT
      Jenkins failed to plead this case as a demotion, and instead opted to plead it

as a failure to employ her in the “same professional capacity” in violation of §


                                           4
21.206(b).   Jenkins’ claim, however, involved a mid-contract reassignment of

Plaintiff; thus, the requirement in § 21.206(b) to employ an employee in the “same

professional capacity” was not even triggered in this case, depriving the

Commissioner of jurisdiction. Assuming the Commissioner did have jurisdiction,

he properly determined that Jenkins’ reassignment from principal to assistant

principal was in the “same professional capacity” and, therefore, Jenkins’

reassignment did not violate §21.206. This decision was appropriate and supported

by substantial evidence for a number of reasons. First, the term “same professional

capacity” is not defined in the Education Code. Consequently, over the last three

decades, the Commissioner has consistently interpreted “same professional

capacity” by comparing the duties, responsibilities, and salary of the reassigned

position and not by the title of the position alone. Second, the Commissioner has

properly declared that “administrator” is a distinct professional capacity; that a

principal is an administrator; and that reassignment from a principal to assistant

principal position can be appropriate. Third, the Commissioner has never defined

principal as its own professional capacity and has consistently declined to do so.

Finally, the Commissioner’s longstanding interpretation should be afforded

substantial deference by this Court and should be upheld by the doctrine of

legislative acquiescence.    Jenkins’ arguments to the contrary are misplaced,

inaccurate, and, if adopted by this Court, will result in poor public policy for Texas


                                          5
school districts throughout the entire state. Consequently, this Court should affirm

the Commissioner’s decision and deny Jenkins’ appeal.

                      ARGUMENT AND AUTHORITIES

I.    Standard of Review

      “On appeal of the district court's judgment, the focus of the appellate court's

review, as in the district court, is on the decision of the Commissioner.” Goodie v.

Houston Indep. Sch. Dist., 57 S.W.3d 646, 650 (Tex. App.—Houston [14th Dist.]

2001, pet. denied) (citing Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559,

562 (Tex. 2000)). A court may not reverse the Commissioner's decision unless his

decision is not supported by substantial evidence or his conclusions of law are

erroneous. See Tex. Educ. Code Ann. § 21.307(f); Tex. Gov’t Code Ann. §

2001.174; Davis, 34 S.W.3d at 566. Substantial evidence means more than a mere

scintilla; thus, the evidence may preponderate against the decision, yet still amount

to substantial evidence. Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131

(Tex.1999). The test is whether reasonable minds could have reached the same

conclusion as the Commissioner.        See Tex. State Bd. of Dental Exam'rs v.

Sizemore, 759 S.W.2d 114, 116 (Tex.1988). The appellant bears the burden of

demonstrating that the Commissioner’s decision was not supported by substantial

evidence. Matthews v. Scott, 268 S.W.3d 162, 172 (Tex. App.—Corpus Christi




                                          6
2008, no pet.); Miller v. Houston Indep. Sch. Dist., 51 S.W.3d 676, 680 (Tex.

App.—Houston [1st Dist.] 2001, pet. denied).

      Whether the Commissioner's Decision meets this standard is a question of

law. Davis, 34 S.W.3d at 566. “With respect to conclusions of law, the

Commissioner's reasoning for his decision is immaterial if his conclusion is

correct.” Goodie, 57 S.W.3d at 650; Judson Indep. Sch. Dist. v. Ruiz, 04-13-

00706-CV, 2015 WL 1501758, at *3 (Tex. App.—San Antonio Mar. 31, 2015, pet.

filed). The court, therefore, must uphold the Commissioner's Decision on any legal

basis shown in the record. Goodie, 57 S.W.3d at 650.               Finally, as with

administrative agencies generally, the Commissioner's construction of a statute is

entitled to serious consideration, so long as the construction is reasonable and does

not contradict the plain meaning of the statute. Id. (citing Dodd v. Meno, 870

S.W.2d 4, 7 (Tex.1994)); see also Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d

440, 443 (Tex. App.—Austin 2011, no pet.). 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 possesses considerable authority and expertise.”

Dodd, 870 S.W.2d at 7. When the Education Code is ambiguous or silent as to a

term, the question “is not whether the interpretation of the statute posed by [the

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




                                          7
reasonable and does not contradict the plain language of the statute.” Poole, 344

S.W.3d at 444.

II.   The Term Contract Nonrenewal Act

      The vast majority of Texas school districts employ teachers, administrators,

and other professionals pursuant to a term contract. A term contract is a contract

for employment between a school district and an individual for a fixed number of

years, not to exceed five school years. See Tex. Educ. Code Ann. § 21.201(3).

Chapter 21, Subchapter E of the Texas Education Code is referred to as the Term

Contract Nonrenewal Act (“TCNA”) and provides extensive administrative

processes that a school district must follow prior to terminating or nonrenewing a

term contract. An employee may be proposed for termination during the contract

term only for good cause or a financial exigency. Id. §21.211. In that situation,

the employee is entitled to notice and a hearing pursuant to the procedures outlined

in Chapter 21, Subchapter F. See id. §§21.251, et seq.

      Alternatively, at the end of a contract term, the board of trustees must

determine whether it will renew or nonrenew the employee’s contract for another

term. The TCNA requires the following notice:

      (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

                                         8
       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.

Id. §21.206.4 Upon receiving notice of a proposed nonrenewal, the employee has

the right to request a hearing before the board. See id. §21.207.

       The Commissioner’s interpretation of the term “same professional capacity”

in §21.206(b) is the crux of this case. Jenkins asserts that, as a principal, the only

position within her “same professional capacity” is another principal position. See

Appellant’s Brief, pp. 14-30.         Therefore, according to Jenkins, the District’s

reassignment of her from principal to assistant principal was in violation of the

“same professional capacity” mandate.             See id. The Commissioner disagreed

finding that Jenkins’ professional capacity was as an administrator, and Jenkins’

reassignment from principal to assistant principal was in the “same professional

capacity” and did not violate §21.206(b). (See App’x 1.)




4
 The term “teacher” as used in this provision is defined much more broadly than the traditional
concept of teacher. See Tex. Educ. Code Ann. §21.201(1).
                                              9
III.   Jenkins’ Claim Did Not Involve An Expiring Term Contract And,
       Consequently, Was Not Ripe For The Commissioner’s Review, as Pled.
       The requirement to employ an individual, such as Jenkins, in the “same

professional capacity” is triggered when a term contract is about to expire and the

board of trustees fails to give timely notice of a proposed nonrenewal. See Tex.

Educ. Code. Ann. § 21.206(b). Under those very specific circumstances, a school

district is obligated to employ the individual within the “same professional

capacity” for at least one additional school year. See id. This is not the factual

scenario that occurred in this case.

       Here, Jenkins received timely and appropriate notice, her contract was

renewed for a two-year term, and she began the terms of her new contract assigned

to serve as principal. (A.R. 294.) After the renewal process and during the term

of Jenkins’ new contract, the Superintendent, pursuant to both the contractual

agreement made between the parties and Crosby ISD Board Policy DK (Local),

exercised his express authority and reassigned Jenkins “to other or additional

duties for which [she was] professionally certified or otherwise qualified to

perform.” (See A.R. 203, 294.) In the Superintendent’s professional judgment and

in the best interest of the District, Jenkins’ skill set would serve an important role

at the high school. (See A.R. 285.)

       Under these facts, the “same professional capacity” requirement and analysis

pursuant to §21.206(b) was not triggered because Jenkins’ contract was renewed

                                         10
and she was originally assigned to serve in the same position. In the context of a

multiple year contract, such as Jenkins’, due process via nonrenewal is not an

available remedy under Chapter 21 of the Education Code until the end of the

multiple-year term. See Tex. Educ. Code Ann. §§ 21.211, 21.251 et seq.; see also

App’x 1, pp. 5-6.

      Nevertheless, Jenkins pled her case to the Commissioner as an inappropriate

change in professional capacity without due process in violation §21.206 – a due

process she was not entitled to because the District was not seeking to nonrenew

her contract nor had it failed to provide appropriate, timely notice. Although it

ultimately would have been unsuccessful under the present facts, Jenkins could

have and should have pled an inappropriate demotion, which would have been the

proper pleading for this mid-contract reassignment case. Jenkins failed to do so

instead electing to plead the strained and unsupported argument of “once a

principal always a principal.” (See A.R. 132; see also C.R. 82-87.)

      This case is factually similar to Murillo v. Laredo Indep. Sch. Dist., Docket

No. 027-R3-0108 (Comm’r Educ. 2012). (App’x 3.) Murillo was employed under

a term contract for the 2006-2007 school year as a middle school principal.

Murillo signed another contract with the district for the 2007-2008 school year as a

“professional employee.” Murillo accepted the contract and shortly into its term

was reassigned to the position of Human Resources Coordinator. Murrillo filed


                                        11
internal grievances and then an appeal to the Commissioner. One of Murillo’s

complaints was that the district changed her professional capacity in violation of

§21.206. The Commissioner disagreed and held:

       A school district does not violate Texas Education Code section
       21.206 when a term contract expires without notice of proposed
       nonrenewal and the district employs the teacher in a position for the
       next school year that the teacher held under the contract during the
       previous school year. If a teacher holds the same position in both
       school years, the teacher’s professional capacity has not changed.
       Because Respondent employed Petitioner for the 2007-2008 school in
       a position that Petitioner held under her 2006-2007 contract,
       Respondent did not violate Texas Education Code section 21.206.

Id. at 3.

       Similarly, Jenkins’ reliance on §21.206 is misplaced because no violation of

21.206 had occurred at the time she filed her appeal with the Commissioner.

Jenkins held the same position (principal) in both school years, and was then

properly reassigned during the term of the contract to a new position pursuant to

the language of the contract, state law, and local policy. Consequently, Jenkins’

case was not ripe at the time she filed and should have been dismissed based on a

lack of jurisdiction. See Holman v. Arp Indep. Sch. Dist., Docket No. 093-R8-805

(Comm’r Educ. 2007) (stating that ripeness is a component of subject-matter

jurisdiction and dismissing appeal because petitioner had not yet been injured by

the policy challenged) (App’x 4). The Commissioner’s conclusion of law that




                                        12
Jenkins’ claim was ripe as to the 2011-2012 school year was erroneous and should

be reversed by this Court. (See App’x 1, pp. 5-6; 24, ¶7.)

IV.   Assuming Arguendo §21.206 Applied To Jenkins’ Claim, The
      Commissioner Correctly Determined that Jenkins’ Reassignment from
      Principal to Assistant Principal was in the Same Professional Capacity
      and Legally Valid.
      This Court should affirm the Commissioner’s Decision because substantial

evidence shows that Jenkins’ reassignment from the principal of an intermediate

school to an assistant principal of a high school was within the “same professional

capacity” and not in violation of §21.206. Jenkins seeks for this Court to reverse

the Commissioner and find that the position of principal constitutes its own

professional capacity, resulting in the unworkable conclusion that a principal may

never be reassigned to any position other than that of principal. Jenkins’ position

constitutes a radical departure from the longstanding precedent set by the

Commissioner and should not be embraced by this Court.

      1.    The phrase “same professional capacity” is not defined in the Texas
            Education Code; therefore, the Commissioner’s interpretation must
            be afforded broad deference.
      Although the phrase “same professional capacity” is used in §21.206(b) of

the Education Code, the phrase has not been defined by the Legislature, causing it

to be susceptible to multiple interpretations. See Lehr. v. Ector County Indep. Sch.

Dist., Docket No. 003-R3-0908 (Comm’r Educ. 2011) (stating that the Texas

Education Code does not define “same professional capacity”) (Appellant’s Brief,

                                         13
App’x 9). When vagueness, ambiguity, or room for policy determinations exist, as

in this case, the Court should defer to the agency’s interpretation unless it is plainly

erroneous or inconsistent with the language of the statute.         See TGS-NOPEC

Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011). “Construction of a

statute by the administrative agency charged with its enforcement is entitled to

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

contradict the plain language of the statute.” Dodd, 870 S.W.2d at 7. Given the

Commissioner’s considerable authority and expertise in matters involving the

Education Code, the Court should not be inclined to reverse the Commissioner's

reasonable determination. See id. (upholding the Commissioner’s interpretation of

the definition of “teacher” in the Term Contract Nonrenewal Act); see also

McGilvray v. Moses, 8 S.W.3d 761, 764 (Tex. App.—Fort Worth 1999, pet.

denied).

      2.     The Commissioner has reasonably and consistently interpreted the
             phrase “same professional capacity.”
      Because the phrase “same professional capacity” is not defined, the

Commissioner has been tasked with interpreting and applying the “same

professional capacity” requirement found in §21.206. The Commissioner first

ruled on this issue in 1985 in the seminal case of Barich v. San Felipe-Del Rio

Consolidated Indep. Sch. Dist., Docket No 117-R1a-484 (Comm’r Educ. 1985)

(Appellant’s Brief, App’x 6). In that case, the Commissioner outlined what has

                                          14
become the well-established test for analyzing the “same professional capacity”

question:

      It is more reasonable to conclude that the legislature, by using the
      term, “same professional capacity” (instead of “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 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 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 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 an assignment include, but are not limited to
      differences in authority, duties, and salary.

      A reassignment is in the same professional capacity if the employee
      could have contracted with the teacher 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, whether applying such factors as
      differences in authority, duties, and salary show that the two positions
      are really in two different professional capacities.
Id. at 8 (emphasis added).

      Thus, according to the Commissioner, the focus is not on the title of the

positions at issue, but rather on two fact-intensive questions: (1) whether the
                                         15
employee could contract for the reassigned position and (2) whether the new

position is one of similar authority, duties, and salary.      The phrase “same

professional capacity” must not be interpreted to mean “the exact same position,”

and must allow school districts the necessary flexibility to make personnel changes

and decisions.

      Over the last three decades, the Commissioner repeatedly has evaluated,

from a nonrenewal perspective, whether a particular assignment or reassignment is

in the required same professional capacity, and has consistently applied the test

first set out in Barich. The Commissioner’s Decision provides a detailed and

thorough analysis of Barich and its progeny regarding how the phrase “same

professional capacity” is to be evaluated and applied. See App’x 1, pp. 9-16; see

also Appellant’s Brief, Appx. 13; Gustafson v. Canutillo Indep. Sch. Dist., Docket

No. 113-R10-0812 at 6-13 (Comm’r Educ. 2014) (App’x 5).

      3.    The Commissioner has properly declared that “administrator” is a
            distinct professional capacity.
      On numerous occasions, the Commissioner has directly addressed the very

issue on appeal in this case – the reassignment of administrators (including

principals) – and has correctly determined that “administrator” itself is an

appropriate professional capacity.

      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.

                                        16
      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 Indep. Sch. Dist., Docket No. 247-3-491 (Comm’r

Educ. 1993) (Appellant’s Brief, App’x 8); see also Barich, Docket No 117-R1a-

484 at 8 (referencing “administrator” as a professional category); Ramos v. El Paso

Indep. Sch. Dist., Docket No. 002-R10-900 (Comm’r Educ. 1999) (the district

properly transferred the employee from the position of high school principal to the

position of elementary principal) (App’x 6); Young v. Leggett Indep. Sch. Dist.,

Docket No. 175-R3-898 (Comm’r Educ. 1999) (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) (Appellant’s Brief,

App’x 10); Murillo, Docket No. 027-R3-0108 at 2-3 (contracted as a “professional

employee,” the district properly reassigned the employee from a principal position

to the position of Human Resource Coordinator).

       Moreover, the Commissioner has directly addressed the issue of a principal

being reassigned to an assistant principal position and has found the reassignment

appropriate under many circumstances. See, e.g., Pasqua v. Fort Stockton Indep.

Sch. District, Docket No. 011-R3-1102 (Comm’r Educ. 2004) (contracted as an

                                         17
administrator, the district properly reassigned the employee from the position of

high school principal to the position of middle school assistant principal) (App’x

7); Underwood v. West Rusk County Consolidated Indep. Sch. Dist., Docket No.

062-R3-198 (Comm’r Educ. 1998) (contracted as an administrator, the district

properly reassigned the employee from 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) (App’x 8); McCoy v. Kermit Independent

School District, Docket No. 004-R3-0908 (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) (App’x 9); Gustafson, Docket No.

113-R10-0812 at 6-13 (contracted as administrator, the district properly reassigned

the employee from a principal position to an assistant principal position).

      4.     Tex. Educ. Code §21.201(1) does not define “professional capacity”
             for purposes of §21.206.

      Section 21.201(1) of the Education Code defines the term “teacher” for

purposes of identifying which professionals in the educational setting are entitled

to a Chapter 21 contract:

      “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. . . .

Tex. Educ. Code Ann. §21.201(1).


                                         18
      Jenkins erroneously asserts that the definition of “teacher” in §21.201 should

be used to define the term “professional capacity” for purposes of 21.206(b). See

Appellant’s Brief at 14-20. According to Jenkins, pursuant to this definition,

“principal” constitutes one of several professional capacities specifically identified;

therefore, the District can only reassign principals to other principal positions in

order to comply with the “same professional capacity” requirement under

21.206(b). See id.

      Jenkins’ position is completely unsupported by a series of Commissioner’s

decisions. A multitude of cases exist where the Commissioner has thoroughly

analyzed the meaning of “same professional capacity” and appropriately and

specifically rejected Jenkins’ argument that 21.201’s listing of individual

classifications defines the term professional capacity for purposes of 21.206. See,

e.g., Perales v. Robstown ISD, Docket No. 052-R10-104, 084-R-604 (Comm’r

Educ. 2006) (stating that “‘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”) (Appellant’s Brief, App’x 7);

Carpenter, Docket No. 247-R3-491, at 3 (“Petitioner would have the

commissioner…hold that the phrase ‘same professional capacity” is defined…by

the definition of ‘teacher’ found in 21.201(1) of [the TCNA]….[T]his phrase


                                          19
is….undefined…and…is a matter for interpretation by the commissioner, in the

first instance, and by the courts.”).

      Indeed, the Commissioner has articulated multiple problems with Plaintiff’s

interpretation.   See Perales, Docket No. 052-R10-104, at 3-4. First, §21.201

specifically provides a definition of “teacher” that is used to determine who is

entitled to a term contract, not “professional capacity.” See id. at 3. Second, under

the analysis, the term “other full-time professional employee who is required to

hold a certificate under Subchapter B” would also be a professional capacity. See

id. According to the Commissioner, this “hardly seems a distinct category.” Id.

Third, the Commissioner’s longstanding interpretation of the phrase “same

professional capacity” does not support this analysis.         See id. at 4.     The

Commissioner has repeatedly upheld categories of professional capacities that are

not listed in §21.201(1). See id.

      Contrary to Jenkins’ assertion, the Commissioner certainly has not

“conceded that §21.201(1) defines ‘professional capacity,” nor has he shown

“indecisiveness” on this issue. In fact, the Commissioner recognized

      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 21.201(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.

App’x 1, p. 11.

                                         20
      The Commissioner specifically concluded in his decision in this case, “[th]e

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 term contract that one is employed under the professional

capacity of principal.” (Id. at 25, ¶10.) The Commissioner recently reiterated this

same analysis, once again rejecting the same argument Jenkins makes here. See

Gustafson, Docket No. 113-R10-0812 at 15-16, 21.

      The Commissioner has never interpreted “principal” as its own professional

capacity, and this Court should not do so now.           In reality, unlike a teacher,

counselor, librarian and others, both a principal and an assistant principal are

administrators; have administrative duties and skills; and have an administrative

certification. In fact, to serve as either a principal or an assistant principal in Texas

public schools, an individual must hold the same “Principal Certificate.” See 19

Tex. Admin. Code Ann. §241.1(d).           “Administrator” is, therefore, the proper

professional capacity for both a principal and an assistant principal.

      5.     The Commissioner’s interpretation is entitled to deference.
      The Commissioner’s interpretation of the phrase “same professional

capacity” is reasonable and does not conflict with the plain language of the statute.

The Commissioner, who is charged with enforcement of the Education Code,

possesses considerable authority and expertise in this area of the law; therefore, his


                                           21
interpretation is entitled to serious consideration and deference. See Combs, 340

S.W.3d at 438; Tarrant Appraisal Dist., 845 S.W.2d at 823; McGilvray, 8 S.W.3d

at 764; Railroad Comm'n v. Tex. Citizens for a Safe Future & Clean Water, 336

S.W.3d 619, 624–25 (Tex. 2011) (giving “serious consideration” and “some

deference” to agency's interpretation of a statute it is charged with enforcing so

long as the construction is reasonable and does not conflict with the statute's

language).

      Jenkins seeks this Court to overturn the Commissioner’s longstanding

interpretation of this phrase and hold that, in the context of a principal, “same

professional capacity” must be construed to mean only another principal position.

This Court should not accept Jenkins’ invitation to alter this well-established and

well-reasoned position of the Commissioner.

      6.     The Commissioner’s longstanding interpretation of “same
             professional capacity” should be upheld by the doctrine of
             legislative acquiescence.
      A firmly-established statutory construction rule in Texas jurisprudence is the

concept of legislative acquiescence.     Under this doctrine, if a court or an

administrative agency (such as the Commissioner) has given a longstanding

construction to an ambiguous statute, and in the face of this longstanding

construction, the Legislature reenacts the statute without substantial change, the

Legislature is presumed to have been familiar with the construction and adopted it.


                                        22
See Tex. Dept. of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145

S.W.3d 170, 176 (Tex. 2004); see also Transcon. Ins. Co. v. Crump, 330 S.W.3d

211, 237 (Tex. 2010) (“Once this Court has construed a statute and the Legislature

re-enacts the statute without substantial change, it is presumed the Legislature has

adopted our interpretation.”).

      This Court has expressly recognized and applied the doctrine of legislative

acquiescence. In Texas Association of Appraisal Districts, Inc. v. Hart, the Court

was asked to determine whether two entities constituted “governmental bodies”

subject to disclosure of public information under the Texas Public Information Act.

382 S.W.3d 587 (Tex. App.—Austin 2012, no pet.) The Court determined that the

definition was susceptible to more than one meaning and that deference was to be

given to the Attorney General’s interpretation. See id. at 593. The Court also

recognized that for over two decades since the Attorney General first interpreted

the definition, the Legislature had amended or modified section 552.003(1)'s

definition of “governmental body” several times without altering the language.

See id. at 594. “Thus, [the Court was required to] presume that the Legislature was

aware of the Attorney General's interpretation of section 552.003(1)(A)(xii) and

adopt it as its own.” Id.; see also DuPont Photomasks, Inc. v. Strayhorn, 219

S.W.3d 414, 422 (Tex. App.—Austin 2006, pet. denied) (finding Comptroller’s

interpretation of the sale-for-resale exemption in the Tax Code was longstanding;


                                         23
the Legislature had amended the provision several times without substantial

change, therefore, the Legislature was presumed to be familiar with and to have

adopted the Comptroller’s interpretation).

       The Commissioner appropriately determined that the doctrine of legislative

acquiescence applies to this case and that the “Legislature has acquiesced in the

Commissioner’s interpretation of the phrase ‘same professional capacity.’” (App’x

1, pp. 17-18.) As discussed in detail above, the term “same professional capacity”

is not defined, so the Commissioner has been tasked with interpreting its meaning.

The Commissioner’s well-established interpretation of the phrase “same

professional capacity” spans approximately three decades.                  As detailed in the

Commissioner’s Decision, the TCNA was amended by the Legislature on four

occasions between 1990 and 2011, without altering the wording of the phrase or

providing a clarifying definition. (See App’x 1, pp. 8-9; 17-18.) The Legislature,

therefore, presumably was aware of the Commissioner’s interpretation and has

adopted it.5 See Mega Child Care, Inc., 145 S.W.3d at 176; Transcon. Ins. Co.,

330 S.W.3d at 237; Texas Ass’n of Appraisal Districts, Inc., 382 S.W.3d at 593-94.



5
  During the 73rd Regular Legislative Session, a statutory definition of “same professional
capacity” as it related to probationary and continuing contracts was proposed and rejected in
Senate Bill 395. Section 13.118(d) provided the following: “Same professional capacity” means
a position, including supervision of extracurricular activities, which is substantially equal in
duties, responsibility, authority, certification, endorsement, education, and remuneration. No
action was taken on the bill in committee. See App’x 10, Introduced Bill, Tex. S.B. 395, 73rd
Leg., R.S. (1993). Although proposed, the Legislature elected not to adopt this definition, or any
                                               24
       As stated by the Commissioner:

       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 done so since the first
       opportunity to interpret the phrase at issue.

(App’x, p. 19.)

       In fact, the TCNA was amended again during the 83th Legislative Session

held in 2013; yet the Legislature did not add a definition of professional capacity

or otherwise amend the statute to provide further clarity. See Act of 2013, 83th

Leg., R.S., ch. 443, §10 (SB 715)           (amending the definition of “teacher” under

section 21.201 to state “school counselor” instead of “counselor”). Moreover, the

Legislature recently completed the 84th Legislative Regular Session in June 2015.

The district court’s ruling in this case affirming the Commissioner’s interpretation

occurred in February 2015 – in the midst of the session. (Appx. 2.) Nevertheless,

the Legislature took no action to amend or define the term “same professional

capacity” in response to the outstanding ruling.              The Legislature’s continued

silence lends itself to only one conclusion – the Legislature has adopted the

Commissioner’s longstanding interpretation, and this Court should too.6


definition, thereby affirming the Commissioner’s reasonable interpretation and application of the
phrase “same professional capacity.”
6
  Notably, the Legislature has responded to the Commissioner’s and the court’s interpretation of
the TCNA in the past. In 1994, the Supreme Court issued the case of Dodd v. Meno, in which it
                                               25
       In the present case, the Commissioner used his knowledge and experiences

to properly determine that Jenkins’ transfer from one administrative position to

another administrative position, while keeping the same salary, was legally valid

and in the same professional capacity.

       7.      A change from principal to assistant principal is not a per se change
               in professional capacity.
       As discussed above, the Commissioner has appropriately determined on

more than one occasion that principals and assistant principals are both

administrators; therefore, based on the particular facts of the case, an assignment

from principal to assistant principal can be in the “same professional capacity.”

See, e.g., Pasqua, Docket No. 011-R3-1102, at 4, 7; Underwood, Docket No. 062-

R3-198, at 2-4; McCoy, Docket No. 004-R3-0908, at 5, 7; Gustafson, Docket No.

113-R10-0812 at 15-16, 21. Jenkins asserts alternatively that even if this Court

does not accept her argument that §21.201(1) defines the relevant categories for

“professional capacity,” a principal and assistant principal can never be in the

“same professional capacity.” According to Jenkins, a principal is such a unique

position and so fundamentally different than an assistant principal, that it per se

constitutes a professional capacity of its own and cannot fall within the more


upheld the Commissioner’s interpretation of the definition of “teacher” in §21.201(1), and found
that a nurse did not fall within the definition of “teacher,” as it was defined at that time. See 870
S.W.2d 4, 5-6 (Tex. 1994). Shortly thereafter, during the 1995 Legislative Regular Session, the
Legislature responded by amending the definition of “teacher” in §21.201(1) to include a nurse.
See Acts 1995, 74th Leg., R.S., ch. 260, §1 (S.B. 1).
                                                 26
general category of “administrator.” See Appellant’s Brief at 20-24. Jenkins’

arguments in this regard are misplaced.

      Section 11.202 delineates the role of the campus principal (the instructional

leader of the campus) and job requirements. Legislative history shows that the

purpose of section 13.352(d), the predecessor to §11.202, was to “give principals

more control over their campuses with a view to greater accountability for campus

conditions and student achievement.”       Tex. Atty. General Op. DM-27 (1991)

(App’x 11). The purpose of §11.202, however, was not to establish the role of

principal as a unique, stand-alone “professional capacity,” as Jenkins argues.

While it is true that §11.202 of the Education Code identifies certain statutory

duties of a principal, this provision does not equate to a per se finding that the

position of principal is so fundamentally different and distinct that it must

constitute its own professional capacity. See Tex. Educ. Code Ann. §11.202(b);

see also McCoy, Docket No. 004-R3-0908 at 5.

      In fact, principals and assistant principals are treated similarly in many

respects. For example, both a principal and an assistant principal are required to

hold a principal certificate, are required to actively participate in professional

development activities and training, and are subject to the same standards for

serving as a first-time campus administrator. See 19 Tex. Admin. Code Ann.

§241.1(c), (d), §241.25; Tex. Educ. Code Ann. §21.046. These similarities further


                                          27
support the argument that both positions are sufficiently similar and are

appropriately considered administrative positions.

      Jenkins’ argument that the change from principal to assistant principal alone

is sufficient to show a violation of the “same professional capacity” requirement of

§21.206(b) is simply not supported, and is a position the Commissioner has

specifically rejected. See McCoy, Docket No. 004-R3-0908, at 5 (“[I]n 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.”); see also Barich, Docket No 117-R1a-484, at 8 (stating “same

professional capacity” does not mean “the exact same position”); Gustafson,

Docket No. 113-R10-0812 at 6-13.

      Even though Jenkins failed to plead it or exhaust her administrative remedies

on the issue, and thus waived the argument, the appropriate analysis in determining

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

professional capacity” would be to consider the factors set forth by the

Commissioner in Barich. Jenkins failed to argue at the Commissioner level as a

factual matter that an actual comparison of her position as principal and her

position as assistant principal lead to the conclusion that the two jobs were not in

the same professional capacity. (See App’x, p. 22.) Jenkins instead relied solely




                                         28
on the argument that as a matter of law the positions could not be in the same

professional category.

      Nevertheless, assuming arguendo that Jenkins properly asserted this

argument, the Commissioner’s application of the Barich test and determination that

the two positions had similar duties, responsibilities, and salary is supported by

substantial evidence. Jenkins’ compensation remained the same in her position as

assistant principal at the high school, and her administrative duties and

responsibilities at a much larger high school campus remained substantially similar

(A.R. 285-86).

      8.     The Commissioner considered the contract, compared the two
             positions at issue, and appropriately determined they were both
             within the professional capacity of administrator.
      Admittedly, the contract at issue is ambiguous with regard to an identified

professional capacity. Jenkins contract was for an “employee” for 2011-2013.

(A.R. 294.) Although the Commissioner has found that an employment contract

simply listing “employee” is too broad to define the professional capacity; the

analysis does not end at that point.    How a contract defines the professional

capacity is relevant but not necessarily dispositive. See Carpenter, Docket No.

247-R3-491 at 3. 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. See id.


                                        29
      Jenkins seeks to rewrite her contract by replacing the term “employee” with

her job title of “principal.”    The Commissioner, however, has not taken the

approach of looking merely at the job title to define “professional capacity.”

Instead, he looks to the terms of the contract and the employment category within

which the employee is actually assigned (in the present case as an administrator),

and considers whether the two positions at issue are in the same professional

capacity based upon a factual comparison of the job duties, responsibilities, and

salary. See, e.g., Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3-1108

(Comm’r Educ. 2011) (Appellant’s Brief, App’x 11).

      Here, the terms of Jenkins’ contract are particularly relevant.        Jenkins’

contract expressly provided the Superintendent the right to reassign Petitioner:

      …the Superintendent of Crosby Independent School District shall have the
      right to assign such duties to the Employee as 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.)

      The contract explicitly stated that: (1) the Superintendent has the right to

assign Plaintiff as he “shall deem proper”; (2) Plaintiff is not employed to fulfill a

specific position, including campus principal; and, (3) the Superintendent can

reassign Plaintiff to any position for which she is certified and qualified to

perform. Id. Jenkins was certified and qualified to serve as both a principal and an

                                         30
assistant principal, as the certification requirements are the same. See Tex. Admin.

Code Ann. §241.1(d); see also Section IV.7, infra.            The Commissioner’s

interpretation of Jenkins’ professional capacity as “administrator” rather than just

“principal” is consistent with the Superintendent’s contractual reassignment

authority – Jenkins’ interpretation is not.

      Moreover, the Superintendent’s reassignment authority is further outlined

and supported in state law and board policy. As stated in the Education Code, the

statutory duties of the Superintendent specifically include the administrative

authority and responsibility for the assignment of all personnel of the District. See

Tex. Educ. Code Ann. §11.201(d)(2) (emphasis added). Crosby ISD Board Policy

DK (LOCAL) also states:

      All personnel are employed subject to assignment and reassignment
      by the Superintendent or designee when the Superintendent
      determines that the assignment or reassignment is in the best interest
      of the District. Reassignment shall be defined as a transfer to another
      position, department, or facility that does not necessitate a change in
      the employment contract of a contract employee.
(A.R. 203, Crosby ISD Board Policy DK (LOCAL) (emphasis added).)

      Jenkins’ preferred solution – replacing “employee” with “principal” – runs

contrary to these state and local authorities as well.        The Commissioner’s

interpretation – that the appropriate professional capacity for principal and

assistant principal is “administrator” – is supported by substantial evidence and

should be affirmed. See City of Austin v. Pub. Util. Comm’n, 146 S.W.3d 742, 748

                                              31
(Tex. App.—Austin 2004, no pet.) (stating courts will affirm the agency’s

interpretation of an agreement if the interpretation is supported by substantial

evidence).

      9.     Plaintiff’s argument that “once a principal, always a principal” is
             an unsound policy for school districts in the state of Texas.
      Jenkins advocates that principals may only be reassigned to other

principalships at other campuses within the school district. This is unsound policy

that contradicts well-settled law established by the Commissioner. As stated

previously, the Commissioner has recognized the importance of flexibility for a

school district to reassign employees in order to manage staff to cover school

needs. See Carpenter, Docket No. 247-3-491, at 4. This flexibility is especially

paramount when reassigning administrators. Id., see also Ramos, Docket No. 002-

R10-900 2002, at 2-3 (school districts have broad discretion when it comes to

transferring administrators); Young, Docket No. 175-R3-898, at 4 (the phrase

“same professional capacity” encompasses broad categories). To hold otherwise,

as suggested by Jenkins, would unjustifiably disadvantage students, particularly, as

in the present case, when an individual’s, such as Jenkins’, skill sets are needed at

a particular campus.     (See A.R. 285.)      Moreover, such a limitation would

inappropriately limit a Superintendent’s reassignment authority and ability to

manage staff and meet the ever-changing needs of students within a school district.



                                         32
      Jenkins’ position, if adopted by this Court, would cause unjustified

operational difficulties for a school district. For example, a school district could

face the situation of having to close a campus due to budgetary constraints and/or

lower student enrollment.     Under Jenkins’ position, if no available principal

position existed or if the principal at the campus to be closed refused to be assigned

to another administrative position, the school district would have to terminate or

nonrenew the employment contract of the principal at that campus instead of

having the option to reassign the employee to another non-principal, administrative

position. Besides being unreasonable, such a result is neither mandated by statute,

case law, or reason. Jenkins’ strained attempt to redefine “same professional

capacity” is bad public policy, would reverse well-articulated decisions by the

Commissioner, and should be rejected by this Court.

                         CONCLUSION AND PRAYER
      For all of the reasons set forth above, Appellant’s reassignment from

principal to assistant principal was legally valid and did not violate §21.206 of the

Texas Education Code. The Commissioner’s Decision, which was based on three

decades of precedent from the agency, was correct and supported by substantial

evidence. The District, therefore, respectfully requests that this Court affirm the

decision of the Commissioner.




                                          33
Respectfully submitted,

THOMPSON & HORTON LLP

/s/ David B. Hodgins

David B. Hodgins
State Bar No. 09775530

Amber K. King
State Bar No. 24047244

Frances R. Broussard
State Bar No. 24055218

3200 Southwest Freeway, Suite 2000
Houston, Texas 77027
Telephone: (713) 554-6745
Telecopy: (713) 583-8245
Attorneys for Appellee Crosby ISD




  34
                     CERTIFICATE OF COMPLIANCE
       In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify
that the number of words in this brief, excluding those matters listed in Rule
9.4(i)(1), is 7,881.

                                      /s/ Amber K. King
                                      Amber K. King



                         CERTIFICATE OF SERVICE
       I hereby certify that on the 24th day of September, 2015, a true and correct
copy of the above and foregoing pleading was served upon counsel of record via
electronic filing and certified mail, RRR:

Kevin F. Lungwitz
The Lungwitz Law Firm, P.C.
3005 S. Lamar Blvd.
Suite D-109-362
Austin, Texas 78704-4785
P. 512.462.0188
F. 866.739.7138
kevin@lungwitzlaw.com
Via CMRRR: 70102780000049858814

Andrew Lutostanski
Assistant Attorney General
Administrative Law Division
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
P.O Box 12548, Capitol Station
Austin, Texas 78711-2548
P. 512.475.4300
F. 512.320.0167
Via CMRRR: 70102780000049858807

                                      /s/ Amber K. King
                                      Amber K. King


                                        35
                          No. 03-15-00313-CV

               IN THE COURT OF APPEALS FOR THE
               THIRD JUDICIAL DISTRICT OF TEXAS
                        AUSTIN, TEXAS

                       HERMENIA JENKINS,
                                                 Appellant
                                   v.

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


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


APPELLEE CROSBY INDEPENDENT SCHOOL DISTRICT’S APPENDIX


Decision of the Commissioner ………………………………………………..Tab 1

District Court’s Final Judgment ………………………………………………Tab 2

Murillo v. Laredo Indep. Sch. Dist.
Docket No. 027-R3-0108 (Comm’r Educ. 2012) ……………………………..Tab 3

Holman v. Arp Indep. Sch. Dist.
Docket No. 093-R8-805 (Comm’r Educ. 2007) ………………………………Tab 4

Gustafson v. Canutillo Indep. Sch. Dist.
Docket No. 113-R10-0812 (Comm’r Educ. 2014) ……………………………Tab 5

Ramos v. El Paso Indep. Sch. Dist.
Docket No. 002-R10-900 (Comm’r Educ. 1999)……………………………...Tab 6


                                   36
Pasqua v. Fort Stockton Indep. Sch. District
Docket No. 011-R3-1102 (Comm’r Educ. 2004) ……………………………..Tab 7

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

McCoy v. Kermit Independent School District
Docket No. 004-R3-0908 (Comm’r Educ. 2012) ……………………………..Tab 9

Introduced Bill, Tex. S.B. 385, 73rd Leg., R.S. (1993) ……………………..Tab 10

Tex. Atty. Gen. Op. DM-27 (1991) ………………………………………….Tab 11




                                  37
Crosby ISD’s Appendix

       TAB 1
                                    DOCKET NO. 043-RlO-1211

HERMENIA JENKINS                                      §           BEFORE THE
                                                      §
                                                      §
v.                                                    § COMMISSIONER OF EDUCA nON
                                                      §
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 l .

          The Administrative Law Judge issued a Proposal for Decision recommending that

Petitioner's appeal be denied in part and dismissed in paM. 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 Brief of Amicus Curiae.


043-RIO-1211
exercise his broad expenence          In   education to determine just what          IS   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
                                                                        2
are the Findings of Fact that best support Respondent's decision            .


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

in relevant part:


                 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 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, 2011, 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.




2See 19 TEX. ADMIN. CODE § 157.I073(h); Bosworth v. East Central Independent School District, Docket
No. 090-Rl-803 (Comm'r Educ. 2003).


043-R10-1211                                       2
                                             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 11.201, which grants supervisory rights to superintendents, and section

21.206(b) which requires a school board that does not timely give notice of proposed

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

year. Petitioner also alleges that Respondent violated 19 TEX. ADMIN. 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 Independent

School District, Docket No.1 06-Rl 0-496 (Comm'r Educ. 1999)

TEX. EDUC. CODE § 11.201

         Texas Education Code        11.201 (d)(2) provides that superintendents have

responsibility   for   most   assignments.         Petitioner   contends   that   Respondent's


043-RI0-1211                                   3
superintendent reassigned her in an arbitrary and capnclOUS manner and, hence, the

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

Code 11.20 1(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.R.S. v Groesbeck Independent School District, Docket No. 02S-RS-10S (Comm'r Educ.

2006). Texas Education Code 11.20 1(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 capnclOus.

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 7.0S7 to the prior jurisdictional statute, Texas

Education Code section 11.13.        The Commissioner lacks jurisdiction under Texas

Education Code section 7.0S7(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-RI0-1211                                   4
   (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.


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-RlO-1211                                  5
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-RI-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

nonrenewal. 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.

TCNA

        The Term Contract Nonrenewal Act3 ("TCNA") was passed by the 6ih

Legislature in 19814. Term Contract Nonrenewal Act, 6ih Leg., R.S., ch. 765, 1981 Tex.


J Section I ofSB 341 itself provided that "this act shall be known as "The Term Contract Nonrenewal
Act."
4 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-RIO-1211                                        6
Gen Laws 2847. This law fundamentally changed teachers 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 Indep. 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 1 proceeding the
           end of the employment fixed in the contract.
       (b) In the event offailure to give such notice of proposed nonrenewal within the
           time herein specified, 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 nonrenewal, 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 ftrst time the issue of whether a teacher was
rehired in the same professional capacity could actually be raised.
5 From the beginning, the TCNA has used an expansive deftnition of "teacher" that includes many who are
not normally referred to as teachers.


043-R10-1211                                        7
Legislative History

        The legislative history of the TCNA6 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

appealable 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 was 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 21.204(b).




6The 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-RlO-12Il                                         8
         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."

Barich

         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-R1a-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 nonrenewal
         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 1.
                 It is more reasonable to conclude that the legislature, by using the term
         "same professional capacity" (instead of lithe exact same position''), intended to
         allow school districts to be flexible in their personnel assignments while
         discouraging the abuse oj 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



043-RIO-1211                                  9
       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, 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 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
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 21.201(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.

Hester

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

District, Docket No. 106-R1-585 (Comm'r Educ. 1985) further sets out what is meant by

"same professional capacity."     Hester was employed under contract for the position

                                             ':
043-RIO-1211                                  11
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

nonrenewal 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-R3-491 (Comm'r Educ.

1991). 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-R10-1211                                  12
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. Ector 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-R1-690 (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

di strict properly reassigned employee from the position of high school assistant principal

to the position of middle school assistant principal. Andrews v. Houston Independent

School District, Docket No. 236-RI-897 (Comm'r Educ. 1997).                            Contracted as a

professional employee 7, the district properly reassigned the employee from the position

of athletic director to the position of teacher/assistant principal. Keith v. Tarkington

Independent School District, Docket No. 459-R3-891(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 District, Docket

No. l11-R3-1292 (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-R3-1196 (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
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-R3-198 (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. 17S-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. OII-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-RIO-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-RI0-900

(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. OS2-RIO-I04, 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-RIO-60S (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-RIO-605

(Comm'r Educ. 2007). Contracted as an administrator, the district properly reassigned


043-RIO-1211                                 14
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-R3-1108 (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-R3-0l08 (Comm'r Educ. 2012).             The district properly

reassigned the employee from the position of elementary school principal to the position

of Program Specialist II.    Montgomery v. Richardson Independent School District,

Docket No. 007-RlO-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-RIO-I007 (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-RIO-1211                                15
        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 § 21.20 I (I) 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 C1.S.D., Docket No. I 17-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 § 21.204(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
        int1exibly. 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

are too broad will not be allowed. Tuck v. Alief Independent School District, Docket No.

008-RIO-I007 (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



8 The old Texas Education Code section 21.204 is the predecessor of the current Texas Education Code
section 21 .206.


043-RI0-1211                                       16
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. Util. Comm'n v. Gulf States Uti/so Co., 809 S.W.2d 201, 207
       (Tex. 1991); Stanfordv. Butler, 142 Tex. 692,181 S.W.2d 269, 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. I 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. III)




043-RI0-1211                                    17
Tex. Dept. of Protective & Regulatory Services v. Mage Child Care, 145 S.W.3d 170,

175 (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 Nonrenewal Act, 71 51 Leg. 61h 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, 78 th Leg R.S., ch. 484 § 1, 2003 Tex. Gen.

Laws 1749 (concerning distribution of district employment policies); 82 nd Leg. 15t 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 compatibie 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-RIO-1211                                  18
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

21.201 (1) 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

21.201 (l), "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. If 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-RlO-1211                                   19
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 Trustees of 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. §§
         16.07, 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 positions 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 § 11.201(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
         "midmanagement/supervisor" is no longer awarded. 9 Currently, the only

9 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-RIO-1211                                          20
           certifications for administrator are superintendent and principal. lO 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 § 242.1 (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.

10   19 TEX. ADMIN. CODE ch . 241 and 242. All other administrator certifications were not issued after 2000 .


043-R10-1211                                           21
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-l98 (Comm'r Educ. 1998), Pasqua v. Fort Stockton Independent

School District, Docket No. 011-R3-1102 (Comm'r Educ. 2004), Murillo v. Laredo

Independent School District, Docket No. 027-R3-0108 (Comm'r Educ. 2012),

Montgomery v. Richardson Independent School District, Docket No. 007-R10-l008

(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

does 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-Rl0-1211                                  22
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.     OS7-R1-0S06 (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

nonrenewal 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:

        1.     The Commissioner, under Texas Education Code section 7.0S7(a)(2)(A),

has jurisdiction over the claims that Respondent violated Texas Education Code section


043-RIO-1211                                  23
21.206(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 1(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 11.201(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 2l.20 1(1) to be

entitled to a Chapter 21 term contract.

        9.      The positions described in the first sentence of Texas Education Code

section 2l.201(1) mayor may not be professional capacities for purposes of Texas

Education Code section 21.206(b).




043-RI0-1211                                   24
       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 term 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 impermissibly broad is determined by comparing

differences in authority, duties, and salary and other relevant factors. In many cases, a

professional capacity of "administrator" will not be impermissibly broad for a

reassignment.

        12.     Petitioner's professional capacity under Texas Education Code section

21.206(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-RIO-1211                                    25
        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.                     I   nft---     (1
        SIGNED AND ISSUED this ~ day                of~                      , 2013.




043-RlO-1211                                  26
Crosby ISD’s Appendix

       TAB 2
                              CAUSE NO. D-I-GN-14-006I9

HERMENIA JENKINS,                          §      IN THE DISTRICT COURT
    Plaintiff,                             §
                                           §
v.                                         §      TRA VIS COUNTY, TEXAS

CROSBY INDEPENDENT
                                           §
                                           §                                    ofiravl 5
                                                                                           DIstrIct court
                                                                              flied In ~hOcounty, jellallcd
SCHOOL DISTRlCT and                        §                                         fr.S 26 20\5
MICHAEL 1. WILLIAMS                        §                                             /Ojl..o bJI..
THE STATE COMMISSIONER                     §                                   At_           -O\strict Clerk
                                                                                Vel~a L. Price,
OF EDUCA nON,                              §
     Defendants.                           §      200'h JUDICIAL DISTRICT

                                   FINAL JUDGMENT

       On December 4, 2014, came to be heard and considered the cause of Plaintiffs

suit for judicial review of an administrative decision of the Texas Commissioner of

Education issued in Texas Education Agency Docket No. 043-RlO-1211. Having

considered the administrative record, pleadings, briefs, and arguments of counsel, the

Court affinns the Commissioner's decision.

       IT IS THEREFORE ORDERED that the Commissioner's decision is affinned.

       IT IS FURTHER ORDERED that all taxable costs of court are assessed against

the party who incurred them; that all remedies not specifically granted herein are denied;

and that this judgment disposes of all claims and all parties and is final and appealable.

       SIGNED on this      7jJ;~ of fv\oiW.otl~ ,2015.

                                         THE~ARKMEACHUM

                                         Page I of2
Approved as to fonn:




Kevin F. Lungwitz
State Bar No. 12698790
The Lungwitz Law Firn" p.e.
3005 S. Lamar Blvd., Suite 0·109-362
Austin, Texas 78704-4785
Phone: (512) 461-0J 88
Fax: (866) 739·7138
kcvin(~lllng'vitzlnw.conl
FOR PLAINTIFF HERMENIA JENKINS



Davf;A~/~
State Bar No. 09775530                  -
Rebecca B. Weimer
Slate Bar No. 24062597
Thompson & Horton LLP
3200 Southwest Freeway, Suite 2000
Houston. Texas 77027
Phone: (713) 554-6745
Fax: (713) 583-824S
dhl)dginsqljlhompsonhurtun.cuill
rwcill1erlf:lj.lhllmpS(~nhorlon.cl\ln
FOR DEFENDANT CROSS Y ISD



~~ndrew lutostanski
Assistant Attorney General
State Bar No. 24072217
Office of the Attorney General of Texas
Administrative Law Division
P.O. Box J2548.
Austin. Texas 78711-2548
Phone: (5 t2) 475-4200
Fax: (512) 320-0167                .
:1ndrcw.lutostunski@lcxasatlorncygcncrul.gov
FOR DEFENDANT COMMISSIONER




                                            Pae:e 2 of:2.
Crosby ISD’s Appendix

       TAB 3
                                      DOCKET NO. 027·R3·0108
l~m . DA      MURILLO                                      *
                                                           §
                                                                           BEfORE THE
                                                           §
                                                           §
v.                                                         §      COMMISSIONER OF EDUCATION
                                                           §
                                                           §
LAREDO                                                     §
IN DEPENDENT SCHOOL DISTRICT                               §                THE STJI TE     or TEXAS
                             DECISION OF THE COMMISSIONER
                                          Statement or the Case

         Petitioner, Imelda Murillo. complains of actions and decisions of Respondent ,

Laredo Independent School District. Christopher Maska is the Admi nistrati ve Law Judge
appoi nted by the Commissioner of Education to preside over this cause.                              Petitioner' is

represented by Mark W. Robinett. I\((011lcy at Law, Austin, Texas.                                Respondent is
represented by .I. hancisco Tamez, AU-orney at Law, Laredo. Texas.
         The Administrative Law Judge issued a Proposal for Decision recommendin g, Ibm

Petitioner's appeal be dismissed in part and denied in pan. Exceptions and replies were
timely HIed and considered.

                                              Findings of Fact

         After due consideration of the record and maHer:; officially noticed, it is
concluded that the following Find ings of Fact arc supported by substantial evidence and
arc the Findings of' Fact that best support Respondent's decision I.

         I.       Petitioner was employed under a chapter 21, subchapter E term contract

lor the 2006-2007 sc hool year. Petitioner was employed as a midd le schoo l principal fur

thc lirS! pari of the 2()06·2007 school year.

         2.       On Apri l \7, 2007, Petitioner signed a chapter 21. subchapter E term

contract with Respondent for the 2007-2008 school year. This was a 12-mol1lh contract

   '!! 19 TEx. Al:lMIN. (()DE § 157. 107 J(h); BOlWlJrlh
I SC                                                       II.   [(W Cemyal'ndependl1n1 School D i.l"fricl. Docket
N(1 090-R I -M03 (Comm'r Edu~ . 2003).




1l27·R3·0t08
                                                                                                                      Tf.o..SB
with a beginning date of July 2, 2007, 'Ilte contract states that il is "For Professional

Employee" but docs nol f1ll1her specify what Petitioner's duties will be .

          3.          On June 21. 2007, Petitioner was informed that effective immediately shl.·

was reassigned to the position of Human Resources Coordinator,             This event occurred

during the 2007·2008 school year.

          4.          June 27. 2007, Petitioner requested a Level I conference on her grievance

which included claims thai Respondent changed her professional captlcity in violatioll of

Texas Edllcation Code section 21.206 and demoted her.

                                              Discussion

          Petitioner contends that Respondent changed her professional capacity               In

violation of'Texas Education Code seclion 21.206 and demoted her.

Change of Professional Capacity

          Petitioner contends that Respondellt changed her professiollal capacity from

principal      10   Human Resources Coordinator in violation of Texas Educafion Codc section

21.206;
          (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 renew or not renew the contract.
          (b)    The board's failure to give the notice required by Subsection (a) within the
          time speci tied constitutes an election to employ the teacher in tbe same
          pro fessional capacity for the following school year.

Petitioner had a term contract for the 2006·2007 school year.               Petitioner was not

proposed for nonrcnewal at the end of the 2006·2007 school year .                    Therefore,

Respondent was required to employ Petitioner during the 2007-2008 school year in same

pmfessional capacity as she was employed during the 2006-2007 school year. During the

2006·2007 school year Petitioner was employed both a<; a middle school principal and as

the Human Resources Coordinator. Petitioner contends that Respondent had to cmploy

her as a principal for the 2007·2008 school ycar.




027·RJ·OI08                                        2                                               TASS
          The basis fo r the claim that Respondent wo uld have to employ Petitioner for the

2007·2008 school year in only one of the positions Pet itioner held under her 2006-2007

contract is no! clea r. A sc.:hool dist rict docs nOl violate Texas Educati on Code section

21 .206 when a term contract expires wi thout notice of proposed nonrenewa l and the

di:-;Iricr empl oys the teac her in a position lor the next school year that Ihc= teacher held

undcr the contract during the prev ious schoo l year. If a teacher holds the same position

in both school years. the teacher's proressional capacity has not c hanged.                Because

Respondent employed Pet iti oner lor the 2007-2008 school in          ft   position that Petitio ner

held under her 2006·2007 contract, Respondent did not violate Texas Ed uca tion Code

st:ction 21.206.

Oemotion

          Pt:titioner con tends that she was demoted. The Texas Education Code does             O{lt

generally prohibit districts from demoting teachers.        But the Commissioner may hllve

jurisdiction over a claim that a school has demoted a teacher in violation of the teacher's

written contract.    TEX . EDUC. CODE     § 7.057(a)(2)(B).     However, violations of some

sections or the Texas Education Codc could also rcsult in a demotio n. for exampl e. if

mid-year a d istrict decided to pay teachers less than required by Texas Education Code

~cction   21.402. the Minimum Salary Schedule, this could be both a vio lation of school

laws of th is state clOd a demotion in vio lati on of a contract. Since, Petitioner rai ls to cite

lu a statute that may have been violated as to hcr clai m or demotion . the issue fur the

Commissioner to decide is whether a demotion occurred that violated Pe titione r's written

employmen t coni rae\.

          As noted above, Petitioner's cbange in positions occurred during the 2006-2007

school year. Pet itioner's 2006-2007 contract is not io thc record nor is thc re signi fi ca nt

discussion of the contract. Petitioner has failed to indicate in pleading and brieling what

provision of Pctit ioner's 2006-2007 contract may have been vioh\ted. Whi le the 2007.

2008 contract is in the record, Petitioner ha.o; fai led to indieale in pleading and briefing



027-KJ ·OI OR                                   J
                                                                                                       TASS
which provision or this contract may have been violated.           As Petitioner has fuiled to
specify which provision or Petitioner' s contract that Respondent may have violated , the

Commissioner lacks jurisdiction over Petitioner's demotion claim.

Conclusion

         Respondent did not violate Texas Education Code section 21.206.                  Th~

Commissioner lacks jurisdiction over Petitioner's demotion claim.
                                     Conclusions of La\¥

         Aller duc consideration of the record, mailers officially noticed , and the foregoing

Findings of Pact, in my capacity as Commissioner of Education, I make the following
Conclusions ofl.aw:

         I.     The Commissioner of Education has jurisdiction over this cause under

Texas Education Code section 7.0S7{a)(2)(A).

         2.     'l'hc Commissioner of Education lacks jurisdiction over this cause under
Tcxas Education Code section 7.057(a)(2)(B).

         J.     A demotion claim is normally brought under Texas Education Code

sl.!ction 7.057(a)(2)(8) because there is no general prohibition to demotions under the
school laws ofthis state.

         4.     Petitioner's demotion claim is a contract claim.

         5.     Because Petitioner has lailed the identify a potential violation of her

written employment contract that causcs or would cause monetary harnl in connection
with hcr demotion claim, the Commissioner lacks jurisdiction over Petitioner' s dcmotion

Claim.

         fi.    Texas Education Code section 21.206 requires a school district that docs

not propose the nonrcncwal of an expiring term contract to employ the teacher ill the

same professional capacity for the following school year.



017· RJ·0 I08                                 4
        7.        A school district does   nOl   violate Texas Education Code section 21.206

whcn a term contract expircs without notice of proposcd nonrenewal and the district

employs the tcacher in    a position for the next school year that {he teacher held under the
contract during tbe previous schoo l year.

        8.        Because Respondent emp loyed Petitioner for the   2007~2008   school year in

a position that Petitioner held undcr her 2006·2007 contract, Responden! did not vio late

Texas Education Code section 21.206.

        9.        The Pl:tition for Review should be dismissed in part and denied in part.



        A ner 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 hercby
        ORDERED that the Petitioner's appeal be. and is hereby, dismissed in part and

denied in part.                            ,.-rl'h
        SIGNED AND ISSUED this          ~Cday of ~                              , 2012.




                                        ROBERTscon
                                        COMM ISSIONER OF EDUCA nON




027-RJ-U I OR                                     5
Crosby ISD’s Appendix

       TAB 4
                                DOCKET NO. 093-R8-805

TAJUANA HOLMAN                                §        BEFORE TflE

V.
                                              ~§ COMMISS IONER OF EDUCATION
                                              §
ARP INDEPENDENT                               §
SCHOOL DISTRICT                               §       THE STATE OF TEXAS

              DECISION OF THE DESIGNEE OF THE COMMISIONER
                                   Statement of the Case
       Petitioner, Tajuann Holman. appeals the action of Respondent, Arp Independent

School District, concerning her grievance. Christopher Maska is the Administrative Law
Judge appointed by the Commissioner of Education.             Petitioner appeared pro se,

Respondent is represented by John C. Hardy, Attorney at Law, Tyler, Texas.
       The Administrative Law Judge     issu~d   a Proposal for Decision recommending that

Petitioner's appeal be dismissed. No exceptions were filed.
                                      Findings of Fact
       The foHowi ng Findings of Fact are not disputed:
       1.        Respondent has established a uniform policy only for its middle school.
       2.        None of Petitioner's children are currently attending Respondent's
middle school.


       Petitioner contends that Respondent should grant an exception to the school

uniform policy. Respondent maintains thar the issue is not ripe.
Ripeness
       Respondent has adopted a school uniform policy under Texas Education Code

section 11 .162 for its middle school. This provision of the Education Code allows
parents to opt oul of a uniform requirement if the parent states a bona fide religious or

philosophical objection to uniforms. TEX. Eouc. CODE § 11.162(c). Petitioner has no


N093-RS-S05                           -\-



                                                                                           TASS
children al the Arp Middle School Ihis year bUI next year it is likely that one of her

children may attend Arp Middle SchooL A case is ripe if there is a concrete injury, a

remote injury is not sufficient. Waco Indcp. Sell. Di.r/. v. Gibson, 22 S.W.3d 849, 85 1-

852 (Tex. 2000). Ripeness is a component of subject matter jurisdiction. Jd. This case is

not ripe because it is uncertain whether Arp Middle School will have a uniform policy

next year and it is not certain that Respondent' s child will be attending Arp Middle

School next year. Although it is likely that the chi ld will be attending the middle school,

such events as Ihe family moving out of district could occur. For these reasons, this case

is not ripe.

Conclusion

        This case should be dismissed because it is not ripe.

                                     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.     TIle Commissioner lacks jurisdiction to hear this cause under Texas

Education Code section 7.057.

        2.     Ripeness is a component of subject matter jurisdiction.

        3.      Because Petitioner's children are I\ot currently affected by Respondent's

uniform policy. this case is not ripe.

        4,     This case should be dismissed for lack of jurisdiction. 19 TEX. Am.iIN.

CooE§ 157.1056(0}.




#093-RS-S05                              -2-



                                                                                           TASS
                                           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, it is hereby
       ORDERED that Petitioner's appeal be, and is hereby. DISMISSED.
       SIGNED AND ISSUED this..2I1Jl 'doy of          ;\0.11'1 ...... ,2007.




                                             ROBERT SCOTT
                                             CHIEF DEPUTY COMMISSIONER
                                             BY DESIGNATION




N093-R8-805                          -3-



                                                                                        TASS
Crosby ISD’s Appendix

       TAB 5
                               DOCKET NO. 113-Rl0-0812
PEGGY GUSTAPSON                                                   BEFORE THE

                                                         COMMISSIONER OF EDUCATION
CANUTILLO                                          §
INDEPENDENT SCHOOL DISTRICT                        §          THE STATE OF TEXAS

                        DECISION OF THE COMMISSIONER

                                    Statement of the Case
        Petitioner, Peggy Gustafson, appeals the denial of her grievance by Respondent,
Canutillo 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 Jorge Luis Rivas, Jr., Attorney at Law. El Paso, Texas. Respondent is
represented by Steven J. Blanco and Jerry R. Wallace, Attorneys at Law, El Paso, Texas.

        The Administrative Law Judge issued a Proposal for Decision recommending thar
Petitioner’s appeal be denied in part and dismissed in part. Exceptions and replies were
timely filed and considered.

                                      Findina 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’.

        1.     Petitioner was employed by Respondent under a two year term contract for
the 2011-2012 through the 2012-2013 school years for an administrator position.

       2.      Petitioner served as the principal of the Northwest Early College High
School from January 2008 until June, 7,2011.

       3,      On June 7, 2011, Petitioner was reassigned as assistant principal for the
Canutillo Elementary School.

 See 19 TEX. ADMIN, CoDE 157.1073(h): Bosworrh   i’.   East Central Independent School District, Docket
No. 090-Ri-803 (Comm’r Ethic. 2003).


113-R3-0812
        4.      Petitioner earned the same salary for the 2011-2012 school year as she had
earned for the 2010-201 1 school year. which was $78,600. However, under Respondent’s
salary schedule Petitioner’s salary for the 201 1-2012 school year should have been

S68,40&84.

                                         Discussion
        Petitioner asserts that Respondent improperly reassigned her and demoted her.
Petitioner makes three claims: that she was not reassigned in the same professional
capacity, that she was transferred from a principal to an assistant principal position and that

the position had a lesser pay, and that the transfer violates certain statutes. Respondent
contends that Petitioner’s new position is in the same professional capacity, Respondent
also contends that the Commissioner lacks jurisdiction over some of Petitioner’s claims.
Jurisdiction

        The Petition for Review alleges that Respondent violated the Texas Whistleblower
Act and Chapter 21 of the Texas Labor Code. Under Texas Education Code section

7.057(a)(2) the Commissioner has jurisdiction over violations of the “school laws of this
state” and violations of certain written employment contracts. The “school laws of this

state” are defined as the first two titles of the Texas Education Code and the rules adopted
under those titles, TEx. Eouc, CoDE    § 7,057(fX2). The Texas Whistleblower Act and the
Texas Labor Code do not meet the definition of the “school laws of this state.” The
Commissioner lacks jurisdiction over the Texas \Vhistleblower Act and the Texas Labor

Code under Texas Education Code section 7.057(a)(2)(A).

        In many cases, statutes existing when contracts are entered into are incorporated

into the contracts. C’eniral Education Agency v. George West Indep. Sch. Dist. 783 S .W.2d
200, 201 (Tex. 1989). However, as the Commissioner held in Barborak v. Oalcwood

Independent School District, Docket No. 224-R3-797 (Comm’r Educ, 1999), when a

statute is incorporated into a contract, the whoLe statute including the enforcement
mechanism is incorporated. That enforcement mechanism must be exhausted before a case


I 13-R10-0812
can be brought to the Commissioner. As Petitioner has not exhausted the statutory

enforcement mechanisms, the Commissioner lacks jurisdiction under Texas Education
Code section 7.057(a)(2)(B) over Petitioner’s claims under the Texas Whistleblower Act
and the Texas Labor Code.

Same Professional Capacity
        As a practical matter, it is very likely that if one is transferred from a principal
position to an assistant principal position. that under the school district’s salary schedule
one will be earning a lesser salary. So while this case cannot be viewed as solely asserting
that a principal cannot be transferred to an assistant principal position, it is very similar to
such a case.
Must Principals Remain Principals
        Petitioner argues that if a principal’s contract is not nonrenewed. that a school
district is limited to reassigning a principal to another principal position for the next school
year. Petitioner does not argue that comparing the particular duties and responsibilities of
the two positions leads to the conclusion that the two positions are not in the same
professional capacity.    Petitioner argues that the only position that is in the same
professional capacity of a principal is the position of principal. Petitioner’s argument
would require Commissioner’s precedent to be overturned. 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.
TCNA




I 13-RIO-0812
        The Term Contract Nonrenewal Act
                                     2 (“TCNA”) was passed by the 67
                                                                  th
                                                                     Legislature
in 1981g. Term Contract Nonrenewal Act,           th
                                                  67
                                                       Leg., R.S,, ch, 765, 1981 Tex. Gen Laws.
This law fundamentally changed teacher
                               4 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. Seferr            i   Lingleville
Indep. Sc/i. 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 TC?’A, that was then numbered section 21.204,
required a district that did not nonrenew a teacher’s contract to hire the teacher for the next

school year:

    Hearing
       (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 1 proceeding the end of
           the employment fixed in the contract.
       (b, In the event offailure to give such notice ofproposed nonrene wa! within the
           time herein specUied, the board shall thereby elect to employ such employee in
           the same professional capacityfor 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 nonrenewed. the school board was not
only required to hire the teacher for the next school year but also to employ the teacher in

2 Section 1 of SB 341 itself provided that “this act shall be known as “The Term Contract Nonreriewal
Act.
’
4
  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
school year. That makes the 1984-1985 school year, the first time the issue of whether a teacher was
rehired in the same professional capacity could actually be raised.
  From the beginning, the TCNA has used an expansive definition of “teacher” that includes many who are
not normally referred to as teachers.


1 13-R1O-0812                                      4
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.”
Legislative History
         The legislative history of the TCNA
                                        5 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
appealable 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 was proposed for demotion. Demotion could only occur after just cause was proved
at a hearing. 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 21.204(b).


 The relevant legislative history may be found at the website for the Legislative Reference Library of
Texas. h//vywJrLtate.tx.usiindex.cfrn.


ll3-RlOO8l2
        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”
Bunch
        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 Bunch v. San Feiipe-Del Rio Consolidated Independent School District, Docket No.
I 17-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 I 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 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” ünstead of “the exact same position ‘), intended to
        allow school dLctricts to be flexible in their personnel assignments while
        discouraging the abuse of the district’s inherent or contraclual reassignment
        authority, In other words, the district may place a teacher whose employment has
        been renewed by operation of law in a position dftrent from that to which the


113-RIO-0812                                  6
         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 eiitc’red 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 ofa classroom teacher;
         a classroom teacher may not be placed in the capacity ofa counselor; a counselor
         may not be placed in the capacity of a nurse; a nurse may not be placed in the
         capacity ofa 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., administrcilorj, but nevertheless, be invalid (e.g., from
        superintendent to assistant elementwy school princmal,). Factors to be considered
         in determining the validity of such ci placement include, but are not necessarily
        limited to, differences in au(hority, duties, and sala,y,
                  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 skiIls. (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



113-R1O-0812                                 7
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 he addressed by the Commissioner, the named
positions found at Texas Education Code section 21.201(1) were not held to be professional
capacities as the Commissioner used the term “administrator” that is not a listed term 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.
Hester

         Decided just months after Barich, I-fester v. Canadian Independent School District,
Docket No. 106-Rl-585 (Comm’r Educ. 1985) further sets out what is meant by “same
professional capacity.” Hester was employed under contract for the position teacher/coach.


113-RIO-0812                                  8
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 nonrenewal
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 2L201(l).
Nonetheless, the Commissioner found that by contract the district had made teacher/coach
Hester’s professional capacity. I-low 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-R3-491 (Comm’r Educ. 1991).                     The
Commissioner has held in numerous 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.
Prouenv of Barich
       Through the years since 1 985, 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. Ground 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’ basketball. Reyes v. Culberson


113-RiO-0812                                   9
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 ci al. v. Ector 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. Marshall v. Seguin Independent
School District, Docket No. 177-R1-690 (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 to 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 professional employee
                  , the district properly reassigned the employee from the position
                  6
of athletic director to the position of teacher/assistant principal. Keith v. Tarkingron
Independent School District, Docket No. 4594U-891(Comm’r Educ. 1992). Contracted
as teachers, the district’s reduction in salary by itself did not place the teachers in different
professionat capacities. Goedeke v. Smyer Independent School District, Docket No. 111-
R3-1292 (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-R3-1196 (Comm’r Educ. 1997).                          Contracted as an
administrator, the district properly reassigned the employee from principal of an
independent middle school campus to the position of principal for grades 7 to 9 at a unified

  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.


113-Rl0-0812                                         10
junior highlhigh school campus. Underwood v. Rusk Independent School District, Docket
No. 062-R3- 198 (Comm’r Educ. 1998). Contracted as a teacher/coach, the district properly
reassigned the employee from the position of from varsity coach and teacher to the position
of junior high school coach and teacher, Young v Leggett Independent School District,
Docket No. I 75-R3-898 (Comm’r Edue. 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. 011 -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-R10-900 (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-
R10-900 (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. 01 l-R3-1102 (Comm’r Educ. 2004). Contracted as an administrator, the district
properly reassigned the employee from a district-wide Director ofEven Start to the position
of middle school assistant principal. Perales v. Robstown independent School District,
Docket Nos. 052-R10-104, 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-R10-605 (Comm’r Educ. 2007). Contracted as an administrator, the district
properly reassigned the employee from a central office position to an assistant principal
position.   Gonzalez v. Donna Independent School District, Docket No. 074-R10-605
(Comm’r Educ, 2007). Contracted as an administrator, the district properly reassigned 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


1I3R1Q-Q812                                  II
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. 201 1). Contracted as a 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-
1108 (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 (Cornm’r Educ. 2012). The district properly reassigned the employee

from the position of elementary school principal to the position of Program Specialist 11.
Montgorneiy       i   Richardson Independent School District, Docket No. 007-Ri 0-1008
(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-R10-1007 (Comm’r Educ.
20 12). 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 Carpenwr 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
            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


113-R1Q-0812                                    12
        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 4  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 .J.S.D., Docket No. 1 17-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 § 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 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 ma be assigned to any administrator positions. Districts can by contract
establish broad professional capacities. However, professional capacities that are too broad
will not be allowed. Tuck V. AliefIndependent School District. Docket No. 008-R1 0-1007
(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
cannons of statutory interpretation will be considered. The standards for deferring to an
agency’s interpretation have been set by the Texas Supreme Court:




 The old Texas Education Code section 2 I .204 is the predecessor of the current Texas Education Code
section 21.206.


113-Rl0-0812                                        13
       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. Ulil. Comm’n v. GulfStares Utils. Co.. 809 S.W.2d 201, 207 (Tex.
       199fl; Stanjbrdv. Butler, 142 Tex, 692. 181 S.W.2d 269. 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 ofLloyd, 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 poticy.”) (quoting Humble Oil & Ref Co. v. Calve,’!, 414
       S.W,2d 172, 180, 10 Tex. Sup. Ct. J. 254 (Tex. 1967)); Tex. Employers’lns. Ass’n
       v. Holmes, 145 Tex. 158, 196 S.W.2c1 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.”)
Tex. Dept. of Protective and Regilatoiy Services v. Megs Child Care, 145 S.W.3d 170,
176 (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 Nonrenewal Act, 71st Leg.     t6
                                                             h   C.S., cli. I   § 3.14, 1990 Tex.

113-RIO-0812                                    14
Gen. Laws I (Allowing the hearing to be heard by a board designated impartial hearing
officer); Term Contract Nonrenewal Act,        th
                                               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,      th
                              78    Leg R.S., ch. 484      § 1, 2003 Tex. Gen. Laws 1749
(Concerning distribution of district employment policies); 82 Leg. 1 CS., ch, 8               § 8-il,
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?
        It could be argued that the theory that a principal may only be reassigned to another
principal position is compatible with Barich. Such a 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.

        This theory is not compatible with Barich. Under Bunch, the first question is could
the teacher contract for the position at issue. The next question is that even if the position
could be contracted for are differences in authority, duties, salary and 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 21.201(l) 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 this theory were 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


1 13-R1O-0812
this theory. since “superintendent” is found in the definition of “teacher” in section
2L201(1). “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.
           This theory does have the virtue of simplicity. If 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 the alternative theory, but is more faithful to the statute at issue. If the
Legislature intended that “same professional capacity” means 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.
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 Barieh 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 Trustees of 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



113-RIO-0812                                    16
         answerable only to the Board of Trustees and that of a teacher in the schools,                  §
         16.07, 16.08 Education Code.
The court in Briggs found the fact that a superintendent was only answerable to the board

of trustees highly significant.

         In the recent case of Lehr v. Ector County Independent School District, Docket No.
003-R3O908 (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 positions 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 § 11.201(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
         “midmanagement/supervisor” is no longer awarded. 8            Currently, the only
         certifications for administrator are superintendent and principal.
                                                                   9 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 goes without saying
that a superintendent is answerable to the board of trustees. It is not the fact that the
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

suigeneris. 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 sni generis.

         While it is correct that principals have many duties spelled out in the Texas
Education Code, this does not make the position of principal sui generis. Because the

  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,
  19 TEx, ADMIN. CODE cli. 241 and 242. All other administrator certifications were not issued after 2000.


I 13-Rl0-0812
Texas Education Code defines many duties of a principal, the principal position is 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 sni 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      § 242.1(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, 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. Fasqua v. Fort Stockton Independent School District, Docket No. 011-

R3-l 102 (Comrn’r Educ. 2004).
Present Reassignment

       In the present case, Petitioner was reassigned from the position of high school
principal to the position of elementary school assistant principal. The only arguments that
Petitioner makes in her briefing is that she could not be assigned to an assistant principal

position with a salary reduction. Before the school board, Petitioner had the burden of

proof. It was Petitioner’s responsibility to show that the reassignment was not in the same

professional capacity. Before the Commissioner it is Petitioner’s job to show that the board

of trustees’ decision is not supported by substantial evidence, arbitrary, capricious or

unlawful. Petitioner has not chosen to argue that comparing differences in authority,

duties, and any other relevant factors that the two positions are not in the same professional


1I3R1OO812                                     18
capacity, with the exception that Petitioner argues that her salary was reduced. Because
the issue of the authority and responsibilities was not raised, the size of the two schools
and just what Petitioner was doing in those two jobs is unknown. An assistant principal
does not have particular statutory duties, but may be assigned a great range of duties.
Because the issue was not raised, it is concluded that there was no significant difference in
actual authority and responsibilities between the two positions.

Change iny
       As a principal and for her first year as an assistant principal, Petitioner earned
$78,600. According to the salary schedule, for her first year as an assistant principal
Petitioner should have earned $68,406.84. The difference between the two salaries is

$10,193.16. The question becomes whether this change in pay, along with the change from

principal to assistant principal, is sufficient to amount to a change in professional capacity.

The change is salary is not insignificant. It no doubt would be felt by Petitioner. However,

the change in salary is not such that it indicates a change in professional capacities. Again

it should be pointed out that Petitioner had the burden of proof before the school board.
There is no evidence in the record of what range of salaries principal receive at Respondent
or in other school districts across the state. It would not be surprising to find that some
principals in Texas receive less than $68,406.84 per year. But unless such salary evidence

is presented. it cannot be determined that the change in salary, along with the change from

being a principal to the position of assistant principal, is sufficient to prove a change in

professional capacity. No violation of Texas Education Code section 21.206(b) occurred.

Demotion

       Petitioner citing Young v. Leggeu Independent School District, Docket No, 175-

R3-898 (Comm’r Educ. 1999) contends that the change in pay and position constitute a

demotion.      1-lowever, there can only be a demotion case that the Commissioner has

jurisdiction over if there is a violation of a written employment contract that causes or

would cause monetary harm. TEX. EDUC. CODE          § 7.057(A)(2)(B). Petitioner makes such

113-R1O-0812                                   19
a claim, but also admits that the change in position was permissible under the explicit terms

of contract
   . See Petitioner’s Brief in Support of Claims for Relief, p. 3. Hence, the
   10
demotion would have to be shown to be a violation of statute that was incorporated into

the contract for Petitioner to prevail. As shown above, the only statutory claim that the
Commissioner has jurisdiction over is resolved against Petitioner. The TCNA does not
prohibit Petitioner’s transfer. If a transfer, which includes a change in title and a decrease

in pay, is allowable under a contract and statutes incorporated into the contract, there is no

unlawful demotion. If neither contract nor statute prohibits a change in position and salary’,
no unlawful demotion has occurred. Petitioner was not demoted.

Conclusion

         The Petition for Review should be denied, 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:

         1.       The Commissioner has jurisdiction over this case under Texas Education
Code section 7.057(a)(2) except for the claims that Respondent violated the Texas

Whistleblower Act and the Texas Labor Code.

         2.       Under Texas Education Code section 7.057(a)(2) the Commissioner has
jurisdiction over violations of the “school laws of this state” and violations of written

employment contracts. The “school laws of this state” are defined as the first two titles of

the Texas Education Code and the rules adopted under those titles, TEx, EDuc. CoDE                               §
7.057(0(2).

H)
   The contract did not state a particular salary for each year of the contract but staled the salary would be
                                                                              ,

set by the school board.


]l3-R10O2l2                                           20
        3.     The Texas Whistleblower Act and the Texas Labor Code do not meet the
definition of the “school laws of this state.” The Commissioner lacks jurisdiction over the

Texas Whistleblower Act and the Texas Labor Code under Texas Education Code section

7.057(a)(2)(A).

       4.      In many cases, statutes existing when contracts are entered into are
incorporated into the contracts. However, when a statute is incorporated into a contract,
the whole statute including the enforcement mechanism is incorporated. That enforcement
mechanism must be exhausted before a case can be brought to the Commissioner. As
Petitioner has not exhausted the statutory enforcement mechanisms, the Commissioner
lacks jurisdiction under Texas Education Code section 7.057(a)(2)(B) over Petitioner’s
claims under the Texas Whistleblower Act and the Texas Labor Code.

       5.      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(1) to be
entitled to a Chapter 21 term contract.
       6.      The positions described in the first sentence of Texas Education Code
section 21.201(1) may or may not be professional capacities for purposes of Texas
Education Code section 21.206(b).
       7.      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 term contract that one is employed under the professional
capacity of principal. TEx. EDUC. CODE    § 21.206(b).
       8.      A contract can establish a teacher’s professional capacity under Texas
Education Code section 2 1.206(b) if the professional capacity is not impermissibly broad.
Whether a professional capacity is impermissibly broad is determined by comparing
differences in authority, duties, and salary and other relevant factors. In many cases, a




fl3-RIO-0812                                 21
professional capacity of “administrator” will not be impermissibly broad for a
reassignment.
        9.      Petitioner’s professional capacity under Texas Education Code section
21.206(b) is administrator.
        10,     As Petitioner did not contest that her contractual professional capacity of
administrator is impermissibly broad under the standards set out in Barich and its progeny.
Petitioner has not raised this issue.
        11.     The mere fact that a term contract employee is employed in a principal
position does not make the employee’s professional capacity “principal,”
        12.     In determining whether a transfer is permissible for one employed in the
professional capacity of administrator, one must compare responsibilities, authority, salary,
and other relevant facts between the two positions.

        13.     Respondent did not improperly reassign Petitioner to a non-principal
position in violation of Texas Education Code section 21.206(b).
        14.     Respondent did not reassign Petitioner in violation of Texas Education
Code section 21.206(b).

        15.     There can only be a demotion case that the Commissioner has jurisdiction
over if there is a violation of a written employment contract that causes or would cause
monetary harm. TEX. EDUC. CODE          § 7.057(A)(2)(B).
        16.     If a transfer, which includes a change in title and a decrease in pay, is
allowable under a contract and statutes incorporated into the contract, there is no unlawful
demotion. If neither contract nor statute prohibits a change in position and salary, no
unlawful demotion has occurred. Petitioner was not demoted.

        17.     The Petition for Review should be denied in part and dismissed in part.




I 13-RIO-0812
                                       _____




                                                  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 the Petitioner’s appeal be. and is hereby, denied in part and
dismissed in part.

         SIGNED AND ISSUED this                day of                         2014.




                                       COMMISSIONER OF EDUCATION




I 13-R1O-0812                                23
Crosby ISD’s Appendix

       TAB 6
•    ELCORAMOS


     v.
                                    DOCKET NO. 002-R 10-900

                                                     §
                                                     §
                                                     §
                                                          BEFORE THE


                                                     § COMMISSIONER OF EDUCATION
                                                     §
     EL PASO INDEPENDENT                             §
     SCHOOL DISTRICT                                 §    THE STATE OF TEXAS

                             DECISION OF THE COMMISSIONER

              Petitioner, Elco Ramos, appeals the decision of Respondent, EI Paso Independent

     School District, concerning his grievance. Margaret E. Baker is the Administrative Law

     Judge appointed by the Commissioner of Education. Ramos is represented by Karl Tiger

     Hanner o f Austin, Texas. EPISD is represented by S. Anthony 8afi of El Paso, Texas.

             The Administrative Law Judge issued a Proposal for Decision recommending that

    Petitioner's appeal be dismissed for lack of jurisdiction and for failure to state a claim for




•
    which relief can be granted. No exceptions were filed.

                                          Findings of Fact

             The following Findings of Fact are supported by substantial evidence:

             1.     EPISD employed Ramos Wlder a term contract during the 1999-2000
    school year and assigned him as the principal of the Jefferson/Silva High School.
             2.     EPISD reassigned Ramos to the position of principal of Houston
    Elementary School prior to the beginning of the 2000-200 1 school year.

             3.     Ramos has not received any decrease in salary as a result of the

    reassignment. Ramos's salary for the 2001-2002 school year has not been set.
             4.     Ramos has not alleged that the two principal positions are radically

    di fferent.

             5.     Ramos filed a grievance regarding his reassignment. The board of trustees

    denied his grievance on July 18,2000.




•           6.     Ramos timely filed this appeal.
•                                                  Discussion

                Ramos asserts that the Commissioner of Education has jurisdiction over this

     appeal under Texas Education Code section 7.057(a)(2). Ramos contends that EPISD has

     changed his professional capacity andlor has demoted him and thereby violated section
     2 1.206 of the Texas Education Code and his employment contract. EPJSD argues that the

     Commissioner lacks jurisdiction over this case because Ramos's reassignment did not

     violate any school law or contract provision and did not cause any monetary harm.

     Monetary Harm

            Texas Education Code section 7.0S7(a)(2)(B) grants jurisdiction over violations of

     written employment contracts that cause or would cause monetary harm. In the present
    case, Ramos has been transferred from a position that receives a high school principal's
    salary to a position that normally receives an elementary school principal's salary.




•
    Ramos, however, is to receive the same salary for the current year that he previously
    received when he was a high school principal. Ramos's salary for the 2001 -2002 schoo l

    year has not yet been determined.              Ramos has not suffered any monetary harm,

    Furthermore, any financial loss in the future is too specu lative to invoke the

    Commissioner's jwisdiction. 1 In fact, Ramos concedes in his brief on the merits that any

    appeal WIder section 7,057(a)(2)(B) could not arise until EPISD takes action that will

    cause him monetary hann. Therefore, the Commissioner lacks jurisdiction over Ramos ' s

    claim that his reassignment breached his contract and caused him monetary hann.

    Change of Professional Capacity

            Ramos also alleges that EPISD violated a school law of the state. He asserts that

    EPISD elected to employ him in the same professional capacity when it failed to provide

    him with notice of a proposed nonrenewal as required by section 21.206 of the Texas

    Education Code and then violated the statute by changing his professional capacity or




•   demoting him by reassigning him. It is well-established that school districts have broad

    1 Comerv.   Dickinson I,SD., Dkt. No. 117-R 10-698 (Comm'r Educ. 1999).



    #OO2-R 10-900                                      -2-
-,-




•         discretion when it comes to transferring administrators. 2 Ramos does not allege that his

          duties as a high school principal and an elementary school principal differ radically.

          Ramos's transfer from one principal position to another does not violate the requirement

          that a teacher who is not nonrenewed must be employed in the same professional

          capacity. Therefore, it is concluded that Ramos has failed to state a claim for which relief

          can be granted.

          Conclusion

                  The Commissioner lacks jurisdiction over Ramos's claim that his contract was
          breached causing him monetary hann because he has not suffered any monetary hann and

          any financial loss in the future is too speculative to invoke the Commissioner's

      jurisdiction.      Furthermore, Ramos has failed to state a claim for which relief may be

          granted with respect to his contention that EPJSD violated section 21.206 because he has




•
      not alleged that the duties of a high school principal and an elementary school principal

      differ significantly.

                                                Conclusions of Law

                 After due consideration of the record, matters officially noticed, and the forego ing

      Findings of Fact. in my capacity as Commissioner of Education. I make the fo llowing

      Conclusions of Law:

                 I.      The Commissioner lacks jurisdiction to hear Ramos's claim under Texas

      Education Code section 7.057(a)(2)(8) because Ramos has not suffered any monetary

      harm and future lost earnings capacity is too speculat ive to invoke the Commissioner' s

      jurisdiction.

                2.       The Commissioner has jurisdiction over Ramos's claim of a violation of

      Texas Education Code section 2 1.206; however, Ramos has failed to state a claim for

      which relief can be granted because he has not alleged that the duties of the two




•     principal positions differ significantly. 19 TEx. ADMIN. CODE § 157.1056.

      2   Young\'. Leggett I.SD., Dkt No. 175·R3· 898 (Comm'r Educ. 1999).



      H002-R 10-900                                       -3-
r   .




•                3.     This case should be dismissed for lack of jurisdiction and for failure to

         state a claim for which relief can be granted.

                                                  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' s appeal be, and is hereby, DISMISSED for lack of

        jurisdiction and for failure to state a claim for which relief can be granted .

                SIGNED AND ISSUED this         !l!!!....-
                                                          .
                                                                ::;bku.to.llt
                                                            day of
                                                                ~ .~)
                                                                                            ,2002 .




                                                     ELSON
                                                     MISSIONER OF EDUCATION




•



•
        #OO2-R10-900                                  -4-
Crosby ISD’s Appendix

       TAB 7
    ..'   . . ..


•                                                 DOCKET NO. Oll-R3-1 102


                   PAUL PASQUA                                  §               BEFORE THE
                                                                §
                                                                §
                   v.                                           §    COMMISSIONER OF EDUCATION
                                                                §
                   FORT STOCKTON INDEPENDENT                    §
                   SCHOOL DISTRICT                              §            THE STATE OF TEXAS


                               DECISION OF THE DESIGNEE OF THE CQMMISSIONER

                                                     Statement of the Case

                          Petitioner, Paul Pasqua, appeals the action of Respondent, Fort Stockton

                   Independent School District. concerning his grievance.       Joan Stewart was initially

                   appointed as   me   Administrative Law Judge to preside over this cause. Subsequently,

                   Christopher Maska was appointed substitute Administrative Law Judge. Petitioner is




•
                   represented by Sam D . Sparks , Attorney at Law. San Angelo, Texas. Respondent is

                   represented by Shellie Hoffman Crow. Attorney at Law. Austin, Texas.

                          The Administrative Law Judge issued a Proposal for Decision recommending

                   that Petitioner's appeal be denied. No exceptions were filed.

                                                       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 tbe Findings of Fact that can best support Respondent's decision:

                          1.      For eleven years, Petitioner, Paul Pasqua, served as a high school

                   principal for Respondent. Fort Stockton Independent School District.

                          2.      On April 8, 2002. Petitioner received a two-year contract. The contract

                   was entitled "Two-Year Term Contract for Certified Administrator Position as

                   Assigned." The contract provides:




•                  #OIl-R3-1102                         -1-
... ..


•
                         2.     The board will pay Employee in twelve installments an annual
                         salary according to the compensation plan adopted by the Board, but in
                         no event less than the 200112002 annual salary.

                         4.      Employee shall be subject (0 assignment and reassignment of
                         positions or duties, additional duties. changes in responsibilities or
                         work. transfers, or reclassification at any time during the contract term .
                3.       On August 19, 2002, after the completion of the first day of the 2002·

         ZOO3 school year, Petitioner was called to the Superintendent's office and was assigned

         to the position of assistant middle sc hool principal.

                4.       Petitioner filled the position of assistant middle school principal until his

         resignation on November 6, 2002.

                5.       Petitioner received full compensation until he resigned.

                6.       Board members did not conduct a meeting without posting notice to

         decide whether Petitioner should be reassigned.

                7.       Petitioner did not file a timely grievance concerning the lack of



•        evaluations.

                8.       Petitioner failed to raise a constructive discharge argument before the

         board of trustees.

                                                     Discussion

                Petitioner contends that Respondent demoted him by reassigning him from high

         school principal to assistant middle school principal. constructively tenninated his

         contract. failed to evaluate him, and violated the Open Meetings Act.           Respondent

         denies these allegations. alleges that Petitioner failed to exhaust administrative

         remedies. and argues that the case is moot.

         Mootness

                Respondent contends that this case is moot because Petitioner has resigned from

         his contract.    However, Petitioner alleges that Respondent1s ' actions amount to




•        IOIl·R)·\ \02                         ·2·
    ..




•        constructive discharge.    If Petitioner were correct as to the constructive discharge

         claim. relief could be granted. Based on this allegation. the case is not moot.

         Contract

                Petitioner contends that his reassignment from high school principal to assistant

         middle school principal was a demotion which resulted in constructive discharge.

         Petitio,ner also contends that his property rights in his comraci were violated.         The

         Commissioner's jurisdiction over such claims must be based upon Texas Education

         Code section 7.057 (a):

                (2) actions or decisions of any school district board of U1Jstees that violate:

                        (8) a provision of a wrinen employment contract between the school
                        district and a school district employee, if a violation causes or would
                        cause monetary harm .
         Petitioner had a property interest in his term contract during the contract's term. The




•
         issues are whether the comract was violated and did this result or would it result in

         monetary hann.

                For eleven years, Petitioner served as a high school principal for Respondent.

         On April 8, 2002. Petitioner received a two·year contract. The contract was entitled

         "Two-Year Term Contract tor Certified Administrator Position as Assigned."               The

         contract provides:

                2.      The board will pay Employee in twelve installments an annual salary
                according to the compensation plan adopted by the Board. but in no event less
                than the 200 112002 annual salary.


                4.      Employee shall be subject to assignment and reassigrunent of positions
                or duties, additional duties. changes in responsibilities or work, transfers, or
                reclassification at any time during the contract tenn .
         On August 19, 2002, after the completion of the first day of the 2002-2003 school

         year, Petitioner was called        the Superintendent's office and was assigned to the


•
                                       (0




         #01l-R3-1l02                          -3-
    . ..




•          position of assistant middle school principal.

           November 6, 2002, when he resigned.

           Property RighI
                                                                 Petitioner filled this position until




                    Petitioner's contract is not a contract for the position of high school principal.

           (t   is a contract for a certified administrator position as assigned.    Assistant middle

           school principal is a certified administrator position. 19 TEX. ADMIN. CODE ch. 241.

           The Commissioner has held that the professional capacity of administrator is to be

           broadly interpreted for reassignment purposes. Carpenter v. Wichita Falls Independent

           School Dis/ricl, Docket No. 247-R3-491 (Camm'r Educ. 1993), While Petitioner was

           not assigned to the assistant principal position until after he had completed his first day

           of the new school year as a high school principal, the contract itself allows Petitioner to

           be reassigned as long as compensation is not reduced from that in the 2001-2002 school

           year.    Petitioner did not Jose any compensation.      Petitioner's reassignment did nO[



•          violate his contract.

           Good Faith

                    Petitioner contends that the timing of the reassignment was unfair and that he

           should have been given a chance to remediate if his performance were questioned.

           Petitioner alleges that if Respondent had notified him at the begilUling of the summer

           that he would be reassigned for the next school year that he could have sought other

           high school principal positions. During that time frame, districts would still be looking

           to filt principal positions and Petitioner could still represent that his position with

           Respondent was high school prinCipal. Petitioner's argument is that Respondent owed

           Petitioner a duty of good faith and fair dealing. However, in Texas there is no duty of

           good faith and fair dealing in the employment context. Ciry of Midland v. 0 'Bryanr,

           18 S.W.3d 209, 216 (Tex. 2000). Further, even if a cause of action for good faith and .

           fair dealing existed, the only damages in the present case would be lost earnings


•          capacity or loss of reputation.


           NOII·R3·1I02
                                                  The Commissioner lacks Nrisdiction over an
•   employment contract case based on such damages. Smith v. Nelson, 53 S.W.3d 792,

    795(Te •. App.·Austin 2001, pel. denied).

    Constructive Discharge

             It has been held that "A constructive discharge occurs when the employer

    makes conditions so intolerable that a reasonable person in the employee's position

    would. have felt compelled to resign." lett v. DaLlas Indep. Sch. Dist., 798 F.2d 748,

    755 (5- Cir. 1986) arrd in part 109 S.CI. 2702 (1989). Petitioner has railed to exhaust

    administrative remedies as to Ihis issue.      Petitioner did not make a constructive

    discharge argument before the board of trustees.      This is not surprising because the

    board hearing occurred on October 28, 2002 and Petitioner did not resign until

    November 6, 2002.       But even assuming that Petitioner had exhausted administrative
    remedies he would not prevail. The record does not support a finding that Respondent

    made Petitioner's working conditions intolerable.     While Petitioner's anger at being



•   reassigned is understandable. being assigned to position of less prestige does not by

    itself constitute constructive discharge.

    Evaluations

             Petitioner notes that he was not formally evaluated during the 1999-2000 and

    2000-2001 school years. While this could be related to a violation of Texas Education

    Code sections 21.354 and 39.054, Petitioner should have brought a grievance as to

    those events under the district's grievance policy.    Wittman v. Nelson, 100 S.W.3d
    356, 360 (Tex. App.·San Antonio 2002 pel. denied). Respondent limited Petitioner',
    presentation concerning evaluations to arguments as to how he exhausted local

    remedies.      TR, 4.   Even if Petitioner were correct that the failure to provide

    evaluations violated the school laws of this state, the Commissioner could not as a

    result order the requested relief of reinstatement and back pay.




•   NO 11 ·R3· I 102                      ·5·
    ..


•        Open Meetings Act

                   Petitioner contends that board members violated the Open Meetings Act by

         agreeing to the reassignment of Petitioner outside of a properly called meeting. TEX .

         Gov'T CODE § 55J.041.           The record is scant as to this issue .            Petitioner's

         representative's allegations taken alone do not constitute a violation of the Open

         Meetings Act. Tr. 16·17. However, the superintendent's testimony was that he made

         the decision himself without board approval. Tf. 24. The record does not suppon a

         finding that a violation occurred. Even if a violation occurred it would not result in the

         vote on Petitioner's grievance being overturned.     A discussion that was not properly
         conducted according to the Open Meetings Act does not result in voiding a vote at a

         properly called meeting on the same subject. Hill v. Palestine Indep. Sch. Dist., 113

         S.W.3d l4. 17 (Tex. App .-Tyler 2000, pet denied).

         Conclusion



•                  Respondent did not violate Petitioner'S contract by reassigning Petitioner.

         Petitioner's contract allowed for the reassignment.        Petitioner failed to exhaust

         administrative remedies as to his constructive tennination and evaluation claims.

         Respondent did not violate the Open Meetings Act.         Petitioner's appeal should be

         denied.

                                           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, ] make the following Conclusions of Law:

                   1.    The Commissioner has jurisdiction to hear this cause under Texas

         Education Code section 7.057 except as specified in Conclusions of Law Nos. 2, 6-8.

                   2.    Because Petitioner failed to exhaust administrative remedies as to his

         constructive discharge and evaluation claims, the Commissioner lacks jurisdiction over


•        these claims. 19 TEX. ADMIN. CODE §l57.1056(a).


         NOIt-R3-It02                         -6-
                                                                                    .. ,
•          3.
           4.
                   As pled, this case is nO[ moot.

                   Assistant middle school principal is a certified administrator position.

    19 TEX. ADMIN . CODE ch. 241.

           5.      Petitioner's reassignment did not violate his contract.

           6.      There is not a duty of good faith and fair dealing in the employment law

    context.
           7.      The Commissioner Jacks jurisdiction over Petitioner' s good faith and fair
    dealing claim . 19 TEX. ADMIN. CODE §157 . !056(a).

           8.      Even if there were a duty of good faith and fair dealing in the
    employment context, jurisdiction would not exist under Texas Education Code section
    7.057(3)(2)(8) because the Commissioner lacks jurisdiction on a claim of. lost earnings

    capacity or loss of reputation. 19 TEX . ADMIN . CODE §lS7. 1056(a).

           9.      Members of Respondent's board of trustees did not violate the Open



•   Meetings Act as they did not preapprove Petitioner's reassignment outside of a

    properly called meeting. TEX. GoV'T CODE § 551.041

           10.     Even if members of Respondent's board of trustees had violated the
    Open Meetings Act by preapproving Petitioner's reassignment outside of a properly
    called meeting. this does not result in the board's vote to deny Petitioner's grievance
    being declared void.

           11.     Petitioner's appeal should be denied.

                                           QJUli..R
           After due consideration of the record, matters officially noticed and the
                                                                                        .
    foregoing Findings of Fact and Conclusions of l..a.w, in my capacity as Designee of the

    Commissioner of Education, it is hereby




•   #011·R3·1102                         ·7·
    ..
     "   '..   ~   .




•                             ORDERED that Petitioner's appeal ~ and~bY' DENIED .
                              SIGNED AND ISSUED this".(? day   0     me.   <'       .2004.



                                                    R ~+~~     0
                                                    CHIEF DEPUTY COMMISSIONER
                                                    BY DESIGNATION




•



•                      NOlI-RJ-II02                 -8-
Crosby ISD’s Appendix

       TAB 8
I,


•    JANIS K. UNDERWOOD
                                     DOCKET NO. 062-R3-198

                                                   §
                                                   §
                                                           BEFORE THE
                                                   §
     V.                                            § COMMISSIONER OF EDUCATION
                                                   §
     WEST RUSK COUNTY                              §
     CONSOUDATEDINDEPENDENT                        §
     SCHOOL DISTRICT                               §       THE STATE OF TEXAS

                             DECISION OF THE COMMISSIONER
                                         Statement of the Case

              Petitioner, Janis K. Underwood, appeals the denial of her grievance concerning
     her reassigrunent from junior high school principal to either prinCipal of the seventh

     through ninth grades or to assistant high school principal by Respondent, 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 represented 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 Petitioner's appeal be denied.          Exceptions and replies
     were timely filed and considered.
                                              Findings

              It is detennined that the following rtodings 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 the Conunissioner.


                                                                                             TAsa
•              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
    supervision 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 employment with Respondent in the position of

    "administrator" for the term of July I, 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 positions 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 Petitioner's previous position. As a result of the
    reassignment, Petitioner's salary remains the same, her professional responsibilities are
    not lessened, and the 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.
                                           Djscussion
           Petitioner seeks reinstatement as head principal of West Rusk Junior High
    School, reporting directly to the superintendent 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 demotion and breach of her employment
    contract. [n addition, she argues that the reassignment will have a negative impact on



                                                 .".
•    her furore 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 reassigrunent.         Barich v. San    Felipe~De/   Rio
    Consolidated Independent       School District,     Docket     No.117-Rla-484     (Comm'r

    Educ.1985).     The reassigned position 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. cbanges in responsibilities or work ... at any time during the contract tenn ."




•
    Respondent 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 reduction 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 &luc. 1989) and Cody
    v. Graham Independent School District, Docket No. 247-R3-787 (Comm' r. &luc.

    1989). Petitioner remains an administrator at the same pay .

           Respondent considered the needs of the district 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



•   &lucation Cnde §21.206 which requires a school district to employ an employee in the




    #062-R3-1QR
    -.
•        same professional capacity from one year to the next.        Pertinent portions of the rule
         read as follows:


                                  (a) Not later than the 45" 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 applicable. In addition, Petitioner 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
         foIlowing 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 hanD to Petitioner,
                 4.       Petitioner's appeal should be DENIED.


•                                                                                                TAsa
         #062-RJ-198
.
, "- "   .

,



•
 •
                                                 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.

                     SIGNED AND ISSUED this      ?II!    day of -'     "a""''fi+-<-- - - -
                                                                7?f'-'-f
             1998.




                                                      MIKE MOSES
                                                      COMMISSIONER OF EDUCA nON




•



•                                                                                                  T~S8
             #062·R3-198
Crosby ISD’s Appendix

       TAB 9
                                        DOCKET NO. 004-Rl-0908

HOI .I.V McCOY                                                 ~     HEFORE THE
                                                               §
                                                               §
v.                                                             § COMMISS ION ER OF EDUCATION
                                                               §
KERMIT INDEPENDENT                                             §
SCIIOOL DISTRlCT                                               §          TH E STATE OF TIOXAS

                               DECISION OF THE COMMISSIONER
                                            Statement of the Case

             Pet itioner, Ho lly McCoy, appeals the action of Respondent, Kennil tndependent

School Di strict , com:crni ng her grievance . Christopher Maska is the Ad mi nistrati ve Law

ludge appoi nted hy the Commissioner of Education. Petitione r is represented by Mark

W. Robinett. Attorney at Law, Austin, Texas. Respondent is represen ted by Chri stine

Badillo. Attorney at Law, Austin, Texas.

             The Adm ini strative Law Judge issued a Proposal for Decision recommending thai

Petit ioner's appeal be dismissed in part and denied in parI.

                                                  Findings ofFaet
             Arter dllC co n:sitleralion of the record and matters officially noticed , it is
concluded that the fo llowing Findings of Fact arc supponed by substantial ev idence and

are the Findings orr-act that best support Respondent' s decision I,

             I.       Petitioner WilS employed by Respondent under a term contract for the

2007-2008 school year in the position of principal. Th is contrllct exp ired at the end of the

2007-2008 school year.

             2.       for the ::!008 -2 009 school years, Petitioner signed a term contract with

Respondent. The contract is en titled "For Certified Admini stra tor."



      - - - - _.._-
I St!<!   t9 Tt:x. AOM IN. Omr:: § t57.t073(h);   nO~'II'wlh   1'.   East Ct!nlral/"dependem S~'hoo! DiJlrid.   DockeL
No. 090-RI-803 (Comm 'r Educ. 2003).




                                                                                                                         TASB
         3.       For the 2008-2009 school year, Respondent assigned Petit ioner to the

position of assistant principal. Petitioner's salary or benelits for the 2008·2009 school
year were nol decreased from that received fo r the 2007·2008 sc hool year.

                                                  Discussion

         Petitioner contends that Respondent changed her professional capacity when it
reassigned her from the position of principal               10   the position of assistnnt principal. In

particular, Petitioner maintains that the posi tion of a campus principal is a distinct

prolessional capacity. Pctitioner also contends Ihal she WetS demoted. Respondent dcnics

Petitioner'S claims,

Demotion
         The Texas Education Code does not prohibit a school district from demoting a

teachc r. Petitioner has nOI alleged that any section of the Texas Education Code prohibits
demotions.       To thc extent the Commissioner has jurisdiction over demotions, Ihal

authority must comc from Texas Education Code section 7.057(a)(2}(I3) which gives the

Commissioner jurisdiction ovcr violations of wrilten employment contracts that cause or

would eausc monetary harm . Because Petitioner has not lost salary or benefils Pctitioner

cannot show the requisite monetary harm. Smith v, Nelson. 53 S.W.3d 792 (Tex. App .•

Austin 2001,       PCI   denied).      The Commissioner lacks juri sdiction over I'etitioncr' s

demotion claim.

Same Professional C<tpacity

         A "teacher l ,. who holds a term contract under Texas Education Code chapler 11,

subchapter E that is about to expire cannot be reassigned to new a position for the next

school year unless the positilln is within the same professional capacity as the position the

"Icacher" held in the current school year:




! 'I'he t1dinition or "teachcr" found at Texas Education Code seclion 21.20 I is truly a creature of Sl<lIute. II
includes individuals who would ncver in wmmon ., pcech be refcrred to as tcachers.


H004·RJ·090R                                            2
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        (a) Not later than thc 45th day beforc the last day of in structi on in a school year.
        the board of trustees shall not ilY in writing each teacher whose con tract is about \()
        expi re whether the board proposes 10 renew or not renew the contrac t.
        (b)     the board's lail ure to give the notice required by Subsection (a) within tht!
        lime speci fictl constitutes an election 10 employ the tcacher ill the same
        professional c~pacity for the following schoo l yea r.
TEX, COU£.'. CODE § 21.206. The tcrm "same professional capacity" is not dcfined in the

Texas Education Code.            However,      In C   Commissioner from the earliest substantive
dceision conccm ing this proVISIOn has held that "ad min istrator" is a professional
eapacity.


        It is more reasonab le to conc lud e that the legis lature, by lIsing the term "same
        professional capacity" (instead of "exact same pos ition"), intended 10 allow schoo l
        districts to be Oexible in their personnel assignments while discouraging the abuse
        of the district's inherent or contractual authority. In other words, the distriet may
        place a teacher whosc employment has been renewed by operati on of law in a
        position diffe rent from that to wh ich the teacher was assigned the previous year,
        as long as the position is one to which the district could have reassignt!d tht:
        tcacher hud the pa rt ies vol un tari ly entered into a contract for the following y!.:ar,
        In some instances the validity of a particular placement will be dear. Fur
        example, <In atlm in isl rator who does nol receive the re.quired nolice by Apr il 1-'
        may not be placed in the capacity of a classroom teaehcr...
                 111 other instances, the va lidity of a particular placement might not he so
        clear. For example, a placement mi ght be to another position wit hin the same
        profess ional category (e.g., admin istrator), but nevertheless be inval id (e.g., from
        superintendent to assistant elementary school principal). Factors to be co nsidl.!red
        in determining [he validity of such an assignme nt include, but are not limited to
        differences in autho rity, duties, and salary.
RtJric:h \'. Salt Felipe-Dei Rio Consolidawd Independent ,)'chao/ Disfrici. Dockel No. 117-
Rla·484 (Comm'r Educ. 1985).                  Further, the Commissioner has found that the

pco lessional capaci ty of "administrator" is to be broadly interpreted:
         It is possible to imagine situations where the transfer clause of an employment
        contract would be held to be unenforceable under § 21.204(b)4. However, this is
        nol such a casc. It has been the consistent view of the Commissioner that tbe
        reNA balanced its grant of limi ted tenu re ri ghts against the considerable
1 In Inc original TermConlract Nonrenewal Act, n district had to propose nonrenewal on or before April I,
instead of thc current rcqllirerncnt of HI he 4S,h day before the lasl day of instruction." Tcnn Conlract
Nonrcncwlll ACI, 67'· Leg.. R.S. , ch . 765, § 2, 1981 Tex . Gcn Laws 2847.
j The old Tcxas Education Codl! section 21.2{)4 is the predecessor of Ih~ current Te)(as Edllcation Code

.~cction 21.206.



UOU4·i<)·()908                                         )
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        per~ollnel management problems it might cause if imposed innexibly. Districts
        h<1vC responded to this law b), creating broad classes withi n which transfers do not
        implicate the TCNA. If taken to extremes, this tactic wou ld be against public
        policy as expressed in the TeNA, but I cannot make such a ti nding in this casc o
        The need for nexibility in making personnel changes is strongest, and the
        argument for a rigid tenure system weakest, at the administrative leve l. In short, I
        lind the generic "administrator" posi tion before me consistent with the pO licies of
        the TCNA.
Curpenler v. Wic'hil(1 Falls Independent School Disllicl, Docket No . 247-RJ -49J

(Comm'r Educ.        1 c)9~).   In many cases. it will not constitute a violation of Tcxas

Education Code sec tion 21.206, ror a district to reassign a term co ntract administrator

fro111 a position with one administrative job title to a posi tion tha t ha.<; a dil'ferenl

administrative joh title .

Principal and Assistan t Principal Certi fi cation

        Texas Education Code section 2 1.046 provides guidance lor the State Board for

Educator Ccrtilieation in creating standards fo r principal certification. The State Hoard

for Educator Certification issues ani), olle type of certific ate for both principals and

assistant principals:


        Principal Certificate.
        (a) Due to the criti ca l role the principal plays in campus effectiveness and studcn!
        achievement, and consistent wi th the Texas Education Code (TEe) §2 1.046(c),
        the rules adopted by the Slate Board for Educator Certification will enSure tha t
        each cand idate fo r the Principal Certi Jicate is of the highesl caliber and po~ sesses
        the knowledge and skills necessary fo r success.
        (b) As required by TEC §21.046(b)(I)-(6), the standards identilied in *24 1.1 5 01
        this ti tle (relating to Standards for the Principal Certificate) cmphasize
        instructional leadership; admin istration, supervision, and communication skills;
        currk ulum and instructi on management; performa nce evaluation; organization;
        and Iiscal management.
        (c) Each indi vidual serving as a principal or assistant pri ncipal is expected to
        act ively participate in professional developme nt acti vities to continuall y update
        his or hl:r knowledge and skills. Currency in best practices and research as related
        to both campus leadership and student learn ing is essenlial.
        (d) The holder of the Princi pal Certi fica te issued under the provisions of this
        chapter may serve as a principal or ass istant principal in a Texas public
        elementary, middle, or secondary sc hool.



#004-RJ-0908                                    4
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19 r EX. ADMIN. CODE       § 241. 1. Both principals and assistant pri nci pals arc treated hy the
State Hoard lor Educator Certificatio n as principals:

Rt! quircmen ts for the First·T imc Principal in Texas
         (a) Pri ncipals or assis tant principals employed for the first time as campus
         admi nistrators ( incl uding the lirst time in the state) shaH participate in, at least, a
         one· year induct ion period.
         (b) Thc it,duction period should incorporate the assessmen t and professional
         growth reqoirements contained in §24 1.30 (b) of this title (relati ng 10
         Requirements to Renew the Standard Principal Certificate).
         (c) The induct ion period should be a st ructured, sysTemic process fo r assisting the
         new principal or assistant principal in furt her developi ng skill in guiding the
         everyday operation of a school, adjusting to the particular c uhurc of a school
         district, a nd devt! loping a personal awa reness of self in the campus admi nistrator
         role. Men tori ng support must be an integral component or tile ind uction period .
19 T EX. ADMIN . Com:. § 241 .20. T he fact that princ ipals and assistan t princ ipals a re bOlh

req uited to have the same certi fi ca te and to undergo the same onc·year induc tion period is

~igll i ncant   ev idence that pr inc ipals and assistant principa ls normally share the sam c

professional capaci ty.

Principal's Ro le

         Pet itioner is eOlTect that an assistant princ ipal reports 10 a princ ipal. Petitioner is

also co rrect that the Texas Education Cude gives specific and important roles to

pri ncipals but not to assistant pri ncipals. Texas Education Code 11.202 makes clear that

"thc principal of <l schoo l is the inst ructiona l leader of the school" and goes on 10 speci l)'

dut ies or a pri nc ipa l. A principal has specific duties under Texas Education Code c hapter

37 concern ing the pl acement of students. There are real differences between pri ncipals

and assistant princ ipals.        However, princi pals and assistant princi pals are both

administrators. Principals and assistant pri ncipals share the same ccrti Ji cation. T he mcre

lac! lh<ll a te rm con tract "teacher" is reassigned from the position        or principal   to the

pos ition or assistant principal does not mean that       11   "tcache r" is being employed in    11

di Ilc rcnt professional capaci ty.




H004·RJ ·0908                                    5
                                                                                                       TASS
        In certain cases, it may be the case that a "teacher" wOllld be employetl in a

different prolessional capacity when a "teacher" is reassigned from heing a principal to a

position of assistant principal. A district could give an employee the title of "assistant

principal" hut give [hat individual none of the duties normally associated with the job of

assistant principal. In sueh a case, the factors sel forth in Barich and perhaps additional

factors might result in a conclusion thal a change of professiona l capacity has occurred.

Ilowcver, in the prescnt case Petitioner's argument is that the change from principal to

assistant principal alone is sufficient to show a violation of Texas Education Codc section

21.206(b). It is not.

Conclusion

        t\. change from a position of principal to a position of assistant principal does not

necessarily involve a change of professional capacity as that tefm is in Texas Educatiun

Code section 21.206(b).

                                    Conclusions of Law

        After due consideration orlhe record, matters orricially noticed, and the foregoing

Findings of Fael. in my capacity as Commissioner of Education, J make the lollowing

Conclusions of Law:

        I.      The Commissioner has jurisdiction to over Petitioner's Texas Education

Code section 21.206 claim under Texas Education Code section 7.0S7(a)(2)(A).

        2.      The Commissioner lacks jurisdiction over Petitioner's demotion claim.

Te x. EDUC. CODE § 7.057(.)(2)(B).

        J,      The Commissioner does not have jurisdiction over demotion claims based

on Tt.'xas Education Code section 7.057(a)(2)(A).

       4.       The Commissioner may have jurisdiction over a demotion claim if a

violation of a wrillen employment contract is alleged that causes or would caUSl:

monetary harm. TEX. EDUC. CODE       § 7.057(a)(2XB).



#004- R3-090H                                6
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        5,       The monetary harm referred to in Texas Education Code :-1cction

7.057(a)(2)(8) must be a contract damagc. If an employee does not lose salary or benefits

hascd on an allegt!d vio lation of a written contract, the employee hac; not suffered

monetary harm.

       6.        Because Petitioner did not suffer monetary harm as thaI term is used in

Tcxas Education Code section 7.0S7(a)(2)(R), the Commissioner Jacks jurisdiction ovcr

Petitioner's demotio n claim,

        7.       Administrator is a profess ional capacity as that (erlll 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 capacity.

        9.       The positions of principal and assistant principal are normally within the

same proJessional capacity. TEX. EJ)Uc. CODE § 21.046, 19 TEX. AnMIN. 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 ac; that term   i~   used in

Texas Education Code section 21.206(b).

        II .     Respondent did not violate Texas Education Code section 21.206(b) when

Petitioner was reassigned from the position or principal to the position or assistant

principal.

        12.      The 11etirion for Review should be dismissed in part and denied in part.




ff004- R)-0908                                7
                                                                                                     TI-\S8
        After due consideration of the record. matlers officially noticed and the foregoing
foiudings of Fact and Conclusions of Law. in my capacity as Commissioner or Edllcation,

it is hereby

        ORD£RED that Petitioner appea l be and is hereby dismissed in part and denied in
part.

        SIGNED AND ISSUED this ¢ . Y of               ~                          ,2012.


                                         \.<·....   e'<,,-




U004·Rl·0908                                 8
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Crosby ISD’s Appendix

      TAB 10
        By: Parker                                                                         S.B. No. 395
                                     A BILL TO BE ENTITLED

                                               AN ACT
relating to school employee rights.
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

        SECTION I. Subchapter C, Chapter 13, Education Code, is amended by amending

Sections 13.103, 13.107, 13.108, 13.11 I, 13.112, 13.113, 13.114, 13.115, 13.116, 13.117 and

13.118 to read as follows:

                SUBCHAPTER C. TEACHERS' EMPLOYMENT CONTRACTS

        (a) Section 13.103. PROBATIONARY CONTRACT: TERMINATION. The board of

trustees of any school district may terminate the employment of any teacher holding a

probationary contract at the end of the contract period. if in their judgment the best interests of
the school district will be served thereby; provided, that notice of intention to terminate the

employment shall be given by the board of trustees to the teacher on or before April I, preceding

the end of the employment term fixed in the contract. In event of failure to give such notice of
intention to terminate within the time above specified, the board of trustees shall thereby elect to
employ such probationary teacher in the same professional capacity, and under probationary
contract status [or the succeeding school year if the teacher has been employed by such district
for less than three successive school years, or in a continuing contract position if such teacher
has been employed during three consecutive school years.
        (b) Section 13. I 07. STATUS UNDER CONTINUING CONTRACT. Each teacher with

whom a continuing contract has been made as herein provided shall be entitled to continue in his
[f1ositioa er a f1esitiea with «:te sehoel Eiistriet,] same professional capacity, at a salary authorized
by the board of trustees of said district complying with the minimum salary provisions of the

foundation aid law, for future school years without the necessity for annual nomination or
reappointment, until such time as the person:
                (1) resigns, or retires under the teacher retirement system;
               (2) is released from employment by the school district at the end of a school year

because of necessary reduction of personnel as herein defined;

               (3) is discharged for lawful cause, as defined in Section 13.109 of this code and

in accordance with the procedures hereinafter provided;

               (4) is dismissed at the end of a school year for any reason as set out in Section

13.110 of this code and pursuant to the procedures hereinafter provided in such case; [&f]

               (5) is returned to probationary status, as authorized in Section 13 .110 of this

codeH; or

               (6) is changed to a different professional capacity in accordance with Section

13.111 of this code.

       Cc) Section 13.108. ADMINISTRATIVE PERSONNEL.                 The board of trustees may

grant to a person who has served as superintendent, principal, supervisor, or other person

employed in any administrative position for which certification is required, at the completion of

his service in such professional capacity, a continuing contract to serve as a teacher, and the

period of service in such other professional capacity shall be construed as contract service as a

teacher within the meaning of this subchapter.

       Cd) Section 13.111. CHANGE OF PROFESSIONAL CAPACITY.                      The professional

capacity of a teacher. whether employed under a probationary contract or a continuing contract,

may not be changed during a school year nor at the end ora school year. except for just cause.

       (e) [SootieR 13.111.] Section 13.112. NOTICE.         Ca) Before any teacher shall be

discharged during the year for any of the causes mentioned in Section 13.109 of this code, or

before any probationary contract teacher shall be dismissed at the end of a school year before the

end of the term fixed in his contract, or before any teacher holding a continuing contract shall be

dismissed or returned to probationary contract status at the end of a school year for any of the

reasons mentioned in Section 13.110 of this code, or before the professional capacity of any

teacher shall be changed. he shall be notified in writing by the board of trustees or under its

direction of the proposed action and of the grounds assigned therefor.
        (b) In the event the grounds for the proposed action relate to the inability or failure of the

teacher to perfonn his assigned duties, the action shall be based upon the written
recommendation by the superintendent of schools, filed with the board of trustees. Any teacher

so discharged or dismissed or returned to probationary contract status or whose professional

capacity is changed shall be entitled, as a matter of right, to a copy of each and every evaluation

report, or any other memorandum in writing which has been made touching or concerning the

fitness or conduct of such teacher, by requesting in writing a copy of the same.

        (!) [Seeti •• 13.112.] Section 13.113. HEARING. (aJ If, upon written notification of the

proposed action, the teacher desires to contest the same, he shall notify the board of trustees in
writing within 10 days after the date of receipt by him of the official notice above prescribed, of

his desire to be heard[, 8:fld he shall l:Ie giveR a fHil:llie heariRg if he wishes or if the eo8fd of

trustees determiaes that a j3\islie heariag is aeeessary is tfte fl\iBlie iaterest).

        (b) Upon any charges based upon grounds of inability or failure of the teacher to perfonn

his assigned duties, the board of trustees may in its discretion establish a committee of classroom

teachers and administrators, and the teacher may request a hearing before this committee prior to

hearing of the matter by the [13oard oftA:lstees] independent hearing officer.

        (c) [Withis 10 days after req\iest fer hearisg fRade 13y the teaoher, the 130ard of tA:lstees

shall fiJ< a time aad j31aee of hearisg. whieh] The hearing shall be held not less than forty-five

days nor more than sixty days after the board receives written notice from the teacher requesting

a heari ng. unless the teacher and the administration agree othef\\lise. The hearing shall be held

before the proposed action shall be effective. Such hearing shall be public unless the teacher

requests in writing that it be private.

        Cd) The hearing shall be conducted by an independent hearing officer. The independent

hearing officer shall be chosen from a list of five individuals certified by the commissioner of

education. The State Board of Education shall establish by rule the criteria for certification. The

individuals certified by the commissioner of education shall not be current or former agents.

representatives. or employees of any school district. schoo l employee organization. or schoo l
board organization. Both the administration and the teacher shall have one opportunity each to

reject the entire list. and to receive another list of five individuals certified by the commissioner.

Both the administration and the teacher shall alternately strike two individuals each from the list

of five. beginning with the administration. The individual remaining on the list shall serve as the

independent hearing officer.

       eel The Texas Rules of Civil Procedure and the Texas Rules of Civil Evidence shall

apply to the hearing and prehearing process. The independent hearing officer shall have the

power to issue subpoenas for the attendance of witnesses and the production of documents at

depositions and the hearing. effective within the State of Texas, and to swear witnesses. The

hearing and any depositions shall be held within the geographical boundaries of the school

district. The hearing shall be reported by a certified court reporter.
       [00] ill At such hearing, the teacher may employ counsel, if desired, and shall have the
right to hear the evidence upon which the charges are based, to cross-examine all adverse

witnesses, and to present evidence in opposition thereto, or in extenuation.

       (gl At the hearing. the administration shall have the burden of proof by a preponderance

of the evidence. The independent hearing officer shall make a written recommendation which

shall include findings of fact and conclusions of law.          The independent hearing officer's

recommendation shall be issued within twenty days of the close of the hearing.

       [tej] (hl The board shall take such action as it deems lawful and appropriate and shall

notify the teacher in writing of that action within 15 days following the [oolloil:l:siofl of tAe

heariFlg.] issuance of the independent hearing officer's recommendation. The board shall make

its decision based on a review of the record and the recommendation developed bv the

independent hearing officer. and on oral argument before the board by the teacher or the teacher's

representative and the administration's representative. The board shall either accept or reject the

independent hearing officer's recommendation. The board may reject the recommendation only

ifit is arbitrary, capricious. unlawful or not supported by substantial evidence.
       (g) [Se •. 13.113.] Sec. 13.114. SUSPENSION WITHOUT PAY. If the proposed action

be discharge of the teacher for any of the reasons set forth in Section 13.109 of this code, the

teacher may be suspended without pay by order of the board of trustees, or by the superintendent

of schools if such power has been delegated to him by express regulation previously adopted by

the board of trustees, but in such event the hearing shall not be delayed for more than 15 days

after request for hearing, unless by written consent of the teacher.

       (h) [S ••!i•• 13.114.] Section 13.115. DECISION OF BOARD.              If the teacher upon

notification of any such proposed action fails to request a hearing within 10 days thereafter, or

after a hearing as hereinabove provided, the board of trustees shall take such action and shall

enter such order as it deems lawful and appropriate.         If the teacher is reinstated, he shall

immediately be paid any compensation withheld during any period of suspension without pay.

No order adverse to the teacher shall be entered except upon majority vote of the full

membership of the board of trustees.

       (i) [Se.!iaR 13.115.] Section 13.116. APPEALS. (a) If the board of trustees shall order

the teacher discharged during the school year under Section 13.109 of this code, the teacher shall

have the right to appeal such action to the commissioner of education[, for review i3y him,

provided noliee ofsueh appeal is filed with tke l30arEl of trustees and a eopy thereof mailed to the

oORlfRissieRer within 15 days after written netice of the aotieH taken by tHe board of tr\istees

sHall be giyen to tHe teacher]; or, the teacher may challenge the legality of such action by suit

brought in the district court of any county in which such school district lies within 30 days after

such notice of the action taken by the board of trustees has been given to the teacher.

       (b) If the board of trustees shall order the continuing contract status of any teacher

holding such a contract abrogated at the end of any school year and such teacher returned to

probationary contract status, or if the board of trustees shall order that any teacher holding a

continuing contract be dismissed at the end of the school year, or that any teacher holding a

probationary contract shall be dismissed at the end of a school year before the end of the

employment period covered by such probationary contract, or that the professional capacity of
any teacher be changed, the teacher affected by such order[, after filiHg Rotiee of al'J3eal with the

Board of trustees,] may appeal to the commissioner of education [ay mailiRg a oOJ3Y of tRe Rotioe

ofepfloa1 to the eommissioRor withiR 1S days after WfitleR Hotiee oft:he aotion talcea BY lhe Board

of trustees has BeeR gi¥oa to the teaeherJ.

       ecl If the teacher appeals the board's act ion to the commissioner of education, the

commissioner shall not hold a hearing. but shall make his decision based on a review of [he

record and the recommendation developed by the independent hearing officer.                      The

commissioner may affirm a board's decision which rejected the independent hearing officer's

recommendation only if the recommendation was arbitrary. capricious. unlawful. or not

supported by substantial evidence. The commissioner may affinn a board's decision wh ich
accepted the independent hearing officer's recommendation only if the recommendation was not

arbitrary. capricious. unlawful, or unsupported by substantial evidence.

       Cd) If the commissioner reverses the decision of the board. he shall order that the teacher

shall be reinstated in hislher same professional capacity until the teacher is lawfully discharged

or until the teacher's professional capacity is lawfully changed. or he shall order that the district

pay the teacher one year of front pay in lieu of reinstatement. In addition. the commissioner
shall order the district to pay the teacher back pay for the period of time between the effective

date of the board's action and the date of reinstatement.

        [(e1J   uu Either party to an appeal to the commissioner shall have the right to appeal from
his decision to a District Court in Travis County.

        [«I) Deleted by Aet' 1984, 68t" Leg., 2Ad C.S., e". 28, .... I, part D, See. 5, elf. Sept. I,



       U) [SeetieR 13.116.] Section 13.117.          RESIGNATIONS. (a) Any teacher holding a

continuing contract with any school district, or holding a probationary contract with an unexpired

term continuing through the ensuing school year, may relinquish the position and leave the

employment of the district at the end of any school year without penalty by written resignation

addressed to and filed with the board of trustees prior to August 1, preceding the end of the
school year that the resignation is to be effective. A written resignation mailed by prepaid

certified or registered mail to the superintendent of schools of the district at the post office

address of the district shall be considered filed at time of mailing.

        (b) Any teacher holding a continuing contract or such unfulfilled probationary contract

may resign, with the consent of the board of trustees of the employing school district, at any

other time mutually agreeable.

        [(0) A teaeAer holding a probationary eontraet or a eontinHing eontraet ol3ligating tke

employing distriet to employ SHeA person Fer the ensliing sehoo l year, who fails to resign within

lAe time 8fld in the maflFler allowed UJlder 8uBseetions (a) end (1::1) of this seetioa, ana ...,.ho fails to

perfenn sueh eonkas!, shall he iaeligiele for omplo)'fl'leat hy My other Temas seRool distriet

during the ensl:ling seRool year eo,'ered BY SlieR eontrast, and his teaehing eertifieate shall be

sl:lspended fer that 568001 )'ear oRly.]

        (k) [8.etie. 13.117.] Section 11.274. SUPPLEMENTAL CONTRACTS FOR MATH

AND SCIENCE TEACHERS. (a) The legi slature finds that the health of the economy of the

state and the United States is increasingly dependent on public education to produce students

possessing general and specific skills in mathematics and science.

        (b) Jt is the purpose of this subchapter to encourage local school districts to provide more

and better quality science and mathematics instruction through the use of supplemental contracts

for science and mathematics teachers to expand the opportunity for students to have more time

on task by instituting summer programs and after·school studies and developing a system of

competition for science and math students. Such expanded opportunities shall be for remedial,

regular, and talented and gifted instruction. Therefore, local school districts are authorized and

encouraged to establish such programs to increase both the numbers of students dedicated to the

study of math and science and the quality of instructional time in both areas,

        (c) The commissioner of education is authorized and directed to select school districts of

various types to conduct pilot program studies to detennine the most effective models for
implementation of the program.           Such pilot program studies shall be conducted during the

1984-85 biennium.

            (d) The commissioner of education, upon completion of successful pilot program studies

shall publish and disseminate to all school districts model programs to achieve the goals of this

subchapter.

            (e) The commissioner of education shall report the results of the pilot studies to the 69th

Legislature and may make recommendations for the inclusion of such programs in the

Foundation School Program.

            (t) Local school districts may volunteer for the pilot studies and, if selected by the

commissioner to participate, are authorized and encouraged to provide an amount of up to $5,000

as supplemental pay for each math and science teacher selected to participate in the pilot

programs. Such funds shall be included in the participating teacher's regular payroll.

            (g) The commissioner of education, if funds are available either through the Foundation

School Program or through various regional services center grants or funds, may forward funds

to the local participating districts in the pilot programs to assist in local funding of these

programs. In addition, local school districts are encouraged to seek private funding, including

foundation support to pursue the goals of this subchapter.

            (1) Section 13.1 18. DEFINITIONS. As used in this subchapter, the following tenns

shall have the meaning ascribed to them in this section:

            (a) "Teacher" means a classroom teacher. counselor. librarian. nurse. diagnostician.

visiting teacher.       or other full-time       professional   employee. except administrative or

paraprofessional personnel.

            (b) uBoard" and "board of trustees" means the governing board of a public school

district.

            (c) uSchool district" means any public school district in this state.
            (d) "Same professional       capacity"   means    a position.     including supelVision      of

extracurricular activities, which is substantially equal           In   duties. responsibility. authority,

certification. endorsement. education. and remuneration.

            (e) "Independent hearing officer" means an individual who shall conduct the hearing.

            SECTION 2. Chapter 13, Education Code, is amended by adding Subchapter H, to read

as follows:

                     SUBCHAPTER H. EDUCATIONAL SUPPORT PERSONNEL

            Section 13.60 I. DEFINITIONS. As used in this subchapter, the following tenTIS shall

have the meaning ascribed to them in this section:

            (a) "Educational support personnel" means a bus driver. custodian. food selVice

employee. maintenance employee. security personnel. educat ional aide. educational secretary.

and all other non-professional. para-professional and professional personnel who do not fall

within the definition of "teacher" in Section 21.201(1) of this code.

            (b) "Board" and "board of trustees" means the governing board of a public school

district.

            (c) "School district" means any public school district in this state.

            (d) "Same capacity" means a position which is substantially equal                  In   duties.

responsibility. authority. certification. endorsement. education. and remuneration.

            (e) "Independent hearing officer" means an individual who shall conduct the hearing.

            Section 13.602. EV ALUA TIONS. The board of trustees of each school district shall

provide by written policy for the periodic written evaluation of each educational support

personnel in its employ at annual or more frequent intelVals. Such evaluation shall be considered

by the independent hearing officer and the board of trustees prior to any decision by the board to

tenninate the employment of any educational support personnel or to change the capacity of any

educational support personnel.
        Section 13.603. TERMINATION OF EMPLOYMENT; CHANGE OF CAPACITY.

(a) A board of trustees may not tenninate the employment of any educational support personnel.

nor change the capacity of any educational support personnel, except for just cause.

        Cb) The board of trustees of each school district shall establish policies and procedures

for receiving recommendations from its school administration for the tennination of employment

of educational support personnel. and for the change of capacity of educationa l support

persolUlel.

        Seclion 13.604. NOTICE.         (a) In the event the board of trustees receives a
recommendation from its administration for the termination of an educational support personnel's

employment. or for a change in an educat ional support personnel's capacity. the board. after

consideration of the written evaluations required by Section 13.602 of this subchapter and the

reasons for the recommendation. shall. in its sole discretion. either reject the recommendation or

shall give the educational support personnel written notice of the proposed action.

        (b) The notice of proposed action required in this section shall contain a statement of all

the reasons for such proposed action.

        Section 13.605. HEARING. (a) If the educational support personnel desires a hearing

after receiving notice of the proposed action. the educational support personnel shall notify the

board of trustees in writing within 10 days after receiving the notice. The hearing shall be held

not less than forty-five days nor more than sixty days after the board receives written notice from

the educational support personnel requesting a hearing. unless the educational supPOrt personnel

and the administration agree otherwise. Such hearing shall be closed unless an open hearing is

requested by the educational support personnel.

        (b) The hearing shall be conducted by an independent hearing officer. The independent

hearing officer shall be chosen from a list of five individuals certified by the commissioner of

education. The State Board of education shall establish by ru le the criteria for certification. The

individuals certified by the commissioner of education shall not be current or fonner agents.

representatives. or employees of any school district. school employee organization. or school
board organization. Both the administration and the educational support personnel shall have

one opportunity each to reject the entire list. and to receive another list of five individuals

certifi ed by the commi ssioner. Both the administration and the educational support personnel

shall alternately strike two individuals each from the list of five. beginnin g with the

administration, The ind ividual remaining on the list shall serve as the independent hearing

officer.

           ec) The Texas Rules of Civil Procedure and the Texas Rules of Civil Evidence shall

app ly to the hearing and prehearing process. The independent hearing officer shall have the

power to issue subpoenas for the attendance of witnesses and the production of documents at

depositions and the hearing. effective within the State of Texas. and to swear witnesses. The

hearing and any depositions shall be held within the geographical boundaries of the school

district. The hearing shall be reported by a certified court reporter.

           Cd) At the hearing. the admi ni stration shall have burden of proof by a preponderance of

the evidence. The independent heari ng officer shall make a written recommendation which shall

include findings of fact and conclusions of law.               The independent hearing officer's

recommendation shall be issued within twenty days of the close of tile hearing.

           Section 13.606. DECISION OF BOARD. (a) If the educational support personne l fails

to request a hearing. the board shall take such action as it deems lawful and appropriate and shall

notify the educational support personnel in writing of that action within 15 days of the expiration

orthe to-day period for requesting a hearing.

           Cb) If the educational support personnel requests a hearing. the board shall take such

action as it deems lawful and appropriate and shall notify the educational support personnel in

wri tin g of that action within 15 days following the issuance of the independent hearing officer's

recommendat ion. The board shall make its decision based on a review of the record and the

recommendation developed by the independent hearing officer. and on oral argument before lhe

board by the educational support personnel or hislher representative and the administration's

representative,     The board shall either accept or reject the independent hearing officer's
recommendation. The board may reject the recommendation only if it is arbitrary. capricious.

unlawful or not supported by substantial evidence.

       Section 13.607. APPEAL. (a) If the educational support personnel is aggrieved by the

decision of the board of trustees. he may appeal to the State Commissioner of Education pursuant

to Section 11.13 of this code. The commissioner shall not hold a hearing. but shall make his

decision based on a review of the record and the recommendation developed by the independent

hearing officer. The commissioner may affirm a board's decision which rejected the independent

hearing officer's recommendation only if the recommendation was arbitrary, capricious.

unlawful. or not supported by substantial evidence. The commissioner may affirm a board's
decision which accepted the independent hearing officer's recommendation on Iv if the

recommendation was not arbitrary, capricious. unlawful. or unsupported by substantial evidence.

       (b) If the commissioner reverses the decision of the board. he shall order that the

educational support personnel shall be reinstated in his/her same capacity until the educational

support personnel's employment is lawfu ll y terminated or until the educational support

personnel's capacity is lawfully changed. or he shall order that the district pay the educational

support personnel one year of front pay in lieu of reinstatement. In addition. the commissioner

sha ll order the district to pay the educational support personnel hack pay for the period of time

between the effective date of the termination of employment or change in capacity and the date

of reinstatement.
       ec) Either party may appeal the commissioner's decision to a district court in Travis

County.

       Section 13.608. PROBATION. (a) The board of trustees of any school district may

provide by written policy for a probationary period not to exceed the first year of continuous

employment in the district.

       (b) The provisions of thi s subchapter shall not apply to the termination of an educational

support personnel's employment during or at the end of such probationary period.              The
provisions of this subchapter shall apply to a change in the capacity of an educational supPOrt

personnel during or at the end of such probationary period.

       SECTION 3. Chapter 13 , Education Code, is amended by adding Subchapter I, to read as

follows:

                 SUBCHAPTER I. EMPLOYEE GRlEVANCE PROCEDURES

       Section 13 .701. GRIEVANCE PROCEDURES FOR LOCAL SCHOOL DlSTRlCTS.

Each public school district in Texas shall adopt a written board policy establishing a grievance

procedure for employees to present grievances concerning their wages. hours of work. or

conditions of work. The purpose of this grievance procedure is to secure prompt and equitable

resolution of employee grievances at the lowest possible level.

       Section 13.702. DISTRIBUTION OF GRIEVANCE PROCEDURE.                       (a) The school

district shall distribute a copy of the grievance procedure to every employee at the beginning of

every school year.

       (b) Any employee who makes any written grievance. comp laint. rebuttal, or any other

written statement contesting any school district action or inaction to any administrator or board

member shall immediately be given a copy of the grievance procedure.

       (c) No employee shall be required to meet any grievance filing deadline of wh ich helshe

does not have actual notice.

       Section 13.703. PRESENTMENT AND RESPONSE.                   (a) The gnevance procedure

shall provide for the presentment of the grievance at one or more administrative levels and to the

board of trustees.

       (b) The grievance procedure shall provide for reasonable deadlines for the presentment

of the grievance at each administrative level.

       (c) The grievance procedure shall provide for reasonable deadlines for a response in kind

at each administrative level.     The grievance shall be deemed denied at each level at the

expiration of such deadline if there has not been a timely response in kind, unless such deadline

has been extended in writing by mutual agreement.
       (d) The employee shall be given reasonable advance notice of his/her opportunity for

presentment to the board and of the board's consideration of the grievance.

       (e) The grievance procedure shall provide for reasonable presentment of the grievance to

the board of trustees by the employee of at least one-half hour. The grievance procedure shall

provide the employee an opportunity to present witnesses. documents. andlor argument in

support of hislher grievance during that time. In addition. the employee shall have the right to

cross-examine witnesses agai nst the grievance. and to respond to documents and argument

against the grievance. beyond that time.

       (0 The board sha ll respond to the grievance by either granting or denying each remedy

requested by the employee.

       Section 13.704. REPRESENTATION. The employee may be represented at every level
of the grievance procedure by a representative ofhislher choice.

       Section 13.705. GROUP GRIEVANCES.                Employees who are similarly situated may

present a group grievance. The names of the grieving employees may be stated in the grievance.

or the characteristics of the group may be described.

       Section 13.706. RET ALIA TJON PROHIBITED. No retaliatory action of any kind shall

be taken by the board. a board member. or any administrator against an employee because of
his/her participation in the grievance procedure as a grievant or otherwise.

       Section 13.707. EXCLUSIONS. The grievance procedure may exclude matters covered

by other board policies onl y i f those other policies meet the requirements of thi s subchapter,

including the provisions of Section 13.702.

       Section 13.708. DEFINITIONS. Ca) "Employee" means an individual employed by the

school district at the time of the action grieved. including an employee who gneves the

tennination ofhislher employment.

       (b) "Wages. hours of work. or conditions ofwark" means any aspect of the employment

relationship. including but not limited to assignment. reassignment. salary, wages. evaluations.
and discharge. but not including those matters to wh ich chapter 13. subchapter C. chapter 13.
subchapter H. and chapter 21. subchapter G of this code apply.
            SECTION 4. Subchapter G, Chapter 21, Education Code, is amended to read as follows:

                   SUBCHAPTER G. TEACHERS' EMPLOYMENT CONTRACTS

            Section 21.201. DEFINITIONS. As used in this subchapter, the follow ing tenns shall

have the meaning ascribed to them in this section:
                   (I) "Teacher" means a superintendent, principal, supervisor, classroom teacher.

counselor, or other full-time professional employee, except para-professional personnel, who is
required to hold a valid certificate or teaching permit.
                   (2) "Board" and "board of trustees" means the governing board of a public school
district.
                  (3) "School district" means any public school district in this state.
                  (4) "Term contract" means any contract of employment for a fixed term between
the school district and a teacher.
                  (5) "Same professional capacity" means a position. including supervision of
extracurricular activities. which is substantiall y equal        III   duties. responsibility. authority.
certification. endorsement. education. and remuneration.
                  (6) "Independent hearing officer" means an individual who shall conduct the
hearing.
            Section 21.202. TEACHER EVALUATIONS.              The board of trustees of each school

district shall provide by written policy for the periodic written evaluation of each teacher in its
employ at annual or more frequent intervals.           Such evaluation shall be considered by the
independent hearing officer and the board of trustees prior to any decision by the board not to
renew the term contract of any teacher. to terminate the term contract of any teacher during the

term of the contract. or to change the professional capacity of any teacher.
            Section 21.203. NONRENEWAL OR TERMINATION OF TERM CONTRACTS;

CHANGE OF PROFESSIONAL CAPACITY. (a) The board of trustees of each school district
may choose not to renew the employment of any teacher employed under a tenn contract

effective at the end of the contract period. to tenninate the tenn contract of any teacher during

the tenn of the contract, or to change the professional capacity of any teacher.

       (b) [The eeftfd of tfflstees of eaeh sohool elistriot sHall establisH   ~oli6ies   eOAsisteAt v,[ith

tHis subehapter WHiGH sHall establish reasons fer AOAreAewal.] A board of trustees may not

nonrenew the tern' contract of any teacher. terminate the term contract of any teacher during the

term of the contract. nor change the professional capacity of any teacher except for just cause.

[Reasons] Just cause for nonrenewaI [must] shall include the failure of a person required to take
an examination under Section 13 .047 of this code to perform satisfactorily on at least one

examination under that section [OA or before JUAe 3Q, 1986].

       (c) The board of trustees of each school district shall establish policies and procedures

for receiving recommendations from its school administration for the nonrenewal of teacher term

contracts, the termination of teacher term contracts during the term of the contract. and for the

change of teachers' professional capacity. excepting only the general superintendent of schools.

       Section 21.204. NOTICE.         (a) In the event the board of trustees receives a

recommendation from its administration for nonrenewal , the board, after consideration of the

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 preceding the end of the

employment term fixed in the contract.

       (b) 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

professional capacity [for the sueeeediRg s6Hooi year] until the teacher is lawfully discharged or

until the teacher's professional capacity is lawfully changed.

       (c) In the event the board of trustees receives a recommendation from its administration

for the termination of a teacher's term contract during the tenn of the contract. or for a change in

a teacher's professional capacity. the board. after consideration of the 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 action.

           [o]@ The notice of proposed [AoRreaewal] action required in this section shall contain a

statement of all the reasons for such proposed action.

           Section 21.205. HEARING. (a) If the teacher desires a hearing after receiving notice of

the proposed [noRreRewal] action, the teacher shall notify the board of trustees in writing within

10 days after receiving the notice [of RORfenewal. The board shall provide fer aJ The hearing

[tel shall be held [within 15] not less than forty-five days nor more than sixty days after

[receiving] the board receives written notice from the teacher requesting a hearing. unless the

teacher and the administration agree otherwise. Such hearing shall be closed unless an open

hearing is requested by the employee.
           (b) [The hearing shall be eondueted in aeeorCBfloo with rules poomulgated by the distfiet.

The hoard oftrl:lstees may designate a person to sePie as an impartial hearing offieer to develop a

reeord for eORsideratiofl by !:he boaFEl. The board shall make its deeision based on a review of
the record developed l:Iy the in:lpartial hearing officer and on oral argl:lment l:Iefere the hoard of

the teaeher or the taaoher's represefltative Bnd tho district's reprcseAtati,'e.] The hearing shall be

conducted by an independent hearing officer. The independent hearing officer shall be chosen

from a list of five individuals certified by the comm issioner of education. The State Board of

Education shall establish by rule the criteria for certification. The individuals certified by the

commissioner of education shall not be current or fonner agents. representatives. or employees

of any schoo l district. school employee organi zation. or school board organization. Both the

administration and the teacher shall have one opportunity each to reject the entire list. and to

receive another list of five individuals certified by the commissioner. Both the administration

and the teacher shall alternately strike two individua ls each from the list of five. beginning with

the administration. The individual remaining on the list shall serve as the independent hearing

officer.
        ec) The Texas Rules of Civil Procedure and the Texas Rules of Civil Evidence shall

apply to the hearing and prehearing process. The independent hearing officer shall have the

power to issue subpoenas for the attendance of witnesses and the production of documents at

depositions and the hearing, effective within the State of Texas. and to swear witnesses. The

hearing and any depositions shall be held within the geographi cal boundaries of the school

district. The hearing shall be reported by a certified court reporter.

       (d) At the heari ng. the administration shall have the burden of proof by a preponderance

of the evidence. The independent hearing officer shall make a written recommendation which

shall include fi nd ings of fac t and conclusions of law. The independent hearing officer's

recommendation shall be issued within twenty days of the cl ose of the hearing.

        Section 21.206. DECISION OF BOARD. <a) If the teacher fails to request a hearing,

the board shall take such action as it deems lawful and appropriate and shall notify the employee

in writing of that action within 15 days of the expiration of the 10-day period for requesting a

hearing.

       (b) If the teacher requests a hearing, the board shall take such action as it deems lawful

and appropriate and shall notify the teacher in writing of that action within 15 days following the

[eonelusion of the hearing] issuance of the independent hearing officer's recommendation. The

board shall make its decision based on a review of the record and the recommendation developed

by the independent hearing offi cer, and on oral argument before the board by the teacher or the

teacher's representative and the administration's representative. The board shall either accept or

reject the independent hearing officer's recommendation.                 The board may reiect the

recommendation only if it is arbitrary, capricious. unlawful or not supported by substantial

evidence.

        Section 21.207. APPEAL. <a) If the teacher is aggrieved by the decision of the board of

trustees, he may appeal to the State Commissioner of Education pursuant to Section 11 .13 of this

code. The commi ssioner shall not hold a hearing, but shall make his decision based on a review

of the record and the recommendation developed by the independent hearing officer.             The
commissioner     [m~   not substitute his judgment fur that of the 130ard of trustees, Hnless the
deeision below] may affirm a board's decision which rejected the independent hearing officer's

recommendation only if the recommendation was arbitrary, capricious, unlawful, or not

supported by substantial evidence. The commissioner may affirm a board's decision which

accepted the independent hearing officer's recommendation on ly if the recommendation was not

arbitrary. capricious. un lawful. or unsupported by substantial evidence.

        Cb) If the comm issioner reverses the decision of the board. he shaH order that the teacher

shall be reinstated in hislher same professional capacity until the teacher is lawfully discharged

or until the teacher's professional capacity is lawfully changed. or he shall order that the district
pay the teacher one year of front pay in lieu of reinstatement. In addition, the commissioner

shall order the district to Dav the teacher back pay for the period of time between the effective

date of the nonrenewal. termination. or change            In   professional capacity and the date of

reinstatement.
        [f91]!9 Either party may appeal the commissioner's decision to a district court in Travis
County.
        Section 21.208. SUPERINTENDENTS. If a majority of the board of trustees of any

school district shall detennine that the tenn contract of the general superintendent of schools

should be considered for nonrenewal, the provisions of this subchapter shall apply. except that

there need not be a recommendation from the designated school administration.

        Section 21.209. PROBATION.            <aJ The board of trustees of any school district may

provide by written policy for a probationary period not to exceed the first two years of

continuous employment in the district, except that the probationary period shall not exceed one

year for a person who has been employed as a teacher in public education for at least five of the

eight years prior to initial employment in the district. [The )3royisions of tRis sH13eRapter sRall

not apply dl:lfing sHeh )3follationary )3eriod.]

        (b) [A teaeaer dismissed fur good oal:lse from «=te scbool distriet in wRiek ilie tea6Rer was

f!'lOst recent ly employed   m~   agree by written eontraet to a )3ro13atioflary j3eriod fer tRe first two
years of eOAtiRl:IOl:lS empleyAleRt.] The provisions of this subchapter shall not apply to the

nonrenewal of a teacher's term contract during or at the end of such probationary period. The

provisions of this subchapter shall apply to the termination ofa teacher's term contract during the

term of the contract, and to a change in the professional capacity of a teacher. during or at the

end of such probationary period.
        [Soolio.21.21Q. DlSCHARGI> FOR CAUSH. NOlhi.g i. Ihis s.boheplor shen prohibil

a l30ard of tR:lstees :frOAl diseRargmg 8 teaeRer for oause during the teR'fl of tRe eORt:raet.

        [S.olio. 21.211] Section 21.210. EXEMPTIONS. This subchapter does not apply to

teachers who are employed under the provisions of the probationary or continuing contract law

as set out in Subchapter C of Chapter 13 of this code.

        SECTION 5. The importance of this legislation and the crowded condition of the

calendars in both houses create an emergency and an imperative public necessity that the

constitutional rule requiring bills to be read on three several days in each house be suspended,

and this rule is hereby suspended.
Crosby ISD’s Appendix

      TAB 11
                                ~ffite   of   t~e    attornep .enerlll
                                           6tate Df G:exu

DAN MORALES
 AT'fOIlNIY GDlU.AL
                                          June 4, 1991


      Honorable Ernestine V. Glossbrenner           Opinioo No.     DM- 27
      Cbairman
      Public Education Committee                    Re: Whether section 13.3S2(d) of the
      Texas House of Representatives                Texas Education Code authorizes a
      P. O. Box 2910                                principal of a public school to reject
      Austin, Texas 78768-2910                      leacbers wbo are transferred by the
                                                    school district, or voluntarily tran&fer, 10
                                                    his school; and whether the principal's
                                                    approval authority extends 10 all sebool
                                                    staff (RQ-39)



        Dear Ms. Glossbrenner:

            You bave requesled clarification of section 13.3S2(d) of the Texas
        Education Code, which provides the followiJJB:

        (d) EadI principal sball:

          (1) approve a11leacher and staff appoinbnents for thaI principal's campus from
        a pool of applicants selected by the district or of applicants wbo meel the hiring
        requirements establisbed by the district, based on crileria developed by Ibe
        principal after informal consultation with the faculty.

        You explain thaI school districts are divided about the interpretation of this
        provision. "Some districts believe it to mean the principal must approve only
        newly hired teachers and thaI the law does nol give the principal authority to
        reject (1) leachers wbo are tranSferred to his/her campus by the school district
        administration or (2) teachers wbom the district approves for volunlary transfer
        to his/her campus."      You also ask wbether the provision extends 10 tbe
        "assignment of all campus staff (including sucb positions as h'bnirian, counselor,
        nurse, custodian)" or whether il applies only 10 instructional stalf.




                                                p . 124
Honorable Ernestine V. Glossbrenner - Page 2             (DII-27)




       Section 13.352(d) was amended 10 its presenl form in 1990. A comparison
 of the pre- and post- amendmenl ..,rslons indicales thai the purpose of the
 amendmenl was 10 aWe principals more control over their campuses with a view
 10 grealer principal accountability for campus conditions and studenl
 achievement.      S« Glso Bill Analysis 8.8.1, 71st I.eI-, 6th C.S. (1990)
 "Accounlabillty and Incentive Elements" (Campus Performance Objectives);
 Senale Edue. Comm. Synopsis of S.D. 1, ACCOIIIftQ/)iIity Q1JIJ lru:enIive EkmenlS of
 SmIlIe BiI11 SMh CIIIJed Session (Principals) (1990) al 3; HOUSE REsEARCH
 ORGANIZATION, WRAP UP OF TIlE 1990 SPEOAL SEssIONS ON PUBUc
 EDUCATION, al 36-47 (July 31, 1990). Before amendment, section 13.352(d)
 merely authorized principals 10 "participale in the selection of leachers for thai
 principal's campus." Nothing in the Ianauaae of the statute suggests thai the
 principal's authority 10 approve the appointmenl of a teacher 10 his campus Is
 restricted to teachers newly bired by the district or thai the principal is bound by
 transfer decisions of the dislrict administration. Furthermore, the statute
 reoognires the principal's authority 10 make selection decisions based on crileria
 "developed by the principal after informal consultation with the faculty," i.e,
 criteria unique to the particular campus. The principal's authority 10 shape his
 campus through application of unique criteria would be diminished in
 derogation of section 13.352(d) if the school district could mandale the
 principal's a=ptance of transferred teachers. We therefore find that the
 approval authority granted by the provision extends 10 teachers transferrina
 within the district.

      We bell..., that the language and history of section 13.352(d) also answer
 your second question. Prior 10 the 1990 amendment, the principal's role in the
 selection process for his campus extended only 10 the selection of teachers. The
 provision now eslablishes the principal's authority over "all teacher and staff
 appointments." This is clear authority for the principal 10 exercise his discretion
 in selecting individuals 10 fill staff as well as instructional positions on his
 campus.

                                  SUMMARY

             Section 13.352(d) of the Texas EducatiOn Code grants authority to
 public school principals 10 approve all teacher and staff appointments on their




                                            p. 125
Honorable Ernestine V. Glossbrenner - Page 3         (DM-27)




 c:ampu5OS.   They are therefore not required to accept teache" approved for
 transfer to their campuses by the school district administration.




                                               DAN MORALES
                                               Attorney General of Texas

 WUJ..PRYOR
 First Assistant Attorney General

 MARYKEI1ER
 &ecutive Assistant Attorney General

 JUDGE ZOUlE STEAKLEY (Ret.)
 Special Assistant Attorney General

 RENEAIDCKS
 Special Assistant Attorney General

 Madeleine B. Johnson
 Chair, Opinion Committee

 Prepared by Faith Steinberg
 Assistant Attorney General




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