                                                                                            ACCEPTED
                                                                                        03-15-00313-CV
                                                                                                6015790
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                  7/10/2015 11:56:19 AM
                                                                                      JEFFREY D. KYLE
                                                                                                 CLERK
                         CASE NO. 03-15-00313-CV
                     _______________________________
                                                                    FILED IN
                                                             3rd COURT OF APPEALS
                    IN THE COURT OF APPEALS                       AUSTIN, TEXAS
           FOR THE THIRD DISTRICT OF TEXAS AT               AUSTIN
                                                             7/10/2015 11:56:19 AM
                   _____________________________                 JEFFREY D. KYLE
                                                                      Clerk
                           HERMENIA JENKINS ,
                               Appellant
                                  v.

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

        Appealed from the 200th Judicial District of Travis County, Texas
                        Cause No. D-1-GN-14-000619
          Jenkins v. Crosby Indep. Sch. Dist. and Michael L. Williams
                The Honorable Amy Clark Meachum presiding
               _______________________________________

                          APPELLANT’S BRIEF
                  ____________________________________

Kevin F. Lungwitz        State Bar No. 12698790
Elizabeth Poole          State Bar No. 24051201
The Lungwitz Law Firm, P.C.
3005 S. Lamar Blvd.
Box D-109-362
Austin, Texas 78704-4785
P. 512.461.0188
F. 866.739.7138
Kevin@LungwitzLaw.com
Elizabeth@LungwitzLaw.com
Attorneys for Appellant Hermenia Jenkins



ORAL ARGUMENT REQUESTED                                      July 10, 2015
               I. IDENTITIES OF PARTIES AND ATTORNEYS


                                   Appellant/Plaintiff
                                    Hermenia Jenkins

Attorney in District Court and Court of Appeals:
Kevin Lungwitz
State Bar No. 12698790
Elizabeth Poole
State Bar No. 24051201
THE LUNGWITZ LAW FIRM, P.C.
3005 S. Lamar Blvd.
Box D-109-362
Austin TX 78704
Phone:      512.461.0188
Fax:        866.739.7138
Kevin@LungwitzLaw.com
Elizabeth@LungwitzLaw.com




                                Appellee/Defendant:
                          Crosby Independent School District

Attorneys in District Court and Court of Appeals:
David B. Hodgins
Rebecca R. Weimer
THOMPSON & HORTON, L.L.P.
3200 Southwest Freeway, Suite 2000
Houston TX 77027
Tel: 713.554.6745
Fax: 713.583.8245
DHodgins@thompsonhorton.com
RWeimer@thompsonhorton.com


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Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
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                              Appellee/Defendant:
                  Michael L. Williams, Commissioner of Education

Attorneys in District Court and Court of Appeals:
Andrew Lutostanski
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
Administrative Law Division
Andrew.Lutostanski@texasattorneygeneral.com

Ken Paxton/Greg Abbott, Attorney General of Texas
Charles E. Roy/Daniel T. Hodge, First Assistant Attorney General of Texas
James E. Davis/David C. Mattax, Dep. Attorney General for Defense Litigation
David A. Talbot, Jr., Chief - Administrative Law Division

P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4200
Facsimile: (512) 457-4680




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                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND ATTORNEYS ......................................................... 2
TABLE OF CONTENTS ............................................................................................ 4
TABLE OF APPENDICES ........................................................................................ 5
INDEX OF AUTHORITIES ...................................................................................... 6
STATEMENT OF THE CASE .................................................................................. 8
STATEMENT REGARDING ORAL ARGUMENT ................................................ 8
STANDARD OF REVIEW ........................................................................................ 9
ISSUES PRESENTED ............................................................................................... 10
STATEMENT OF FACTS .......................................................................................... 11
SUMMARY OF THE ARGUMENT .......................................................................... 12
ARGUMENT .............................................................................................................. 14

1.       Texas law requires a principal to be employed in the “same professional
         capacity” from year to year, unless the school board nonrenews her
         contract. Here, Jenkins was employed as principal for eight years, then
         involuntarily reassigned to assistant principal without receiving the quasi-
         due-process protections of the contract nonrenewal process. Is principal
         in the “same professional capacity” as assistant principal? .............................. 14

         A.       Texas Education Code §21.201(1) defines “professional capacity”
                  in §21.206. ............................................................................................. 14

         B.       A principal’s job is not comparable to an assistant principal’s job. ...... 20

2.       School districts must employ each educator under a contract with a
         legitimate professional capacity. Jenkins was a principal, but her contract
         says she was an “Employee” which is not a legitimate professional
         capacity. The commissioner found that Jenkins was an “administrator,” a
         term not found in her contract or defined in law, but broad enough to
         encompass her reassignment from principal to assistant principal. Did the
         commissioner correctly interpret the contract? ................................................ 24

CONCLUSION ........................................................................................................... 29
PRAYER .................................................................................................................... 30
CERTIFICATE OF COMPLIANCE ......................................................................... 31
CERTIFICATE OF SERVICE ................................................................................... 32

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                              TABLE OF APPENDICES

  1. Jenkins v. Crosby Indep. Sch. Dist.,
     Docket No. 043-R10-1211 (Tex. Comm’r Educ. 2013)

  2. Final Judgment - Jenkins v. Crosby Indep. Sch. Dist., No. D-1-GN-14-
     000619 (200th Dist. Ct., Travis County, Tex. Feb. 26, 2015)

  3. Texas Education Code Chapter 21, Subchapter E §§21.201-21.213

  4. Texas Education Code §11.201 and §11.202

  5. Jenkins’ Employment Contract 2011-2013

  6. Barich v. San Felipe-Del Rio Cons. Indep. Sch. Dist.,
     Docket No. 117-R1a-484 (Tex. Comm’r Educ. 1985)

  7. Perales v. Robstown Indep. Sch. Dist.,
     Docket Nos. 053-R10-104; 084-R3-604 (Tex. Comm’r Educ. 2006)

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

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

  10. Young v. Leggett Indep. Sch. Dist.,
      Docket No. 175-R3-898 (Tex. Comm’r Educ. 1998)

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

  12. Tuck v. Alief Indep. Sch. Dist.,
      Docket No. 008-R10-1007 (Tex. Comm’r Educ. 2012)

  13. Chart of reassignment decisions from the commissioner (From the
      commissioner’s brief filed in Travis County District Court.)


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                                    INDEX OF AUTHORITIES

Texas Cases:

       Evergreen Nat. Indem. Com. v. Tan It All, Inc., 111 S.W. 3d 669
             (Tex. App. - Austin 2003, no pet.) ...................................................... 28
       Kelley-Coppedge, Inc. v. Highlands Ins. Co.,
             980 S.W.2d 462 (Tex. 1998) ............................................................... 28
       Montgomery Independent School District v. Davis, 34 S.W.3d 559, 566
             (Tex. 2000) ............................................................................................ 9
       Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443
             (Tex. App. – Austin 2011, no pet.) ....................................................... 9

Commissioner’s Decisions:

       Barich v. San Felipe-Del Rio Cons. Indep. Sch. Dist.,
             Docket No. 117-R1a-484 (Tex. Comm’r Educ. 1985) ..... 16, 17, 19, 20
       Carpenter v. Wichita Falls Indep. Sch. Dist.,
             Docket No. 247-R3-491 (Tex. Comm’r Educ. 1993) ................... 16, 26
       Jenkins v. Crosby Indep. Sch. Dist.,
             Docket No. 043-R10-1211 (Tex. Comm’r Educ. 2013) ........... 8, 18, 24
       Lehr v. Ector County Indep. Sch. Dist.,
             Docket No. 003-R3-0908, p. 13 (Tex. Comm’r Educ. 2011) ....... 15, 19
       Martinez v. San Antonio Indep. Sch. Dist.,
             Docket No. 219-R3-589 (Tex. Comm’r Educ. 1989) ........................ 17
       Perales v. Robstown Indep. Sch. Dist.,
             Docket No. 053-R10-104; 084-R3-604 (Tex. Comm’r Educ. 2006)..16
       Ramos v. El Paso Indep. Sch. Dist.,
             Docket No. 002-R10-900 (Tex. Comm’r Educ. 2002) ...................... 17
       Tuck v. Alief Indep. Sch. Dist.,
             Docket No. 008-R10-1007 (Tex. Comm’r Educ. 2012)
             ..................................................................................... 15, 19, 20, 25, 28
       Wheeler v. Austin Indep. Sch. Dist.,
             Docket No. 008-R3-1108 (Tex. Comm’r Educ. 2011) ........... 18, 25, 28
       Young v. Leggett Indep. Sch. Dist.,
             Docket No. 175-R3-898 (Tex. Comm’r Educ. 1998) ........................ 25



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Texas Statutes and Administrative Code:

       Texas Education Code §7.057(d) ................................................................... 9
       Texas Education Code §11.201 and 11.202 .................................................. 21
       Texas Education Code §11.253..................................................................... 21
       Texas Education Code §11.253(h) ................................................................ 22
       Texas Education Code Chapter 21 ................................................................ 14
       Texas Education Code §21.002..................................................................... 27
       Texas Education Code §21.201................................................... 12, 13, 16, 26
       Texas Education Code §21.201(1) ...................... 12, 14, 15, 16, 18, 19, 20, 29
       Texas Education Code §21.206....................................... 12, 14, 15, 16, 19, 20
       Texas Education Code §21.206(b) .................................................... 14, 15, 18
       Texas Education Code §21.210(c) ................................................................ 16
       Texas Education Code §21.212..................................................................... 15
       Texas Education Code §21.212(b) ................................................................ 15
       Texas Education Code §21.354..................................................................... 23
       Texas Education Code §21.3541................................................................... 23
       Texas Education Code §21.357..................................................................... 22
       Texas Education Code §39.107(b) ................................................................ 22
       Texas Govt. Code §2001.174 .......................................................................... 9
       Texas Govt. Code Chapter 2001, subchapters F and G .................................. 8
       19 Texas Admin Code Chapters 241 and 242 ............................................... 23
       19 Texas Admin Code §232.2(b) .................................................................. 23




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                            STATEMENT OF THE CASE

   Nature of the           This is a public educator employment and contract case.
   case                    The case is procedurally governed by Texas Education
                           Code §7.057(d), which gives this court jurisdiction; and
                           Texas Government Code Chapter 2001, subchapters F
                           and G.
                           Jenkins pursued an employment grievance. (R. 287-289;
                           R. 327-336) The Crosby ISD school board denied the
                           grievance on October 24, 2011. (R. 324)
   The                     Jenkins timely appealed to the Commissioner of
   Commissioner            Education who affirmed the school board on December
   of Education            19, 2013. Jenkins v. Crosby Indep. Sch. Dist., Docket
                           No. 043-R10-1211 (Tex. Comm’r Educ. 2013) (Appx.
                           1, R. 5-30).
   Trial Court             Jenkins timely appealed the Commissioner’s Decision to
   Judge, district,        the 200th Judicial District Court of Travis County,
   county and              Texas. Jenkins v. Crosby Indep. Sch. Dist. and Michael
   disposition             L. Williams, Cause No. D-1-GN-14-000619.

                           On February 26, 2015, the Honorable Amy Clark
                           Meachum signed the Final Judgment affirming the
                           Commissioner’s Decision. (Appx. 3) Jenkins timely
                           filed a motion for new trial on March 23, 2015, which
                           was overruled by operation of law.
   Third Court of          Jenkins filed a Notice of Appeal on May 22, 2015.
   Appeals

               STATEMENT REGARDING ORAL ARGUMENT

       Oral argument would aid in the Court’s decision on the novel issues

presented. The likely presence of amici curiae indicates a broad interest in the

issues among affected members of the school law community. All of the attorneys


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in this case have experience in the narrow field of school law, providing the Court

the opportunity to inquire about matters that the briefs may not fully resolve.

                              STANDARD OF REVIEW

       This Court has jurisdiction pursuant to §7.057(d) of the Texas Education

Code. Judicial review of the commissioner’s decision is governed by a substantial

evidence review, as set forth in §2001.174 of the Texas Administrative Procedure

Act. Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443 (Tex. App. – Austin

2011, no pet.). Under the substantial evidence rule, this Court reviews issues of

law de novo. Tex. Gov. Code §2001.174. This appeal involves pure issues of law.

       This Court must confine its review to the record of the proceedings before

the commissioner. In reviewing the commissioner's decision, this Court must

determine whether there is "more than a mere scintilla" of evidence to support the

commissioner's decision. Whether the commissioner's decision meets that standard

is a question of law. Montgomery Independent School District v. Davis, 34 S.W.3d

559, 566 (Tex. 2000).

       Substantial evidence does not exist to support the commissioner’s decision

and the commissioner’s conclusions of law are in violation of statute, in excess of

the agency’s statutory authority, or are otherwise erroneous. Tex. Gov. Code

§2001.174.


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                                 ISSUES PRESENTED

1.     Texas law requires a principal to be employed in the “same

       professional capacity” from year to year, unless the school board

       nonrenews her contract. Here, Jenkins was employed as principal for

       eight years, then she was involuntarily reassigned to assistant

       principal without receiving the quasi-due-process protections of the

       contract nonrenewal process. Is principal in the “same professional

       capacity” as assistant principal?

2.     School districts must employ each educator under a contract with a

       legitimate professional capacity. Jenkins was a principal, but her

       contract says she was an “Employee” which is not a legitimate

       professional capacity. The commissioner found that Jenkins was an

       “administrator,” a term not found in her contract or defined in law, but

       broad enough to encompass her reassignment from principal to

       assistant principal.     Did the commissioner correctly interpret the

       contract?




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                              STATEMENT OF FACTS1

     Jenkins served as campus principal of Charles R. Drew Intermediate School

from 2003 through June 2011. (R. 258, grievance transcript) She was employed

by Defendant Crosby Independent School District (CISD) under a term contract for

the school years 2011 - 2013, which she signed on March 2, 2011. (Appx. 5; R.

294 ex. 4) The contract is silent regarding her job placement or employment

classification. (e.g. principal, teacher, administrator, counselor, etc.) The contract

merely refers to Jenkins as “Employee.” (Appx. 5)

     The superintendent informed her by memo dated June 28, 2011 that he was

reassigning Jenkins from campus principal of Charles R. Drew Intermediate to

assistant principal at Crosby High School for the 2011-12 school year.                    No

performance reason was given for the reassignment. (R. 291) At the time, Jenkins

had worked in CISD for 16 years, the previous eight years as principal.

     Jenkins objected to the reassignment by pursuing an employment grievance

under school board policy DGBA. The school board denied the grievance. (R.

287-322; R. 324) Policy DGBA does not provide for a due process hearing; only a

“stop, look and listen” hearing. (R. 327)




1
  “R.” stands for administrative record, and is followed by the administrative record page
number. The administrative record is part of the reporter’s record.
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                         SUMMARY OF THE ARGUMENT

     THE FIRST ISSUE: Principal and assistant principal are not in the “same

professional capacity” in Texas Education Code §21.206. Texas Education Code

§21.201(1) defines “teacher” as “superintendent, principal, supervisor, classroom

teacher, counselor, or other full-time professional employee who is required to

hold a certificate …, or a nurse.” (Appx. 3, emphasis added) Applying the law to

the facts, §21.206 requires that Jenkins - a principal - be employed in the “same

professional capacity” from year to year, unless the school board invokes the

statutory, contract nonrenewal process. (Appx. 3) Jenkins lost her job as principal

without receiving the protections of the quasi-due-process contract nonrenewal

process because CISD and the commissioner erroneously construed principal and

assistant principal to be in the same professional capacity.

     For years the commissioner has opined that the positions listed in §21.201,

including superintendent, classroom teacher, counselor, librarian and nurse are all

distinct professional capacities - except for principal.

     Instead of looking to the list of professional capacities in §21.201 to decide

this case, the commissioner first looked to the job title in the contract. Here, the

contract was too vague to determine professional capacity, so the commissioner

purportedly reviewed the authority, duties and salaries of the positions before and

after the reassignment to determine whether they fell within the same professional
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capacity.   Even by this standard, it is clear that principal is not in the same

professional capacity as assistant principal. By law, a principal is the sole, campus

instructional leader and state law largely defines the authority and duties.

Conversely, state law does not define what an assistant principal does.                   An

assistant principal serves at the pleasure of the principal, subject to a local job

description.    Also, the job descriptions in this case prove that principal and

assistant principal are not in the same professional capacity.

     THE SECOND ISSUE: A school district must employ each educator under a

contract with a legitimate professional capacity.               Though Jenkins had been

employed as principal for the preceding eight years, Jenkins’ contract with CISD

said she was a generic “employee,” which the commissioner has said is not a

legitimate professional capacity. To resolve this contractual ambiguity, the

commissioner erroneously held that Jenkins was an “administrator,” another

generic term broad enough to encompass her reassignment to assistant principal.

But “administrator” does not appear anywhere in Jenkins’ contract or in §21.201,

and it is not defined in relevant state law. Since the contract did not state a

legitimate professional capacity, the commissioner should have construed it

narrowly against the author, CISD, as a contract for the position of “principal,”

thereby invalidating Jenkins’ reassignment to assistant principal.


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                                      ARGUMENT

       1. Texas law requires a principal to be employed in the “same
          professional capacity” from year to year, unless the school
          board nonrenews her contract. Here, Jenkins was employed as
          principal for eight years, then involuntarily reassigned to
          assistant principal without receiving the quasi-due-process
          protections of the contract nonrenewal process. Is principal in
          the “same professional capacity” as assistant principal?

          A.    TEXAS EDUCATION CODE §21.201(1) DEFINES
                “PROFESSIONAL CAPACITY” IN §21.206.

       Chapter 21 of the Texas Education Code governs the contractual relationship

between the professional, certified employee and the school district.                 Texas

Education Code §21.201(1) defines teacher as:

       A superintendent, principal, supervisor, classroom teacher, counselor,
       or other full-time professional employee who is required to hold a
       certificate issued under Subchapter B, or a nurse.

       (Appx. 3, emphasis added)

One of the greatest statutory protections teachers have is the right to be employed

from year to year, under contract, in the same professional capacity unless the

school district invokes the statutory, contract nonrenewal process.                   Texas

Education Code §21.206(b) states, “The board’s failure to give [timely, written

notice of proposed, contract nonrenewal] … constitutes an election to employ the

teacher in the same professional capacity for the following school year.”

(Brackets and emphases added) (Appx. 3) The commissioner has described this
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passage in §21.206 as “a central plank” in an educator’s statutory contract rights.

Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007, p. 5 (Tex. Comm’r

Educ. 2012) (Appx. 12).

     Since the term “teacher” specifically includes principal, as applied in this case

§21.206(b) says, “The board’s failure to give [statutory written notice of proposed,

contract nonrenewal] … constitutes an election to employ the principal in the same

professional capacity for the following school year.” (Brackets and emphases

added; “principal” substituted for “teacher”) (Appx. 3) Principal is one of several

“professional capacities” specifically identified in §21.201(1).2

     If a school board seeks to nonrenew a principal’s contract at the end of the

school year, the statutory nonrenewal process in §21.206 requires the board to give

a principal timely written notice and reasons for the proposed nonrenewal, and an

opportunity for a formal hearing to challenge the reasons. At the hearing, the

principal has the right to be represented, to hear the evidence against her, to cross-

examine adverse witnesses, and to present supporting evidence. Tex. Educ. Code



2
 Superintendents are not included in the definition of “teacher” in §21.206. Superintendents are
protected by §21.212, the only other place in the Education Code where the term “same
professional capacity” is used. While the contract nonrenewal procedures for superintendents
are slightly different than for principals, supervisors, classroom teachers, and counselors,
§21.212(b) still requires a school board to “employ the superintendent in the same professional
capacity for the following school year” if the board fails to timely invoke the contract
nonrenewal process. (Appx. 3) It is undisputed that superintendent is a “professional capacity”
and that a school board cannot reassign a superintendent without following the contract
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§21.210 (c). These protections are best described as due process or “quasi-due-

process” protections.3 Here, Jenkins lost her principal job without ever receiving

these protections. She was only allowed to pursue a grievance with a “stop, look,

and listen” review by the school board. (R. 327; 287-289)

      There are no reported Texas court cases on whether §21.201 defines some or

all of the “professional capacities” referred to in §21.206.4 Barich v. San Felipe-

Del Rio Cons. Indep. Sch. Dist., Tex. Educ. Agency Docket No. 117-R1a-484

(Tex. Comm’r Educ. 1985) (Appx. 6), is the commissioner’s watershed decision on

reassignments. In Barich, the issue was whether an ROTC instructor had to be

reassigned to the same ROTC position (for which he may not have been properly

certified by the U.S. Air Force), or another teaching position for which he was

certified by the Texas Education Agency. The commissioner explained that the


nonrenewal process. Lehr v. Ector County Indep. Sch. Dist., Tex. Educ. Agency Docket No.
003-R3-0908, p. 12 (Tex. Comm’r Educ. 2011) (Appx. 9)
3
  While these protections include the traditional components of due process, the legislature has
declared that, “A teacher does not have a property interest in a contract beyond its term.” Tex.
Educ. Code §21.204 (e). Whether this declaration formally undercuts a claim to due process in
light of these traditional due process rights, is beyond the scope of this case. Suffice it to say that
the contract nonrenewal protections are at the very least “quasi-due-process” in nature.
4
  The commissioner has confronted this argument before. Perales v. Robstown Indep. Sch. Dist.,
Docket Nos. 053-R10-104; 084-R3-604 (Tex. Comm’r Educ. 2006) (Appx. 7) “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).” Carpenter v.
Wichita Falls Indep. Sch. Dist., Docket No. 247-R3-491 (Tex. Comm’r Educ. 1993) (Appx. 8)
“Appellant would have the commissioner … hold that the phrase "same professional capacity"
… is … defined … by the definition of "teacher" found in §21.201(1) of that Act. … [T]his
phrase is … undefined … and … is a matter for interpretation by the commissioner, in the first
instance, and by the courts.”
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legislature used the phrase “same professional capacity” rather than “exact same

position,” thereby giving districts flexibility in personnel assignments “while

discouraging the abuse of the district’s inherent or contractual reassignment

authority.” Barich, pp. 7-8 (Appx. 6)

       Jenkins agrees that an employee is not entitled to the exact same position

from year to year. “Same professional capacity” lies somewhere between, on the

one hand, the “exact same position,” and on the other hand, the school district’s

unfettered authority to reassign employees. The elementary principal of Campus A

may be reassigned as elementary principal of Campus B as in Martinez v. San

Antonio Indep. Sch. Dist., Tex. Educ. Agency Docket No. 219-R3-589 (Tex.

Comm’r Educ. 1989) (Appx. 8). A high school principal may be reassigned as an

elementary school principal as in Ramos v. El Paso Indep. Sch. Dist., Tex. Educ.

Agency Docket No. 002-R10-900 (Tex. Comm’r Educ. 2002) (Appx. 9).

However, since principal is its own professional capacity, CISD cannot reassign

Jenkins from principal to assistant principal without giving her the protections of

the contract nonrenewal process.

       The commissioner recently described the competing interests that exist in

reassignments:

       T h e district is given some flexibility to reassign employees in order
       to manage staff to cover school needs, while employees are assured of
       due process to protect against decisions that effectively demote them or
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       fundamentally alter their existing contractual relationships with and
       duties to the employing district.

Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3-1108, p. 3 (Tex. Comm’r

Educ. 2011) (Appx. 11). Though the commissioner speaks as if he tries to balance

the different interests, the scales are always tipped against administrators. For 30

years prior to this case, the commissioner has never rejected a reassignment from

one administrator position to another.           (Appx. 13)      Jenkins was effectively

demoted from the unique position of campus principal to one of several assistant

principals at a different campus, fundamentally altering her contractual relationship

with the district, without any quasi-due-process protection that the commissioner

promised to protect.

       The commissioner opined in this case, “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).”

Jenkins v. Crosby Indep. Sch. Dist., Tex. Educ. Agency Docket No. 043-R10-1211

(Tex. Comm’r Educ. 2013) (Appx. 1, p. 24 emphasis added). This indecisiveness

is an acknowledgement by the commissioner that he has recognized as professional

capacities many of the positions listed in §21.201(1), but not principal.

       An administrator … 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.
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Barich, p. 8 (Appx. 6); See Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-

1007, p. 6 (Tex. Comm’r Educ. 2012) (Appx. 12). Thus, the commissioner has

conceded that §21.201(1) defines “professional capacity” as to superintendent,

classroom teacher, counselor, nurse, and librarian.5                    However, without any

rationale, the commissioner has failed to include principal in that group, even

though it is also specifically identified in §21.201(1).

       Defendants will argue that superintendents have statutory authority to

reassign staff and that the employment contract also grants reassignment authority.

There is a kernel of truth to that, but “same professional capacity” in §21.206 has

always tempered the school district’s authority to reassign professional staff.

Section §21.206 also trumps any contract language that says an employee may be

reassigned. This is the tension that the commissioner accurately described in

Barich that exists between “exact same position” and the district’s “abuse” of its

right to reassign. The commissioner said it best:

       It would be odd for districts to believe just because contracts referred
       to employees as ‘professional employees’ that they could reassign
       such employees to any other professional position. If that were the
       case, superintendents could be reassigned as librarians and school
       nurses.



5
 Superintendents may not be reassigned out of their professional capacity. Lehr v. Ector County Indep.
Sch. Dist., Docket No. 003-R3-0908, p. 13 (Tex. Comm’r Educ. 2011) (Appx. 9)
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 19
Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007, p. 11 (Tex. Comm’r

Educ. 2012) (Appx. 12). If this Court finds that principal is its own professional

capacity like superintendent, classroom teacher, counselor, librarian and nurse,

Jenkins can still be reassigned to another campus as principal. Jenkins could agree

to a reassignment to another professional capacity. But the district could not

involuntarily reassign her to a position other than principal without giving her the

quasi-due-process protections of the contract nonrenewal process. Employing a

principal as an “employee,” then claiming an unchecked right to reassign her, is an

“abuse of the district’s inherent or contractual reassignment authority,” the very

thing the commissioner promised to guard against in Barich. Barich, pp. 7-8

(Appx. 6).

       B.     A PRINCIPAL’S JOB IS NOT COMPARABLE TO AN
              ASSISTANT PRINCIPAL’S JOB

       Assuming arguendo that §21.201(1) does not define “professional capacity”

in §21.206, principal and assistant principal are still not in the same professional

capacity.    The commissioner has stated that he will review “differences in

authority, duties, and salary” to determine if two jobs are in the same professional

capacity. Barich p. 8. (Appx. 6.) He has declared that the test is “fact-intensive.”

Tuck v. Alief Indep. Sch. Dist., Docket No. 008-R10-1007, p. 11 (Tex. Comm’r

Educ. 2012) (Appx. 12). But, once the employee is declared to be an

_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 20
“administrator,” the commissioner’s test has proven to be a legal fiction. No

matter how different the authority, duties and salary, the result for administrators

is always the same:         The commissioner has approved all administrator-to-

administrator reassignments for the last 30 years. (Appx. 13)

       An objective comparison of the authority and duties between principal and

assistant principal prove that the positions are fundamentally different and are not

in the same professional capacity. Like a superintendent, and unlike any other

position in the public schools, a principal receives her authority and duties directly

from state law. Tex. Educ. Code §§11.201, 11.202 (Appx. 4). A school district or

superintendent may not alter the authority granted to a principal under state law.

Pursuant to Texas Education Code §11.202 the principal has these powers:

       a.     The principal of a school is the instructional leader of the
              school and shall be provided with adequate training and
              personnel assistance to assume that role.

       b.     Each principal shall:

              1.     Except as provided by Subsection (d), approve all teacher
                     and staff appointments for that principal's campus from a
                     pool of applicants selected by the district or of applicants
                     who meet the hiring requirements established by the
                     district, based on criteria developed by the principal after
                     informal consultation with the faculty;
              2.     Set specific education objectives for the principal's
                     campus, through the planning process under Section
                     11.253;
              3.     Develop budgets for the principal's campus;

_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
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              4.     Assume      the    administrative      responsibility and
                     instructional leadership, under the supervision of the
                     superintendent, for discipline at the campus;
              5.     Assign, evaluate, and promote personnel assigned to the
                     campus;
              6.     Recommend to the superintendent the termination or
                     suspension of an employee assigned to the campus or the
                     nonrenewal of the term contract of an employee assigned
                     to the campus; and
              7.     Perform other duties assigned by the superintendent
                     pursuant to the policy of the board of trustees.

       c.     The board of trustees of a school district shall adopt a policy for
              the selection of a campus principal that includes qualifications
              required for that position.

       d.     The superintendent … has final placement authority for a
              teacher transferred because of enrollment shifts or program
              changes …

     A principal shall regularly consult a committee of community stakeholders in

the “planning, operation, supervision, and evaluation of the campus educational

program.” Tex. Educ. Code §11.253(h). That a principal is granted authority

directly from state law portends that the state also holds her accountable for the

success or failure of the campus. A principal may not be retained at a campus

deemed “unacceptable” for two years unless by permission of a statutory campus

intervention team. Tex. Educ. Code §39.107(b). Conversely, a principal may

receive a financial performance incentive for success. Tex. Educ. Code §21.357.

     State law requires specific guidelines for the appraisals of principals that are

distinct from the appraisals of other administrators, including assistant principals.
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
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Tex. Educ. Code §21.354 and Tex. Educ. Code §21.3541.

     There are only two categories of administrator certificates in Texas:

superintendent and principal. Title 19 Tex. Admin. Code Chap. 241 and 242.6

Not only does state law enunciate a principal’s legal duties and authority, state

regulation makes it clear that, like superintendents, principals are one-of-a-kind.7

     A principal is a community figure and the spokesperson for the school. When

a campus principal is removed or demoted, it makes the news, even in large cities.

     In contrast, an assistant principal’s authority and duties come from the

principal or other supervisors. There is no state law defining the authority and

duties of an assistant principal. Whereas the principal is the chief instructional

leader of the campus, an assistant principal serves at the pleasure of the principal

and a local job description. Whereas a principal’s statutory duties may not be

altered by the school district, an assistant principal’s duties may be altered at any

time by her supervisors. Here, the CISD’s job description vaguely says that the

assistant principal shall:

       Provide students with appropriate learning activities and experience
       designed to fulfill their potential for intellectual, emotional, physical

6
   19 Tex. Admin. Code §232.2(b): Classes of certificates include the following: 1.
Superintendent; 2. Principal; 3. Classroom teacher; 4. Instructional educator other than classroom
teacher, including reading specialist; 5. Master teacher; 6. School librarian; 7. School counselor;
8. Educational diagnostician; and 9. Educational aide.
7
  According to the commissioner, a superintendent is “sui generis,” or one-of-a-kind, and may
not be reassigned. Lehr v. Ector County Indep. Sch. Dist., Docket No. 003-R3-0908, p. 13 (Tex.
Comm’r Educ. 2011) (Appx. 9)
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 23
       and social growth.

(R. 293) There is no comparison between the statutory authority and duties of

Jenkins as principal, and the authority and duties delineated in her assistant

principal job description.

     The commissioner erroneously stated, “The local record does not indicate

with specificity what [Jenkins’] duties as assistant principal at Crosby High School

are.” Jenkins v. Crosby Indep. Sch. Dist., Tex. Educ. Agency Docket No. 043-

R10-1211 (Tex. Comm’r Educ. 2013) (Appx. 1, p. 2, finding of fact #4.). Had the

commissioner compared Jenkins’ statutory duties as principal with the actual job

description of assistant principal in the record (R. 293), he would have had no

option but to declare them as wholly different professional capacities.

       2. School districts must employ each educator under a contract
          with a legitimate professional capacity. Jenkins was a principal,
          but her contract says she was an “Employee” which is not a
          legitimate professional capacity. The commissioner found that
          Jenkins was an “administrator,” a term not found in her
          contract or defined in law, but broad enough to encompass her
          reassignment from principal to assistant principal. Did the
          commissioner correctly interpret the contract?

       This issue is more fact-specific than the first.           The commissioner has

approached reassignment cases by first looking to the job title stated in the

contract.    The commissioner asks: “Is the contractual job title a legitimate

professional capacity? Are both jobs encompassed by the contractual job title?” If

_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 24
yes to both questions, then the two positions are probably within the same

professional capacity. Young v. Leggett Indep. Sch. Dist., Docket No. 175-R3-898

(Tex. Comm’r Educ. 1998) (Appx. 10)

       What if the contract does not state a legitimate professional capacity and the

answer to the first question is “no”? That is the case here. Jenkins was employed

under a contract with Crosby ISD as an “employee.”                      According to the

commissioner in two recent cases, “professional employee” is not a legitimate

professional capacity. Wheeler v. Austin Indep. Sch. Dist., Docket No. 008-R3-

1108 (Tex. Comm’r Educ. 2011) (Appx. 11). Tuck v. Alief Indep. Sch. Dist.,

Docket No. 008-R10-1007, p. 11 (Tex. Comm’r Educ. 2012) (Appx. 12). The

commissioner has described “professional employee” as “broad,” “undefined,” and

“of little assistance in determining [the employee’s] professional capacity;”

“vague” and “overbroad” (Wheeler, pp. 5-6); “broad” and “improper” (Tuck, pp.

7-8); and “not a legitimate professional capacity.” (Wheeler, p. 5; Tuck p. 7)

       Here the commissioner ignored the fact that Jenkins was employed as an

ambiguous “employee.” There is no way to discern from reading the contract what

Jenkins’ position was, therefore, the contractual job title should be replaced with

Jenkins’ actual position. In this case, the contractual job title, “employee,” should

have been replaced with “principal,” the job Jenkins had held for the previous eight

years when she signed the contract. Without any legal reasoning, the commissioner
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 25
found, sua sponte, that Jenkins’ professional capacity under the contract was

“administrator,” thus repairing the illegitimate contract term to the benefit of the

school district.

       “Administrator” is not a term found in §21.201, and it does not appear in

Jenkins’ employment contract authored by CISD. The commissioner does not

explain where he got the term or why he inserted it into the contract. The

commissioner has held that “administrator” is a legitimate professional capacity,

but even the commissioner concedes the term is “generic.” Carpenter v. Wichita

Falls Indep. Sch. Dist., Docket No. 0247-R3-491 (Tex. Comm’r Educ. 1993)

(Appx. 8).

       “Administrator” is a contractual black hole, pulling any and all

administrative positions into it. These positions may or may not require educator

certification, and may or may not be recognized in law. They might include

principal, assistant principal, assistant superintendent, athletic director, attendance

coordinator, science support specialist, director of Even Start, a generic central

office position, textbook coordinator, and other supervisory positions, limited only

by the school district’s creativity. (See Appx. 13) Though the differences in these

positions are often vast, the commissioner has painted them with the same broad

brush, declaring them to all reside in the same “administrator” professional

capacity.    If the contract says “administrator,” the commissioner has never
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 26
overruled a reassignment from one administrator position to another for 30 years

prior to this case. (Appx. 13)

       State law says, “A school district shall employ each classroom teacher,

principal, librarian, nurse, or school counselor under a … contract.” Tex. Educ.

Code §21.002. This law would have no meaning if a principal could be hired as an

“employee” or “administrator” then immediately reassigned to another position

without quasi-due-process contract protection.           Each principal is entitled to a

contract. The law says nothing about employing each administrator or employee

under a contract, and indeed, does not require it.

       Here, this Court does not need to decide whether it is appropriate for a

school district to employ a principal under an “administrator” contract. What this

Court must decide is whether the commissioner erred when he unilaterally inserted

that term into her contract. Jenkins objects that the commissioner altered the

contract with the generic “administrator” to cure the more ambiguous “employee”

designation. The commissioner should have inserted the more accurate term -

“principal.” Each principal is entitled to a contract. Tex. Educ. Code. §21.002.

Jenkins was employed as the statutorily designated and authorized campus

principal - the campus instructional leader - for eight years preceding and during

the execution of the contract in question. (R. 287-89; R. 213) She was not an

ambiguous “employee” and she was not a generic “administrator.”
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 27
       Under the doctrine of contra proferentem, an ambiguous contract should be

interpreted against its author. Evergreen Nat. Indem. Com. v. Tan It All, Inc., 111

S.W. 3d 669 (Tex. App. - Austin 2003, no pet.).          Whether a contact is ambiguous

is a question of law for the court to decide. Kelley-Coppedge, Inc. v. Highlands

Ins. Co., 980 S.W.2d 462 (Tex. 1998).            In other cases, the commissioner has

declared contracts like Jenkins’ to be ambiguous, describing “professional

employee” as “overbroad,” “vague,” and “improper.” Tuck at pp. 7-8; Wheeler at

pp. 5-6.      Though her contract is ambiguous as a matter of law, here, the

commissioner failed to interpret the ambiguity against the author as required.

       Jenkins was employed as a principal, and her contract should reflect that,

especially since the CISD used an ambiguous and illegitimate term to define her

professional capacity. This is the only reasonable and lawful interpretation that

one can impose on the contract, which was signed at the same time that Jenkins

was employed as a campus principal. (R. 294)                    When Jenkins’ contract is

construed against CISD on the question of her professional capacity, it must be

concluded that she cannot be reassigned from principal to assistant principal

without receiving the protections of the contract nonrenewal process.




_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 28
                                       CONCLUSION

     This case does not affect the superintendent’s authority to reassign any

personnel other than a principal.         The school’s ability to reassign classroom

teachers, counselors, librarians, nurses and other administrators is unaffected.

Jenkins only advocates for the inclusion of principals among the specific list of

professional capacities defined by §21.201(1).

     A principal is not comparable to assistant principal.                  Principals and

superintendents derive their authority directly from state law and state certification.

Assistant principals derive their authority only through their supervisors and a local

job description. The position of campus principal is not a generic administrator

position. As principal, Jenkins was the instructional leader, community figure,

spokesperson, and chief supervisor of the campus. As assistant principal, she is

one of several, operating in a supporting role, and serving at the pleasure of the

principal.

     The school district may reassign the principal to a different campus. The

district may negotiate a reassignment of the principal to a different professional

capacity. If a principal is underperforming, the district may work to remediate her

performance, negotiate a peaceful resolution of the employment relationship, or

seek to dismiss the principal. The principal would be entitled to written reasons for

dismissal, and an opportunity to challenge the reasons in a hearing.                  These
_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 29
approaches respect the principal’s rights for quasi-due-process, and reasonably

temper the district’s unfettered authority to reassign principals.




                                PRAYER FOR RELIEF

       WHEREFORE,           PREMISES        CONSIDERED,          JENKINS        respectfully

requests that she be granted the following relief:

       A.     That this Court reverse the trial court and the decision of the

commissioner and render for Jenkins;

       B.     That this Court finds that CISD breached Jenkins’ contract and/or

violated Jenkins’ statutory rights;

       C.     That this Court order CISD to immediately reinstate Jenkins to her

former position as principal;

       D.     That Jenkins be awarded such other and further relief to which she

may show herself to be justly entitled.




_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 30
                                           Respectfully submitted,


                                           /s/ Kevin F. Lungwitz
                                           Kevin F. Lungwitz
                                           State Bar No. 12698790
                                           Elizabeth Poole
                                           State Bar No. 24051201
                                           The Lungwitz Law Firm, P.C.
                                           3005 S. Lamar Blvd.
                                           Suite D-109-362
                                           Austin, Texas 78704-4785
                                           P. 512.461.0188
                                           F. 866.739.7138
                                           Kevin@LungwitzLaw.com
                                           Elizabeth@LungwitzLaw.com
                                           ATTORNEYS FOR APPELLANT
                                           HERMENIA JENKINS




 CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. PROC. 9.4(I)(3)
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
4580.
                               /s/ Kevin F. Lungwitz
                               Kevin F. Lungwitz




_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 31
                            CERTIFICATE OF SERVICE
      This is to certify that a true and correct copy of the foregoing document was
served on:
       David B. Hodgins
       THOMPSON & HORTON, L.L.P.
       3200 Southwest freeway, Suite 2000
       Houston TX 77027
       Telephone: (713) 554-6745
       Telecopy: (713) 583-8245
       dhodgins@thompsonhorton.com
       FOR APPELLEE CROSBY ISD

       Andrew Lutostanski
       Assistant Attorney General
       OFFICE OF THE ATTORNEY GENERAL OF TEXAS
       Administrative Law Division
       P.O. Box 12548, Capitol Station
       Austin TX 78711-2548
       Phone: (512) 475-4200
       Fax: (512) 320-0167
       andrew.lutostanski@texasattorneygeneral.gov
       FOR APPELLEE COMMISSIONER OF EDUCATION

Via e-file and courtesy email on July 10, 2015.

                                    /s/ Kevin F. Lungwitz
                                    Kevin F. Lungwitz




_______________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Brief
Page 32
       APPENDIX 1



Jenkins v. Crosby Indep. Sch. Dist.,
    Docket No. 043-R10-1211
    (Tex. Comm’r Educ. 2013)
                                    DOCKET NO. 043-Rl0-1211

HERMENIA JENKINS                                      §     BEFORE THE
                                                      §
                                                      §
v.                                                    § COMMISSIONER OF EDUCA Tl ON
                                                      §
CROSBY                                                §
INDEPENDENT SCHOOL DISTRICT                           §   THE ST ATE OF TEXAS

                             DECISION OF THE COMMISSIONER

                                         Statement of the Case

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

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

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

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

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

           The Administrative Law Judge issued a Proposal for Decision recommending that

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

timely filed and considered.

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

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

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

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

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

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

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

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

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

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

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


043-RI0-1211
                                                                                        Appx. 1
                                                                                               H. Jenkins v. Crosby ISD
                                                                                                         TEA #: 000005
exercise his broad experience 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

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

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

in relevant part:


                 I.       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 20I0-2011 school year.

          3.        On June 28, 201 l, Petitioner was reassigned from the position of principal

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

School.

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

as assistant principal at Crosby High School are.




'See 19 TFX. ADM JN. Corne § 157.1073(h); Bosworth v. East Central Independent School District. Docket
No. 090-Rl-803 (Comm'r Educ. 2003).



043-RI0-1211                                       2




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

         Petitioner asserts that Respondent improperly reassigned her. Respondent denies

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

Education Code section I 1.202, which designates a principal as the instructional leader of

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

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

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

year. Petitioner also alleges that Respondent violated I 9 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. ADM IN. CODE § 150.1021, and policy DN(LOCAL). Texas

Education Code section I 1.202 is entitled "Principals." It provides that a principal is the

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

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

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

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

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

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

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

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

lacks jurisdiction over violations of school district policies. Reeves v. Aledo lndepende/1/

School District, Docket No. 106-Rl 0-496 (Comm'r Educ. 1999)

TEX. EDUC. CODE § 11.20 l

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

responsibility    for   most   assignments.        Petitioner   contends   that   Respondent's


043-RI0-121 I                                  3



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

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

Code l l.20l(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. 025-R5-105 (Comm'r Educ.

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

the statutory grant of authority.

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

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

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

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

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

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

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

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

Education Code section 11.13.        The Commissioner lacks jurisdiction under Texas

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

arbitrarily and capriciously reassigned her.

Same Professional Capacity

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

principal and assistant principal arc 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



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

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

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


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

teacher's contract is about lo 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 al

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 lo

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-Rl0-1211                                 5



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

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

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

implications of multiple year term contracts favor teachers.

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

District. Docket No. 085-R 1-0711 n. 2 (Comm 'r Educ. 2011 ), multiple year contracts can
also benefit teachers. A multiple year contract may only be nonrcnewed when it is about

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

list 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 ifa 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.



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

Legislature in 198!'1• Term Contract Nonrenewal Act, 67' 11 Leg., R.S., ch. 765, 1981 Tex.


'Section I of SB 341 itself provided that "this act shall be known as "The Term Contract Nonrenewal
 Act."
-t The TCNA became effective on August 31, 1981. However, because most contracts for the 1981-1982
school year had already been signed by that date, the TCNA really became operational for the 1982-1983


043-RI0-1211                                        6




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

capacity.·•



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


043-RI0-1211                                       7



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

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

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

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

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

could only be ended aller 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

appealablc 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).




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


043-RI0-1211                                         8



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

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

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

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

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

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

professional capacity."



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

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

delinition of ··same professional capacity," the Commissioner has described the meaning

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

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

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


               Petitioner argues that he did not receive an offer of employment in the
       "same professional capacity," because he was never offered the same position he
       had held during the 1982-83 school year; i.e., ROTC teacher. It would not be
       reasonable, however, to conclude that the legislature intended that every teacher
       who does not receive notice of his or her proposed nonrenewal by April 1 is
       entitled to be employed in the exact same position the following school year.
       Such a holding would require a school district to actually begin 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 I.
               It is more reasonable to conclude that the legislature. by using the term
       "same pr<Jfi:ssional capacity" (instead of "the exact same position''). intended to
       allow school districts to be flexible in their personnel assignments while
       discouraging the abuse of the district's inherent or contractual reassignment
       authority. In other         the district may place a teacher whose employment has
       been renewed by operation of law in a position diflerent fi'om that to which the
       teacher \HIS assigned !he previous year. as long as the posilion is one lo which the



043-RI0-1211                                 9




                                                                                 H. Jenkins v. Crosby ISD
                                                                                           TEA #: 000013
       dislricl could have reassigned lhe leacher had lhe parties voluniw·ily entered into
       a contract for the following year. Jn some instances, the validity of a particular
       placement will he clear. For example, an administrator who does not receive the
       required notice by April 1 may not be placed in the capacily of' a classroom
       teacher; a classroom leacher may not be placed in lhe 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 placemen/ might not be so
       clear. For example, a placement might be to another position within the same
       prc!f'essional calegmy (e.g., adminislra/or), but neverlheless, be invalid (e.g., fiwn
       superintendenl 10 assislant elemen101y school principal).             Factors to be
       considered in determining the validity of such a placement include, but are not
       necessarily limited to, differences in authority, dlllies, and salmy.
                 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 I 983-84 school year by choice,
       and he has no cognizable claim against the district for correctly noting, on March
       28, 1983, that he was not then employed by the district, and for advising him that
       it did not intend to employ him during the 1984-85 school year.
(Emphasis added)

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

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

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

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



043-RI0-1211                                  10




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

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

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

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

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

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


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

found at Texas Education Code section 21.20 I (I). From the first substantive decision

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

positions found at Texas Education Code section 21.20 I (I) 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

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

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

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

Barich, it was found that reassigning an ROTC teacher to another teaching position was
valid because the positions were in the same professional capacity.



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

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


043-RI0-1211                                  11



                                                                                 H. Jenkins v. Crosby ISD
                                                                                           TEA #: 000015
teacher/coach. The Commissioner found that Hester was employed in the professional

capacity of teacher/coach and that since there was not substantial evidence to support the

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-R3-49l (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-RI0-1211                                 12



                                                                                  H. Jenkins v. Crosby ISD
                                                                                            TEA #: 000016
basketball. Reyes v. Culberson County Independent School District, Docket No. 229-R3-

787 (Comm'r Educ. 1987).              Contracted to be a teacher/coach, the district properly

reassigned the employee from being a teacher and football coach to being a teacher and

baseball coach. Satcher v. Florence Independent School District, Docket No. 363-R3-

786 (Comm 'r Educ. 1987).             Contracted to be teachers/deans, the district improperly

reassigned the employees from teacher/dean positions to teacher positions. Abba/I 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-R 1-690 (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 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-R3-89l(Comm'r Educ. 1992). Contracted

as teachers, the district's reduction in salary by itself did not place the teachers in

different professional capacities. Goedeke v. Smyer Independent School District, Docket

No. l l l-R3-l 292 (Comm'r Educ. 1997). Contracted as teacher/assistant band director,

the district improperly reassigned the employee to a teaching position. Salinas v. Roma

Independent School District, Docket No. 058-R3-l l 96 (Comm'r Educ.                                 1997).

Contracted as an administrator, the district properly reassigned the employee from
7
 Keith docs not discuss whether "professional employee" is a legitimate professional capacity. It does not
conclude that because the two positions at issue were professional that the reassignment is allowable. Keith
simply mentions what the contract at issue states.


043-RI0-1211                                         13



                                                                                                 H. Jenkins v. Crosby ISD
                                                                                                           TEA #: 000017
principal of an independent middle school campus to the position of principal or assistant

principal for grades 7 to 9 at a unified junior high/high school campus. Underwood v.

Rusk Independent School District, Docket No. 062-R3-198 (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. l 75-R3-898

(Comm 'r Educ. 1999). Contracted as an administrator, the district properly reassigned

the employee from the district wide position of attendance coordinator to the position of

middle school assistant principal. Veliz v. Donna Independent School District, Docket

No. Ol l-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-RI0-900 (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.

Ol 1-R3-1102 (Comm'r Educ. 2004). Contracted as an administrator, the district properly

reassigned the employee from a district-wide Director of Even Start to the position

middle school assistant principal.   Perales v. Robstown Independent School District,

Docket Nos. 052-Rl 0-104, 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-RI0-605 (Comm'r Educ. 2007). Contracted as an administrator, the district

properly reassigned the employees from a central office position to an assistant principal

position.    Gonzalez v. Donna Independent School District, Docket No. 074-RI0-605

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


043-Rl0-1211                                 14




                                                                                 H. Jenkins v. Crosby ISD
                                                                                           TEA #: 000018
the employee from a central office position to an assistant principal position. Perez v.

Donna Independent School District, Docket No. 086-Rl-705 (Comm'r Educ. 2007).

Contracted as an administrator, the district properly reassigned the employee from the

position of Executive Director of Special Education to the position of elementary school

assistant principal. Lehr v. Ector County Independent School District, Docket No. 003-

R3-0908 (Comm'r Educ. 2011).        Contracted as professional employee, the district

improperly reassigned the employee from the position of assistant principal to the

position of classroom teacher. Wheeler v. Austin Independent School District, Docket

No. 008-R3-l 108 (Comm'r Educ. 2011).       Contracted as a professional employee, the

district properly reassigned the employee from the position of middle school principal to

the position of Human Resources Coordinator. Murillo v. Laredo Independent School

District, Docket No. 027-R3-0108 (Comm'r Educ. 2012).             The district properly

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

of Program Specialist II.    Montgon1e1y v. Richardson Independent School District,

Docket No. 007-RIO-l 008 (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-Rl0-1007 (Comm'r Educ. 2012). Contracted as an administrator, the district

properly reassigned the employee from the position of principal to the position of

assistant principal. McCoy v. Kermit Independent School District, Docket No. 004-R3-

0908 (Comm'r Educ. 2012).

Administrators

       As can be seen from the above, a great many of the same professional capacity

cases involved administrators.    In Carpenter v. Wichita Falls Independent School

District, Docket No. 247-R3-491 (Comm'r Educ. 1991) the Commissioner held:

       The question presented by this appeal is the scope and reach of the Term Contract
       Nonrenewal Act, Texas Education Code section 21.204(b), in the context of the


043-RI0-1211                                15




                                                                               H. Jenkins v. Crosby ISD
                                                                                         TEA #: 000019
        reassignment of those school district personnel coming under its protections.
        Petitioner would have the Commissioner of Education hold that the phrase "same
        professional capacity" as used in the TCNA is either defined by or in some way
        informed by the definition of"teacher" found in§ 21.201(1) of that Act. I do not
        believe the statutory language can permit of such an interpretation. Rather, this
        phrase is left undefined by the statute, and therefore its meaning is a matter for
        interpretation by the Commissioner, in the first instance, and by the courts. The
        decisions of the Commissioner (and the courts) have consistently looked to the
        language of the employment contract itself and attempted to give the parties the
        benefit of their bargain. In this case, the contract between the parties provides that
        the position to which Petitioner was entitled was that of a generic "administrator."
        Petitioner has not proven that hers was a contract of adhesion, which would
        clearly change the result in this case. It is true that the Commissioner has held that
        § 2 l.204(b) limits the right of the district lo transfer a term contract teacher.
        Barich v. San Felipe-De/ Rio C.l.S.D., Docket No. l l 7-Rla-484 (Comm'r Educ.
        May 1985). It is possible to imagine situations where the transfer clause of an
        employment contract would be held to be unenforceable under § 2 l.204(b) 8•
        However, this is not such a case. It has been the consistent view of the
        Commissioner that the TCNA balanced its grant of limited tenure rights against
        the considerable personnel management problems it might cause if imposed
        inflexibly. Districts have responded to this law by creating broad classes within
        which transfers do not implicate the TCNA. If taken to extremes, this tactic
        would be against public policy as expressed in the TCNA, but I cannot make such
        a finding in this case. The need for flexibility in making personnel changes is
        strongest, and the argument for a rigid tenure system weakest, at the
        administrative level. In short, I find the generic "administrator" position before
        me consistent with the policies of the TCNA.
Administrators can often be reassigned to different administrator positions, but that does

not mean that they may be assigned to any administrator positions. Districts can by

contract establish broad professional capacities. However, professional capacities that

arc too broad will not be allowed. Tuck v. A lief Independent School District, Docket No.

008-RJ0-1007 (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



'The old Texas Education Code section 21.204 is the predecessor of the current Texas Education Code
section 21.206.


043-RI0-1211                                       16



                                                                                             H. Jenkins v. Crosby ISD
                                                                                                       TEA #: 000020
cannons of statutory interpretation will be considered. The standards for deferring to an

agency's interpretation have been set by the Texas Supreme Court:


       If there is vagueness, ambiguity, or room for policy determinations in a statute or
       regulation, as there is here, we normally defer to the agency's interpretation unless
       it is plainly erroneous or inconsistent with the language of the statute, regulation,
       or rule. See Pub. Uti/. Comm'n v. Gulf States Utils. Co., 809 S.W.2d 201, 207
       (Tex. 1991); Stanfordv. Butler, 142 Tex. 692, 181S.W.2d269, 273 (Tex. 1944).
TGS-NOPEC Geophysical v. Combs, 340 S.W.3d 432, 439 (Tex. 2011).                   There is

ambiguity about what the phrase "same professional capacity" means. The phrase is not

defined in statute and is susceptible to multiple interpretations. The Commissioner's

interpretation should be deferred to.

       Further, as the Commissioner's interpretation is a long standing interpretation, the

doctrine of legislative acquiescence applies:


       If an ambiguous statute that has been interpreted by a court of last resort or given
       a longstanding construction by a proper administrative officer is re-enacted
       without substantial change, the Legislature is presumed to have been familiar with
       that interpretation and to have adopted it. See Grapevine Excavation, Inc. v. Md.
       Lloyds Ins. Co., 35 S.WJd 1, 5, 43 Tex. Sup. Ct. J. 1086 (Tex. 2000) (Once the
       Texas Supreme Court and courts of appeals "construe a statute and the Legislature
       re-enacts or codifies that statute without substantial change, we presume that the
       Legislature has adopted the judicial interpretation."); Sharp v. House of Lloyd,
       Inc., 815 S.W.2d 245, 248, 34 Tex. Sup. Ct. J. 652 (Tex. 1991) ('"[A] statute of
       doubtful meaning that has been construed by the proper administrative officers,
       when re-enacted without any substantial change in verbiage, will ordinarily
       receive the same construction.' This rule is only applicable where there has been
       an affirmative long-standing administrative policy.") (quoting Humble Oil & Ref
       Co. v. Calvert, 414 S.W.2d 172, 180, 10 Tex. Sup. Ct. J. 254 (Tex. 1967)); Tex.
       Employers' Ins. Ass'n v. Holmes, 145 Tex. 158, 196 S.W.2d 390, 395 (Tex. 1946)
       ("There is another well-settled rule to guide us in the construction of a statute
       which is uncertain and ambiguous ... : 'Where a statute which has been construed,
       either by a court of last resort or by executive officers, is re-enacted without any
       substantial change of verbiage, it will continue to receive the same construction."')




043-RI0-1211                                    17




                                                                                  H. Jenkins v. Crosby ISD
                                                                                            TEA #: 000021
Tex. Dept. of Protective & Regulat01y 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" Leg. 6111 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, 74111 Leg. R.S., ch. 260 ch. 21 subch. E

and F, 1995 Tex. Gen. Law 2207 (making many changes including modifying the

definition of "teacher" and allowing boards to use the Independent Hearing Examiner

Process); Term Contract Nonrenewal Act, 78 111 Leg R.S., ch. 484 § 1, 2003 Tex. Gen.

Laws 1749 (concerning distribution of district employment policies); 82 11 d Leg. 1" C.S.,

ch. 8 §§ 8-11, 2011 Tex. Gen Laws 5463 (allowing districts to hire their own hearing

examiners and making several changes concerning notice).              The Legislature has

acquiesced in the Commissioner's interpretation of the phrase "same professional

capacity."

Must Principal be a Professional Capacity?

       Petitioner contends that her theory that a principal may only be reassigned to

another principal position is compatible with Barich although she does recognize that it

would require overruling other Commissioner's Decisions. Petitioner's theory rests on

the premise that because the definition of "teacher" found in the TCNA references the

position "principal" that "principal" is a professional capacity.

       Petitioner's theory is not compatible with Barich. Under Barich, the first question

is could the teacher contract for the position at issue. A principal can contract for an

assistant principal position as a principal certificate is needed for either a principal or

assistant principal position. 19 TEX. ADMIN. CODE§ 24l(d). The next question is that

even if the position could be contracted for are differences in authority, duties, salary and


043-RI0-1211                                  18



                                                                                   H. Jenkins v. Crosby ISD
                                                                                             TEA #: 000022
other factors so great that the reassignment is actually in another professional capacity.

This second consideration is set out right after the issue of reassigning a superintendent to

the position of assistant elementary principal is raised. Texas Education Code section

21.201 (I) in the original TCNA read as follows:


         "Teacher" means a superintendent, principal, supervisor, classroom teacher,
         counselor or other full-time professional employee, except paraprofessional
         personnel, who is required to hold a valid certificate or permit.
If Petitioner's theory was compatible with Barich, the Commissioner would have said the

determination of whether a superintendent may be reassigned to the position of

elementary school assistant principal is a simple issue, not an issue that is "not . . . so

clear." Under Petitioner's theory, since "superintendent" is found in the definition of

21.20 I (I), "superintendent" is a professional capacity.      The result would be that a

superintendent cannot be reassigned to any position that is not a superintendent position.

There would be no reason to apply the standards set out in Barich to determine whether a

superintendent could be reassigned to an assistant principal position.

         Petitioner's theory does have the virtue of simplicity. 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.   l r 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 lo interpret the phrase at issue.




043-RI0-1211                                    19




                                                                                    H. Jenkins v. Crosby ISD
                                                                                              TEA #: 000023
Like a Superintendent?

         There are no Commissioner's Decisions that directly address whether a

superintendent may be reassigned to another position.                     There is no Commissioner's

Decision that finds that a superintendent was improperly reassigned. While Barich holds

that a superintendent cannot be reassigned to the position of assistant elementary school

principal, Barich was not a superintendent and was not reassigned to an assistant

principal position.        There is a pre-TCNA case, Board of Trustees of Crystal Cily

Independent School Dislrict v. Briggs, 486 S.W.2d 829 (Tex. App. Beaumont I 972, 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, I 6.08 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 pos1t10ns is unlike the move from superintendent to
         assistant principal described in Barich. A superintendent according to statute is
         "the educational leader and chief executive officer of the school district." TEX.
         EDUC. CODE § l l.20I(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

'' 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 \Vise to li1nit
employment to those who have achieved a certification that is no longer issued.


043-RI0-1211                                           20




                                                                                                    H. Jenkins v. Crosby ISD
                                                                                                              TEA #: 000024
              certifications for administrator are superintendent and principal. 10 There is no
              certification that an Executive Director of Special Education is required to hold
              under the Texas Education Code or the rules adopted under the code.
Here like in Briggs, the Commissioner noted that the position of superintendent is unique.

A superintendent is the chief executive officer of a school district. It almost goes without

saying that a superintendent is answerable only to the board of trustees. Only the board

of trustees has the authority to direct a superintendent. It is not the fact that the Texas

Education Code specifies many of the superintendent's duties and creates unique

procedures to nonrenew a superintendent's contract that makes the superintendent's role

sui generis. TEX. EDUC. CODE§§ 11.201, 21.212. It is instead the fact the superintendent

is only answerable to the school board as the chief executive officer of the school district

that makes the office of superintendent sui generis.

              Petitioner is correct that principals have many duties spelled out in the Texas

Education Code. This does not make the position of principal sui generis. That the

Texas Education Code defines many duties of a principal makes the principal position a

well defined species. It does not make the principal position a genus all to itself. A

principal is answerable to the superintendent and often to other high administrators such

as deputy and assistant superintendents. A principal is answerable to the school board as

the school board can nonrenewal or terminate a principal's contract.

              Further, while there is a principal certification, it is required for both being a

principal and an assistant principal.               19 TEX. ADMIN. CODE§ 24J(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.

    0
'       19 TEX. /\DMIN. CODE ch. 241 and 242. All other administrator certifications were not issued after 2000.


043-RI0-1211                                              21



                                                                                                     H. Jenkins v. Crosby ISD
                                                                                                               TEA #: 000025
One who holds only a principal's certificate is not qualified to be a superintendent. A

superintendent's certificate requires significantly more training than a principal's

certificate. When a principal is reassigned, a school district is not limited to assigning the

principal to another principal position. Underwood v. Rusk Independent School District,

Docket No. 062-R3-198 (Comm'r Educ. 1998), Pasqua v. Fort S1ock1on lndependenl

School Districl, Docket No. 011-R3-l 102 (Comm'r Educ. 2004), Murillo v. Laredo

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

A4onlgomery v. Richardson Independent School District, Docket No. 007-Rl 0-1008

(Comm 'r Educ. 2012), and McCoy v. Kermit Independent School District, Docket No.

004-R3-0908 (Comm'r Educ. 2012).

Present Reassignment

       In the present case, Petitioner was reassigned from the position of principal of an

intermediate school to the position of assistant principal of a high school. There is little

in the record that indicates what duties Petitioner had at those two positions. The record

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



                                                                                    H. Jenkins v. Crosby ISD
                                                                                              TEA #: 000026
that this is not the situation the Commissioner is presented with in this case. After her

reassignment Petitioner retains a chapter 21 contract.

       But assuming without finding that this issue was properly raised, there are at least

two major problems with this claim. Petitioner chose not to contest her reassignment

under Commissioner's precedent but instead to solely argue that she could only be

reassigned to a principal's position. Whether or not Respondent reassignment meets the

Commissioner's standards has not been contested or ruled upon.            Not contesting a

reassignment based on the standards previously established by the Commissioner could

result in not receiving a Chapter 21 contract, but the fault would not be with the

Commissioner's interpretation of Chapter 21.

       Further, the case Petitioner relies on Harris v. Royse City Jndependenl School

District, Docket No.     057-Rl-0506 (Comm. Educ. 2009) had a very different fact

situation. Harris began his employment with Royse City Independent School District by

signing a contract for a non-certified administrator position that provided for renewal or

nonrcncwal 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 7.057(a)(2)(A),

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


043-Rl0-1211                                  23



                                                                                  H. Jenkins v. Crosby ISD
                                                                                            TEA #: 000027
2 l.206(b) and based on such a violation also violated Texas Education Code section

11.20 and 19 TEX. ADMIN. CODE § 150.1021.

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

lacks jurisdiction over violations of school district policies.

        3.     The Commissioner, under Texas Education Code section 7.057(a)(2)(A),

lacks jurisdiction over the claim Respondent violated its policy FN(LOCAL).

       4.       A superintendent does not violate Texas Education Code 1 l.20l(d) when

a superintendent poorly exercises an authority granted by this section.

        5.     The Commissioner lacks jurisdiction over the claim that Respondent's

superintendent arbitrarily and capriciously reassigned her in violation of Texas Education

Code section l 1.20l(d) TEX. EDUC. CODE§ 7.057(a)(2)(A).

        6.      If a school district fails to timely give a teacher notice of proposed

nonrcnewal 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 § 2 l.206(b ).

        7.      Petitioner's claim that Respondent failed to employ her m the same

professional capacity is ripe only as to the 2011-2012 school year.

        8.      One can be entitled to the protections of Texas Education Code Chapter

21, subchapter E based solely on a contract or district policy. One does not need to hold

a position described in the first sentence of Texas Education Code section 21.201(1) to be

entitled to a Chapter 21 term contract.

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

section 21.201 (I) may or may not be professional capacities for purposes of Texas

Education Code section 2 l.206(b ).




043-RI0-1211                                   24



                                                                                H. Jenkins v. Crosby ISD
                                                                                          TEA #: 000028
        10.     The fact that the position of "principal" is listed in the first sentence of

Texas Education Code section 21.201(1) does not mean that if one is employed by a

school district as a principal under a term contract that one is employed under the

professional capacity of principal. TEX. EDUC. 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 impem1issibly broad for a

reassignment.

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

2 I .206(b) is administrator.

        13.     As Petitioner did not contest that her contractual professional capacity of

administrator is impcrmissibly 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 docs 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 2 l.206(b)

        16.     The Petition for Review should be denied in part and dismissed in part.




043-RI0-1211                                    25



                                                                                  H. Jenkins v. Crosby ISD
                                                                                            TEA #: 000029
                           •
        After due consideration of the record, matters officially noticed and the foregoing

Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Edcuation,

it is hereby

        ORDERED that the Petitioner's appeal be, and is hereby, denied in part and

dismissed in part.                                    (1
        SIGNED AND ISSUED this _i± .ay                                      , 2013.




043-RI0-1211                                 26



                                                                                 H. Jenkins v. Crosby ISD
                                                                                           TEA #: 000030
                  APPENDIX 2



                      Final Judgment
   Jenkins v. Crosby Indep. Sch. Dist., No. D-1-GN-14-
000619 (200th Dist. Ct., Travis County, Tex. Feb. 26, 2015)
Appx. 2
    APPENDIX 3



   Texas Education Code
         Chapter 21
Subchapter E §§21.201-21.213
                  Texas Education Code Chapter 21, Subchapter E §§21.201-21.213

                                   SUBCHAPTER E. TERM CONTRACTS

           Sec. 21.201. DEFINITIONS. In this subchapter:
                    (1) "Teacher" means a superintendent, principal, supervisor, classroom teacher, school
counselor, or other full-time professional employee who is required to hold a certificate issued under
Subchapter B or a nurse. The term does not include a person who is not entitled to a probationary, continuing,
or term contract under Section 21.002, an existing contract, or district policy.
                    (2) "School district" means any public school district in this state.
                    (3) "Term contract" means any contract of employment for a fixed term between a school
district and a teacher.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Amended by:
           Acts 2013, 83rd Leg., R.S., Ch. 443 (S.B. 715), Sec. 10, eff. June 14, 2013.


          Sec. 21.202. PROBATIONARY CONTRACT REQUIRED. (a) Except as provided by Subsection
(b), before a teacher may be employed under a term contract, the teacher must be employed under a
probationary contract for the period provided by Subchapter C.
          (b) A school district may employ a person as a principal or classroom teacher under a term contract if
the person has experience as a public school principal or classroom teacher, respectively, regardless of whether
the person is being employed by the school district for the first time or whether a probationary contract would
otherwise be required under Section 21.102.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch.
1232, Sec. 2, eff. Sept. 1, 2003.


           Sec. 21.203. EMPLOYMENT POLICIES. (a) Except as provided by Section 21.352(c), the
employment policies adopted by a board of trustees must require a written evaluation of each teacher at annual
or more frequent intervals. The board must consider the most recent evaluations before making a decision not
to renew a teacher's contract if the evaluations are relevant to the reason for the board's action.
           (b) The employment policies must include reasons for not renewing a teacher's contract at the end of
a school year.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch. 244,
Sec. 1, eff. June 18, 2003.


            Sec. 21.204. TERM CONTRACT. (a) A term contract must be in writing and must include the
terms of employment prescribed by this subchapter.
            (b) The board of trustees may include in the contract other provisions that are consistent with this
subchapter.
            (c) Each contract under this subchapter is subject to approval by the board of trustees.
            (d) The board of trustees shall provide each teacher with a copy of the teacher's contract with the
school district and, on the teacher's request, a copy of the board's employment policies. If the district has an
Internet website, the district shall place the board's employment policies on that website. At each school in the
district, the board shall make a copy of the board's employment policies available for inspection at a reasonable
time on request.
            (e) A teacher does not have a property interest in a contract beyond its term.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch. 484,
Sec. 1, eff. Sept. 1, 2003.
                                                                                       Appx. 3
          Sec. 21.205. TERM OF CONTRACT. Once a teacher has completed the probationary contract
period, the term of a contract under this subchapter may not exceed five school years.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


          Sec. 21.206. NOTICE OF CONTRACT RENEWAL OR NONRENEWAL. (a) Not later than the
10th day before the last day of instruction in a school year, the board of trustees shall notify in writing each
teacher whose contract is about to expire whether the board proposes to renew or not renew the contract. The
notice must be delivered personally by hand delivery to the teacher on the campus at which the teacher is
employed, except that if the teacher is not present on the campus on the date that hand delivery is attempted, the
notice must be mailed by prepaid certified mail or delivered by express delivery service to the teacher's address
of record with the district. Notice that is postmarked on or before the 10th day before the last day of instruction
is considered timely given under this subsection.
          (b) The board's failure to give the notice required by Subsection (a) within the time specified
constitutes an election to employ the teacher in the same professional capacity for the following school year.
          (c) This section does not apply to a term contract with a superintendent.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Amended by:
          Acts 2011, 82nd Leg., 1st C.S., Ch. 8 (S.B. 8), Sec. 9, eff. September 28, 2011.


           Sec. 21.207. HEARING UNDER TERM CONTRACT. (a) If the teacher desires a hearing after
receiving notice of the proposed nonrenewal, the teacher shall notify the board of trustees in writing not later
than the 15th day after the date the teacher receives hand delivery of the notice of the proposed action, or if the
notice is mailed by prepaid certified mail or delivered by express delivery service, not later than the 15th day
after the date the notice is delivered to the teacher's address of record with the district. The board shall provide
for a hearing to be held not later than the 15th day after the date the board receives the request for a hearing
unless the parties agree in writing to a different date. The hearing must be closed unless the teacher requests an
open hearing.
           (b) The hearing must be conducted in accordance with rules adopted by the board. The board may
use the process established under Subchapter F.
           (b-1) Notwithstanding any other provision of this code, this subsection applies only to a school
district with an enrollment of at least 5,000 students. The board of trustees may designate an attorney licensed
to practice law in this state to hold the hearing on behalf of the board, to create a hearing record for the board's
consideration and action, and to recommend an action to the board. The attorney serving as the board's
designee may not be employed by a school district and neither the designee nor a law firm with which the
designee is associated may be serving as an agent or representative of a school district, of a teacher in a dispute
between a district and a teacher, or of an organization of school employees, school administrators, or school
boards of trustees. Not later than the 15th day after the completion of the hearing under this subsection, the
board's designee shall provide to the board a record of the hearing and the designee's recommendation of
whether the contract should be renewed or not renewed. The board shall consider the record of the hearing and
the designee's recommendation at the first board meeting for which notice can be posted in compliance with
Chapter 551, Government Code, following the receipt of the record and recommendation from the board's
designee, unless the parties agree in writing to a different date. At the meeting, the board shall consider the
hearing record and the designee's recommendation and allow each party to present an oral argument to the
board. The board by written policy may limit the amount of time for oral argument. The policy must provide
equal time for each party. The board may obtain advice concerning legal matters from an attorney who has not
been involved in the proceedings. The board may accept, reject, or modify the designee's recommendation.
The board shall notify the teacher in writing of the board's decision not later than the 15th day after the date of
the meeting.
          (c) At the hearing before the board or the board's designee, the teacher may:
                  (1) be represented by a representative of the teacher's choice;
                  (2) hear the evidence supporting the reason for nonrenewal;
                  (3) cross-examine adverse witnesses; and
                  (4) present evidence.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Amended by:
          Acts 2011, 82nd Leg., 1st C.S., Ch. 8 (S.B. 8), Sec. 10, eff. September 28, 2011.


           Sec. 21.208. DECISION OF BOARD. (a) If the teacher does not request a hearing, the board of
trustees shall:
                    (1) take the appropriate action to renew or not renew the teacher's contract; and
                    (2) notify the teacher in writing of that action not later than the 30th day after the date the
notice of proposed nonrenewal was sent to the teacher.
           (b) If the teacher requests a hearing, following the hearing the board of trustees shall:
                    (1) take the appropriate action to renew or not renew the teacher's contract; and
                    (2) notify the teacher in writing of that action not later than the 15th day after the date on
which the hearing is concluded.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


          Sec. 21.209. APPEAL. A teacher who is aggrieved by a decision of a board of trustees on the
nonrenewal of the teacher's term contract may appeal to the commissioner for a review of the decision of the
board of trustees in accordance with the provisions of Subchapter G. The commissioner may not substitute the
commissioner's judgment for that of the board of trustees unless the board's decision was arbitrary, capricious,
unlawful, or not supported by substantial evidence.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


          Sec. 21.210. RESIGNATION UNDER TERM CONTRACT. (a) A teacher employed under a term
contract with a school district may relinquish the teaching position and leave the employment of the district at
the end of a school year without penalty by filing a written resignation with the board of trustees or the board's
designee not later than the 45th day before the first day of instruction of the following school year. A written
resignation mailed by prepaid certified or registered mail to the president of the board of trustees or the board's
designee at the post office address of the district is considered filed at the time of mailing.
          (b) A teacher employed under a term contract may resign, with the consent of the board of trustees or
the board's designee, at any other time.
          (c) On written complaint by the employing district, the State Board for Educator Certification may
impose sanctions against a teacher who is employed under a term contract that obligates the district to employ
the person for the following school year and who:
                   (1) resigns;
                   (2) fails without good cause to comply with Subsection (a) or (b); and
                   (3) fails to perform the contract.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


          Sec. 21.211. TERMINATION OR SUSPENSION. (a) The board of trustees may terminate a term
contract and discharge a teacher at any time for:
                  (1) good cause as determined by the board; or
                   (2) a financial exigency that requires a reduction in personnel.
          (b) For a good cause, as determined by the board, the board of trustees may suspend a teacher without
pay for a period not to extend beyond the end of the school year:
                   (1) pending discharge of the teacher; or
                   (2) in lieu of terminating the teacher.
          (c) A teacher who is not discharged after being suspended without pay pending discharge is entitled
to back pay for the period of suspension.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


          Sec. 21.212. APPLICABILITY OF SUBCHAPTER TO SUPERINTENDENTS. (a) The board of
trustees of a school district may choose to not renew the employment of a superintendent employed under a
term contract, effective at the end of the contract period. If a majority of the board of trustees determines that
the term contract of the superintendent should be considered for nonrenewal, the board shall give the
superintendent written notice, containing reasonable notice of the reason for the proposed nonrenewal, not later
than the 30th day before the last day of the contract term.
          (b) If the board of trustees fails to give notice of the proposed nonrenewal within the time specified
by Subsection (a), the board of trustees shall employ the superintendent in the same professional capacity for
the following school year.
          (c) If the superintendent, not later than the 15th day after receiving notice of the board's proposed
action, does not request a hearing with the board of trustees under Section 21.207, the board of trustees shall:
                   (1) take the appropriate action; and
                   (2) notify the superintendent in writing of the action not later than the 30th day after the date
the board sends the notice of the proposed nonrenewal.
          (d) The board of trustees shall adopt policies that establish reasons for nonrenewal. This section does
not prohibit a board of trustees from discharging a superintendent for good cause during the term of a contract.
          (e) A superintendent employed under a term contract may leave the employment of the district at the
end of a school year without penalty by filing a written resignation with the board of trustees. The resignation
must be addressed to the board and filed not later than the 45th day before the first day of instruction of the
following school year. A superintendent may resign, with the consent of the board of trustees, at any other
time.
          (f) On the basis of a financial exigency declared under Section 44.011 that requires a reduction in
personnel, the board of trustees of a school district may choose to amend the terms of the contract of a
superintendent employed under a term contract. A superintendent whose contract is amended under this
subsection may resign without penalty by providing reasonable notice to the board and may continue
employment for that notice period under the prior contract.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Amended by:
          Acts 2011, 82nd Leg., 1st C.S., Ch. 8 (S.B. 8), Sec. 11, eff. September 28, 2011.


         Sec. 21.213. NONAPPLICABILITY OF SUBCHAPTER. Except as provided by Section 21.202,
this subchapter does not apply to a teacher employed under a probationary contract in accordance with
Subchapter C or a continuing contract in accordance with Subchapter D.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
APPENDIX 4

Texas Education Code
 §11.201 and §11.202
                                     Texas Education Code §11.201 and 11.202

          Sec. 11.201. SUPERINTENDENTS. (a) The superintendent is the educational leader and the chief
executive officer of the school district.
          (b) The board of trustees of an independent school district may employ by contract a superintendent
for a term not to exceed five years.
          (c) For purposes of this subsection, "severance payment" means any amount paid by the board of
trustees of an independent school district to or in behalf of a superintendent on early termination of the
superintendent's contract that exceeds the amount earned by the superintendent under the contract as of the date
of termination, including any amount that exceeds the amount of earned standard salary and benefits that is paid
as a condition of early termination of the contract. The board of trustees that makes a severance payment to a
superintendent shall report the terms of the severance payment to the commissioner. The commissioner shall
reduce the district's Foundation School Program funds by any amount that the amount of the severance payment
to the superintendent exceeds an amount equal to one year's salary and benefits under the superintendent's
terminated contract. The commissioner may adopt rules as necessary to administer this subsection.
          (d) The duties of the superintendent include:
                    (1) assuming administrative responsibility and leadership for the planning, organization,
operation, supervision, and evaluation of the education programs, services, and facilities of the district and for
the annual performance appraisal of the district's staff;
                    (2) except as provided by Section 11.202, assuming administrative authority and
responsibility for the assignment, supervision, and evaluation of all personnel of the district other than the
superintendent;
                    (3) overseeing compliance with the standards for school facilities established by the
commissioner under Section 46.008;
                    (4) initiating the termination or suspension of an employee or the nonrenewal of an
employee's term contract;
                    (5) managing the day-to-day operations of the district as its administrative manager,
including implementing and monitoring plans, procedures, programs, and systems to achieve clearly defined
and desired results in major areas of district operations;
                    (6) preparing and submitting to the board of trustees a proposed budget as provided by
Section 44.002 and rules adopted under that section, and administering the budget;
                    (7) preparing recommendations for policies to be adopted by the board of trustees and
overseeing the implementation of adopted policies;
                    (8) developing or causing to be developed appropriate administrative regulations to
implement policies established by the board of trustees;
                    (9) providing leadership for the attainment and, if necessary, improvement of student
performance in the district based on the indicators adopted under Sections 39.053 and 39.301 and other
indicators adopted by the commissioner or the district's board of trustees;
                    (10) organizing the district's central administration;
                    (11) consulting with the district-level committee as required under Section 11.252(f);
                    (12) ensuring:
                            (A) adoption of a student code of conduct as required under Section 37.001 and
enforcement of that code of conduct; and
                            (B) adoption and enforcement of other student disciplinary rules and procedures as
necessary;
                    (13) submitting reports as required by state or federal law, rule, or regulation;
                    (14) providing joint leadership with the board of trustees to ensure that the responsibilities of
the board and superintendent team are carried out; and
                    (15) performing any other duties assigned by action of the board of trustees.
          (e) The superintendent of a school district may not receive any financial benefit for personal services
performed by the superintendent for any business entity that conducts or solicits business with the district. Any

                                                                                             Appx. 4
financial benefit received by the superintendent for performing personal services for any other entity, including
a school district, open-enrollment charter school, regional education service center, or public or private
institution of higher education, must be approved by the board of trustees on a case-by-case basis in an open
meeting. For purposes of this subsection, the receipt of reimbursement for a reasonable expense is not
considered a financial benefit.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 955,
Sec. 1, eff. Sept. 1, 2001.
Amended by:
           Acts 2007, 80th Leg., R.S., Ch. 90 (H.B. 189), Sec. 1, eff. May 15, 2007.
           Acts 2007, 80th Leg., R.S., Ch. 1244 (H.B. 2563), Sec. 6, eff. September 1, 2007.
           Acts 2009, 81st Leg., R.S., Ch. 895 (H.B. 3), Sec. 8, eff. June 19, 2009.


           Sec. 11.202. PRINCIPALS. (a) The principal of a school is the instructional leader of the school and
shall be provided with adequate training and personnel assistance to assume that role.
           (b) Each principal shall:
                    (1) except as provided by Subsection (d), approve all teacher and staff appointments for that
principal's campus from a pool of applicants selected by the district or of applicants who meet the hiring
requirements established by the district, based on criteria developed by the principal after informal consultation
with the faculty;
                    (2) set specific education objectives for the principal's campus, through the planning process
under Section 11.253;
                    (3) develop budgets for the principal's campus;
                    (4) assume the administrative responsibility and instructional leadership, under the
supervision of the superintendent, for discipline at the campus;
                    (5) assign, evaluate, and promote personnel assigned to the campus;
                    (6) recommend to the superintendent the termination or suspension of an employee assigned
to the campus or the nonrenewal of the term contract of an employee assigned to the campus; and
                    (7) perform other duties assigned by the superintendent pursuant to the policy of the board of
trustees.
           (c) The board of trustees of a school district shall adopt a policy for the selection of a campus
principal that includes qualifications required for that position.
           (d) The superintendent or the person designated by the superintendent has final placement authority
for a teacher transferred because of enrollment shifts or program changes in the district.
Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
         APPENDIX 5



Jenkins’ Employment Contract 2011-2013
                                  CROSBY INDEPENDENT SCHOOL DISTRICT
                                     TWO-YEAR TERM CONTRACT
6141.cofTcw)
Ccvn:y oCHntda)
Thb eoatmt b enl:md &iro by and                            t!tc Doud or Tnu11:m or thJt Cr""'1                          Sabon• 01nrtci     (Botrd) clld
  u. &q JecldJul                                                              (Baiploy1:11) tuUfat ihll lbnowtns            cotldfliMr:




-
I, 1bo Dcanf henby ogn:ca ca amploy I.ha l!mploym ud Iha



.2,
                                                                                •Bl'OM t6 terVc- Ibo &Inf by c::aaaP>a la d:l!Ia u u:dp&! hy thti
Supc:ria!mdtnt a( lbil Crosh;r' lndopcnd:sll School D:lctrlct for Ibo Jeboal yain                      wltb begilmbg lll1d. t:zMiins da1eJ u te: by the

    Tllo Board '8l"CCI lo pay tho Bmplaycir for tbcllCr'Vic=s nm.dcred m s:uuW sn1u)' aaxrd!os to Ebe c:arnpc:mzufcm plm Ddepted by Uu! 9mrd. Tbt
Bmployai wuilinwW and isrw: thor Ct1ly tha Bet.rd b authodrnd to c:atahU1b JJ1 trl%lud
rcgudla,gu.lary b of no oll'te md 1bll.ll 11DI be roll=! upon.
                                                                                                     any nprt.set1tailtn:11 nu.do by IUl)' 111ht:r pctMlll

3. I! ls un.dml®dand agreed by thepu'f!es 1n fhls0:111trad thltlbsSlljlCrintmd11111 of'lhc cm.by lcd:pcndart School Dfl#fct dall flsv6 lht risbl
.. &al8"   °""'
             dudet IO lb Employ" u                       Wll docm pmpa; llld- Ibo 11mjJJ"'° b nol oo>ployed IO llll • rpooillo pool.... at
                            ""'l' aui8" amudgn lho Bmp!Ol"" IO clbcrcr aldlllmd dwla fbt1'hlcb he or w b pof=loallly =<lfted ct
•""'""" '!"'Riied .,pcm.... t..lada4ucllvodu,t,.will ba ow!cwllbtho ..,...,..1 oftho llc.W.
-4. 81Jppfa:ntt1tal dlll.fl!l may be aulgn:d to lh.o :Bmployeo far\Vhftb •    IDIJ)' or rMYnot be pd4. No propor1ytfght lo tt1ntlllued cmployml!tll
 a:Wta lfl IWl:b mpplcme:at:d dttdmi repnllor• crwh.rtbcr dlpeadl m pcld, and sumi dutlcs m:ay bo tennloafad fot my rwoa ct fot M rcucn. Gt th:
                                        wWi Iha Soard approval.
S, It b:             mi agrud that if tho Emp!oyeti lr snrplll)i!d la mDtc 1ba:c. Cll'lc petition IUdl. u leAdi..a'loou.b or            dirc:dcr, tho
Empfoyt0'•      P«fonnntco will be           In 111:.b tnfsnmanl, am!. tllll wua!Ulidory perl'nmwtt:e ta el!hct wlgrum:r1 comdtutes srcunds fot
nOUl'tlltWlll or lcmhulloo or tbfg Ca111ta.at. The employee cur.ot JC1ian ctlb pc.riiioo wilhwt                both un1:M 'Wilh tho iipprut/ll cf the

15. 1' ls uxukntocd md aamd by th& pe:n!ea: mthls C.amnd tha.l lb4Elnpl0)12c:1 w.tl cazry Ollf hb crhtr dut!ai to Um bctt orbb or hcr•kfll and
ahtllly "'1Wll dhdwgn lb""""'"'!'""' by lho r..t.nt )&"•by 1t!ocl 11.. otlhia ..... ..i bylbh Dblmt. Tho Coo1na ii ap>o!Jtcotly nt;!d
fD                                              nttsal.d n.ailladam oClb Dbtrfct whlch 1n1 In afrc:tndlil time. aay                       may
hen:s&rbc allcu:d oracywhkb may bcadoplal dwiaa Iha cum uClblt Co:Q1nz1t.

alb .. ......,...,,... by lhc D!Jtri<t. A• tho t.-atlhi•                               ....,.lhU         c.-.
1, 'Ihil Ccatraa1 b r:.uudllfantd oo tha Pmploya:i pnrt!dl:oa th aeocuuy c:eni&atlan and cxpcrlmmii reccsnls. lnbdlcet toi:onh, cutb of offi=o and
                                                                   ""'-"""...,a...                           tho Emt>•Ol"" "!""IJJ"11f '111"' 1a
.Uaott 1c • """" or hh "' bar "'1101>d crlmlmt hli""Y .....t - · (NClltll) if raiu&td by lhc Dlslrlcl. TBA, "' SBl!C. N>y
mbnp--to"'1•tlb<oc.....t.ahdl bo....,...twdm-·r...,1cymm,
a.   kl;/ e.Qloo -oc GYal lhal Uui Bee.rd d&tmhrcl cn1SU1 a limmW. m.la=oy wt 1 Ctl!tl ID n:duco                   rcr             mtb u. but not
l&nlt:d tu. dccll!itt fa tmrD!lm=I or w.          rcductlous le l\mdblg. or changa 1:1rprap.m. lhaU ootiJlftutc cn.uso nit lc:mlim1lmz llL mJ 1lmff
durilJJ Jhc t=n Dflhlr CoUnct.
"
redutic= Gfsuch fimd!ng C®St!Jut= good CIWO filrtumb:Wlan e( diir c:omrm,
 10. Tho Boo.rd otTxuat:ca a1W! cotlfy               In 11/f'ithri, DOI bn:r than the   dly l>efvn! tha lU1 day oflmuw:tl.on In !he scli.ool year
by lhl1 Ccatn..c4 whethtlt lrlale:ldtto n:nn ornoit'DlleW Ilia CcmfmL Rt:mwal
.....                                                                                               wW bo Jn a.ccbnftnc& with tht Bnlld pol"°J a:i.d sum

l1, ThaBaudhunotAdcptedanypallcy, ralr.,rc;p1lJllioo,                           fm tmura. No risfttortr::mim lsd'Clltd byth11 Coatnct. Tu1s
Cantr&t shaU not gm1 or cn=ut m'J ccnbiu:tual er ether apcdclr:-t orCODtmaed a:c;iloyma:il arolaim or tmldemc:ot io tWplD)'mtct boyottd IM
tam Cftbo Comca:t.

tl.    oun.a Iba Imm •flhb ""°"'"'Iba Employ.....,. b a - lbtsce.t ..... u .r....m...t by Iba !loud, fi....i.J =laocoy lhol "'!Uh>s•
rcductiua la           nr &r MY roaJoa natal mBolU'd poUcy lbC' thlt Omtnat. 1ba Soud mq r111plmll l!mplO)'l!.tl wffbow: psy lbt aood ctulf 11
dd.crmhtcd hy1hc Botrd lbra pc:rlDd not.ID attnd bnynnd thctlld or          ywcown:d 1r& tblr CUllb'IUlf)lcudiurdbdmtp ctDmpkJ;yc= ar in
llm orwmfmi.tfan.

13. h ltur.dentDod alld qtocd by Iha Board mid !he Eciplayu; tfw                   nflhb Caub'ac;t by lit; limp1nyee, all prevtous coatram cf
                the Boan! am mpmcded wt ltmtluaLodflnd m or no .&:tr= nnd cffc;:t.               •"'

14. Tho Pluy lbr lb fut ttlOclb: or the ltnn of th!t              Wll be piyabtc only upon ru:dpt from tbt: l!qllo)loo or 111! Olitrltil p-ope.rty.
"""""°' -..             am! """"     """"""by "''Diltdot.                                    /.
1,-. 'I'he E.mp{oytl'l W.Y rutsa 11 Ibo md orth11c:hr.o1 yw caYC"Cd by tbla Ccnlm::t b)' l1Ung 11 wrlttcn JeSlgoatioD wilb t!ia        lq u the
writt= niti&nadon l& 6lcd &y the 43i111 dt.y baJlm ifre 1ln:i *J ot tho fdl!trwas ICboal :ycu. A wrltt= \i:dgmtlo:i malled by pnpUd t:t:rd&d cir
                lO rhc PtmldcnJ aflb Boanl 11 the polt oM=i add:m: cl'th11 Dlsnicl fl                 filed 1U lM dma of malHag. lr da
..acmpu to r=lgn It any otha lfmCi the Bmplayee will lie roltucd liooi tttb Oxttmd Cl1ly wi1b Ibo Vtdttca. cam:t:Dt or tbo Bori Ir the !loud doc:a
" " _ , . , la llllmae Ibo Bmoloyco mid tho Bm,loyco ""'"''"" ahon4col lb c..m.cr, lho D!Jlrit< ""!' lilt ,
,....., tho Empt.,.... wt!h Iba SblaBoud ror-Cudl!<olloo.
                                                                                                                            ...,,w.u
                                                                                                                                KO!dca ""6,..

16'. hm:ll4lty of'll\T portfois ortbb Ccmnr:t 1tt1dc Iha le.1111 of'tbc Srato or Tow or or di.II Unftod Stiles &haU cat cfti:ct tbc wlld:fly er the
"""""l:r.ClbC.."'1.                       .

 17.    'lbll   otrtr or an;ilO)'DJUlt oxplzu lf lhh Comnct ta not tlancd w! rGturacd ta Iha Bupo:U:uimdatt. by tho l!mplayce r:a or bctoni
      Hatch 31                                             20.Y:,__,


                                                      II




                                                                                                                                                                   (
                                                                                                                    Appx. 5
                                                                                                                                                        H. Jenkins v. Crosby ISD
                                                                                                                                                                  TEA #: 000294
                APPENDIX 6



Barich v. San Felipe-Del Rio Cons. Indep. Sch. Dist.,
              Docket No. 117-R1a-484
             (Tex. Comm’r Educ. 1985)
DOCKET NO. 117-R1a-484

 SAMUEL BARICH   ß                BEFORE THE STATE
      ß
      ß
 V.   ß                    COMMISSIONER OF EDUCATION
      ß
 SAN FELIPE-DEL RIO CON-    ß
 SOLIDATED INDEPENDENT ß
 SCHOOL DISTRICT ß                THE STATE OF TEXAS

 DECISION OF THE COMMISSIONER

 Statement of the Case

 Samuel Barich, Petitioner, brings this appeal concerning his employment
relationship with San Felipe-Del Rio Consolidated Independent School District,
Respondent. A hearing on this matter was conducted on September 24, 1984 before
Mark W. Robinett, the Hearing Officer appointed by the Commissioner of
Education.    Petitioner is represented by Dean A. Pinkert and Leonard J.
Schwartz, Attorneys at Law, Austin, Texas. Respondent is represented by William
C. Bednar, Attorney at Law, Austin, Texas, and Haygood Gulley, Attorney at Law,
Del Rio, Texas.
 On February 25, 1985, the Hearing Officer issued a Proposal for Decision
recommending to the State Commissioner of Education that Petitioner's appeal be
denied.    Our records reflect that a copy of the Proposal for Decision was
received by both parties.     Petitioner filed Exceptions to the Proposal for
Decision on March 25, 1985. No reply to the exceptions was filed.
 Findings of Fact
 After due consideration of the evidence and matters officially noticed, in my
capacity as State Commissioner of Education, I make the following Findings of
Fact:
 1. In a previous case between the same parties, Barich v. San Felipe-Del Rio
Consolidated ISD, No. 086-R1a-483 (Comm. Educ., May 1983), the Commissioner
held, in Conclusion of Law No. 2, that the school district had, pursuant to Tex.
Educ. Code Ann. ß21.204, "elected to employ Petitioner in his current
professional capacity for the 1983-84 school year."
 2. The Commissioner's Decision was affirmed by the State Board of Education on
September 10, 1983. A Motion for Rehearing was not filed by either party.
 3. It is uncontested that, during the 1982-83 school year, Petitioner served
the district as an ROTC teacher. (Pet. Ex. 15).
 4. After the State Board of Education had entered its decision, the school
district's attorney, Mr. Gulley, called Petitioner's attorney, Mr. Schwartz.
Mr. Gulley represented that Petitioner could not be reinstated as ROTC teacher,
because the school district did not believe that he could be certified by the
Air Force in that position, inasmuch as Petitioner was past retirement age and
had already received the maximum one year extension of his certification. (Tr.
41-42). Mr. Gulley further stated that reinstatement in another position would
be at the salary of an ROTC teacher. (Tr. 52). Petitioner's attorney replied
that he wanted his client to return to work in the exact same position he had
held during the 1982-83 school year. (Tr. 41-42).
 5. On October 3, 1983, Petitioner's attorney sent a letter to the school
district's attorney, which reads, in pertinent part, as follows:


                                                                  Appx. 6
                                                                          1
 Thank you for offering to settle the above-referenced case. However, while we
appreciate your offer of immediate reinstatement, we must reject it as it is, in
our opinion, incomplete.

 Mr. Barich has authorized us to extend to you the following counteroffer. Mr.
Barich will report to school and undertake his duties if the district will
comply with the following:

 1. Mr. Barich must be assigned in the "same professional capacity," Tex.
Education Code subsection 21.204(b), as he was previously employed; i.e., as the
head of the R.O.T.C.;

 2. Mr. Barich must be made whole for all lost salary and benefits for the
period that he has been unemployed;

 3. Mr. Barich must be paid his attorneys' fees and court costs. The fees      are
currently, at our normal billing rate, $9,337.50, while costs are $2,644.84.    We
think that $10,000 is a reasonable compromise of attorneys' fees and costs.     Of
course, this offer on attorneys' fees is only if this settlement offer          is
accepted within the next thirty (30) days; and

 4. All references in Mr. Barich's personnel files to the wrongful breach of his
employment contract must be expunged.

 (Pet. Ex. 1).
 6. On October 21, 1983, Michael C. Boyle, attorney at law, San Antonio, Texas,
sent a letter to Petitioner's attorney, which reads, in pertinent part, as
follows:

 This firm will be working as co-counsel with Mr. Haygood Gulley in the above
matter. In that regard, as attorneys for the School District, I would like to
reiterate what Mr. Gulley expressed to you in your telephone conversation of
September 26, 1983. The School District is quite willing to abide by the Order
of the Commissioner that Mr. Barich be retained in his same professional
capacity for the present school year. As you know, that Order is now final; no
appeal has been taken to the District Court by either party.      Mr. Gulley's
conversation with you of September 26, 1983, is not an offer of settlement as
you seem to indicate in your correspondence to him of October 3, 1983.     Mr.
Gulley merely expressed the sentiments of the District to abide by the
Commissioner's Order and permit Mr. Barich to remain as a teacher for the
current year.

 Mr. Gulley likewise expressed to you the very real problem that the United
States Air Force has refused to sanction Mr. Barich as a R.O.T.C. teacher. We
would welcome any suggestions that you have whereby the School District can
permit Mr. Barich to function in the same professional capacity when the Air
Force has taken the position that he is not qualified to act as an R.O.T.C.
teacher.   Mr. Gulley suggested that you contact the Air Force directly and
attempt to obtain a reversal of that decision.




                                                                           2
 Nevertheless, as indicated herein, the School District is willing to abide by
the Commissioner's decision to retain Mr. Barich for the present year.   Thus,
the School District expects Mr. Barich to report for duty at once.

 (Pet. Ex. 2).
 7. On October 25, 1983, Petitioner's attorney sent a letter to Mr. Boyle, which
reads, in pertinent part, as follows:

 As soon as you can assure my client, Samuel E. Barich, that he will be returned
"to the same professional capacity," as ordered by the Commissioner of
Education, he will report for duty. Until then, you are not completely abiding
by the decision of the State Board of Education.     Furthermore, Mr. Barich is
entitled to be made whole for the breach of his contract.

 In your letter of October 21, 1983, you state that you would welcome any
suggestions that we have regarding the problem with the Air Force.      We do,
indeed, have a suggestion: Write the Air Force and request a waiver for Mr.
Barich. The Air Force routinely grants the requests of school districts for a
waiver of the age requirement. In fact, I have been advised that the Air Force
told your client this several months ago.

 As soon as you receive the official waiver and the school notifies my client
that he is to report to work "in the same professional capacity" as he held
prior to the breach of his contract, we are sure that he would be willing to
sign a new one-year contract and report to work.      Of course, he will still
proceed to obtain redress for the prior illegal termination of his employment.

 In order to give the school district an opportunity to obtain a waiver from the
Air Force, we will not take any further action on this matter for forty-five
days.   If you have not made Mr. Barich whole (including reinstatement to his
prior position with the R.O.T.C.) at the expiration of that period, we will file
suit for breach of contract.       We will seek damages, attorneys fees, and
injunctive relief.

 As we are sure you are aware, the question of liability is now finally decided
and may not be relitigated.

 We believe that our position in this matter is clear and has been consistent
throughout the litigation.   Our client is entitled to full relief; not just a
cryptic promise that the school will "permit Mr. Barich to remain as a teacher
for the current year." After being unemployed for several months, having
litigated in the courts and the administrative agency which oversees the
operations of local school systems and having won throughout the course of this
matter in every forum, the school's refusal to completely abide by the State
Board of Education's Order affirming the Commissioner, we believe that our stand
is entirely justifiable.

 In particular, the Commissioner ordered that "Petitioner's appeal be, in all
things, GRANTED." Emphasis added. If you will refer to the Prayer for Relief in
Petitioner's Petition for Review, you will find that the appeal included the
request that the teacher be made whole for all damages arising out of the
wrongful discontinuation of Petitioner's employment, including attorneys' fees.
We expect nothing less.




                                                                         3
 (Pet. Ex. 3).
 8. On November 7, 1983, Mr. Boyle sent a letter to Petitioner's attorney, which
reads, in pertinent part, as follows:

 Thank you for your letter of October 25, 1983.   I have discussed the same with
Mr. Gulley and with Superintendent Evins.

 I have been advised to report the following:

 1. By telephone conversation on September 21, 1983, you were advised by Haygood
Gulley, local counsel for the School that the School would abide by the decision
of the Commission (sic) and further, that Lt. Col. Barich should report to work
forthwith.

 Six weeks have now elapsed and Lt. Col. Barich has not reported for work as
instructed.  In fact, Lt. Col. Barich has not communicated with the School in
any manner whatsoever.

 2. Lt. Col. Barich's qualifications to hold any particular position with the
School is within the realm of his personal responsibilities.    Lt. Col. Barich
should have requested the required Department of Air Force authorizations long
ago. However, you now desire to place this responsibility upon the school. The
School denies any such responsibility. Nonetheless, in a continuing effort to
resolve this matter, the School is requesting such authorization from the
Department of Air Force. You will be furnished a copy of this request.

 3. The fact remains that Lt. Col. Barich has totally failed to report for work.
Again, demand is hereby made that Lt. Col. Barich report immediately to the
School for a work assignment.

 4. Should Lt. Col. Barich fail to report for work immediately, you are advised
that the School will take under consideration the termination of Lt. Col.
Barich's relationship with the School. You will be advised, in accordance with
the law, of any such consideration.

 Lastly, as I interpret the order of the Commissioner, after a review of all
evidence presented, the only issue litigated concerned the reinstatement of Lt.
Col. Barich. Thus, his reinstatement is the only issue before us, which issue,
if you wish to call it an issue, was resolved long ago when Mr. Gulley advised
you that the School would abide by the ruling of the Commission (sic).
Therefore, I do not understand your offer not to take further action "within
forty-five days" when compliance with the Commission's (sic) order rests
squarely with Lt. Col. Barich, not the School.

 (Pet. Ex. 4).
 9. On November 14, 1983, Petitioner's attorney sent a letter to Mr. Boyle, the
substance of which reads, in its entirety, as follows:

 As soon as we are furnished the authorization from the Department of the Air
Force and the school agrees to fully comply with the Commissioner's Order, Mr.
Barich will report to work.      However, he will not report until the school
remedies its breach of contract.




                                                                          4
 As to your review of the Commissioner's Order we feel that you are incorrect in
your interpretation. Our Petition for Review set out the following prayer for
relief:

 that the Respondent is required to set aside and disregard its announced
decision to consider the non-renewal of Petitioner's contract for the School
Year 1983-84;

 that Respondent be required to expunge any reference in any personnel file of
Petitioner's to said discontinuance of employment;

 that Respondent be required to offer Petitioner a contract to continue
Petitioner's professional employment as a teacher for the Respondent School
District unless and until the at (sic) employment is discontinued under
circumstances which fully comply with applicable law;

 that Respondent be required to make Petitioner whole for all damages arising
out of the wrongful discontinuation of Petitioner's employment, including
attorneys fees pursuant to Title 42, United States Code Section 1988; and

 that Petitioner have such other and further relief to which he may show himself
entitled.

 The Commissioner's Order reads as follows:

 After due consideration of the record, matters officially noticed, and the
foregoing Findings of Fact and Conclusions of Law, in my capacity as State
Commissioner of education, it is hereby

 ORDERED that Petitioner's appeal be, in all things, GRANTED.

 Emphasis added.

 If you really wish to "resolve this matter" as you state in your letter of
November 7, 1983 you need only to agree to make Col. Barich whole for all lost
salary and benefits for the period that he has been unemployed, reinstate him in
the "same professional capacity" which he previously held, expunge his personnel
file and agree to pay him his reasonable attorneys fees.

 On the other hand, if you wish to prolong this matter and needlessly waste
taxpayers money, proceed to terminate him on the grounds that he refuses to
return to work in the absence of a complete settlement. We will litigate this
issue for the next few years - - then, if we are successful, the backpay award
will be in excess of $75,000.00.      I, for one, cannot undertand (sic) the
benefits to be derived by the school system by taking this course of action. We
will be paid our fees, nevertheless, as I am sure you will.     Hence, the only
losers will be the taxpayers and the students within the system. Mr. Barich may
lose the termination question but he will still be entitled to the backpay due
him until he is terminated. Given the amount of money he may ultimately have
coming by the school's recalcitrance in fully complying with the Commissioner's
Order, Col. Barich is willing to stand firm.




                                                                          5
 Even if it successfully terminates Col.      Barich, the school district will
expend more in attorneys fees in litigating the question of the termination's
validity than it will spend in simply abiding by the Commissioner's Order.

 If you wish to discuss settlement, please call me. Thank you.

 (Pet. Ex. 5).
 10. On December 21, 1983, Mr. Boyle sent a letter to Petitioner's attorney, the
substance of which reads, in its entirety, as follows:

 Thank you for your letter of November 14, 1983.

 In addition, since that time we have had an opportunity to talk over the
telephone.

 If I understand your position correctly you are arguing that the District
elected to retain Mr. Barich "in the same professional capacity" for the current
year and that as such the District must pay his salary despite the fact that he
is unable to perform his duties as an instructor in the ROTC program. I have
discussed your view with Mr. Gulley, and he with the District. They are not in
agreement with your argument; however, as I have mentioned in past
correspondence to you and as Mr. Gulley has stressed to you over the telephone,
the District is willing to employ Mr. Barich in some other position if he would
kindly report to them. It is my understanding that Mr. Barich is qualified to
teach the following subjects:

 1. Any elementary grade;

 2. Eighth grade social science;

 3. High school psychology; and

 4. High school industrial arts

 Of course the district cannot be sure as to where he will be placed but if he
would report for duty that uncertainty could be cleared up at once and Mr.
Barich could begin earning a salary for the current year and mitigating his own
alleged damages.

 It is the position of the District that they are not attempting to evade
whatsoever the Order of the Commissioner. However, because of the impossibility
of performance and the inability to perform by one of the contracting parties,
namely Mr. Barich, he cannot be employed in the same professional capacity.
This inability of Mr. Barich to perform is a result of the position taken by the
Air Force, a party over whom neither Mr. Barich nor the District has control.
The District firmly believes it is not in breach of any contractual duty it owes
to Mr. Barich and is more than willing to go the extra step by offering him a
position in one of the other areas of education if Mr. Barich would merely
report to the District that he wishes to return and continue.        Surely, Mr.
Barich should be interested in at least mitigating the damages you have alleged
he shall sustain in your letter of November 14, 1983. Please have Mr. Barich
contact the District at once.




                                                                          6
 (Pet. Ex. 6).
 11. On March 28, 1984, Joe L. Sanders, President of the school district's Board
of Trustees, sent a letter to Petitioner, the substance of which reads, in its
entirety, as follows:

 You are not now an employee or teacher in the San Felipe-Del Rio Independent
School District.

 Nonetheless, and out of an abundance of precaution, you are hereby advised that
you shall not be an employee or teacher in the San Felipe-Del Rio Independent
School District during the 1984-85 school year.

 (Pet. Ex. 8).
 Discussion
 In his Petition for Review, Petitioner argues that the letter he received from
the school district dated March 28, 1984 did not comply with the requirements of
the Term Contract Nonrenewal Act (TCNA), Tex. Educ. Code Ann. ßß21.201 - .211
(Vernon Supp. 1984), and, therefore, his contract was renewed by operation of
law for the 1984-85 school year.
 The first issue that must be considered is whether Petitioner had a valid claim
to employment with the district on March 28, 1984.        If so, the notice he
received could be construed as a nonrenewal notice.      If not, it constitutes
nothing more than a statement of the school district's understanding of the
status of the dispute.
 If Petitioner had an employment relationship with the school district on March
28, 1984, it was directly attributable to the Decision of the Commissioner in
Docket No. 086-R1a-483, in which the Commissioner held that the school district
had, as a matter of law, "elected to employ Petitioner in his current
professional capacity for the 1983-84 school year." What that holding entitled
Petitioner to was an offer from the school district of continued employment in
the "same professional capacity." That holding did not create a contract between
the parties or bind Petitioner to accept any offer from the district that did
not comply with the Order. It only required the school district to make a valid
offer, which Petitioner was free to accept or reject.      His acceptance would
create a contract binding on both parties. His rejection of a bona fide offer
of continued employment in the "same professional capacity" would end any
cognizible claim he might have to continued employment with the school district.
See e.g., Gosney v. Sonora Independent School Dist., 603 F.2d 522, 524-25 (5th
Cir. 1979); Jordan v. Board of Regents, Univ. System, 583 F. Supp. 23, 25-27
(S.D. Ga. 1983).
 Petitioner argues that he did not receive an offer of employment in the "same
professional capacity," because he was never offered the same position he had
held during the 1982-83 school year; i.e., ROTC teacher.       It would not be
reasonable, however, to conclude that the legislature intended that 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 "the exact same position"), intended to allow
school districts to be flexible in their personnel assignments while




                                                                           7
discouraging the abuse of the district's inherent or contractual reassignment
authority.   In other words, the district may place a teacher whose employment
has been renewed by operation of law in a position different from that to which
the teacher was assigned the previous year, as long as the position is one to
which the district could have reassigned the teacher had the parties voluntarily
entered into a contract for the following year. In some instances, the validity
of a particular placement will be clear. For example, an administrator who does
not receive the required notice by April 1 may not be placed in the capacity of
a classroom teacher; a classroom teacher may not be placed in the capacity of a
counselor; a counselor may not be placed in the capacity of a nurse; a nurse may
not be placed in the capacity of a librarian; etc.
 In other instances, the validity of a particular placement might not be so
clear.  For example, a placement might be to another position within the same
professional category (e.g., administrator), but nevertheless, 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.
 Respondent's Request for Additional Findings of Fact
 Subsequent to the issuance of the Proposal for Decision, the school district
filed a request that the Finding of Fact No. 8 be renumbered as 10, Findings of
Fact Nos. 9 - 11 be renumbered as 12 - 14, respectively, and that the following
additional Findings of Fact be made:

 8. On March 19, 1983, Jesse L. Mathews, Deputy Director for Operations and
Training, Air Force Reserve Officer's Training Corps, had written a letter to
Mr. R. S. Evins, Superintendent of the district, in substance as follows:




                                                                          8
 "This is a follow-up on a phone conversation I had with Mr. Jac Mota, principal
at Del Rio High School, regarding your Air Force JROTC Aerospace Education
Instructor."

 "Air Force ROTC Regulation 30-1 contains job specifications which state that
the aerospace education instructor must be less than 65 years of age, however, a
one-year waiver may be granted for exceptionally well-qualified applicants. In
the case of Lt. Col. Samuel Barich, a waiver was granted to approve his
continuation through the 1982-83 school year. The Commandant's current policy
is that no waivers be granted beyond one year.      Therefore, in view of this
policy, Lt. Col. Barich is no longer eligible for instructor duty beyond the
expiration of his current contract.    We will not entertain additional waiver
requests." [P's Exh. 24].

 9. Superintendent Evins wrote to Jesse L. Mathews on November 2,          1983,
requesting another age waiver for petitioner, in substance as follows:

 "Lt. Col. Samuel Barich was employed by the San Felipe-Del Rio Independent
School District for the school year 1982-1983 in the ROTC Program. So that Lt.
Col. Barich may fulfill the same duties for school year 1983-84, the San Felipe-
Del Rio Independent School District does hereby request the following:

 "1. That the Department of the Air Force authorize Samuel Barich to fulfill
such duties for the San Felipe-Del Rio Independent School District for school
year 1983-1984 as he fulfilled in school year 1982-1983;

 "2. That the Department of the Air Force waive any problems which it may have
concerning the fact that Lt. Col. Barich is not more than 65 years of age.

 "Your immediate reply to this request would be appreciated."

 11. On November 9, 1983, Jesse L. Mathews wrote back to Superintendent Evins in
substance as follows:

 "Reference your 2 November 1983 request to waive the age 65 requirement on Lt.
Col. Samuel Barich, USAF, ret., former Aerospace Education Instructor at Del Rio
High School.

 "Age waiver requests are entertained on an individual basis and are applicable
to current instructor personnel who will attain age 65 during the academic year.
Further, these instructors must consistently conform to Air Force standards to
include dress and personal appearance. They must be recommended for waiver by
the principal of the school and the appropriate Area Commandant.

 "Additionally, the A.F.J.R.O.T.C. Unit at Del Rio High School is currently
fully manned with three instructors and an approximate cadet enrollment of 214.
Since Lt. Col. Barich was terminated as an A.F.J.R.O.T.C. Instructor effective
27 May 1983, and is no longer affiliated with A.F.J.R.O.T.C., we have no reason
to consider an age waiver." [P's Exh. 14]

 The requested Findings of Fact will not be made. They are relevant to one of
the school district's defenses - - that Petitioner could not have been offered
reemployment as R.O.T.C. instructor because he could not have obtained an age




                                                                            9
waiver from the Air Force to serve in that capacity during the 1983-84 school
year - - but that issue need not be reached, inasmuch as the issue concerning
Petitioner's rejection of a valid offer of employment is dispositive of this
appeal. Further, if the age waiver issue were reached, it would be necessary to
conduct further proceedings for the purpose of receiving evidence on that issue,
because Petitioner has asserted at all times that Air Force regulations would
have allowed a waiver to have been granted by the Air Force if the school
district had requested one. (See Tr. 73-74; Prehearing Conference Tr.: 16-17;
and Petitioner's Response to Respondent's Request for Additional Findings of
Fact).
 Conclusions of Law
 After due consideration of the record, matters officially noticed, and the
foregoing Findings of Fact, in my capacity as State Commissioner of Education, I
make the following Conclusions of Law:
 1. The school district was required, pursuant to ß21.204 of the Education Code
and the Commissioner's Decision in Docket No. 086-R1a-483, to offer Petitioner a
position for the 1983-84 school year in the "same professional capacity" in
which he was employed during the 1982-83 school year.
 2. The school district, by offering Petitioner a position for the 1983-84
school year as a teacher, with no reduction in salary or status, complied with
ß21.204 of the Education Code and the Commissioner's Order in Docket No. 086-
R1a-483.
 3. Any claim by Petitioner to continued employment with the School District
ended when he rejected the district's offer to employ him in the same
professional capacity.
 4. Because Petitioner was not employed by the school district on March 28,
1984, he has no cognizable claim against the district for its alleged nonrenewal
of his employment on that date.
 5. Petitioner's appeal should be DENIED.
 O R D E R
 After due consideration of the record, matters officially noticed, and the
foregoing Findings of Fact and Conclusions of Law, in my capacity as State
Commissioner of Education, it is hereby
 ORDERED that Petitioner's appeal be, and is hereby, DENIED.
 SIGNED AND ENTERED this 6th day of May , 1985.


 ________________________________
 W. N. KIRBY
 COMMISSIONER OF EDUCATION

 16


 -4-
 #117-R1a-484




                                                                         10
         APPENDIX 7


Perales v. Robstown Indep. Sch. Dist.,
Docket Nos. 053-R10-104; 084-R3-604
     (Tex. Comm’r Educ. 2006)
                              DOCKET NO. 052-R10-104
                              DOCKET NO. 084-R3-604

LAURA PERALES                                §    BEFORE THE
                                             §
                                             §
V.                                           § COMMISSIONER OF EDUCATION
                                             §
ROBSTOWN INDEPENDENT                         §
SCHOOL DISTRICT                              §    THE STATE OF TEXAS

            DECISION OF THE DESIGNEE OF THE COMMISSIONER
                                  Statement of the Case
       Petitioner, Laura Perales, appeals the action of Respondent, Robstown
Independent School District, concerning her grievances.        Christopher Maska is the
Administrative Law Judge appointed by the Commissioner of Education. Petitioner is
represented by Mark W. Robinett, Attorney at Law, Austin, Texas.          Respondent is
represented by John D. Bell, Attorney at Law, Corpus Christi, Texas.
       The Administrative Law Judge issued a Proposal for Decision recommending that
Petitioner’s appeal be denied. Exceptions and replies were timely filed and considered.
                                    Findings of Fact
       The following Findings of Fact are based upon Petitioner’s pleadings:
       1.      Respondent employed Petitioner under term contracts for the 2001-2005

school years. Respondent has not nonrenewed Petitioner’s contract.
       2       Respondent employed Petitioner as the Director of the Even Start Program
for the 2001-2002 and 2002-2003 school years and the beginning of the 2003-2004
school year.
       3.      Even Start is a federal program designed “to help break the cycle of
poverty and illiteracy by improving the educational opportunities of the Nation’s low-
income families by integrating early childhood, adult literacy, or adult education, and
parenting education into a unified family literacy program.”

                                                                               Appx. 7
#084-R3-604, 052-R10-104                            -1-
          4.     The Even Start program is district-wide and at the time of the January
2004 board hearing served 64 part-time students. As the Even Start Director, Petitioner
directed three teachers, a secretary, two daycare workers, and a custodian. Petitioner’s
position of Director of Even Start is similar to the position of a principal of a very small
school.
          5.     On November 17, 2003, Petitioner was notified that she would be
reassigned to the position of assistant principal at Ortiz Intermediate School. For the full
2003-2004 school year, Petitioner continued to receive her salary of $58,840.                As
assistant principal, Petitioner lacked the final decision making authority of a principal.
          6.     On April 8, 2004, Petitioner was notified that for the 2004-2005 school
year, Petitioner received a salary of $51,090.
          7.     For the 2002-2003 and 2003-2004 school years, Petitioner was employed
under a teacher term contract for the position of administrator. This contract provides:

          Employee agrees that the Superintendent of Schools shall have the right to assign
          such duties to the Employee as the Superintendent shall deem proper, and the
          Superintendent may, from time to time, assign or reassign the Employee to other
          or additional duties or assignments to the fullest extent permitted by state law and
          board policy.
          8.     On the September 9, 2003 organizational chart, the Even Start Director is
shown to be at Level II along with other directors and principals. Assistant principals are
found on Level III along with coordinators and facilitators.
          9.     The salary schedule for the 2003-2004 school year lists the position of
Even Start Director at Job Level 5 which has a minimum salary of $38,120, a midpoint of
$46,380, and a maximum of $54,640. Junior high school principals are listed at Job
Grade 4 with a minimum salary of $35,660, a midpoint of $43,380, and a maximum of
$51,090.




#084-R3-604, 052-R10-104                               -2-
                                        Discussion
       Petitioner contends that Respondent failed to employ her in the same professional
capacity and demoted her. Petitioner contends that removing her from her position as
Director of the Even Start Program violated a federal grant.
Jurisdiction
       Texas Education Code section 7.057 grants the Commissioner jurisdiction over
written employment contracts and “the school laws of this state.” “The school laws of
this state” are defined as portions of the Texas Education Code and rules adopted under
the Texas Education Code.        This does not give the Commissioner jurisdiction to
determine whether a school district has complied with federal grant requirements.
Same Professional Capacity
       Petitioner notes that Texas Education Code section 21.206 requires Respondent to
employ her in the same professional capacity during the 2003-2005 school years as she
held during the 2002-2003 school years because Respondent has not nonrenewed her
contract. Respondent does not disagree with this claim. The parties dispute the meaning
of the phrase “same professional capacity.” The term “same professional capacity” is not
defined in statute. Petitioner suggests that the definition of “teacher”, found at Texas
Education Code section 21.201, is helpful:

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



#084-R3-604, 052-R10-104                             -3-
that in a number of cases the Commissioner has interpreted “same professional capacity”
in a different way. In Barich v. San Felipe - Del Rio Consolidated Independent School
District, Docket No. 117-R1a-484 (Comm’r Educ 1985), the Commissioner did not rule
that the definitional categories created distinct professional capacities:

        In other instances, the validity of a particular placement might not be so clear.
        For example, a placement might be to another position within the same
        professional category (e.g. administrator), but nevertheless, be invalid (e.g., from
        superintendent to assistant middle school principal).
In Abbott v. Ector County Independent School District, Docket No. 081-R3-127, 105-R3-
1287 (Comm’r Educ. 1991), the Commissioner found that one hired as teacher/dean
could not be reassigned to a pure teacher position. The Commissioner noted that as deans
the employees in question had administrative duties. While there is no defined category
of teacher/dean, the Commissioner found that such an employee had to be retained in the
capacity of teacher/dean. In Carpenter v. Wichita Falls Independent School District,
Docket No. 247-3-491 (Comm’r Educ. 1993), Carpenter was employed under an
administrator’s contract. She was first assigned as the science supervisor. She was then
reassigned as an assistant high school principal. The Commissioner determined that the
two positions were in the same professional capacity:

        It has been the consistent view of the Commissioner that the TCNA1 balanced its
        grant of limited tenure rights against the considerable personnel management
        problems it might cause if imposed inflexibly. Districts have responded to the
        law by creating broad classes within which transfers do not implicate the TCNA.
        If taken to extremes, this tactic would be against the public policy expressed in
        the TCNA, but I cannot make such a finding in this case. The need for flexibility
        in making personnel changes is strongest, and the argument for a rigid tenure
        system weakest, at the administrative level. In short, I find the generic
        “administrator” position before me to be consistent with the TCNA.
In Keith v. Tarkington Independent School District, Docket No. 459-R3-891 (Comm’r
Educ. 1992), the Commissioner found that a transfer from athletic director to

1
 “TCNA” stands for the “Term Contract Nonrenewal Act.” Prior to the rewrite of the Education Code in
1995, the statutory provisions concerning term contracts were officially known as the Term Contract
Nonrenewal Act.


#084-R3-604, 052-R10-104                                   -4-
teacher/assistant principal was a reassignment in the same professional capacity even
though athletic director and assistant principal are not listed in Texas Education Code
section 21.201(1). In Veliz v. Donna Independent School District, Docket No. 011-R3-
999 (Comm’r Educ. 2000), the Commissioner found that the professional capacity of
certified administrator legitimately encompassed both attendance coordinator and middle
school assistant principal. These cases are incompatible with Petitioner’s claim that the
same professional capacity is determined in reference to the definition of “teacher” found
at Texas Education Code section 21.201.        Since the language in question was first
enacted in 1981 and the Education Code was reenacted without change in 1995, the
Commissioner’s long standing construction is affirmed by the doctrine of legislative
acceptance. Texas Dept. of Protective and Regulatory Services v. Mega Child Care, 145
S. W. 3d 170, 176-177 (Tex. 2004).
Comparison of Positions
       The Commissioner has held that in determining whether two positions are within
the same professional capacity, the first question is whether both positions are within the
professional capacity stated in the contract and the second question is whether the
professional capacity is a legitimate professional capacity. Young v. Leggett Independent
School District, Docket No. 175-R3-898 (Comm’r Educ. 1999).              The professional

capacity stated in Petitioner’s contract is “administrator.” In the present case, the two
positions are administrator positions.       Whether “administrator” is a legitimate
professional capacity that encompasses the positions in question is determined principally
by comparing professional skills and responsibilities.
       In the present case, Petitioner first held the position of Director of the Even Start
Program. Even Start was a small program, but a district-wide program. The program
was designed to combat illiteracy by keeping the whole family involved. Petitioner was
responsible for 64 part-time students. Petitioner directed three teachers, a secretary, two
daycare workers, and a custodian. In effect, Petitioner’s position was the equivalent to


#084-R3-604, 052-R10-104                             -5-
that of a principal of a very small magnet school. For the 2003-2004 school year, as
Even Start Director, Petitioner earned $58,840. On the district’s organizational chart,
Even Start Director was on the same level as principals.
       Petitioner’s second position was that of an assistant middle school principal.
Petitioner’s duties as assistant principal impacted more students, teachers, and other
employees, but as assistant principal she had less authority. Except in the absence of the
principal, in many situations, Petitioner lacked final authority. For the 2003-2004 school
year, as an assistant principal, Petitioner earned $58,840. On the district’s organizational
chart assistant principals are on the level below principals.
       The positions of Even Start Director and assistant principal are within the same
professional capacity. While the duties and responsibilities are not identical, they are
sufficiently similar. Petitioner went from a position that was the equivalent of being the
principal of a very small school to being a middle school assistant principal. Petitioner’s
pay remained the same for the 2003-2004 school year. While there was movement on the
organizational chart, the movement was only one level. This case seems most similar to
Keith v. Tarkington Independent School District, Docket No. 459-R3-891 (Comm’r Educ.
1992). In Keith, the movement was from a central office position to the position of
assistant principal. The Commissioner held that the two positions were in the same

professional capacity.
Demotion/Reduction in Salary
       For the entire 2003-2004 school year, Petitioner continued to receive her salary of
$58,840. On April 8, 2004, Petitioner was notified that for the 2004-2005 school year,
she would receive a salary of $51,090. Petitioner maintains that the reduction in salary
plus the reduction in responsibilities constitutes a demotion. This claim is a contract
claim. The Commissioner has stated that in addition to reductions in pay, such factors of
reduction in responsibilities and required skills are relevant factors when considering a
demotion claim. Underwood v. Rusk Independent School District, Docket No. 062-R3-


#084-R3-604, 052-R10-104                              -6-
198 (Comm’r Educ. 1998). However, since any reduction in responsibilities or required
skills is in accordance with Petitioner’s contract, Respondent has not violated Petitioner’s
written employment contract. TEX. EDUC. CODE § 7.057(a)(2)(B). Further, even if
Petitioner could identify a violation of her contract, Petitioner cannot show that this
caused or would cause monetary harm. Smith v. Nelson, 53 S.W.3d 792 (Tex. App.-
Austin 2001, pet. denied). The only contract in evidence is Petitioner’s contract for the
2002-2004 school years. This contract does not require that Petitioner receive the same
or greater compensation for the 2004-2005 school year. While Petitioner may have
expected to receive the same or a higher salary, she had no contractual right to receive
such a salary. When a school district informs a teacher of a salary reduction at a time
when the teacher can unilaterally withdraw from the contract, the district may reduce
compensation from one school year to the next as long as the compensation complies
with the state minimum salary schedule. TEX. EDUC. CODE § 21.402-21.403.
Conclusion
       Petitioner’s reassignment from Even Start Director to assistant middle school
principal was a reassignment within the same professional capacity. Respondent has not
impermissibly reduced Petitioner’s salary or demoted her.
                                    Conclusions of Law

       After due consideration of the record, matters officially noticed, and the foregoing
Findings of Fact, in my capacity as Designee of the Commissioner of Education, I make
the following Conclusions of Law:
       1.      The Commissioner has jurisdiction to hear this cause under Texas
Education Code section 7.057, except as noted in Conclusion of Law No. 3.
       2.      Texas Education Code section 7.057 grants the Commissioner jurisdiction
over written employment contracts and “the school laws of this state.”




#084-R3-604, 052-R10-104                             -7-
         3.    The Commissioner lacks jurisdiction to consider whether Respondent
violated the requirements of the Even Start grant under Texas Education Code section
7.057.
         4.    “Same professional capacity”, as used in Texas Education Code section
21.206, is not limited to the individual classifications used in Texas Education Code
section 21.201(1). This interpretation of the Commissioner is affirmed by the doctrine of
legislative acceptance.
         5.    “Administrator” is a legitimate professional capacity under Texas
Education Code section 21.206.
         6.    Whether the professional capacity of “administrator” properly includes
two positions is determined principally by comparing the professional skills and
responsibilities of the two positions.
         7.    Petitioner’s positions of Even Start Director and middle school assistant
principal both legitimately fall under the professional capacity of administrator.
         8.    Respondent did not violate Texas Education Code section 21.206 by
reassigning Petitioner from Even Start Director to middle school assistant principal.
         9.    Petitioner’s claims of demotion and reduction in salary are contract
claims. TEXAS EDUC. CODE § 7.057 (a)(2)(B).

         10.   Reassigning Petitioner from Even Start Director to middle school assistant
principal did not violate her contract.
         11.   Even if reassigning Petitioner from Even Start Director to middle school
assistant principal violated Petitioner’s contract, it did not cause nor would it cause
monetary harm.
         12.   Reducing Petitioner’s salary from the amount received for the 2003-2004
school year to the amount for the 2004-2005 school year did not violate Petitioner’s
contract as the salary offered was not below the salary required by the state minimum
salary schedule. TEX. EDUC. CODE § 21.401-21.402.


#084-R3-604, 052-R10-104                              -8-
       13.    Petitioner was not demoted in violation of her contract.
       14.    Petitioner’s appeal should be denied.
                                       ORDER
       After due consideration of the record, matters officially noticed and the foregoing
Findings of Fact and Conclusions of Law, in my capacity as Designee of the
Commissioner of Education, it is hereby
       ORDERED that Petitioner’s appeal be, and is hereby, DENIED.
       SIGNED AND ISSUED this ______ day of _______________________, 2006.



                                     ______________________________________
                                     ROBERT SCOTT
                                     CHIEF DEPUTY COMMISSIONER
                                     BY DESIGNATION




#084-R3-604, 052-R10-104                              -9-
            APPENDIX 8



Carpenter v. Wichita Falls Indep. Sch. Dist.,
         Docket No. 247-R3-491
       (Tex. Comm’r Educ. 1993)
                         DOCKET NO. 247-R3-491


ROSE M. CARPENTER                 §              BEFORE THE STATE
                                  §
                                  §
V.                                §      COMMISSIONER OF EDUCATION
                                  §
WICHITA FALLS INDEPENDENT         §
SCHOOL DISTRICT                   §              THE STATE OF TEXAS


                  DECISION OF THE COMMISSIONER

                         Statement of the Case

      Petitioner was employed as an administrator by the Wichita Falls

Independent School District for the        1989-90   school year.     Her

assignment at that time was science supervisor. Petitioner appeals

the denial of her grievance claiming the reassignment was in violation of

Texas Education Code § 21.204(d).

      A hearing on the merits of this appeal was heard on January 13,

1992, before James C. Thompson, the Hearings Examiner appointed by

the State Commissioner of Education.       Petitioner was represented by

Mark Robinett, Attorney at Law, Austin, Texas.          Respondent was

represented by Roger Hepworth, Attorney at Law, Austin, Texas.

      On July 20, 1993, the Hearings Examiner issued a Proposal for

Decision recommending that Petitioner's appeal be denied.     Exceptions

and replies were timely filed and considered.

                              Findings of Fact

      After due consideration of the evidence and matters officially

noticed, in my capacity as State Commissioner of Education, I make the

following Findings of Fact:




                                                                 Appx. 8
       1.       At all times relevant to this appeal Petitioner was employed

by the Respondent as an administrator in the Wichita Falls Independent

School District. (Joint Stip.; PX-1.)

       2.       Both the administrator's contract for the 1989-90 school

year and the administrator's contract for 1990-91 signed by Petitioner

contain a clause providing that

       employee shall be subject to assignment and reassignment
       of positions or duties, additional duties, changes in
       responsibilities or work, transfers, or reclassification at any
       time during the contract term.
(PX-1; RX-2.)

       3.       In June or July of 1990, the Wichita Falls Independent

School District reorganized its administrative structure. As a result of

the administrative reorganization of Wichita Falls Independent School

District, some of the area supervisors were reassigned to campus-based

administrative positions. (Joint Stip.)

       4.       In July of 1990, Petitioner received notice from the Wichita

Falls Independent School District that Petitioner would be reassigned to

the position of Assistant High School Principal. (Joint Stip.)

       5.       Petitioner received no decrease in salary or benefits from

her reassignment. (Joint Stip.)

       6.       At the time of the hearing Petitioner remained employed

with the Wichita Falls Independent School District as an administrator in

the position of Assistant Principal. (Joint Stip.)

       7.       Petitioner   voiced   disapproval    of   the   administrative

reorganization.

       8.       The Assistant Superintendent recommended that Petitioner

would not be well suited to the new role as Science Support Specialist




#0247-R3-491                               -2-
because of a problem she had working with principals and teachers in

the past.

       9.      Petitioner did not apply for the position of Science Support

Specialist.

       10.     Petitioner's former position of Science Supervisor was

among those positions abolished by the reorganization plan.

       11.     Petitioner's    position   as   Assistant     Principal     is   an

administrative position and Petitioner's prior position as Science

Supervisor was an administrative position.         These positions are in the

same professional capacity. (PX-2 and RX-2.)

                                  DISCUSSION

       The question presented by this appeal is the scope and reach of

the Term Contract Nonrenewal Act, Texas Education Code section

21.204(b), in the context of the reassignment of those school district

personnel coming under its protections.            Petitioner would have the

Commissioner of Education hold that the phrase "same professional

capacity" as used in the TCNA is either defined by or in some way

informed by the definition of "teacher" found in §21.201(1) of that Act. I

do   not    believe   the   statutory   language   can    permit   of    such   an

interpretation. Rather, this phrase is left undefined by the statute, and

therefore its meaning is a matter for interpretation by the Commissioner,

in the first instance, and by the courts.                The decisions of the

Commissioner (and the courts) have consistently looked to the language

of the employment contract itself and attempted to give the parties the

benefit of their bargain. In this case, the contract between the parties

provides that the position to which Petitioner was entitled was that of a

generic "administrator."       Petitioner has not proven that hers was a



#0247-R3-491                                -3-
contract of adhesion, which would clearly change the result in this case.

It is true that the Commissioner has held that §21.204(b) limits the right

of the district to transfer a term contract teacher. Barich v. San Felipe-

Del Rio C.I.S.D., Docket No. 117-R1a-484 (Comm'r Educ. May 1985). It

is possible to imagine situations where the transfer clause in an

employment contract would be held unenforceable under §21.204(b).

However, this is not such a case. It has been the consistent view of the

Commissioner that the TCNA balanced its grant of limited tenure rights

against the considerable personnel management problems it might cause

if imposed inflexibly.    Districts have responded to the law by creating

broad classes within which transfers do not implicate the TCNA. If taken

to extremes, this tactic would be against public policy as expressed in the

TCNA, but I cannot make such a finding in this case.          The need for

flexiblity in making personnel changes is strongest, and the argument for

a rigid tenure system weakest, at the administrative level. In short, I find

the generic "administrator" position before me to be consistent with the

policies of the TCNA.

                             Conclusions of Law

       After due consideration of the record, matters officially noticed,

and the foregoing Findings of Fact, in my capacity as State Commissioner

of Education, I make the following Conclusions of Law:

       1.     The Commissioner of Education has jurisdiction over this

appeal under Texas Education Code §11.13(a).

       2.     Respondent's decision to reassign Petitioner was neither

arbitrary, capricious, nor unlawful.

       3.     Respondent's decision to reassign Petitioner was not a

violation of state law.



#0247-R3-491                             -4-
      4.     Petitioner   had   no    contractual   entitlement   not   to   be

reassigned from Science Supervisor to Assistant Principal.

      5.     Petitioner had     no   property interest in the non-economic

benefit of serving as Science Supervisor.

      6.     Petitioner's appeal should be denied.

                                 ORDER

      After due consideration of the record, matters officially noticed,

and the foregoing Findings of Fact and Conclusions of Law, in my

capacity as State Commissioner of Education, it is hereby

      ORDERED that Petitioner's appeal be, and is hereby, DENIED.

      SIGNED AND ISSUED this ______ day of ________________, 199_.



                                     ___________________________________
                                     LIONEL R. MENO
                                     COMMISSIONER OF EDUCATION




#0247-R3-491                               -5-
         APPENDIX 9



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

MARGARET LEHR                                     §     BEFORE THE
                                                  §
                                                  §
V.                                                § COMMISSIONER OF EDUCATION
                                                  §
ECTOR COUNTY INDEPENDENT                          §
SCHOOL DISTRICT                                   §   THE STATE OF TEXAS

                          DECISION OF THE COMMISSIONER
                                      Statement of the Case
        Petitioner, Margaret Lehr, appeals the action of Respondent, Ector County
Independent School District, concerning her grievance.                Christopher Maska is the
Administrative Law Judge appointed by the Commissioner of Education. Petitioner is
represented by Mark W. Robinett, Attorney at Law, Austin, Texas.                    Respondent is
represented by Mike Atkins, Attorney at Law, Odessa, Texas.
        The Administrative Law Judge issued a Proposal for Decision recommending that
Petitioner’s appeal be dismissed. Exceptions and replies were timely filed and
considered.
                                         Findings of Fact
        After due consideration of the record, the stipulations of the parties, 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
decision1.
        1.      Petitioner was employed by Respondent under a term contract for 2007-
2008 school year as an administrator. For this school year, Petitioner held the position of
Executive Director of Special Education, which was a Pay Grade 8 position. This was a
12 month position. The salary range for such a position according to the salary schedule

1
 See 19 TEX. ADMIN. CODE § 157.1073(h); Bosworth v. East Central Independent School District, Docket
No. 090-R1-803 (Comm’r Educ. 2003).

                                                                                   Appx. 9
#003-R3-0908
was $78,933 to $110,128. What salary Petitioner received within this salary range for the
2007-2008 school year is unknown.
        2.      Petitioner was employed by Respondent under a term contract for 2008-
2009 school year as an administrator. For this school year, Petitioner held the position of
Assistant Principal Lamar Elementary School, which initially was a Pay Grade 2 position
but which was upgraded to a Pay Grade 3 position. The position was for 12 months. The
salary range for such a position according to the salary schedule was $52,546-$76,401.
        3.      Petitioner received the same pay for the 2008-2009 school year as she
received for the 2007-2008 school year.
        4.      By letter of June 11, 2009, Petitioner voluntarily submitted her resignation
to be effective on June 30, 2009. This resignation was accepted by Respondent on June
11, 2009.
        5.      When Petitioner was reassigned to the position of Assistant Principal she
was informed that a salary adjustment would be made for the 2009-2010 school year.
        6.      When Petitioner was reassigned to the position of Assistant Principal she
was informed that the number of days to be worked would be reduced to 217 days from
227 days for her second year as an Assistant Principal.
        7.      The job description for Executive Director of Special Education provides

in pertinent part:
        QUALIFICATIONS:
                       •   Master’s Degree
                       •   Mid-management/Supervisor Certification
                       •   Special Education Certification
                       •   Administrative or Supervisory Experience
                       •   Such alternatives to the above qualifications as the Board may
                           find appropriate.
        SUPERVISOR:                   Assistant Superintendent for Instruction Services


#003-R3-0908                                   2
      JOB GOAL:                      The goal of The Executive Director of Special
      Education is to direct the district’s special education program to ensure provision
      of needed services for special education students and to ensure compliance with
      all state, federal, and local requirements.


      Responsibility:        To fulfill the responsibilities of this position, the person
      will:
          01     Direct special education programs to ensure students with special
                 needs are provided services as reflected in the Individualized
                 Education Plan (IEP)
          02     Ensure that each student is evaluated within state and federal
                 guidelines and the findings are used for program improvement
          03     Develop budgets and grants for growth and maintenance of special
                 education programs
          04     Monitor budgets to ensure that financial accounting procedures are
                 followed in accordance with local, state, and federal regulations
          05     Direct maintenance and security of confidential files and records
          06     Direct the compiling, maintaining, and filing of required reports,

                 records, and other documents
          07     Serve as resource person in the design and equipping of physical
                 facilities for individuals with disabilities
          08     Implement and interpret policies established by federal and state laws,
                 State Board of Education policies in the area of special education
          09     Secure contracts with providers for services to special education
                 students
          10     Participate in district programs for recruitment, selection, orientation,
                 assignment, and retention of special education employees


#003-R3-0908                                 3
             11      Establish and maintain open lines of communication by conducting
                     conferences with parents, students, and educators concerning
                     interpretation and review of special education programs
             12      Work collaboratively with other members of the Curriculum and
                     Instruction Division for accomplishment of the district’s long and
                     short goals and objectives.
             13      Assume responsibility for own professional growth and development,
                     for keeping current with literature; new research findings, and
                     improved techniques, for attending appropriate professional meetings
                     and conventions
             14      Evaluate supervised personnel in accordance with district policy
             15      Assume other duties and responsibilities as assigned by the Assistant
                     Superintendent
             16      Attend board meetings to maintain communication with school board
                     members
             17      Participate in superintendent’s cabinet as a liaison between the SpEd
                     Department and the Superintendent.



        TERM OF EMPLOYMENT:                     12 months (227 days)


        8.        The job description for Assistant Principal-Elementary reads in pertinent
part:
        QUALIFICATIONS:                 Master’s Degree
                                        Successful teaching experience
                                        Valid administrator’s certification issued by SBEC
                                        or eligible for temporary assistant principal
                                        certificate


#003-R3-0908                                   4
      JOB GOAL:                  The goal of the assistant principal is to assist the principal
      in fulfilling responsibilities and duties associated with the instructional staff
      RESPONSIBILITIES:
          01      Provide assistance in instructional monitoring of student performance;
          02      Provide leadership to teachers on classroom management techniques
                  and teaching strategies and delivery;
          03      Assist in the planning and development of campus professional
                  development;
          04      Participate in interviewing and assigning of instructional personnel;
          05      Assist in designing, implementing, and evaluating school climate;
          06      Collaborate with campus improvement team;
          07      Implement school curriculum and oversee District’s curriculum
                  initiatives;
          08      Serve as an appraiser evaluating teacher performance;
          09      Work with faculty in budgeting, accounting, facility planning,
                  maintenance and operations;
          10      Interpret, enforce and maintain proper student conduct and discipline;
                  plan coordinate and supervise extracurricular activities;

          11      Supervise the reporting and monitoring of student attendance and work
                  with attendance personnel for investigating follow-up actions;
          12      Participate in student and/or parent conferences;
          13      Assume responsibility for coordinating transportation, custodial,
                  cafeteria and other support services;
          14      Cooperate in conducting safety inspections and safety drills;
          15      Serve with parent, faculty, and student groups in building support for
                  school;




#003-R3-0908                                   5
           16     Grow professionally in staff development areas and self improvement
                  plans;
           17     Assess school and program needs and develop programs and teaching
                  strategies to meet indentified needs;
           18     Utilize public relations skills in maintaining positive and open
                  communication with community and parents;
           19     Perform other duties as may be assigned by the principal;
           20     May be responsible for coordinating the assignment of students to
                  extended day activities (for magnet elementary school).


       TERM OF EMPLOYMENT:                   11 ½ months (217 days)
                                       Discussion
       Petitioner contends that Respondent demoted her and changed her professional
capacity when it reassigned her from the position of Executive Director of Special
Education to the position of Assistant Principal at Lamar Elementary School.
Respondent denies these claims and asserts that the case is moot and that the
Commissioner lacks jurisdiction over Petitioner’s contract claim because Petitioner
cannot show monetary harm.

Mootness
       Respondent contends that this case became moot when Petitioner submitted her
resignation and that resignation was accepted. The Texas Supreme Court has held that:

       A case becomes moot when it appears that one seeks to obtain judgment upon
       some pretend controversy when in reality none exists, or when he seeks judgment
       upon some matter which, when rendered, for any reason cannot have any practical
       legal effect upon a then existing controversy.
McNeil v. Hubert, 119 Tex. 18, 23, 23 S.W.2d 331, 333 (1930).               Mootness is a
component of subject matter jurisdiction. State Bar of Texas v. Gomez, 891 S.W2d 243,
244 (Tex. 1994). If a case is moot, the Commissioner lacks jurisdiction over the case.


#003-R3-0908                                6
Evidence as to Mootness
         While jurisdiction is often determined on the pleadings, in the appropriate case,
evidence may be taken. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.
2001). By Order of September 2, 2009, the parties were directed that:

                 The parties will be brief the issues related to Respondent’s Motion to
         Dismiss for Mootness. If a party believes that evidence not in the record is
         required to resolve issues related to the motion, the party shall identify the type of
         information believed to be needed and suggest a method to take such information.
         If a party believes additional evidence is needed, the party shall consult with the
         other party to determine if an agreement may be reached as to taking evidence.
While Petitioner’s Brief on Respondent’s Motion to Dismiss identifies evidence that she
believes indicates that the resignation was not voluntary, Petitioner did not identify a
method as to how such evidence might be taken or indicate that an attempt at an
agreement as to taking evidence was attempted. The only evidence concerning the
resignation itself is the parties’ stipulation that the resignation was submitted by
Petitioner and accepted by Respondent and, to the extent it is relevant, the local record.
Resignation
         A resignation is a contract to end a contract. It normally2 requires offer and
acceptance. Cantu v. Central Education Agency, 884 S.W.2d 565 (Tex. App.-Austin
1994, no writ).         If by her resignation, Petitioner’s employment relationship with
Respondent was ended, Petitioner could not recover on either her claim that she was
demoted or that Respondent failed to employ her in the same professional capacity in
violation of Texas Education Code section 21.206(b), as a valid resignation ends the
mutual obligations of a contract. New York Life Ins. Co. v. Thomas, 103 S.W. 423, 152
(Tex. Civ. App. 1907). Petitioner asserts the defense that her actions in tendering a
written resignation were not voluntary.


2
  A resignation of a chapter 21 contract made in writing 45 days before the first day of instruction is not
required to be accepted to be effective. TEX. EDUC. CODE §§ 21.105, 21.160, and 21.210. In the present
case, it is unclear whether the resignation met the relevant timelines and was required to be accepted.


#003-R3-0908                                          7
Was the Resignation Voluntary?
       Based on the stipulation of the parties, the resignation to be effective on June 30,
2009 was submitted and accepted on June 11, 2009. On June 11, 2009, a contract was
made to end the employer-employee relationship on June 30, 2009. The contract made
was not a contract that the employer-employee relationship would end on June 30, 2009
unless the Petitioner prevailed in the administrative appeal. The contract made between
the parties was to end the employment relationship on June 30, 2009.
       The local record contains evidence that can be considered in conjunction with the
mootness claim. As set forth below, Respondent did not violate Texas Education Code
section 21.206 when it reassigned Petitioner to other duties. A district’s lawful action in
accordance with a written contract cannot be said to force a teacher to submit a
resignation. The local record does not support a determination that the resignation was
not voluntary.
       But even assuming the Petitioner was correct that a violation of Texas Education
Code section 21.206 had occurred this would not result in a determination that the
resignation was not voluntary. Even when one party to a contract violates a contract, the
parties can still agree to end the contract. Petitioner sought a resignation effective on a
particular day. Petitioner did not seek some other agreement. Respondent accepted the

agreement Petitioner offered. Texas Education Code section 21.206 does not provide that
a violation results in a resignation being deemed to be involuntary.
       Assuming for purpose of argument that Petitioner’s affidavit attached to
Petitioner’s Brief on Respondent’s Motion to Dismiss is evidence to be considered, the
results remains the same. The resignation was voluntary. While the affidavit sets forth
reasons why Petitioner wished to end the employment relationship, it does not
demonstrate that Petitioner’s resignation was not voluntary. Petitioner retired earlier than
she had wished to and sought other employment. This is a rational course of action.
Petitioner could have remained employed with Respondent and sought to vindicate her


#003-R3-0908                                 8
rights through her appeal to the Commissioner. That would also be a rational course of
action, but Petitioner did not do this. Petitioner’s resignation was voluntary.
What Effect Would a Ruling on the Merits Have?
       Petitioner argues that even if the resignation was voluntary that a ruling on the
merits would have a practical effect. Petitioner contends that the Commissioner could
order Respondent to reinstate Petitioner or to pay lost retirement benefits. Petitioner
further claims that a Commissioner’s decision could be used by a court as a basis to
award such benefits. However, Petitioner makes no legal citation to support these claims.
As to the claims that the Commissioner could direct Respondent to reinstate Petitioner
and pay lost retirement benefits, Respondent is mistaken. The Commissioner could not
force Respondent to create a new contract with Petitioner or force Respondent to pay
benefits somehow derived from this new contract. Petitioner has not shown she was
owed any monetary benefits of the contract that ended on June 30, 2009. There is no
relief that the Commissioner could offer that would have a practical legal effect.
Demotion
       Petitioner claims that Respondent demoted her. The Texas Education Code does
not prohibit a school district from demoting a teacher. Petitioner has not alleged that any
section or sections of the Texas Education Code prohibits demotions. To the extent the

Commissioner has jurisdiction over demotions, that authority must come from Texas
Education Code section 7.057(a)(2)(B) which gives the Commissioner jurisdiction over
violations of written employment contracts that cause or would cause monetary harm:

                a) Except as provided by Subsection (e), a person may appeal in writing
       to the commissioner if the person is aggrieved by:
                . . .
                      (2) Actions or decisions of any school district board of trustees
       that violate:
                      . . .
                               (B) A provision of a written employment contract
       between the school district and a school district employee, if a violation causes or
       would cause monetary harm to the employee.


#003-R3-0908                                 9
Because Petitioner had not lost salary or benefits when the grievance was filed or during
the grievance, Petitioner cannot show the requisite monetary harm. Smith v. Nelson, 53
S.W.3d 792 (Tex. App.-Austin 2001, pet denied). The Commissioner lacks jurisdiction
over Petitioner’s demotion claim.
Same Professional Capacity
         Assuming for the sake of argument that this case is not moot, the following
analysis of “the same professional capacity” claim is made. A “teacher”3 who holds a
term contract under Texas Education Code chapter 21, subchapter E that is about to
expire cannot be reassigned to a new position for the next school year unless the position
is within the same professional capacity as the position the “teacher” held in the current
school year:
       (a)ANot 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 specified constitutes an election to employ the teacher in the same
       professional capacity for the following school year.
TEX. EDUC. CODE § 21.206. The term “same professional capacity” is not defined in the
Texas Education Code.            However, the Commissioner from the earliest substantive
decision concerning this provision has held that “administrator” is a professional
capacity.
       It is more reasonable to conclude that the legislature, by using the term “same
       professional capacity” (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




3
  The definition of “teacher” found at Texas Education Code section 21.201 is truly a creature of statute. It
includes individuals who would never in common speech be referred to as teachers.


#003-R3-0908                                         10
        clear. For example, an administrator who does not receive the required notice by
        April 14 may not be placed in the capacity of a classroom teacher. . .
                In other instances, the validity of a particular placement might not be so
        clear. For example, a placement might be to another position within the same
        professional category (e.g., administrator), but nevertheless be invalid (e.g., from
        superintendent to assistant elementary school principal). Factors to be considered
        in determining the validity of such an assignment include, but are not limited to
        differences in authority, duties, and salary.
Barich v. San Felipe-Del Rio Consolidated Independent School District, Docket No. 117-
R1a-484 (Comm’r Educ. 1985).                 Further, the Commissioner has found that the
professional capacity of “administrator” is to be broadly 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) 5. 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.
Carpenter v. Wichita Falls Independent School District, Docket No. 247-R3-491
(Comm’r Educ. 1993).            In many cases, it will not constitute a violation of Texas
Education Code section 21.206 for a district to reassign a term contract administrator

from a position with one administrative job title to a position that has a different
administrative job title. Perez v. Donna Independent School District, Docket No. 086-
R1-705 (Comm’r Educ. 2007).
        As Carpenter indicates, what professional capacity a “teacher” holds is to a
certain extent determined by the employment contract.                    However, districts are not
completely free to determine what professional capacity a “teacher” has. A professional
4
  In the original Term Contract Nonrenewal Act, a district had to propose nonrenewal on or before April 1,
instead of the current requirement of “the 45th day before the last day of instruction.” Term Contract
Nonrenewal Act, 67th Leg., R.S. , ch. 765, § 2, 1981 Tex. Gen. Laws 2847.
5
  The old Texas Education Code section 21.204 is the predecessor of the current Texas Education Code
section 21.206.


#003-R3-0908                                        11
capacity must be a legitimate professional capacity.      Young v. Leggett Independent
School District, Docket No. 175-R3-898 (Comm’r Educ. 1999). A district is not required
to employ an assistant principal in the professional capacity of assistant principal. A
district may employ an assistant principal in the professional capacity of administrator.
To determine if a district may reassign an administrator who is employed in the central
office to another position such as assistant principal, the two positions need to be
compared.
Executive Director of Special Education and Assistant Principal
       Applying the factors noted in Barich, it is concluded that Petitioner’s two
positions are in the same legitimate professional capacity of administrator. There are
differences in authority, duties, and salary between the two positions. However, both
positions are legitimate administrator positions.
Authority and Duties
       Comparing authority and duties, one job is a central office position the other job
is a campus position. The main evidence as to authority and duties comes from the job
descriptions of the two positions. While the job descriptions are detailed, there are
unanswered questions as to what the descriptions actually mean. For example, both job
descriptions indicate that each position has a role in teacher appraisals. The Executive

Director of Special Education is to “evaluate supervised personnel in accordance with
district policy.’” An assistant principal is to “serve as an appraiser evaluating teacher
performance.” Because special education teachers teach on campuses, it is uncertain who
performs teacher appraisals for special education teachers. Other issues are not answered
by the record. It is unclear how many employees the Executive Director of Special
Education supervises. It is also unclear how many students and teachers are on the
elementary campus. But while the record is less than exhaustive, it is clear that both jobs
are responsible administrative jobs.




#003-R3-0908                                 12
         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.6 Currently, the
only certifications for administrator are superintendent and principal.7                     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.
         Petitioner contends that an Assistant Principal position “is, in essence, a support
position.” Petitioner’s Brief, p. 10. In a way this is true. But it is also true that the
Executive Director of Special Education is a support position. The Executive Director of
Special Education assists the superintendent’s assistant.                 The Executive Director of
Special Education reports to the Assistant Superintendent for Instruction Services. The
primary authority in a school district is held by the school board. TEX. EDUC. CODE §
11.002. A superintendent has considerable statutory authority. TEX. EDUC. CODE §
11.201. To a lesser degree, principals have statutory authority. TEX. EDUC. CODE §

11.202. Even teachers have some statutory authority. TEX. EDUC. CODE § 37.002. An
Executive Director for Special Education is given no authority under the Texas Education
Code. This does not mean that the position has no authority. Indeed, it has authority.
However, the Executive Director of Special Education does not have the statutory
authority like any of the positions listed above.



6
  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.
7
  19 TEX. ADMIN. CODE ch. 241 and 242. All other administrator certifications were not issued after 2000.


#003-R3-0908                                        13
Salary
         Petitioner’s salary did not change when she changed positions.        However,
Petitioner was informed that her salary classification would change. Just how much
change might have occurred if Petitioner had not resigned is unclear. Based on the record
it cannot be determined what Petitioner’s salary for the 2009-2010 year would be. In
fact, it is not clear what Petitioner’s salary for the 2007-2008 and the 2008-2009 school
years was. Only the salary range is known for those years. The difference between the
salary ranges shows a potential change in salary of $2,500 to $58,000. A comparison of
the salary ranges for 2007-2008 and 2008-2009 is not very useful. The record fails to
indicate how an employee’s actual salary is determined within the salary range. Further,
any change in salary was to come in the 2009-2010 school year and the record reveals
neither what Petitioner’s salary for that year would have been, nor the salary ranges for
that year.
         If the Legislature had intended that no reduction in salary could occur when a
teacher’s contract is renewed, it would have said so. For example, in Texas Education
Code section 21.402(d) and (f), it is specified that teachers who remain at the same
school district cannot receive less than they received in particular school years. While
salary is a factor to consider in determining whether two positions are in the same

professional capacity, it will often not be a decisive factor. Teachers across the state
often receive different salaries, yet no one questions whether they hold the same
professional capacity. The same is true of assistant principals and all of those employed
under term contracts. The record in the present case does not demonstrate a salary
change that would indicate a change in professional capacity.
         Applying the standards set out in Barich to the present case, the two positions
Petitioner held are in the same legitimate professional capacity of administrator.
Respondent did not violate Texas Education Code section 21.206 when it reassigned
Petitioner.


#003-R3-0908                               14
Conclusion
       The Commissioner lacks jurisdiction over all of Petitioner’s claims because
Petitioner’s resignation has made this case moot.         The Commissioner also lacks
jurisdiction over the demotion claim because no monetary harm has been shown.
Respondent did not violate Texas Education Code section 21.206 when it reassigned
Petitioner.
                                   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 lacks jurisdiction over Petitioner’s Texas Education
Code section 21.206 claim under Texas Education Code section 7.057(a)(2)(A).
       2.      The Commissioner lacks jurisdiction over Petitioner’s demotion claim.
TEX. EDUC. CODE § 7.057(a)(2)(B).
       3.      A case becomes moot when it appears that one seeks to obtain judgment
upon some pretend controversy when in reality none exists, or when he seeks judgment
upon some matter which, when rendered, for any reason cannot have any practical legal
effect upon a then existing controversy.

       4.      Mootness is a component of subject matter jurisdiction.
       5.      A resignation is a contract to end a contract. It normally requires offer and
acceptance.
       6.      A written resignation tendered and accepted and not the result of duress,
fraud, or mistake constitutes a binding contract, by which the original contract is
terminated and both parities released from further obligations thereunder. If Petitioner’s
resignation is of this character, the resignation ended the parties’ obligations under their
contract.




#003-R3-0908                                15
       7.      Petitioner’s resignation became a valid contract when it was voluntarily
offered and accepted on June 11, 2009. The employer-employee relationship between
Petitioner and Respondent ended on June 30, 2009.
       8.      The Commissioner does not have jurisdiction over demotion claims based
on Texas Education Code section 7.057(a)(2)(A).
       9.      The Commissioner may have jurisdiction over a demotion claim if a
violation of a written employment contract is alleged that causes or would cause
monetary harm. TEX. EDUC. CODE § 7.057(a)(2)(B).
       10.     The monetary harm referred to in Texas Education Code section
7.057(a)(2)(B) must be a contract damage. If an employee does not lose salary or
benefits based on an alleged violation of a written contract, the employee has not suffered
monetary harm.
       11.     Because Petitioner did not suffer monetary harm as that term is used in
Texas Education Code section 7.057(a)(2)(B), the Commissioner lacks jurisdiction over
Petitioner’s demotion claim.
       12.     Administrator is a professional capacity as that term is used in Texas
Education Code section 21.206(b).
       13.     The professional capacity of administrator, as it applies to Texas

Education Code section 21.206(b), is a broad professional capacity.
       14.     A “teacher” who is employed as an Assistant Principal may be employed
in the professional capacity of administrator. TEX. EDUC. CODE § 21.206(b).
       15      A “teacher” who is employed as an Executive Director of Special
Education may be employed in the professional capacity of administrator.
       16.     To determine whether two positions are in the same professional capacity,
a comparison should be made of any differences in authority, duties, and salary, along
with any other relevant factors. TEX. EDUC. CODE § 21.206(b).
       17.     A grievant has the burden of proof before a school board.


#003-R3-0908                                16
        18.    As this case is an appeal of a school district’s decision, the substantial
evidence standard applies to the merits of the case. TEX. EDUC. CODE § 7.057(c).
        19.    There is substantial evidence to support Respondent’s determination that
Petitioner’s two positions at issue are in the same professional capacity. TEX. EDUC.
CODE § 21.206(b).
        20.    Respondent did not violate Texas Education Code section 21.206(b) when
it reassigned Petitioner from the position of Executive Director of Special Education to
the position of Assistant Principal.
        21.    The Petition for Review should be dismissed.
                                          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, dismissed.
        SIGNED AND ISSUED this ______ day of ___________________, 2011.



                                       ______________________________________
                                       ROBERT SCOTT
                                       COMMISSIONER OF EDUCATION




#003-R3-0908                                17
      APPENDIX 10



Young v. Leggett Indep. Sch. Dist.,
    Docket No. 175-R3-898
   (Tex. Comm’r Educ. 1998)
                         DOCKET NO. 175-R3-898


TERRY W. YOUNG                      ß    BEFORE THE
                                    ß
                                    ß
V.                                  ß    COMMISSIONER OF EDUCATION
                                    ß
LEGGETT INDEPENDENT                 ß
SCHOOL DISTRICT                     ß    THE STATE OF TEXAS

                      DECISION OF THE COMMISSIONER

Statement of the Case

      Petitioner,   Terry  W.   Young,  appeals   the  decision   of
Respondent, Leggett Independent School District board of trustees,
to deny his grievance.    Paula Hamje was initially assigned as the
Administrative Law Judge to preside over this case.    Subsequently,
Christopher Maska was appointed substitute Administrative Law Judge.
Petitioner is represented by Lorraine J. Yancey, Attorney at Law,
Austin, Texas.    Respondent is represented by Susan G. Morrison,
Attorney at Law, Austin, Texas.

      On March 18, 1999, 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

      After due consideration of the record and matters officially
noticed, in my capacity as Commissioner of Education, I conclude
that the following Findings are supported by substantial evidence:

1. Petitioner, Terry Young, was employed by Respondent, Leggett
Independent School District, under a term contract for the 1997-1998
school year in the position of teacher/coach.
2. Respondent employed Petitioner under a term contract for the
1998-1999 school year for the position teacher/coach.
3. The record does not indicate that Petitioner's duties changed
significantly in the years 1997-1998 and 1998-1999.
4. The record does not indicate that Petitioner incurred monetary
harm as a result of his reassignment.
5. During the 1997-1998 school year Petitioner was assigned as a
teacher and varsity coach.
6. For the 1998-1999 school year Petitioner was reassigned by the
superintendent to the position of teacher and junior high coach.
Discussion

      Petitioner contends that Respondent demoted him from the
position of athletic director to the position of coach. Petitioner
claims that this was done in violation of local policy in that the
criteria for reassignment was not followed.     Petitioner contends
that his reassignment was done in violation of the Texas Education
Code because the superintendent did not initiate it.      Petitioner
alleges that he is not serving in the same professional capacity.




                                                      Appx. 10 1
Petitioner argues that he was demoted because he sought a hearing
after being proposed for nonrenewal.
Record

      Petitioner seeks the Commissioner to take official notice of a
number of documents1. These include:

     Board Policy DAB(Local)
     Petitioner's Employment Application
     Petitioner's Employment Contract
     Respondent's salary statements for Petitioner
     Petitioner's Performance Appraisals
     UIL Rules for 1997-1998 and 1998-1999
     Respondent's correspondence with UIL
     Board Minutes of Respondent's Board of Trustees
     Correspondence from Respondent to Petitioner

Respondent requested that the Commissioner take official notice of
certain documents if official notice was taken of documents
proffered by Petitioner.
Official notice is the administrative law counterpart to judicial
notice.   Texas Rule of Evidence 201 allows judicial notice as to
facts "(1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determination
by   resort  to   sources  whose   accuracy  cannot   reasonably  be
questioned." None of the significant facts in the documents can be
said to be generally known in Texas, which is the extent of the
Commissioner's jurisdiction.    Hence, the question to be asked is
whether the facts in the documents are capable of accurate and ready
determination by resort to sources whose accuracy cannot be
questioned.   A United States Weather Service table used to prove
that it rained on a particular day in a particular city exemplifies
the type of source whose accuracy cannot be questioned.     There is
very little chance that such data will be incorrect or that someone
manipulated the data to benefit a litigant.    Perhaps the documents
that come closest to this standard in this case are the University
Interscholastic League (hereinafter, "UIL") Rules.
Texas Rule of Civil Evidence 204

      Texas Rule of Civil Evidence 204 sheds some light on the UIL
rules. This rule of evidence allows a court to take official notice
of city and county ordinances and rules published in the Texas
Register or Texas Administrative Code. The UIL rules fit in none of
these categories.    The UIL, which in some ways is a private body
that also has some quasi-governmental functions, does not publish
its rules in either the Texas Register or the Texas Administrative
Code.    Nonetheless, the UIL rules seem similar to the type of
documents covered by that rule of evidence.      Historically, Texas
courts   would   not  take   judicial notice  of   such   things  as
administrative regulations and local ordinances.   Southwestern Bell
Telephone Co. v. Nash, 586 S.W.2d 647, 651 (Tex. App.-Austin 1979,
no writ), Iranian Moslem Organization v. City of San Antonio, 615
S.W.2d 202, 214 n.4 (Tex. 1981). However, with Nash, the law began
to change.     The court in Nash held that judicial notice was
appropriate for official publications.        In 1981, the Texas



                                                                  2
Legislature adopted in part the argument in Nash and amended the
Administrative Procedure and Texas Register Act to require judicial
notice  to   be  taken   of  the   Texas   Register  and  the  Texas
Administrative Code. Act of April 30, 1981, ch. 76ßß 1, 3 1981 Tex.
Sess. Law 168-169.     In 1984, the Texas Rules of Evidence were
amended to add the current Rule 204.     In Office of Public Utility
Counsel v. Public Utility Commission of Texas, 878 S.W.2d 598, 600
(Tex. 1994), the Supreme Court extended the argument by requiring
that judicial notice be taken of a published agency order.     It is
concluded that official notice should be taken of UIL rules.
Official notice is taken of the 1997-1998 and 1998-1999 UIL rules
provided by Petitioner.     It should be noted that Respondent's
objection to these rules was based on relevancy, not that they were
not the type of document it was proper to take official notice of.
However, Respondent's relevance argument fails because the UIL rules
make one of Petitioner's contentions more likely rather than less
likely.   None of the other documents proffered by Petitioner or
Respondent meet the requirements for official notice.

Demotion

      While a school district may reassign a teacher at will, it may
not demote a teacher at will.    As the Texas Supreme Court held in
Central Education Agency v. George West Independent School District,
783 S.W.2d 200, 202 (Tex. 1989), "The school district's right to
modify the contract does not imply the power to substitute something
entirely different."   To demote a teacher during the term of the
contract would violate the teaching contract.    To demote a teacher
in retaliation for filing a grievance would violate Texas Government
Code ß617.005.    This would also be a contract violation if this
provision of the Government Code existed when the contract was
signed: "[L]aws which subsist at the time and place of the making of
a contract...enter into and form a part of it, as if they were
expressly referred to or incorporated in its terms." Von Hoffman v.
City of Quincy, 71 U.S. (4 Wall.) 535, 550, 18 L.Ed. 403 (1866)
quoted in Smith v. Elliot & Deats, 39 Tex. 201, 212 (1873); see also
Wessley Energy Corp. v. Jennings, 736 S.W.2d 624, 626 (Tex. 1987).
These protections were a material part of McCollough's contracts,
which the school district could not unilaterally abrogate without
committing a breach. Id.

      The relevant provision of the Government Code did exist when
the contract was signed.      Further, even as to reassignment, a
district must follow its reassignment policies. The reason for this
is that district employment policies in force at the time the
contract is entered into become part of the teaching contract.
Myrtle Springs Reverted Independent School District v. Hogan, 705
S.W.2d 707, 708 (Tex. Civ. App.-Texarkana 1985, writ ref'd n.r.e.).
However, since all of these alleged violations are contractual
violations, the Commissioner only has jurisdiction if the violation
causes or would cause monetary harm.          Texas Education Code
ß7.057(a)(2)(B). The record does not indicate that Petitioner lost
any salary.   In fact, the grievance complains about lost earnings
capacity not loss of salary or benefits. Lost earnings capacity is
a tort claim that an employer's actions have decreased the



                                                                  3
employee's ability to command a certain salary.       However, the
Commissioner does not have jurisdiction over tort actions under
Texas Education Code ß7.057(a)(2)(B).   Further, a district's tort
immunity would foreclose recovery. Hogan at 710.




Board Cannot Initiate a Reassignment

      Petitioner contends that the board of trustees initiated his
reassignment and that only a superintendent or principal can
initiate a reassignment. Petitioner points to Texas Education Code
ßß11.201, 11.202.    These provisions indicate that the day to day
operations of a district are to be controlled by a superintendent
and principals. Petitioner contends that the board's vote to offer
Petitioner a new contract subject to reassignment interfered with
the   responsibilities   of  the   superintendent   and   Petitioner's
principal.    However, Respondent's contracts have a reassignment
clause.   A vote to offer a contract subject to reassignment is a
vote to offer the board's standard contract.      Further, the record
demonstrates that the superintendent initiated and supported the
reassignment.
Same Professional Capacity

      Petitioner argues that because Respondent did not give
Petitioner timely notice of proposed nonrenewal Respondent must
employ him in the same professional capacity for the next school
year.   Texas Education Code ß21.206.   Respondent gave Petitioner
notice of proposed nonrenewal but the notice was untimely.    When
Respondent realizes this, it voted to offer Petitioner a new
contract. However, because timely notice was not given, Respondent
was required to employee Petitioner in the same professional
capacity for the following school year.

      It is necessary to first determine what the phrase "same
professional capacity" means.    The Commissioner has held that the
first thing to consider is what is stated in the contract. Reyes v.
Culberson County Independent School District, Docket No. 229-R3-787
(Comm'r Educ. 1989). However, the Commissioner has also held:
It is possible to imagine situations where the transfer clause in an
employment contract would be held unenforceable under ß21.204(b).
However, this is not such a case. It has been the consistent view
of the Commissioner that the TCNA balanced its grant of limited
tenure rights against the considerable personnel management problems
it might cause if imposed inflexibly.    Districts have responded to
the law by creating broad classes within which transfers do not
implicate the TCNA.    If taken to extremes, this tactic would be
against public policy as expressed in the TCNA, but I cannot make
such a finding in this case...In short, I find the generic
"administrator" position before me consistent with the policies of
the TCNA. Carpenter v. Wichita Falls Independent School District,
Docket No. 247-R3-491 (Comm'r Educ. 1993).         The phrase "same
professional capacity" encompasses broad categories.




                                                                    4
      Petitioner contends that he was employed as Athletic Director
and head basketball coach for the 1997-1998 school year.      However,
in Petitioner's written grievance, Petitioner only complains about
being moved from varsity basketball coach and teacher to junior high
teacher and coach.    In fact, the position of athletic director was
not mentioned at the board hearing. The question to be answered is
whether being a varsity coach and teacher is the same professional
capacity as being a junior high coach and teacher. The first issue
is to determine what is stated in the contract.      Petitioner has a
dual   assignment   contract  as   a  teacher/coach.      Petitioner's
assignments for 1997-1998 and 1998-1999 comport with his contract.
The next question is whether the professional capacity teacher/coach
is overbroad.    Based on the record in this case, it is concluded
that it is not. In fact, the record gives very little indication as
to what Petitioner's job responsibilities were for the years in
question.   It is concluded that being a varsity coach and teacher
and being a junior high coach and teacher are jobs in the same
professional capacity of teacher/coach.

Conclusion:

Petitioner's contentions that Respondent violated his contract fail
because he can show no monetary harm. Petitioner's contention that
Respondent violated the Texas Education Code by not employing him in
the same professional capacity also fails.       Varsity coach and
teacher is the same professional capacity as junior high coach and
teacher.
Conclusions of Law

      After due consideration of the record, matters officially
noticed, and the foregoing Findings, in my capacity as Commissioner
of Education, I make the following Conclusions of Law:

1.   The Commissioner has jurisdiction to hear this cause under
     Texas Education Code ß7.057(a)(2)(A).
2.   Texas Education Code ß7.057(a)(2)(A) does not give the
     Commissioner jurisdiction over possible violations of district
     policies as these are not defined to be "school laws of this
     state."   Hence, the Commissioner does not have jurisdiction
     under Texas Education Code ß7.057(a)(2)(A) to consider a
     possible violation of Board Policy DAB(Local).
3.   Because Respondent's actions did not cause or would not cause
     monetary harm, Petitioner does not have a cause of action
     under Texas Education Code ß7.057(a)(2)(B).
4.   Under Texas Education Code ß7.057(a)(2)(B), the Commissioner
     does not have jurisdiction over tort claims.
5.   School districts have immunity over lost earnings capacity and
     other tort claims.
6.   To demote a teacher during the term of a contract breaches the
     contract.
7.   District employment policies in force at the time the contract
     is entered into become part of the teaching contract.
8.   Laws which subsist at the time and place of the making of a
     contract enter into and form a part of it, as if they were
     expressly referred to or incorporated in its terms.



                                                                    5
9.    To demote a teacher in retaliation for filing a grievance
      would violate Texas Government Code ß617.005.        Since this
      provision   of  the   Government   Code  was  in   effect  when
      Petitioner's contract was signed, a violation of this
      provision would violate Petitioner's contract.
10.   Official notice is taken of the proffered UIL Rules for 1997-
      1998 and 1998-1999. Official notice is not taken of the other
      documents proffered by Petitioner and Respondent.
11.   The reassignment of teachers is primarily the duty of
      superintendents   and   principals.     Texas  Education   Code
      ßß11.201, 11.202.
12.   Respondent's board of trustees did not reassign Petitioner.
      No violation of Texas Education Code ßß11.201, 11.202
      occurred.
13.   If a district does not nonrenew a teacher's contract, the
      district must employ the teacher in the same professional
      capacity for the following school year. Texas Education Code
      ß21.206(b).
14.   Respondent did employ Petitioner in the same professional
      capacity for 1997-1998 and 1998-1999 school years.
15.   In determining whether two position are within the same
      professional capacity, the first question is whether both
      positions are encompassed by the professional capacity as
      stated in the contract.     The second question is whether the
      professional capacity stated in the contract is a legitimate
      professional capacity.
16.   Teacher/coach is a legitimate professional capacity.
17.   Petitioner's appeal should be denied.

                              O R D E R

      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 12th day of AUGUST, 1999.



                            _____________________________________
                            MIKE MOSES
                            COMMISSIONER OF EDUCATION


1 Some of the documents are very similar to documents in the record.
#010-R2-994                  -2-

#175-R3-898                 -10-




                                                                    6
      APPENDIX 11



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


ROBERT WHEELER                                    § B E F O R E THE
                                                  §
                                                  §
V.                                                § COMMISSIONER OF EDUCATION
AUSTIN INDEPENDENT                                §
SCHOOL DISTRICT                                            THE STATE OF TEXAS

                          DECISION OF THE CO MMISSIO NER

                                      Statement of the Case

        Petitioner, Robert Wheeler, appeals the actions and decisions o f Respondent,

Austin Independent School District. Sandy Lowe is the Administrative Law Judge

appointed by the Commissioner of Education to hear this cause. Petitioner is represented

by Jefferson K. Brim, III, Attorney at Law, Austin, Texas. Respondent is represented by

Dorcas Green, Attorney at Law, Austin, Texas.

        The Administrative Law Judge issued a Proposal for Decision recommending that

Petitioner's appeal be granted. Exceptions and replies were timely filed and considered.
                                         Findings of Fact

         After due consideration o f the record and matters officially noticed, i t i s

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. P e t i t i o n e r was employed by Respondent under a term contract for the

2006-2007 school year. Respondent did not provide Petitioner notice of nonrenewal of
this contract.

        2 R e s p o n d e n t employed Petitioner as a middle school assistant principal for

the 2006-2007 school year.

'See 19 TEX. ADMIN. CODE § 157.1073(h); Bosworth v. East Central independent School District, Docket
No. 090-R1-803 (Comm'r Educ. 2003).

#008-R3-1108
                                                                                   Appx. 11
"as a dean the employee in question had administrative duties and that o n e hired as

teacher/dean could not be reassigned to a pure teacher position."

       In Barich v. San Felipe - Del Rio Cons. Independent School District, Docket No.

117-R1a-484 (Comm'r Educ 1985), the Commissioner provided guidance on this issue

that i s particularly pertinent here. I n that case, t h e Commissioner found that

reassignment of an ROTC teacher to a different teaching position was not a change in

professional capacity because Petitioner was not entitled to employment in the same

exact teaching position for the next year. However, the Commissioner also commented,

in language directly applicable to the facts of this dispute, "In some instances the validity

of a particular placement w ill be clear. For example, an administrator who does not

receive the required notice by Apr il I may not be placed in the capacity o f a classroom

teacher."

Application of the meaning of "Same Professional Capacity" to the facts in this case.

        As i n Young, t he fi r s t s tep i n determining whether Respondent changed

Petitioner's professional capacity in this case is to look at his contract. Petitioner's

contract for 2006-07 states only that he was hired as a "professional employee." T h e

contract does not define this term or further describe Petitioner's duties or position. Such

a broad, undefined category is not a legitimate professional capacity. F or this reason, the

contract is o f little assistance in determining Petitioner's professional capacity. A s a

result, the focus must instead be a comparison of Petitioner's actual job-related duties for

 the two school years.

 Comparison of Positions
        Actual Duties and Skills

        Petitioner's job assignment for the school years 2004-05 through 2006-07 was

 assistant principal at Dobie Middle School. A s an assistant principal, Petitioner was a

 part of a campus leadership team. A s such, he had campus level responsibilities under

 the supervision o f the princ ipal i n the areas o f administration, instructional and

 #008-R3-1108        -
 5
 -
    APPENDIX 12



Tuck v. Alief Indep. Sch. Dist.,
 Docket No. 008-R10-1007
 (Tex. Comm’r Educ. 2012)
                                 DOCKET NO. 008-R10-1007
AHMAL TUCK                                        §            BEFORE THE
                                                  §
                                                  §
                                                  §
V.                                                §   COMMISSIONER OF EDUCATION
                                                  §
                                                  §
ALIEF                                             §
INDEPENDENT SCHOOL DISTRICT                       §             THE STATE OF TEXAS

                          DECISION OF THE COMMISSIONER
                                      Statement of the Case
        Petitioner, Ahmal Tuck, complains of actions and decisions of Respondent, Alief
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 Mark W. Robinett, Attorney at Law, Austin, Texas.                    Respondent is
represented by Ellen H. Spalding, Attorney at Law, Houston, Texas.
        The Administrative Law Judge issued a Proposal for Decision recommending that
Petitioner’s appeal be granted in part. Exceptions and replies were timely filed and
considered.
                                         Findings of Fact
        After due consideration of the record and matters officially noticed, it is
concluded that the following Findings of Fact are supported by substantial evidence and
are the Findings of Fact that best support Respondent’s decision1.
        1.      Petitioner was employed by Respondent under a chapter 21, subchapter E
term contract for the 2006-2007 school year. Petitioner’s position with the district is
identified in this contract as professional employee.            Petitioner was paid under the
Administrative Professional Schedule.



1
 See 19 TEX. ADMIN. CODE § 157.1073(h); Bosworth v. East Central Independent School District, Docket
No. 090-R1-803 (Comm’r Educ. 2003).


                                                                                Appx. 12
008-R10-1007
       2.      For the 2006-2007 school year, Respondent employed Petitioner as a
career specialist. Respondent’s job description for this position provides:
               TITLE:                        Career Specialist
               QUALIFICATIONS:               College degree.
                                             Experience in business and community
                                             relations, personnel and human resources, or
                                             career guidance.
                                             Speaking English only is a requirement of
                                             this job.     This regulation will ensure
                                             effective       communication         during
                                             emergencies and discussion of assignments,
                                             work performance, and work rules. The
                                             regulation is not applicable during breaks,
                                             lunch time, and other time not directly
                                             related to the performance of job duties and
                                             emergencies.
               REPORTS TO:                   Principal
               JOB GOALS:                    To implement the Career and Life
                                             Management (CALM) program for high
                                             school students. Establish and cultivate a
                                             working relationship between the high
                                             school and the business and education
                                             communities.
               PERFORMANCE RESPONSIBILITIES:
                   1.     Investigates materials, technology, programs, etc. that would
                          be effective tools for teaching career and life management
                          skills.
                   2.     Establishes and updates goals for the CALM program for each
                          grade level.
                   3.     Facilitates student participation/learning in the CALM center.
                   4.     Involves the business community in the CALM center.
                   5.     Involves the higher education institutions in the CALM
                          program.
                   6.     Creates/maintains a library of materials to be used as resources
                          for students to investigate careers, continuing education,
                          schools, and colleges.
                   7.     Provides career education seminars, mentors, etc.




008-R10-1007                                 -2-
                  8.      Keeps abreast of information available regarding career
                          opportunities.
                  9.      Provides career counseling.
                  10.     Teaches teen leadership course.
                  11.     Performs other responsibilities as deemed necessary by the
                          administration.


               EVALUATION:                   Performance of this job will be evaluated in
                                             accordance with provisions of the Board’s
                                             policy on the evaluation of counselors.

       3.      On March 9, 2007, Petitioner was advised that she would be assigned to a
teaching position for the 2007-2008 school year.

       4.      Petitioner was not given notice that her 2006-2007 contract was proposed
for nonrenewal.

       5.      On April 25, 2007, Petitioner signed a chapter 21, subchapter E term
contract with Respondent which had previously been signed by Respondent’s
superintendent on April 17, 2007. Petitioner’s position with the district is identified in
this contract as professional employee. The contract provides that Petitioner must be
certified if required by the No Child Left Behind Act, the Texas Education Agency, the
State Board of Education, or Respondent. The contract provides that “[a]ll existing

agreements and contracts, both verbal and written, between the parties regarding the
employment of the Employee are superseded by this contract.” Petitioner received a
similar salary for the 2006-2007 school year and the 2007-2008 school year.

       6.      Respondent’s job description for the position of teacher provides:
               TITLE:                               Teacher
               QUALIFICATIONS:                      As set by state certification standards
               REPORTS TO:                          Principal
               JOB GOAL:                           To help students learn content and/or
               skills that will contribute to their development as mature, able and
               responsible men and women.




008-R10-1007                                 -3-
               PERFORMANCE RESPONSIBILITIES:
                  1.     Plans and teaches a program of study in accordance with the
                         Alief Instructional Model, the philosophy and curriculum of
                         the school district.
                  2.     Creates a classroom environment that is conducive to learning
                         and appropriate to the maturity and interests of the students.
                  3.     Establishes and communicates clear objectives for all
                         instruction in order to achieve curriculum goals.
                  4.     Employs instructional methods and materials that are most
                         appropriate for meeting curriculum goals and stated objectives.
                  5.     Continually assesses the accomplishments of students, keeps
                         appropriate records, gives intermediate feedback and provides
                         progress reports on a regular basis.
                  6.     Diagnoses the learning disabilities of students seeking the
                         assistance of district specialists as needed or required.
                  7.     Counsels with colleagues, students and/or parents on a regular
                         basis.
                  8.     Develops reasonable rules of classroom behavior and
                         procedure and maintains order in the classroom.
                  9.     Assists the administration in implementing all policies and/or
                         rules governing student life and conduct.
                  10.    Maintains professional competence through in-service
                         education provided by the district and self selected professional
                         growth activities.
                  11.    Supervises pupils in out-of-classroom activities during the
                         assigned work hours.
                  12.    Participates in curriculum development programs and selection
                         of textbooks as required.
                  13.    Participates in faculty committees and sponsorship of pupil
                         activities.
                  14.    Performs other duties as assigned.


               Evaluation:                 Performance of this job will be evaluated in
               accordance with provisions of the Board’s policy on Evaluation of
               Teachers, and the Texas Teacher Appraisal System.




008-R10-1007                                -4-
                                                Discussion
         Petitioner argues that Respondent assigned her to a position in a different
professional capacity after the expiration of her term contract. Petitioner also contends
that she was not given a fair hearing.

TEX. EDUC. CODE § 21.206

         Texas Education Code section 21.206 is a central plank of the “Term Contract
Nonrenewal Act2.” It requires a school district that does not notify a teacher, whose
contract is about to expire, not later than the 45th day before the last day of instruction
that the contract is proposed for nonrenewal to employ the teacher in the “same
professional capacity for the following school year.” Without this provision a school
district could simply let a teacher’s contract expire and the district would not be required
to employ the teacher. But this provision requires more than that the district must employ
the teacher for the following school year. The district must employ such a teacher in the
“same professional capacity.”

         The Commissioner has addressed the issue of what is meant by the phrase “same
professional capacity” in a number of cases. In an early case under the Term Contract
Nonrenewal Act, the Commissioner held:
                 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.


2
  Respondent was not required to employ Petitioner under a term contract for the 2006-2007 school year
when he was employed as a career specialist. Career specialist is not listed as a position requiring a term
contract. TEX. EDUC. CODE § 21201(1). However, school districts may offer term contracts to those not
required to have term contracts. Ellen Williams, Education, 49 S.M.U. L. REV.4, 920 (1996).



008-R10-1007                                           -5-
                It is more reasonable to conclude that the legislature, by using the term
       "same professional capacity" (instead of "the exact same position"), intended to
       allow school districts to be flexible in their personnel assignments while
       discouraging the abuse of the district's inherent or contractual reassignment
       authority. In other words, the district may place a teacher whose employment has
       been renewed by operation of law in a position different from that to which the
       teacher was assigned the previous year, as long as the position is one to which the
       district could have reassigned the teacher had the parties voluntarily entered into a
       contract for the following year. In some instances, the validity of a particular
       placement will be clear. For example, an administrator who does not receive the
       required notice by April 1 may not be placed in the capacity of a classroom
       teacher; a classroom teacher may not be placed in the capacity of a counselor; a
       counselor may not be placed in the capacity of a nurse; a nurse may not be placed
       in the capacity of a librarian; etc.
                In other instances, the validity of a particular placement might not be so
       clear. For example, a placement might be to another position within the same
       professional category (e.g., administrator), but nevertheless, be invalid (e.g., from
       superintendent to assistant elementary school principal). Factors to be considered
       in determining the validity of such a placement include, but are not necessarily
       limited to, differences in authority, duties, and salary.
Barich v. San Felipe-Del Rio Consolidated Independent School District, Docket No. 117-
R1a-484 (Comm’r Educ. 1985). In this case, the Commissioner made clear that districts
were given flexibility in the assignment of covered employees to different positions. The
question is whether the district could have reassigned the teacher to the new position. If
under the previous contract the employee could have been assigned to the position in
question, the position in question would normally be found to be in the same professional
capacity. By contract a professional capacity could be limited to a narrow category such

as secondary math teacher or made as broad as teacher. For example, if an employee is
hired under a contract as a teacher/coach, an employee would only be employed under
the same professional capacity if the employee had both teaching and coaching duties.
Young v. Leggett Independent School District, Docket No. 175-R3-898 (Comm’r Educ.
1999). The Commissioner did set out some bright line prohibitions that would not be
allowed even if the terms of a contract appeared to allow such reassignments.             A
classroom teacher cannot be assigned as a counselor. A counselor may not be assigned as
a nurse. A nurse may not be assigned as a librarian. However, those employed as




008-R10-1007                                 -6-
administrators may not be assigned to all other administrative positions. Just because a
general statement of professional capacity may apply to two positions does not mean that
those two positions are of the same professional capacity.

       Building on the Barich case and others, the Commissioner has refined the analysis
for determining if two jobs are in “same professional capacity.” The first question is
“what does the contract say?” The second question is “whether the professional capacity
identified in the contract is a legitimate professional capacity?” The third question is “do
the two positions legitimately fall under the same professional capacity?” Perales v.
Robstown Independent School District, Docket Nos. 052-R10-104, 084-R3-604 (Comm’r
Educ. 2006). Of primary consideration is a comparison of the professional skills and
responsibilities of the two positions.

Legitimate Professional Capacity

       The contract at issue in the present case states “(the district) hereby employs the
undersigned professional employee.”        The contract does not specify Petitioner’s
professional capacity. But even assuming that Petitioner’s professional capacity was
“professional employee” this would not be a legitimate professional capacity as it
includes virtually everyone who is entitled to a term contract. Texas Education Code

section 21.201(a) provides a definition of “teacher” that is used to determine who would
be entitled to a term contract:
       "Teacher" means a superintendent, principal, supervisor, classroom teacher,
       counselor, or other full-time professional employee who is required to hold a
       certificate issued under Subchapter B or a nurse. The term does not include a
       person who is not entitled to a probationary, continuing, or term contract under
       Section 21.002, an existing contract, or district policy.
All the categories listed in the first sentence are professionals. Hence, they could all be

described as professional employees. The use of the term “professional employee” in
Petitioner’s contract is overbroad if it seen as indicating Petitioner’s professional
capacity. If professional employee were a professional capacity as that term is used in



008-R10-1007                                  -7-
Texas Education Code section 21.206 a district could reassign a classroom teacher to be a
counselor or a counselor to be a nurse. As the Commissioner as held that this is improper
in the Barich case, a district may not contractually declare an employee’s professional
capacity to be “professional employee” and then reassign the employee to any other
position that can be described as a professional employee position. The question then
becomes whether the skills, responsibility, authority, and salary are similar enough to
constitute the same professional capacity.

Comparison of Positions

       In the present case, Petitioner was employed under a term contract for the 2006-
2007 school year. Petitioner held the position as career specialist. Petitioner received no
notice of proposed nonrenewal. For the 2007-2008 school year, Petitioner was employed
as a teacher. The parties dispute whether the position of career specialist is in the same
professional capacity as the position of teacher. The two positions appear to be very
different. The qualifications for the position of career specialist were a college degree
and experience in business and community relations, personnel and human resources, or
career guidance.

       This contrasts with the qualifications for being a teacher. The qualification for

being a teacher was solely the state certification standards, which means a valid teaching
credential. Teachers were evaluated under the teacher standards. Career specialists were
evaluated under the counselor standards. In many cases, one who qualified as a career
specialist would not qualify as a teacher and vice versa. This is strong but perhaps not
conclusive evidence that that the two positions are not in the same professional capacity.

       An evaluation of the duties indicates again some significant differences. As a
program specialist, Petitioner was in charge of a school-wide program. Important duties
concerned cultivating relationships with the business and higher education communities.
As a teacher, Petitioner was primarily concerned with the students assigned to her



008-R10-1007                                 -8-
classroom. There is some similarity in the duties for the two positions. Petitioner as a
program specialist was required to teach a teen leadership course. In both positions,
Petitioner reported to the principal.                 The salary for the two positions was similar.
However, the two positions are very dissimilar.                        This case represents a change in
positions that is much more similar to a change from the position of counselor to the
position of teacher than a change from being a high school math teacher to being a junior
high math teacher. Respondent did not employ Petitioner in the same professional
capacity for the 2006-2007 year as it employed Petitioner for the 2007-2008 school year.

Keith

            Respondent cites the case of Keith v. Tarkington Independent School District,
Docket No. 459-R3-891 (Comm’r Educ. 1992) as an example that it believes to be
similar to the present case.                 Keith was reassigned from the position of athletic
coordinator3 to the position of teacher/assistant principal at the same salary.                         The
Commissioner found the positions were in the same professional capacity. The set of
professional capacities in the Keith decision are very different from those in the present
case. The Keith decision does not hold that “professional employee” is a legitimate
professional capacity. The Commissioner found that in Keith, that the reassignment was
“to a comparable position in the same professional capacity.” Such a determination is

always a fact specific determination.

Hearing

            Petitioner argues that she was not given a fair hearing as Respondent failed to
follow its hearing procedures. Petitioner contends that the administration provided the
school board with a one and a half page cover letter that allowed it an additional
opportunity to make its arguments and alleges that procedure is not allowed under


3
    The position of athletic coordinator entails very different duties in different school districts.



008-R10-1007                                               -9-
Respondent’s policy. However, the issue of whether or not there was a procedural
irregularity need not be addressed as Petitioner prevails on the merits.

Conclusion

       By reassigning Petitioner from the position of career specialist to the position of
teacher Respondent violated Texas Education Code section 21.206. Petitioner is entitled
to be employed in the same professional capacity she was employed in during the 2006-
2007 school year for the 2007-2008 school year.

Reply to Exceptions to the Proposal for Decision

       Respondent makes a number of Exceptions to the Proposal for Decision. Some of
these will be addressed herein. The rest have been adequately addressed previously.

Chapter 21 Contract

       Respondent contends that the Commissioner lacks jurisdiction over this case
because Petitioner lacks a chapter 21 contract. The contract in the record certainly
appears to be a chapter 21 contract. Respondent points to no record evidence to support
its contention. However, Respondent requests that official notice be taken of a document
said to be board policy DCB(LOCAL). As the Commissioner pointed out in Young v.
Leggett Independent School District, 175-R3-898 (Comm’r Educ. 1999), school district

policies do not meet the requirements for official notice. Further, it should be noted that
the document tendered has an issued date but not an adopted date. Respondent has not
shown that Petitioner lacks a chapter 21 contract.

Exhaustion

       Respondent contests Conclusion of Law No. 3 and the discussion section because
Petitioner did not timely challenge the legitimacy of professional capacity. Respondent
believes Petitioner should have challenged this within 15 days of signing her contract.
However, Petitioner’s contract nowhere states that Petitioner’s professional capacity will



008-R10-1007                                  -10-
be “professional employee.” The contract states, “(the district) hereby employs the
undersigned professional employee.” This is a true statement. What the contract does
not say is “the undersigned is employed in the professional capacity of professional
employee for purposes of reassignment under Texas Education Code section 21.206(b).”
Changes have been made to some inartful wording in the Discussion section.

       Respondent contends that Petitioner failed to raise this issue of whether
“professional employee” is a legitimate professional capacity. This is true. Petitioner
never contended that her professional capacity was “professional employee.” However,
Respondent, in its Brief raises the claim that Petitioner’s professional capacity is
“professional employee”. Respondent having raised the issue, the issue was properly
addressed.

Stare Decisis

       Respondent contends that the Proposal for Decision fails to honor stare decisis.
However, Respondent fails to find a single Commissioner’s Decision that holds
“professional employee” is a legitimate professional capacity.      It would be odd for
districts to believe just because contracts referred to employees as a “professional
employees” that they could reassign such employees to any other professional position.

If that were the case, superintendents could be reassigned as librarians and school nurses.
The determination of whether a teacher has been reassigned to a new position in the same
professional capacity is always fact intensive. In the present case, the facts demonstrate
Petitioner was not 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:




008-R10-1007                                 -11-
        1.     The Commissioner of Education has jurisdiction over this case under
Texas Education Code section 7.057.

        2.     The term “same professional capacity” as used in Texas Education Code
section 21.206 is not limited to the classifications found in Texas Education Code section
21.201. To determine whether two positions are of the same professional capacity one
must determine what professional capacity is identified by contract and determine
whether that capacity is a legitimate professional capacity. One must then evaluate the
two positions primarily by comparing professional duties and responsibilities but also
including other factors such as salary and who an employee reports to.

        3.     “Professional employee” is not a legitimate “professional capacity.”

        4.     When the professional duties and responsibilities of the two positions
Petitioner held are compared, in addition to the salaries and who Petitioner reported to, it
is concluded that the two positions are not in the “same professional capacity” as that
term is used in Texas Education Code section 21.206.

        5.     Respondent violated Texas Education Code section 21.206 by employing
Petitioner in a different professional capacity in the 2007-2008 school year than
Petitioner was employed in for the 2006-2007 school year.

        6.     Petitioner is entitled to employment in the same professional capacity for
the 2007-2008 school year as he was employed in for the 2006-2007 school year.

        7.     The Petition for Review is granted to the extent specified in Conclusion of
Law No. 6.

                                           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



008-R10-1007                                  -12-
       ORDERED that Petitioner’s appeal be, and is hereby, GRANTED to the extent
specified in Conclusion of Law No. 6.
       SIGNED AND ISSUED this ______ day of ____________ 2012.



                                    ______________________________________
                                    ROBERT SCOTT
                                    COMMISSIONER OF EDUCATION




008-R10-1007                              -13-
              APPENDIX 13



Chart of reassignment decisions from the commissioner
      (From the commissioner’s trial brief filed in
             Travis County District Court)
         [Source: From the commissioner's trial brief in Travis County District Court]


                                 Case                                                                    Application of Barich Principles
Uebentan     u. Ea¿le      Moutain-Saginau Indrpendenl Schoo/             Contractcd to bc z tcâchcr or a coach, the district propcrly rcassigncd thc cmploycc from
Di¡triîl,I)ockct          No. 192-lì3-785 (Comm'r Educ.                   thc position oFmidcllc school tcachcrand high school coach to the position of physical
1e8s)                                                                     cducation teache¡ with scheduling and budgeting responsibilìtics.

                                                                                              -I'eacher/Coach
Gromds u. Tolar Independent Schoo/            Dì¡tict, l)ockct            Contractcd to be                   lrootball (IIcad football coach), thc <ìisttict impropcrly
No. 340-lì3-786 (Oomm'r Educ. 1986)                                       reassignc<J thc cmploycc to â teaching position.


REet u. Cillterson Comry Independent School              Distict,         Contracted to be a teachcr and head coach for duties as assigncd, the district properly
Docket No. 229-1ì3-787 (Comm'r liduc. 1987)                               reassigncd the cmployce ftom tcacher and head coach for football, baskctball, and track
                                                                          to the position of teacher and head coach for boys' baskctball.


lalcher a. Florence hdependen Scboo/ District,             Docket         Contracted to bc a teacher / coach, the district propedy rcassigned the employee ftom
No. 363-R3-78ó (Comm'r Educ. 1987)                                        being a teacher and football coach to being a tcacher and bascball coach.


Abbott   et al. u.   Ector Cotnq Indrpendenl Scbool Di¡trict          ,   Contracted to be teâchers/deans, the district impropcdy teassigned the employecs from
Docket No. 0811ì.3-1287, 105-lì3-288 (Comm'r                              teache¡/dean positions to teacher positions.
Educ. 1991)
Marsball r. Segin Indtpendent School Distict, Docket                      Contracted for 220 duty days, the district propedy reduccd duty days to 1 88 days Fot the
No. 177-R1-690 (Comm't Educ. 1991)                                        following school year.

Carþenter u. lN/ithita Falls ltdependent School Dìstrict,                 Contracted as an administrator, the district propedy reassþcd the employee from the
Docket No. 247113-491 (Comm'r Educ. 1993)                                 district wide position of Science Support Specialist to the position of high school
                                                                          assistant principal.
Andren¡ a. Hlilrtln lrdePendent School District, Docket                   The district properly reassigned employee from the position of high school âssistârìt
No. 236-R1-897 (Comm't Educ. 1997)                                        principal to the position of middle school assistant pdncipal.


I{eitb u. Tarkin¿ton Indepudent School District,            Docket        Contrâctcd as a professional employee, the districtproperly reassigned the employee
No.   459-113-89      1   (Comm'r    F.úc     1.992)                      from the position ofathletic director to the position ofteacher/assistant pdncipâI.

Goedeke u. Sø1er Indepurdent School           Di¡tict, Docket             Conüacted as teachers, the dist¡ict's reduction in salary by itselfdid not place the
No. 111-lL3-1292 (Comm'r Educ. 1997)                                      tcachers in different professional capacittes.


Salina¡ u. Roma Independent School Dislricl,            I)ocket No Conttactcd as teachct/assistant band director, the district improperly rcassigned the
058-R3-1 196 (Comm'r l-icluc.            1   997)                         cmployee to a teaching position.


Undenvood a. A:,rck Independent School          District,I)ocket          Contracted as an administtator, the district propcrly reassigr-red the employce ftom
No. 062-113-198 (Comm't Educ. 1998)                                       principal of an independent middle school campus to the position of principal or
                                                                          assistant pdncipal for gtadcs 7 to 9 at a unified juniot high/high school campus.


Yomg u. I-,egetl Indeþndenl Scbool Di¡trict,             Dockct No. Contracted as a teacher/coach, the <Jistrict propctly reassigncd the cmployee from thc
175-R3-898 (Comm'r Educ. 1999)                                      position ofvarsity coach and teacher to the position ofjuniot high school coach and
                                                                          teache¡.
Veliqu. Donna ltdeþmdenl            Scbool   Di¡tict,l)ocket No. Contracted as ao adrninisttator,            the district propcrly teassigncd thc cmployec from thc
011-ll3-999 (Comm'r liduc. 2000)                                          district widc posit.ion of attcndancc coo¡dinator to thc position of middle school
                                                                          assistant principal.
Yturralde a. El Paso Independent School Di¡trict ,l)ockct 'l'hc district propctly tra¡sfcrred the employcc from onc principal position to ânothcr.
No. 001-l{10-900 (Comm'r Liduc. 2002)

Røno¡ a. El Pan Independent Sthool District,              I)ockct         'I'hc cìistrict properly transfcrrcd thc cmploycc from thc position oIhigh school principal
No. 002-l{1 0-900 (Comm'r licluc. 2002)                                   to thc position of clcmcntary ptiocipal.

Pasqaa a. Forl Stotklot Indqenrtent School             Di¡trict,          Contractcd as an administrâtor, thc district properly rcassigncd thc cmploycc From thc
l)ockct No. 011-1ì.3-1102 (Comm'r ll<Juc. 2004)                           pr>sition of high school principal to thc position of mi<ldlc school assistant principal.


Pera/es u. Robstoun Indqendent Schoo/           Di¡/ricl, l)<¡cl<ct       (lontrâctcd as an administrator, tl.rc district propcrly rcassigncd thc cmploycc From a
Nos. 052-1ì10-104, 084-ll3-604 ((ìomm'r ìiduc.                            <listrict-wiclc l)ircctr¡r of livcn Start tr¡ thc p<.rsition mi<ldlc school assistant principal.
2006)

                                                                                                                                        Appx. 13
                                 Case                                                              Application of Barich Principles
Sanchelu. Donna Indepndent Schoo/               Di¡lrict, Dockct        Contractcd as an administrator, the district properly reassigncd thc employce from     a
No. 0751ì10-605 (Comm'r               E<Juc. 2007)                      central office position to ân âssistant pdncipal position.


Gonlalequ. Donna IùEendent                Scl¡ool   Di¡trìct, l)ocket   Contracted as an administrâtor, thc <ìistrict propcrly reassigncd thc cmployees from       a
No. 074-R10-605 (Comm'r liduc. 2007)                                    ccntral office position to an assistant principal positioo.


Pereqr. Donna Independert School             DiÍiît, Dockct No.         Contractcd as an administrator, the district properly rcassigncd thc employce from   a
086-l{1-705 (Comm'r Educ. 2007)                                         cent¡al office pòsition to an assistant pdncipal position.


I-¿hr a. Eclor      Cotn!   Indrþendent School District,      Dockct Contracted as an administrator, the district properly rcassigned the employee from thc
No. 003113-0908 (Comm'r Educ. 2011)                                  position of Executive Director of Spccial Education to the position of elcmentary school
                                                                        assistant principal.
        Aøstin Indrpeùent Schoo/ Disîrict, Dockct
IY/hæter a.                                                             Contracted as professional cmployee, the district impropcrly reassþed the employce
No. 008-R3-1108 (Comm'r Educ. 2011)                                     f¡om the position of assistant principal to the position of classroom tcacher.

Møi//o a. Lzredo Independent Sch00l Distrht, Docket                     Contracted as a professional cmployee, the district properly rcassigned the employec
No. 027-lì.3-01 08 (Comm'r Fduc 2012)                                   f¡om the position of middle school principal to thc position of Fluman Resoutces
                                                                        Coordinator.
                                  Di$rict,
MonÍ¿omery a. Ricbardson Independent Scbool                             'I'he district propedy reâssigned the employee ftom the position of elementary school
Docket No. 007-R10-1008 (Comm'r Educ.2012)                              principal to thc position ofPtogtam Specialist II.


Trck   u.   Atief   Independent Scltool   DiÍrict, Docket No,           Contracted as a professional employce, the district improperly reassigned the employee
008-l{1 0-1 007 (Comm'r F,dtc.               20'1.2)                    from the positiori ofCareer Specialist to the position ofteacher.
MtCol r. IGnnit Indtpendenî Scl¡ool Dislrict, Docket                    Contracted as an administrator, the disttict propefly reassigned the employee from the
No. 004-R3-0908 (Comm'r Educ. 2012)                                     position of principal to the position of assistant principal.
