



Dodd v. Meno                                                        



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-92-231-CV



DORIS DODD, 

	APPELLANT

vs.



LIONEL R. MENO, STATE COMMISSIONER OF EDUCATION, AND
SUCCESSOR TO WILLIAM N. KIRBY, AND
WINK-LOVING INDEPENDENT SCHOOL DISTRICT,
 
	APPELLEES

 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 480,409, HONORABLE HUME COFER, JUDGE PRESIDING

 



PER CURIAM


	Appellant Doris Dodd petitioned the district court to review an order of appellee
State Commissioner of Education.  See Tex. Educ. Code Ann. § 21.207 (West 1987); Tex. Rev.
Civ. Stat. Ann. art. 6252-13a, § 19 (West Supp. 1993).  The order that Dodd contested upheld
the Wink-Loving Independent School District's decision not to renew her employment as a school
nurse.  From the trial court's judgment affirming the Commissioner's order, Dodd brings this
appeal.  We will affirm the judgment of the trial court.
	In her sole point of error, Dodd argues that the trial court erred in affirming the
Commissioner's determination that she did not qualify as a teacher under the Term Contract
Nonrenewal Act.  Tex. Educ. Code Ann. §§ 21.201-.211 (West 1987 & Supp. 1993).  The school
district employed Dodd as a full-time school nurse under a contract that expired at the end of the
1987-1988 school year.  On March 10, 1988, the board of trustees of the district voted not to
employ Dodd for the upcoming year.  The board notified Dodd of this decision by a letter dated
March 16th.  Although Dodd subsequently requested a hearing on her nonrenewal, the board did
not provide her one.
	The Term Contract Nonrenewal Act provides procedural safeguards to teachers and
superintendents who are employed under term contracts.  Salinas v. Central Educ. Agency, 706
S.W.2d 791, 794 (Tex. App.--Austin 1986, writ ref'd).  The act requires that these employees be
given notice and a hearing before the board of trustees decides not to renew their contracts.  Tex.
Educ. Code Ann. §§ 21.204, .205 (West 1987 & Supp. 1993).  By its own terms, however, the
act applies only to "teachers."  Tex. Educ. Code Ann. § 21.203 (West 1987).  Whether the Term
Contract Nonrenewal Act and its procedural protections govern Dodd's employment depends on
whether she met the Act's definition of a teacher.  Dodd claims that, as a school nurse, she
qualified as a teacher and was thereby entitled to notice and a hearing before the school district
decided not to renew her employment contract.    
	Judicial review of the Commissioner's order is under the substantial-evidence rule. 
Questions of statutory interpretation, however, are questions of law that are not entitled to a
presumption of validity.  Tex. Educ. Code. Ann. § 21.207 (West 1987); Tex. Rev. Civ. Stat.
Ann. art. 6252-13a, § 19(e) (West Supp. 1993); Brown v. Humble Oil & Refining Co., 83 S.W.2d
935, 943-44 (Tex. 1935); Hightower v. State Comm'r of Education, 778 S.W.2d 595, 597 (Tex.
App.--Austin 1989, no writ); Pension Bd. of the Police Officers Pension Sys. v.  Colson, 492
S.W.2d 307, 308-09 (Tex. Civ. App.--Beaumont 1973, writ ref'd n.r.e.).
	The act defines a "teacher" as "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."  Tex. Educ. Code Ann.
§ 21.201(1) (West 1987).  Dodd thus qualified as a teacher under § 21.201(1) if (1) she was a full-time professional employee of the type indicated, and (2) she was required to hold a valid
certificate or teaching permit.  
	 This Court has held that the phrase "other full-time professional employee" refers
to personnel whose jobs share the characteristics of the particular positions of superintendent,
principal, supervisor, classroom teacher, and counselor.   Hightower, 778 S.W.2d at 598; see
Gulf Ins. Co. v. James, 185 S.W.2d 966, 969 (Tex. 1945); Farmers' & Mechanics' Nat'l Bank
v. Hanks, 137 S.W. 1120, 1123-24 (Tex. 1911) (where general words follow specific words in
statutory enumeration, general words are construed to embrace only objects similar in nature to
those enumerated in specific words).  These particular positions are characterized by employees
who have direct and regular contact with students, who supervise employees who have such
contact, or who have control over student curriculum.  Hightower, 778 S.W.2d at 598.
	The goal of the school district's nurse, as provided in its job description, was to
help develop a comprehensive program of health services for the district; this program included
both providing direct health services to students and promoting health education for all students. 
Some of the nurse's specific duties were to provide health counseling and individualized nursing
care to students, to appraise students both as to aspects of their general health and for signs of
communicable disease, to assist teachers in developing and providing health education programs
for students, to teach students and staff first-aid skills and help schools develop emergency-care
systems, and to maintain health records on students.  This last duty included documenting
students' contacts with the nurse.  
	The district's superintendent stated in an affidavit included in the agency record that
Dodd's job duties did not include any teaching or supervision of the curriculum of certified
employees.  He stated that Dodd did not help teachers develop or provide health education for
students and that she did not promote health education while working as the school nurse.
	Rather than direct and regular contact with the students, the activities of the
district's nurse are better characterized as auxiliary to the work of those who do have regular,
direct contact.  Dodd's work was oriented toward providing a safe, healthy environment that
would enable the students and teachers to focus on learning.  Further, Dodd's duties did not
involve her control over student curriculum.  The evidence before the Commissioner reasonably
supports a determination that Dodd's job did not meet the requirements of a "full-time professional
employee" under § 21.201(1) of the Term Contract Nonrenewal Act.  
	To meet the second qualification of a teacher, Dodd's position had to require that
she possess a valid "certificate or teaching permit."  Tex. Educ. Code Ann. § 21.201(1) (West
1987).  Dodd argues that a "certificate" under § 21.201(1) includes her registration with the State
Board of Nurse Examiners. 
	We first note that the State Board of Education offers those who have registered
with the State Board of Nurse Examiners and completed certain courses the option of obtaining
a provisional school nurse certificate; a provisional certificate is a type of teaching certificate. 
19 Tex. Admin. Code §§ 141.2, .249 (1992).  The district did not require Dodd to hold a
provisional school nurse certificate, however, and Dodd had not applied for one.  
	The State Board of Education's rules also provide that a person who is registered
with the State Board of Nurse Examiners may work as a school nurse without a provisional
certificate.  19 Tex. Admin. Code § 141.249(c) (1992).  The district required its school nurse to
be registered with the State Board of Nurse Examiners, and Dodd held a certificate of re-registration from that board, valid through March 1989.  
	Dodd claims that because the State Board of Education effectively required her to
be registered with the State Board of Nurse Examiners, her nursing certificate was equivalent to
a teaching certificate.  This Court stated in Hightower, however, that the certificate required by
§ 21.201(1) is a teaching certificate.  778 S.W.2d at 598.  The Court supported this statement by
examining the Teachers' Professional Practices Act, Tex. Educ. Code Ann. §§ 13.201-.218 (West
1991 & Supp. 1993).  The definitions of teacher in § 13.202(1) and § 21.201(1) are almost
identical, including the requirement in both that a teacher hold a valid "certificate or teaching
permit."  Tex. Educ. Code Ann. § 13.202 (West 1991).  In § 13.211, teachers who violate the
code of ethics authorized by § 13.210 can be punished by suspension or revocation of the
"teaching certificate."  Because the definition of teacher in § 13.201(1) clearly refers to those with
teaching certificates, this Court concluded that the same definition of teacher in § 21.201(1) also
refers to those with teaching certificates.  Hightower, 778 S.W.2d at 598; see Montez v. South San
Antonio Indep. Sch. Dist., 817 F.2d 1124, 1126 (5th Cir. 1987).  
	We apply the reasoning in Hightower to this case to hold that the certificate
§ 21.201(1) requires is a teaching certificate.  Any requirement that Dodd hold a nursing
certificate to serve as a school nurse is insufficient to equate that certificate with a teaching
certificate. 
	Accordingly, we conclude that the Commissioner correctly determined that Dodd
was not a "teacher" within the meaning of § 21.201(1).  We overrule her point of error and affirm
the judgment of the trial court.

[Before Chief Justice Carroll, Justices Jones and Kidd]
Affirmed
Filed:  January 13, 1993
[Publish]
