 ,    I




Hon. J. W. Edgar                 Opinion No. M- 667
Commissioner of Educat.ion
201 East 11th Street             Re:   Authority of Texas Education
Austin, Texas                          Agency to consider damages as
                                       part of administrative appeal
                                       of a teacher discharged by a
Dear Dr. Edgar:                        local school district.
          By recent letter you have requested an opinion in
regard to the above stated, and we quote from your letter as
follows:
          "As reflected In the enclosed excerpt
     from Minutes of the meeting of the State Board
     of Education on June 6, 1970, the State Board
     has acted to submit to the Office of Attorney
     General the following questions, the answers
     to which will prove helpful In its review of
     an appeal now pending:
     1.   Does responsibility or authority exist In
          the Commissioner of Education or the State
          Board of Education in a proper appeal, where-
          in it is decided that a teacher was dismissed
          from teaching without just cause and without
          pay prior to termination of his contract, to
          determine and direct payable as an item of
          damages moving-expenses Incurred and claimed
          by the teacher In looking for and securing
          other employment?
     2.   Or, in computations relative to the deter-
          mination of loss of salary as damages and the
          mitigation thereof, may moving-expense be
          deducted from total salary earned by the
          teacher elsewhere from date of dismissal to
          expiration day of the teacher contracts there-
          by indirectly to allow moving-expense as an
          item of damages?"
          We answer "No" to both of your questions and will dis-
cuss them together.

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Hon. J. W. Edgar, Page 2     (M-667)


          The issues of unliquidated damages and penalties are
inherently judicial in nature. Foree v. Crown Central Petroleum
Corporation. 471 S.W.2d 712. 116 tTex.Sua. 19bX). This decision
ana   mfurther     hold that in the absence of-a-clear statute,
the courts are not ousted from their original primary jurisdiction
to determine these issues. Gregg v. Delhi-Taylor Oil Cor
Tex. 26, 344 S.W.Zd 411, 415 (1961); State v. Harrington,
                                                        +&$?W.,d
467, 474 (Tex.Sup, 1966, cert.den. 38b U S 944). Lacour v. Devers
Canal Co., 319 S.W.2d 951 (Tex.Ctv.App. i&g, e&or ref., n.r.e.);
Attorney General Opinion addressed to the State Board of Education,
dated July 16, 1930, holding that damages for breach of contract
could not be determined by the state agency under the statutory
powers of that agency but such was a question for a court to
determine.
          We do not find any statutes authorizing either local
school boards, the Commissioner of Education or the State Board
of Education to consider or award damages to a public school
teacher incidental to his teaching contract. The Texas Education
Code, Section 21.215 contains certain provisions relative to the
discharge of a teacher or the termination of his contract before
its expiration and also provides for appeal from the local board
of trustees to the Commissioner of Education and the State Board
of Education. Further provisions with reference to the powers
and duties of the Commissioner of Education and to such appeals
are provided in Sections 11-52 and 11.13 of this Code. We find
no authority in these Sect-fonanf this Code, nor in any other
star;ute,which vests In eltiherlocal ;chool boards or the Com-
missioner or the State Boaru ot'Educatfon any power to consider
or adjudicate damages of any kind incidental to any question
arising under a teacher's contract.
          Our research falls to disclose either statutory au-
thorization or case law prior to the effective date of the Texas
Education Code, September 1, 1969, which recognizes the power
of any of the above named school. agencies to award damages. Such
cases have restricted their consideration to the reinstatement of
teachers' contracts and the riah% of the teacher to receive the
compensation contracted for. &ckGount      1,S.D. v, Jackson, 152
S.W.2d 400 (Tex.Civ.App. 1941,???ror ref.); Gragg v. Hill, 58 S.W.2d
150 (Tex.Clv.App. 1933> error ref.); and StamrmCity
                                             ---"-2-.--        I.S.D,,
357 S.W.2d 618 (Tex.Civ.App. 1962, no wriK

          Clearly.>no jurisdictional power to pass upon non-liquidated
damages has been granted to either a local school board or to the
Commissioner of Education or the State Board of Education. The
principles discussed in the case of MSddleton,~v,Texas Power & Light
co., 108 Tex. 96, 185 S,W. 5,56 (1916aZ~opin.of CtTrpp* on certified

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                             189-
Hon. 3. W. Edgar, page 3          (~-667)


questions, 188 S.W. 276, aff. 249 U.S. 152), which concerned the
award of unllquidated damages fixed by the Legislature under the
Workmen's Compensation Act, support our holding.
                        SUMMARY
          Neither the Commissioner of Education nor the
     State Board of Education has the authority to de-
     termine the amount of unliquidated damages on an
     appeal by a teacher dismissed without cause by a
     school district.




                                            Qeneral of Texas
Prepared by Melvin E. Corley
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Dan Green
Jerry Roberts
James Mabry
Roger Tyler
FADE F. QRlFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant




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