                                                                                           ACCEPTED
                                                                                       03-15-00313-CV
                                                                                               7348089
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                10/13/2015 11:42:05 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
                                                             10/13/2015 11:42:05 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 REPLY 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                                      October 13, 2015
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND ATTORNEYS ...................................................... 1
TABLE OF CONTENTS ......................................................................................... 2
INDEX OF AUTHORITIES .................................................................................... 3
REPLY POINTS ...................................................................................................... 5

    1. Jenkins’ contract should have been repaired to her benefit, not to
       the benefit of the CISD. ............................................................................... 5

    2. The commissioner’s ruling contradicts the plain language of
       §§21.201 and 21.206. Principal is different than administrator and
       supervisor. .................................................................................................... 7

    3. Appellees exaggerate the effects of Jenkins’ case. This case would
       not overturn decades of precedent. The legislature has not
       acquiesced in the commissioner’s decision. ............................................. 12

    4. Appellees misstate facts regarding Jenkins’ duties as a high school
       assistant principal and whether Jenkins waived the Barich issue. ......... 15

    5. Crosby ISD’s argument that Jenkins’ claim “does not involve an
       expiring contract” thus rendering §21.206 inapplicable, is without
       merit and has been waived by CISD. ....................................................... 20

PRAYER ................................................................................................................ 23
CERTIFICATE OF COMPLIANCE ..................................................................... 24
CERTIFICATE OF SERVICE ............................................................................... 25
TABLE OF APPENDICES .................................................................................... 26




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                                  INDEX OF AUTHORITIES

Texas Cases:

First Am. Title Ins. Co. v. Combs, 258 S.W. 3d 627 (Tex. 2008) ............................ 7

Commissioner of Education Decisions:

Barich v. San Felipe-Del Rio Cons. Indep. Sch. Dist.,
      Tex. Educ. Agency Docket No. 117-R1a-484
      (Comm’r Educ. 1985) .......................................................... 14, 15, 17, 18, 20

Carpenter v. Wichita Falls Indep. Sch. Dist.,
     Tex. Educ. Agency Docket No. 247-R3-491 (Comm’r Educ. 1993) ........... 10

Chilton v. Alvin Indep. Sch. Dist.,
      Tex. Educ. Agency Docket No. 031-R10-0107 (Comm’r Educ. 2009) ....... 16

Higereda v. Valley View Indep. Sch. Dist.,
      Tex. Educ. Agency Docket No. 027-R10-12-2013 (Comm’r Educ. 2014) 16

Jenkins v. Crosby Indep. Sch. Dist.,
      Tex. Educ. Agency Docket No. 043-R10-1211
      (Comm’r Educ. 2013) ....................................................................... 13, 15, 22

Montgomery v. Richardson Indep. Sch. Dist., Tex. Educ. Agency
     Docket No. 007-R10-1008 (Comm’r Educ. 2012) ........................................ 9

Pasqua v. Fort Stockton Indep. Sch. Dist.,
     Tex. Educ. Agency Docket No. 011-R3-1102 (Comm’r Educ. 2002) ......... 13
Underwood v. West Rusk Co. Consolid. Indep. Sch. Dist.,
     Tex. Educ. Agency Docket No. 062-R3-198 (Comm’r Educ. 1998) ........... 13




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Texas Statutes and Administrative Code:

       Tex. Educ. Code §7.064(a) ......................................................................... 11
       Tex. Educ. Code §7.057(a) ......................................................................... 22
       Tex. Educ. Code Chapter 21 ................................................................... 5, 14
       Tex. Educ. Code Chapter 21, Subchapter E ............................................ 9, 12
       Tex. Educ. Code §21.002 ....................................................................... 5, 8, 9
       Tex. Educ. Code §21.003 ............................................................................. 12
       Tex. Educ. Code §21.101(1) ........................................................................ 11
       Tex. Educ. Code §21.201 ............................................ 5, 7, 8, 9,11, 13, 14, 15
       Tex. Educ. Code §21.201(1) ........................................................................ 11
       Tex. Educ. Code §21.206 .......................... 5, 6, 7, 8, 12, 13, 14, 15, 20, 21, 22
       Tex. Educ. Code §21.210 .............................................................................. 21
       Tex. Educ. Code §21.354 .............................................................................. 10
       Tex. Educ. Code §21.3541 ............................................................................ 10
       Tex. Educ. Code §21.355 .............................................................................. 11
       Tex. Educ. Code §22.051 .............................................................................. 12
       19 Tex. Admin. Code §150.1021 .................................................................. 10
       19 Tex. Admin. Code §150.1022 .................................................................. 10
       19 Tex. Admin. Code §157.1059(d) ............................................................. 22
       19 Tex. Admin. Code §157.1061(a) ............................................................. 22
       19 Tex. Admin. Code §241.20 (3) ................................................................. 6
       19 Tex. Admin. Code Chapter 229 ............................................................... 10
       19 Tex. Admin. Code §229.3 ........................................................................ 11




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                                 REPLY POINT ONE

       Jenkins’ contract should have been repaired to her benefit, not to
       the benefit of the CISD.

       This issue is separate from the §§21.201 and 21.206 arguments in this case.

This Court could rule that Jenkins’ ambiguous contract was for “principal,”

without confronting the statutory issues. Neither appellee responded to Jenkins

arguments regarding Texas Education Code §21.002(a), which says:

       A school district shall employ each classroom teacher, principal,
       librarian, nurse, or school counselor under … a term contract, as
       provided by Subchapter E.

(emphasis added) (Jenkins’ brief p. 27) A principal is entitled to a contract. An

“administrator” is not statutorily entitled to a contract, though the school board

may offer contracts to whomever it chooses. As a generic administrator, Jenkins

has lost the benefit and protection of this statute without receiving any quasi-due-

process protection guaranteed by Texas Education Code Chapter 21.

       The commissioner’s brief muddies the contract analysis by enunciating a

new test: If the contract position is ambiguous, the boilerplate reassignment clause

in the contract and the superintendent’s authority gives the district the unrestrained

right to reassign, as long as the employee is certified in the new position. (Comm’r

brief, p. 32) Since every principal is certified to be an assistant principal, but also

certified to teach, this is obviously problematic, and not such a workable solution.

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See Title 19 Tex. Admin. Code §241.20 (3). Likewise, both appellees rely on the

boilerplate language of the contract that says the employee is subject to

reassignment into any position the employee is certified or qualified to perform.

(CISD brief p. 30)        If contract language controlled, an employee could be

reassigned to any position.

       The CISD and commissioner never acknowledge in their briefs that §21.206

has always tempered the reassignment clause of a school employment contract. No

matter the contract language, an employee to whom §21.206 applies may not be

reassigned outside of her “professional capacity.” Similarly, a superintendent’s

statutory authority does not extend to reassigning an employee to whom §21.206

applies outside of her professional capacity. The CISD and commissioner cannot

seriously dispute this legal restriction on reassignments.

       Nor does either appellee respond to or dispute that the ambiguous,

boilerplate contract should be construed against the school district author, as

Jenkins argued in her brief. (Jenkins’ brief p. 28) With respect to the parties’

intentions, Ms. Jenkins certainly believed she signed a contract to be principal for

the 2011-13 school years, as she told the school board in October 2011 at her

grievance hearing:

       On June 28, months after I signed a new two-year contract to lead
       Drew Intermediate School as principal for the 2011/13 school year, Dr.
       Moore removed me as principal and reassigned me to an A.P. at C.H.S.
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       I cannot imagine what transpired in those months to warrant such a
       drastic action.

(R. 260, local transcript, p. 20)

       As amicus TASB writes, “a ‘professional capacity’ may be defined by

contractual agreement,” even if the professional capacity does not exist in §21.201.

(TASB brief pp. 26-27) In other words, an employee and the school district may

contract for a narrower job title or professional capacity than listed in §21.201.

Jenkins agrees that §21.201 is a floor and not a ceiling with respect to professional

capacities.

       Therefore a contract for “principal” is harmonious with this analysis,

because “principal” is specifically listed in §21.201, and it gives Jenkins the

benefit of her bargain. Finally, the reassignment provision in the contract referred

to by the commissioner and CISD is still effective:               Jenkins can indeed be

reassigned as principal of another campus in the district.

                                 REPLY POINT TWO

       The commissioner’s ruling contradicts the plain language of
       §§21.201 and 21.206. Principal is different than administrator
       and supervisor.

       The commissioner is not owed deference when his interpretations contradict

the plain language of a non-technical statute. First Am. Title Ins. Co. v. Combs,

258 S.W. 3d 627, 631 (Tex. 2008) There is nothing ambiguous about §21.201 that

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begins, “In this subchapter … ‘teacher’ means … principal ...” Applying the

unambiguous law to the undisputed facts in this case, Principal Jenkins must be

employed in the same professional capacity from year to year, unless the district

gives her the quasi-due-process rights afforded by the term contract nonrenewal

laws.    The commissioner has already opined that superintendents, teachers,

counselors, librarians, nurses are entitled to these rights as they are each listed in

§21.201. This case only addresses the position of “principal,” the only specific

position in §21.201 that is omitted from the commissioner’s consideration in

§21.206.

        When a teacher signs his contract in the spring, he knows he will be a

teacher in the fall. He might teach at a different campus, or teach a different grade

or subject; but he will be a teacher. When a nurse signs her contract in the spring,

she knows she will be a nurse in the fall, subject to a geographical reassignment.

The same is true for a librarian, counselor and superintendent. Regardless of

contract language or the superintendent’s authority, §21.206 guarantees this and

appellees do not dispute it.

        A principal must be employed under a written contract, whereas a generic

administrator has no such guarantee. Tex. Educ. Code §21.002.                  But when a

principal signs her contract in the spring, she is immediately at risk of losing this

legal right and the benefit of her bargain because she is considered to be a generic
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administrator by the school district and the commissioner.               She might be an

assistant principal. She might be something as vague as “program specialist II”

which may or may not be a certified position; may or may not be a contract

position; and which has no definition in law. See Montgomery v. Richardson

Indep. Sch. Dist., TEA Docket No. 007-R10-1008 (Comm’r Educ. 2012) (Appx. 3,

affirming reassignment from principal to “program specialist II.”)                   Jenkins

certainly lost the benefit of her bargain when she signed a contract as middle

school principal in the spring of 2011, and returned to school in the fall as one of

four high school assistant principals.

       The commissioner says the Texas Education Code mentions administrator

multiple times outside of Chapter 21, Subchapter E. (Comm’r brief, pp. 8-10)

There is no need go outside Texas Education Code Chapter 21, Subchapter E

where the introductory phrase of §21.201 says, “In this subchapter ‘teacher’ means

… principal ...”      But if one ventures outside of Chapter 21, Subchapter E,

administrator is more conspicuous by its absence. According to Tex. Educ. Code

§21.002, a principal is entitled to a contract, but an “administrator” is not. Neither

is a “program specialist II.” By reassigning a principal into a generic administrator

position such as assistant principal, a school district can remove a principal from

her contract without any quasi-due-process protections guaranteed by law.


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       Appellees mischaracterize Jenkins’ case as one questioning the legitimacy of

the administrator capacity. Of course, administrators exist in fact and in law. But

it is a term even the commissioner of education has described as “generic.”

Carpenter v. Wichita Falls Indep. Sch. Dist., Docket No. 0247-R3-491 (Tex.

Comm’r Educ. 1993) (Jenkins’ brief, Appx. 8). Principal, by its distinct and

specialized treatment in the law, is a specialized subset of administrator.

       Proving Jenkins’ point, the commissioner reminds us that state law

previously heaped all administrators together for evaluation purposes, but now has

segregated principal evaluations from all other administrator evaluations.

(commissioners brief p. 9, citing Tex. Educ Code §§21.354 and 21.3541.)

Moreover, the TEA regulations in place before and after the facts of this case

refine the administrator evaluation process and distinguish between superintendent,

principal, and all other administrators. (Title 19 Tex. Admin. Code §§150.1021;

150.1022) (Appx. 4)

       Amicus TASB claims that administrator is defined in state regulations as

specifically including principals and assistant principals. (TASB brief, p. 18, citing

19 Tex. Admin. Code Chap. 229.) This is misleading. The TASB citation is to a

very specific regulation regarding data collection for educator preparation

programs and has nothing to do with contract reassignments. The full definition,

which TASB omits, says an administrator is, “For purposes of the surveys and
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information required by this chapter, an educator whose certification would entitle

him or her to be assigned as a principal or assistant principal …” (emphasis added)

       In that same chapter, “principal” is repeatedly distinguished from

“administrator.”     (See Title 19 Tex. Admin. Code. §229.3 for a variety of

examples: “… school principals and administrators … shall provide … data and

information required by this chapter; “the school administrator and principal …”;

“Principals or designated administrators ….”) (Appx. 4, emphases added) This

further demonstrates that a principal is not a generic administrator, because it is

distinguished in the law.

       The commissioner has confused “administrator” with “supervisor.” Section

21.201 does not use “administrator,” though it does use “supervisor.” The Texas

Education Code distinguishes between principal and a generic supervisor

(emphases and brackets added on the following):

   • Section 7.064(a).AThe commissioner shall develop an online survey
     to be administered statewide at least biennially to superintendents,
     principals, supervisors, classroom teachers, counselors, and other
     appropriate full-time professional employees who are required to hold
     a certificate issued under Subchapter B, Chapter 21.

   • Sections 21.101(1) and 21.201(1): “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. (emphasis added)

   • SectionA22.051(a). [Describing which school district employees are
     entitled to statutory immunity from negligence claims] In this
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       subchapter, "professional employee of a school district" includes: a
       superintendent, principal, teacher, including a substitute teacher,
       supervisor, social worker, school counselor, nurse, and teacher’s aide
       employed by a school district …;

(brackets added) If one were to search beyond Chapter 21, Subchapter E, as the

commissioner suggests, one must conclude that “principal” is almost always

distinguished from “administrator” and “supervisor.” The only exceptions are

where the law applies to every administrator, including principals, superintendents,

and generic administrators. (See Tex. Educ. Code §§21.003 requiring the

certification of all administrators; See §21.355 rendering all administrator

evaluations confidential.)


                                REPLY POINT THREE

       Appellees exaggerate the effects of Jenkins’ case. This case would
       not overturn decades of precedent. The legislature has not
       acquiesced in the commissioner’s decision.

       Crosby ISD mischaracterizes Jenkins case as “once a principal, always a

principal.” (CISD brief pp. 11; 32-33) To be clear, Jenkins desires quasi-due-

process protections guaranteed to her by law before she is reassigned outside of her

professional capacity, as required by §21.206.           She is not entitled to tenure as

principal, nor has she argued this.

       Appellees posit that adding principal to the list of professional capacities in

§21.206 would overturn 30 years of precedent. The commissioner told the Court
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below that he, “has repeatedly held that a principal and assistant principal are in the

same professional capacity … The Court should not overturn nearly 30 years of

precedent.” (Clerk’s record p. 239; commissioner’s trial brief, p. 9) The CISD

told the Court below that “… the Commissioner has issued a number of decisions

finding that a principal was appropriately reassigned to an assistant principal

position …” (Clerk’s record p. 284; CISD trial brief p. 16)

       Both appellees greatly mischaracterize the commissioner’s jurisprudence. In

reality, prior to Jenkins filing her case with the commissioner in 2011, the

commissioner had issued only one decision which specifically addressed a

principal to assistant principal reassignment. Pasqua v. Fort Stockton Indep. Sch.

Dist., TEA Docket No. 011-R3-1102 (Comm’r Educ. 2002) (CISD brief, Tab 7).

In that case, the principal argued that his reassignment to assistant principal

violated due process, the district’s duty of good faith and fair dealing, the Open

Meetings Act, and was constructive discharge. Pasqua provides no analysis of

§§21.201 and 21.206, or “same professional capacity.” Further, in Pasqua no

claim was made about an ambiguous job title in the contract, as in the case at bar.

       In another case previous to Jenkins, the commissioner approved a

reassignment of a principal to another principal position. Underwood v. West Rusk

Co. Consolid. Indep. Sch. Dist., Docket No. 062-R3-198 (Comm’r Educ. 1998)

(CISD brief Tab 8) The commissioner erroneously states that Underwood is a
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principal to assistant principal reassignment. (“There, like here, a middle school

principal was reassigned to be a high school assistant principal.”) (Comm’r brief,

p. 16)    While the reassignment in that case was initially broad, it was from

principal of two grades to principal of three grades. (“Petitioner is expected to

function as principal to seventh, eighth and ninth grade students instead of seventh

and eighth grades only.” Underwood, p. 3, CISD brief Tab 8) The principal in

Underwood attempted to preserve the “same exact position,” which Chapter 21

does not protect, clearly distinguishing it from the case at bar.

       Although Barich is 30 years old, Jenkins’ case is one of first impression

challenging a principal to assistant principal reassignment via §21.206. All other

principal to assistant principal cases cited by appellees post-date Jenkins’ case.

       Further undercutting appellees’ legislative acquiescence argument is that

Jenkins’ argument comports with the commissioner’s rationale. In 30 years, the

commissioner has recognized every specific position in §21.201 - superintendent,

teacher, school counselor, librarian, and nurse - as a professional capacity.

Jenkins’ argument merely extends this natural trajectory to include principals, the

only specific position omitted from consideration. Moreover, she does not argue

against the validity of the generic “administrator” professional capacity, only that it

should not apply to a principal and should not be inserted into her ambiguous

contract. This Court could narrowly decide that “principal” is a “professional
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capacity,” leaving intact for another day the mystery of the commissioner’s view

that the positions in §21.201 “may or may not be professional capacities” in

§21.206. Jenkins v. Crosby Indep. Sch. Dist., Tex. Educ. Agency Docket No. 043-

R10-1211 (Comm’r Educ. 2013) (Jenkins’ brief Appx. 1, p. 24).

                                REPLY POINT FOUR

       Appellees misstate facts regarding Jenkins’ duties as a high school
       assistant principal and whether Jenkins waived the Barich issue.

       Here, for the purposes of comparing her principal to assistant principal

duties, Crosby ISD recites at length Jenkins’ alleged, new duties as a high school

assistant principal. (CISD brief p. 3) The commissioner joins with CISD in

reciting Jenkins’ specific assistant principal duties, and does so by breaking them

into bullet points. (Comm’r brief pp. 2-3) But both citations directly contradict the

commissioner’s decision in this case, where he found, “The local record does not

indicate with specificity what Petitioner’s duties as assistant principal … are”

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

(Comm’r Educ. 2013) (Jenkins’ brief Appx. 1, p. 2, finding of fact 4). Crosby ISD

never objected to this finding and it is too late now. The commissioner’s brief is

directly at odds with the commissioner’s decision.

       The source used by both appellees is the superintendent’s September 16,

2011 level-two grievance decision he issued to Ms. Jenkins. (R. pp. 284-286) Not

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coincidentally, Jenkins had never been given the legalistic set of assistant principal

duties until she filed the grievance, the CISD hired lawyers, and the superintendent

issued his level two decision.

       The commissioner has held that a grievance decision cannot be construed as

fact. “A level II decision is a decision by a finder of fact, it is not evidence of the

fact findings contained therein.” Chilton v. Alvin Indep. Sch. Dist., Tex. Educ.

Agency Docket No. 031-R10-0107 (Comm’r Educ. 2009) (Appx. 1, Conclusion of

Law 9) In another case, the issue was whether the teacher had timely filed the

grievance. The commissioner said, “Although [the school district’s] decisions on

[the teacher’s] grievance reference the [grievance] policy requirements, the policy

itself is absent from the local record,” concluding that he could not make the

determination from statements made within the district’s grievance decision.

Higereda v. Valley View Indep. Sch. Dist., TEA Docket No. 027-R10-12-2013

(Comm’r Educ. 2014) (Appx. 2, p. 3, brackets added for clarity).

       Accordingly, the superintendent’s level-two decision cannot be construed as

evidence. The only evidence comes from the CISD job descriptions, which the

commissioner improperly ignored, and from the law.                  The meaningless job

description for principal says, “The person chosen should be bright, experienced,

and capable of working with a staff having the same capabilities.” (R. 292) While

this job description is lacking, state law describes a principal’s job in great detail.
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The equally vague, CISD assistant principal job description says, “Provide students

with the appropriate learning activities and experience designed to fulfill their

potential for intellectual, emotional, physical and social growth.” (R. 293) While

not a model of clarity, it is some evidence of Jenkins’ duties as assistant principal.

       Appellees now say that Jenkins waived a factual comparison of her job

duties, thereby waiving the Barich issue. Barich v. San Felipe-Del Rio Cons.

Indep. Sch. Dist., Tex. Educ. Agency Docket No. 117-R1a-484 (Comm’r Educ.

1985) (CISD brief, pp. 28-29) In its brief, Crosby ISD says:

       At no time, nor in any grievance hearing, did Jenkins argue that the
       duties outlined for her current assistant principal position were untrue,
       inaccurate or needed further clarification. Nor did Jenkins claim that
       her principal duties … were different than her … duties as an
       assistant principal…”

(CISD brief, pp. 2-3) Although the commissioner has never before held that

Barich only applies to a factual comparison of the jobs, here is what Jenkins’

lawyer told the school board at her October 2011, level-three grievance meeting:

       We asked for the job descriptions in this district for principal and
       assistant principal because we wanted to compare them … These
       …[were] given to us as job descriptions for principal and assistant
       principal ... There's not much there in the way of a description, but
       they're certainly different.

(R. 259, hearing transcript p. 14, emphasis and brackets added for clarity) The job

descriptions leave little to analyze, but they amount to some evidence. Because the

CISD job descriptions were inadequate, Jenkins argued more forcefully that the
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principal’s duties defined by law prove the jobs are substantially dissimilar.

Proving her point, the CISD sought to define her assistant principal duties in a

level-two grievance decision, and could change them at any time. However, state

law restricts the school district’s authority to amend a principal’s duties.

     Because Jenkins focused on the legal differences between the two jobs, on

appeal to the Texas Education Agency, the commissioner found sua sponte that

Jenkins waived the Barich issue. The commissioner said Jenkins failed to argue

that her duties as principal factually differed from her assistant principal duties.

The commissioner repeats this here:

       Her petition for review did not claim that her reassignment was
       inappropriate because the two jobs at issue were actually dissimilar.
       Nor did her briefing raise the claim that the two jobs at issue were
       actually dissimilar.

(Comm’r brief pp. 27-28)         In her petition for review at the Texas Education

Agency (TEA), Jenkins pled: “The duties of Principal and Assistant Principal are

not within the same professional capacity … The position of campus principal is

… a unique position defined by state law, and is unlike any other school employee

position.” (R. 157, emphasis added). In her brief at the TEA, Jenkins argued:

       Barich had no evidence comparing the positions. Here, Jenkins’s
       evidence reflects a stark difference between principal and assistant
       principal.



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(R. 142, fn 4, emphasis added) The last sentence in Jenkins’ TEA brief said: “As

principal, Jenkins was the instructional leader, and she supervised an entire campus

staff. As assistant principal, she only operates in a supporting role.” (R. 152)

Finally, at the same October 2011 school board hearing, Ms. Jenkins personally

told the school board:

       There are five administrators on the high school campus, four of those
       positions are A.P.s; and I will have no more authority than any of the
       other A.P.s to turn the school around. The campus is led by the
       principal, and the role of an A.P. is to follow that lead.

(R. 260, hearing transcript p. 21, brackets added)

       Amicus TASB asserts that “many principals consider an assistant principal

position at the high school to be a professionally advantageous move from …

elementary or intermediate/middle school ... Additionally, such principals view this

… as a logical professional ‘stepping stone,’ …” (TASB brief, p. 33) There are

two reasons why this is either incorrect or irrelevant:

   1. For those principals who desire a reassignment to assistant principal, it will

       be by agreement. This case will have no impact on those principals.

   2. A demotion is in the eyes of the beholder, and unlike amicus Texas

       Elementary Principals and Supervisors Association, TASB does not

       represent the views of administrators.

Earlier in her career at CISD, Jenkins had already served as a Crosby High School

__________________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Reply Brief
Page 19
assistant principal, as she told the school board in October 2011:                “I'm very

familiar with the role of an A.P. In fact, it was my performance as an A.P. at

C.H.S. [Crosby High School] that resulted in my promotion to principal in 2003.”

(R. 260, hearing transcript p. 21, brackets added) A return to CHS as assistant

principal is not an agreed promotion, but rather an assignment outside of Jenkins’

professional capacity.

       In sum, Jenkins placed the job descriptions into evidence, specifically

argued to the school board that the two jobs were different, factually and legally;

and specifically argued at the TEA that her evidence - the job descriptions and the

law - was more compelling than the evidence in the Barich case. Jenkins did not

waive the Barich issue.

                                 REPLY POINT FIVE

       Crosby ISD’s argument that Jenkins’ claim “does not involve an
       expiring contract” thus rendering §21.206 inapplicable, is without
       merit and has been waived by CISD.

       In its first argument, CISD says that same professional capacity “is triggered

when a term contract is about to expire and the board of trustees fails to give

timely notice of a proposed nonrenewal.” (CISD brief p. 10) Crosby ISD then

states, “Here, Jenkins received timely and appropriate notice…” (CISD brief p. 10)

This is a confusing and inaccurate statement. Jenkins’ case exists because she did

not receive a notice of proposed nonrenewal, thus depriving her of a quasi-due-
__________________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Reply Brief
Page 20
process opportunity to defend against the reassignment. Had she received “timely

and appropriate notice,” she would have no §21.206 case.

       Further, CISD says that Jenkins’ claim is not ripe because Jenkins’ brought

her claim “during the term of [her] new contract.” (CISD brief p.10) That is also

an inaccurate statement of law and fact. Jenkins’ contract in question covers the

2011-12 and 2012-13 school years. (R. 294, Jenkins’ brief Appx. 5) Jenkins

signed the contract on March 2, 2011, but the contract was not effective until

August 2011, at the beginning of the 2011-12 school year. (R. 294, Jenkins’ brief

Appx. 5) On June 28, 2011, between the time she signed the contact and the time

the contract was became effective, she was given notice of reassignment. Her

reassignment was not effective until August 1, 2011, as evidenced by the

superintendent’s letter. (R. 291)

       Indeed, CISD concedes in its brief that Jenkins could have resigned penalty-

free until July 8, 2011. (CISD brief, p. 2) The penalty-free resignation date is 45

days before the first day of student instruction, which in this case was August 23,

2011. (Tex. Educ. Code §21.210) Thus, Jenkins reassignment occurred between

her contracts and before the 2011-12 school year started.

       On this point, the commissioner is correct:

       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
__________________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Reply Brief
Page 21
       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.

Jenkins v. Crosby Indep. Sch. Dist., TEA Docket No. 043-R10-1211 (Comm’r

Educ. 2013, p. 5) (emphasis added).

       For the first time in this litigation, Crosby ISD says the commissioner was

“erroneous and should be reversed …” (CISD brief, p. 13) But Crosby ISD failed

to brief this issue before the commissioner, and failed to file exceptions to the

proposal for decision issued by the commissioner’s administrative law judge which

contained the same language set out above. (R. 36) “All disagreements with the

factual findings and legal conclusions of the proposal for decision must be made in

the parties’ exceptions to the proposal for decision or be waived.” Title 19 Tex.

Admin. Code §157.1059(d). Crosby ISD also failed to file a motion for rehearing,

which is a prerequisite to a judicial appeal.             Title 19 Tex. Admin. Code

§157.1061(a).

       Further, CISD claims that Jenkins should have pled “demotion” instead of a

violation of §21.206. (CISD brief, p. 3, p. 11) Whether Jenkins could have filed a

federal case for a constitutional due process demotion or for discriminatory

demotion, has no bearing on the analysis here. Since 1995, the commissioner does

not have jurisdiction over a “demotion” case.              The commissioner only has

__________________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Reply Brief
Page 22
jurisdiction over a violation of the school laws of the state or a violation of a

written employment contract. Tex. Educ. Code §7.057(a). Crosby ISD’s argument

is without merit and has been waived.



                                PRAYER FOR RELIEF

       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 Reply Brief
Page 23
                                           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.
                                           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




 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
4142.

                                    /s/ Kevin F. Lungwitz
                                    Kevin F. Lungwitz



__________________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Reply Brief
Page 24
                            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 October 13, 2015.

                                    /s/ Kevin F. Lungwitz
                                    Kevin F. Lungwitz




__________________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Reply Brief
Page 25
                              TABLE OF APPENDICES

  1. Chilton v. Alvin Indep. Sch. Dist., Tex. Educ. Agency Docket No. 031-R10-
     0107 (Comm’r Educ. 2009)

  2. Higereda v. Valley View Indep. Sch. Dist., Tex. Educ. Agency Docket No.
     027-R10-12-2013 (Comm’r Educ. 2014)

  3. Montgomery v. Richardson Indep. Sch. Dist., Tex. Educ. Agency Docket
     No. 007-R10-1008 (Comm’r Educ. 2012)

  4. Title 19 Tex. Admin. Code §§150.1021; 150.1022;
     Title 19 Tex. Admin. Code §229.3




__________________________________________________________________________________________
Jenkins v. Crosby Indep. Sch. Dist. - Case No. 03-15-00313-CV
Appellant’s Reply Brief
Page 26
           APPENDIX 1



      Chilton v. Alvin Indep. Sch. Dist.,
Tex. Educ. Agency Docket No. 031-R10-0107
            (Comm’r Educ. 2009)
                               2009 TX Educ. Agency LEXIS 13
                             Copyright (c) 2009 Texas Education Agency
                                            March 05, 2009
                                     DOCKET NO. 031-R10-0107

Reporter
2009 TX Educ. Agency LEXIS 13

LAURA CHILTON ; v. ; ALVIN INDEPENDENT SCHOOL DISTRICT

Core Terms

resign, mail, rescind, envelope, school district, fact finding, rescission, offeror, letter of resignation,
decision maker, mailbox

Panel: [*1] ROBERT SCOTT, COMMISSIONER OF EDUCATION

Opinion

DECISION OF THE COMMISSIONER

Statement of the Case

Petitioner, Laura Chilton, complains of the actions of Respondent, Alvin Independent School District.
Christopher Maska is the Administrative Law Judge appointed by the Commissioner of Education to
hear this cause. Petitioner is represented by Julie D. Leahy, Attorney at Law, Austin, Texas. Respondent
is represented by Clay Grover, Attorney at Law, Houston, 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 of the record and matters officially noticed, it is concluded that the following
Findings of Fact are established applying the substantial evidence standard.

1. In response to Petitioner’s grievance, Respondent’s board of trustees voted to deny the grievance and
to uphold the Level II decision.

2. The Level II decision reads in pertinent part as follows:
       REPORT OF LEVEL TWO CONFERENCE BY SUPERINTENDENT OR DESIGNEE
       1. Complainant’s Name: Laura Chilton
       Represented by: Eric J. Davis of Davis and Associates
        [*2] 2. Position: Teacher Campus/Department: REACH
                                                                                                              Page 2 of 7
                                    2009 TX Educ. Agency LEXIS 13, *3

3. Date and time of conference: November 2, 2006 at 2:00 p.m.
4. The facts as presented by the complainant are as follows:
Pressured and mislead into resigning by the Principal-stated the Principal told her that if she did
not resign, she would go to HR and have her terminated.
Stated that she did not receive the letter of acceptance of her resignation until after she received
the letter of denial of her request to rescind her resignation.
Submitted: 2 -- AISD Envelopes Postmarked September 1, 2006 and the other September 6,
2006.
Submitted: Commissioner’s Ruling Docket 115-R8-197 Daniel Suty v Aldine ISD 1997
5. In my opinion, the allegations made in the original complaint are not adequately supported
by the facts submitted.
Explanation:
. Resignation states the reason for resigning due to travel time it gets to work.
. The principal stated that she did not tell Ms. Chilton that she would terminate her as this was
not within her authority.
. There is no distinguishing information on the envelopes to determine the contents of either
envelope. In discussing HR time frames for mailing letter of acceptance of resignation and the
 [*3] letter of denial of the rescission of resignation requests are as follows:
    Chilton Resignation Letter                                                      August 24, 2006
    AISD Letter of Resignation Acceptance Letter                                    August 29, 2006
    Chilton Request Rescission of Resignation Letter                                August 30, 2006
                                                                                    (Fax 3:04 PM)
    Denial of Rescission Request                                                    August 31, 2006
The AISD letter of resignation acceptance was mailed on the day that it was signed which was August 29, 2006 therefore, the
envelope that Ms. Chilton received had an August 29, 2006 meter on it. Once the resignation was mailed August 29, 2006 it
was binding under the law, therefore due notification was given prior to the attempt of rescission by Ms. Chilton on August
30, 2006.
Envelope Dated September 6, 2006- It has been determined that the envelope contained three documents that are sent out to
all employees leaving the district. Documents include: HR Cover Letter/Directions. Exit Report Form, Personnel Release
Form.
Envelope Dated September 1, 2006-It has been determined that the envelope contained the denial of the rescission request.
6. In my opinion, the remedy sought by the complainant is not justified by the facts submitted.
Explanation:

The written resignation   [*4] was received on August 24, 2006 and formally accepted on August 29,
2006. Ms. Chilton’s request for rescission was received on August 30, 2006 and formally
denied on August 31, 2006. As a result, a vacancy was posted and the principal is active in the
hiring process. All payout have been completed.
7. The decision made or recommendations agreed upon as a result of the conference are as
follows: None
                    signed Robert S. Quinn                                      11-15-06
                                                                                              Page 3 of 7
                                      2009 TX Educ. Agency LEXIS 13, *4


                       Signature of Superintendent Designee               Date

3. On August 24, 2006, Petitioner hand delivered a letter of resignation to her principal. The letter
reads:
       August 24, 2006
       Dear Mrs. Fyfe,
       I am resigning on August 24, 2006 from Alvin ISD. Due to the travel time it takes me to get
       to work.
       Thank you,
       Laura Chilton

4. On September 1, 2006, a letter dated August 31, 2006 from Robert G. Quinn was mailed to
Petitioner. The letter reads in relevant part:
       I am sending you this letter in response to the fax that we received from you on August 30, 2006
       at 3:04 PM. After review, it has been determined that the district is unable to honor your request
       based on the following facts:
       . Your written resignation was received and accepted on August [*5] 24, 2006.
       . The vacancy created by your resignation is currently posted.
       . The principal is active in the hiring process for filling the vacancy.
       . Payroll has finalized your payout and you are not an active employee.

5. On September 6, 2006, a letter dated August 29, 2006 from Robert G. Quinn was mailed to
Petitioner. The letter reads in relevant part:
       This letter is to inform you of receipt of your letter of resignation dated August 24, 2006. I do
       hereby accept your resignation for the position of special education teacher, REACH School,
       effective August 24, 2006.
       Should you have any questions, please do not hesitate to contact me. Thank you for your
       service with Alvin Independent School District and best wishes in your future endeavors.

6. Petitioner had a probationary contract to teach for Respondent for the 2006-2007 school year.

Discussion

Petitioner contends that Respondent improperly ended her probationary contract. Petitioner contends
that she rescinded her offer of resignation before it was accepted.

Standards

The standards concerning the acceptance of the resignation of a teaching contract after the period for
unilateral resignation are set forth [*6] in Cantu v. Central Educ. Agency, 884 S.W.2d 565 (Tex.
App.-Austin 1994, no writ). Tex. Educ. Code § 21.205(a). An agreement to rescind a teaching contract
requires offer, acceptance and consideration. Id. at 566. The dispute between the parties is whether
                                                                                                 Page 4 of 7
                                     2009 TX Educ. Agency LEXIS 13, *6

Petitioner rescinded her resignation before Respondent accepted her resignation. The Cantu court has
held:

   The aphorism ″the offeror is the master of his offer″ reflects the power of the offeror to impose
   conditions on acceptance of an offer, specify the manner of acceptance, or withdraw the offer
   before the offeree has effectively exercised the power of acceptance. However, more often than not,
   an offeror does not expressly authorize a particular mode, medium, or manner of acceptance.
   Consequently, particularly with parties communicating at a distance, a rule of law is needed to
   establish the point of contract formation and allocate the risk of loss and *567 inconvenience that
   inevitably falls to one of the parties between the time that the offeree exercises, and the offeror
   receives, the acceptance. See 1 Arthur L. Corbin, Contracts § 78 (1963).
    [*7] [5] As Professor Corbin notes, courts could adopt a rule that no acceptance is effective until
   received, absent express authorization by the offeror; however, the mailbox rule, which makes
   acceptance effective on dispatch, closes the deal and enables performance more promptly, and
   places the risk of inconvenience on the party who originally has power to control the manner of
   acceptance. Id. Moreover, ″the mailing of a letter has long been a customary and expected way of
   accepting [an] offer.″ Id. Therefore, ″[e]ven though the offer was not made by mail and there was
   no [express] authorization, the existing circumstances may be such as to make it reasonable for the
   offeree to accept by mail and to give the offeror reason to know that the acceptance will be so
   made.″ Id. In short, acceptance by mail is impliedly authorized if reasonable under the
   circumstances
   [6] The Restatement approves and adopts this approach: an acceptance by any medium reasonable
   under the circumstances is effective on dispatch, absent a contrary indication in the offer.
   Restatement (Second) of Contracts §§ 30(2), 63(a), 65, 66 (1979). In addition, the Restatement
   specifically recognizes that [*8] acceptance by mail is ordinarily reasonable if the parties are
   negotiating at a distance or even if a written offer is delivered in person to an offeree in the same
   city. Id. § 65 cmt. c (emphasis added). The same standard, viz., whether the manner of acceptance
   is reasonable under the circumstances, governs offer and acceptance in commercial transactions
   under the Texas Business and Commerce Code. See Tex.Bus. & Com.Code Ann. § 2.206 (West
   1968).

Id. at 566-567. In general, an offer may be accepted by mail. The acceptance letter must be properly
addressed. The time of acceptance is when a properly addressed acceptance is placed in the mail. Id.
at 566 n.1. If the offer to resign is accepted before the offer is rescinded, the resignation is complete.

Mail Box Rule

Petitioner contends that the mailbox rule does not apply in this case. However, as the above quoted
portion of Cantu makes clear, acceptance by mail is ordinarily reasonable. Petitioner points to nothing
in the record to show why this usual standard should not apply in this case. Petitioner’s letter of
resignation does not specify a method [*9] of acceptance. If Respondent placed its acceptance of
Petitioner’s resignation in the mail, prior to it receiving Petitioner’s fax rescinding the resignation, the
resignation is effective.

Mailing
                                                                                                                           Page 5 of 7
                                               2009 TX Educ. Agency LEXIS 13, *9

The central dispute in the present case is ″When did Respondent mail its acceptance of Petitioner’s
resignation?″ Petitioner attempted to rescind her offer of resignation by a fax on August 30, 2006 at
3:04 p.m. If Respondent placed its letter in the mailbox prior to that time, Petitioner’s offer was
accepted and the resignation is final.

As this is a case against a school district, it is to be decided based on the local record applying the
substantial evidence rule. Tex. Educ. Code § 7.057(c). The substantial evidence standard is generally
the standard specified in Texas Government Code section 2001.174. 19 Tex. Admin. Code §
157.1073(h). In the present case, Respondent specifically upheld the Level II decision. The Level II
decision contains findings of fact. Hence, the Commissioner must determine whether the findings of
fact are supported by substantial evidence in the record.

Acceptance Letter

Respondent contends that the letter accepting Petitioner’s resignation is itself [*10] evidence that the
letter was mailed on August 29, 2006 because the letter is dated August 29, 2006. The date on the letter
is evidence that the letter was drafted that day. It is not evidence that the letter was properly mailed
on that day.

Level II Decision
Respondent also contends that the Level II decision itself is evidence that acceptance was mailed on
August 29, 2006. However, the Level II decision was what was appealed to the board. It can no more
be considered evidence than an order of a district judge can be as considered evidence by an appellate
court to prove that the district court’s order was supported by evidence.
At oral argument, Respondent’s counsel noted that the Level II decision maker was the individual who
drafted the acceptance letter and argued that the Level II decision maker had actual knowledge that the
letter was mailed on time and of the contents of the two envelopes that bear postage meter dates of
September 1 and 6, 2006 1

. A decision maker must base his decision [*11] on the evidence, not on personal knowledge. It has
been held:
     Nothing is more thoroughly established than the proposition that neither a judge nor a juror may
     act as a witness. Glasser v. United States, 315 U.S. 60, 82, 62 S.Ct. 457, 470, 86 L.Ed. 680 (1942)
     (judge); Gregory v. St. Louis Southwestern Railway Co., 377 S.W.2d 847, 853
     (Tex.Civ.App.-Texarkana 1964), rev’d on other grounds, 387 S.W.2d 27 (Tex.1965) (juror).

Sizemore v. Texas State Board of Dental Examiners, 747 S.W.2d 389, 396 (Tex. App.-Dallas 1987)
reversed on other grounds 759 S.W.2d 114 (Tex. 1988). Perhaps the Level II decision maker knew when
the acceptance letter was mailed. If so, he could not rely on his personal knowledge.
Further, even if the Level II decision was evidence that the letter was mailed on August 29, 2006, it
is not evidence that the letter was properly addressed. The Level II decision fails to address this issue.
1
     In Rogers v. Texas Optometry Bd., 609 S.W.2d 248 (Tex. Civ. App.-Austin 1980, writ ref’d n.r.e.), administrative action was
overturned because two board members, who recused themselves testified against a license holder. While the two board members did
not sit as fact finders, their influence over the other board members was found to be potentially so great that the court found a lack of
fairness. Perhaps an even greater lack of fairness would have been found if they did not recuse themselves.
                                                                                              Page 6 of 7
                                   2009 TX Educ. Agency LEXIS 13, *11

The mailbox rule only applies if a letter is properly addressed. There is not substantial evidence [*12]
to support a determination that the offer was accepted before it was withdrawn.

The only evidence in the record as to when the acceptance was mailed was provided by Petitioner who
testified that the acceptance letter came in an envelope that was placed in evidence. This envelope
bears a postage meter marking which reads September 6, 2006. The evidence in the record
conclusively establishes that the acceptance letter was mailed on September 6, 2006. cf. Montgomery
Indep. Sch. Dist v. Davis, 34 S.W.3d 559, 567 (Tex. 2000)(finding in a chapter 21 case that a board
could rely on undisputed evidence). Since Petitioner withdrew her offer of resignation before the
resignation was accepted, Petitioner’s contract for the 2006-2007 school year remained in force.
Petitioner is entitled to compensation under her 2006-2007 contract.

Conclusion

Petitioner’s appeal should be granted. The mailbox rule applies to this case. Petitioner rescinded her
resignation before it was accepted.

Reply to the Exceptions to the Proposal for Decision

Respondent correctly notes that the grievance process lacks the formality of a court and that school
districts have wide latitude [*13] to determine their procedures. However, the Commissioner has made
clear that the hearing given must be a fair hearing:

   While a district has wide latitude to design its own hearing procedures, a grievant needs to be given
   a fair opportunity to present his case. Taylor v. Marshall Independent School District, Docket No.
   130-R10-297 (Comm’r Educ. 1997).

Adams v. Flour Bluff Independent School District, Docket No. 115-R10-598 (Comm’r Educ. 1999). A
hearing is not fair when instead of relying on the facts presented, a decision maker bases a decision
on personal knowledge. The Level II hearing was not a fair hearing. But even if the Level II hearing
were a fair hearing, the Level II hearing decision is not evidence to be considered in determining
whether substantial evidence supports the board’s decision.

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 of Education has jurisdiction over Petitioner’s claims under Texas Education
Code section 7.057.

2. An appeal of a decision of a school district [*14] under Texas Education Code section 7.057 is to
be based on a review of the local record under a substantial evidence standard of review. Tex. Educ.
Code § 7.057(c).

3. In a case where a school district makes findings of fact, the substantial evidence standard of review
referenced in Texas Education Code section 7.057(c) is generally the standard identified in Texas
Government Code section 2001.174. 19 Tex. Admin. Code § 157.1073(h).
                                                                                                 Page 7 of 7
                                    2009 TX Educ. Agency LEXIS 13, *14

4. An agreement to rescind a teaching contract, after the period for unilateral resignation, requires offer,
acceptance, and consideration. Tex. Educ. Code § 21.205(a).

5. An offer can be rescinded before it is accepted.

6. An offer can generally be accepted by mail unless the offer specifies another mode of acceptance.
As long as no limitations have been placed on acceptance and acceptance by mail is reasonable under
the circumstances, an offer may be accepted by mail. If an offer is accepted by mail, acceptance occurs
upon dispatch of a properly addressed letter.

7. Since Petitioner placed no restrictions as to how her offer could be accepted and under the
circumstances of the present case it was reasonable for the offer of resignation to be accepted [*15]
by mail, Respondent could have accepted Petitioner’s offer by mail.

8. Respondent could not have accepted Petitioner’s offer after August 30, 2006 at 3:04 p.m. because
Petitioner rescinded her offer at that time.

9. A Level II decision is a decision made by a finder of fact, it is not evidence of the fact findings
contained therein.

10. There is not substantial evidence that Respondent mailed its acceptance letter on August 29, 2006.

11. There is not substantial evidence that a properly addressed letter was mailed by Respondent to
Petitioner on August 29, 2006.

12. The evidence in the local record conclusively establishes that Respondent mailed its letter of
acceptance on September 6, 2006.

13. Because Petitioner rescinded her offer of resignation prior to Respondent’s acceptance of her offer
of resignation, no resignation occurred. Petitioner’s 2006-2007 contract was not ended by resignation.

14. Petitioner’s appeal should be granted.

ORDER

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

ORDERED that Petitioner’s appeal be, and is hereby, GRANTED. [*16]

SIGNED AND ISSUED this 5th day of March, 2009.
             APPENDIX 2


   Higereda v. Valley View Indep. Sch. Dist.,
Tex. Educ. Agency Docket No. 027-R10-12-2013
            (Comm’r Educ. 2014)
                                     2014 TX Educ. Agency LEXIS 46
                                       Copyright (c) 2014 Texas Education Agency
                                             October 7, 2014; October 7, 2014
                                             DOCKET NO. 027-R10-12-2013

Reporter
2014 TX Educ. Agency LEXIS 46


ISMAEL HIGAREDA ; v. ; VALLEY VIEW INDEPENDENT SCHOOL
DISTRICT

Core Terms

grievance, school year, probationary, term contract, classroom teacher, school district, teacher, written contract, fact
finding, no evidence, terminate, notice, at-will, written employment contract, school law, contractual, incorrect, exhaust

Panel: [*1] MICHAEL WILLIAMS, COMMISSIONER OF EDUCATION

Opinion

DECISION OF THE COMMISSIONER

Statement of the Case

Petitioner, Ismael Higareda, complains of actions and decisions of Respondent, Valley View Independent School District.
Laura Moriaty is the Administrative Law Judge appointed by the Commissioner of Education to preside over this cause.
Petitioner is represented by Dohn Larson, Attorney at Law, Austin, Texas. Respondent is represented by Renee Betancourt,
Attorney at Law, Edinburg, Texas.

The central issue in this case is that a classroom teacher cannot be an at-will employee, even in the absence of a written
employment contract. When a school district board of trustees fails to approve a probationary, term or continuing contract
for a classroom teacher, the board is in violation of chapter 21 of the Texas Education Code, which requires that all teachers
must be employed under a written contract. The Commissioner has jurisdiction over the case not as an employment
contract matter under Texas Education Code section 7.057(a)(2)(B), but as a violation of the school laws of Texas under
Texas Education Code section 7.057(a)(2)(A).

Findings of Fact

After due consideration of the [*2] record and matters officially noticed, it is concluded that the following Findings of Fact
are supported by substantial evidence and are the Findings of Fact that best support Respondent’s decision:

1. Respondent employed Petitioner as a classroom teacher under probationary contracts for the 2010-2011 and 2011-2012
school years. Petitioner resigned at the end of the 2011-2012 school year, and then started working for Respondent as a
classroom teacher again at the start of the 2012-2013 school year.

2. Petitioner and Respondent both agree that under Texas Education Code chapter 21 and Respondent’s policies, Petitioner
was only eligible for a term contract at the start of the 2012-2013 school year. Both parties agree that Petitioner was not
eligible for a probationary contract under Texas Education Code section 21.102.

3. Under its local policy DC (LOCAL), Respondent’s Board of Trustees (″Board″) ″retains final authority for the
employment of contractual and noncontractual personnel.″
                                                                                                                Page 2 of 6
                                           2014 TX Educ. Agency LEXIS 46, *4

4. The Board did not delegate authority to contract with employees on its behalf.

5. On January 11, 2013, Respondent’s employee or a member of Respondent’s Board presented Petitioner with a
probationary [*3] contract for the 2012-2013 school year (″Contract″), and Petitioner signed the Contract.

6. The Board neither approved nor signed the Contract. Respondent and Petitioner agree that as a result, there was no
written contract between Respondent and Petitioner for the 2012-2013 school year.

7. Petitioner worked for Respondent as a classroom teacher throughout the 2012-2013 school year.

8. On April 22, 2013, the Board voted to terminate Petitioner at the end of the 2012-2013 school year as ″an employee
currently employed under an Education Code Chapter 21 probationary contract.″

9. Petitioner filed a formal grievance with Respondent on May 14, 2013, asserting, ″I do not have a fully executed contract
for the 2012-2013 school year--the contract on which the district relies is not signed by the board...My employment status
with the district should be construed as if I held a term contract.″

10. There is no evidence in the record that Petitioner knew or should have known prior to filing his grievance that the Board
had not voted to approve the Contract.

11. There is no evidence of Respondent’s local grievance policy in the local record.

Discussion

Texas public school teachers must be [*4] employed under one of three different contracts: (1) a probationary contract;
(2) a continuing contract; or (3) a term contract (collectively, ″Chapter 21 contract″). Tex. Educ. Code § 21.002. A
classroom teacher cannot be employed as an at-will employee. Nield v. Beaumont Indep. Sch. Dist., Docket No.
024-R10-1110 (Comm’r Educ. 2012) (holding that a classroom teacher is entitled to a a probationary, continuing or term
contract under chapter 21 of the Texas Education Code even if the teacher is working under an unwritten contract that
appears to be at-will). Under a probationary contract, the board of trustees may terminate the teacher’s employment at the
end of the contract period without advance notice or an opportunity for a hearing if the district believes its best interests
will be served by terminating the employment. Tex. Educ. Code § 21.103. Under a term contract, a teacher is entitled to
notice and a hearing if a school district intends not to renew the teacher’s contract. Tex. Educ. Code §§ 21.206-21.209. The
Texas Education Code severely restricts which teachers receive a probationary contract: no teacher can be in a
probationary contract for more than the first four [*5] years of employment with a school district, and any teacher that
has taught for at least five of the last eight years cannot have a probationary contract for more than one year. Tex. Educ.
Code § 21.102.

Petitioner and Respondent agree that under chapter 21 of the Texas Education Code (″Chapter 21″), Petitioner was not
legally eligible to receive a probationary contract for the 2012-2013 school year. Respondent argues that Petitioner’s claim
arose when he signed a document labelled ″Probationary Contract″ because he should have known at that point that
Respondent was in violation of Chapter 21 and that he was subject to firing as a probationary contract employee, without
advanced notice or a hearing. Respondent asserts that Petitioner should have filed a grievance within 15 days of signing
the Contract, and since he failed to do so, the Commissioner has no jurisdiction over Petitioner’s claim. Petitioner counters
that because Respondent never adopted the Contract, there was no probationary contract for him to grieve. Petitioner
argues that without a written contract, he became by default a term contract employee because a term contract was the
only possible contract he could have [*6] as a matter of law under Chapter 21. Petitioner further argues that his claim did
not arise until Respondent improperly terminated his term contract, so his grievance was timely and the Commissioner has
jurisdiction over his appeal.

Timeliness of Grievance

Respondent asserts that the Commissioner does not have jurisdiction over the case because Petitioner did not timely file
a grievance after he signed the Contract, but there is no evidence in the local record of what Respondent’s grievance policy
                                                                                                                 Page 3 of 6
                                           2014 TX Educ. Agency LEXIS 46, *6

required. Although Respondent’s decisions on Petitioner’s grievance reference the policy requirements, the policy itself is
absent from the local record. Decisions made by a finder of fact cannot serve as evidence of the facts described therein.
See, e.g., Chilton v. Alvin Indep. Sch. Dist., Docket No. 031-R10-0107 (Comm’r Educ. 2009). The Commissioner must
make his decision based only on ″a review of the record developed at the district level under a substantial evidence standard
of review.″ Tex. Educ. Code § 7.057(c). The local record in this case does not contain substantial evidence to support
Respondent’s holding that Petitioner failed exhaust administrative remedies by filing [*7] a grievance after Respondent’s
local grievance deadline. The Commissioner therefore has jurisdiction over this case.

Even if the local grievance policy was a part of the administrative record, Respondent’s focus on the Contract as the
triggering event for Petitioner’s grievance is misplaced. Both parties agree that there is no written contract in this case
because the Board failed to approve the Contract. The fact that Petitioner once signed a document that purported to be a
probationary contract when he was legally entitled to a term contract is irrelevant when no probationary contract
agreement ever actually existed between the parties. Respondent did not violate the Texas Education Code by showing
Petitioner a document purporting to be a probationary contract and allowing him to sign it. Instead, Respondent violated
Chapter 21 by failing to approve any contract at all for Petitioner. There is no evidence in the record that shows Petitioner
knew or should have known before he filed his grievance that the Board had failed to approve his contract. Petitioner
therefore properly exhausted his administrative remedies at the local level.

Jurisdiction Without Written Contract

Respondent [*8] relies heavily on Garza v. Jim Hogg County Indep. Sch. Dist., Docket No. 001-R2-901 (Comm’r Educ.
2002), to support its position that the Commissioner does not have jurisdiction over this case because there was no written
contract. Garza involved a school superintendent who did not receive a written employment contract from the school
district, worked as a superintendent for most of the school year, and then was terminated without notice or hearing. Id. The
Commissioner in Garza held that he did not have jurisdiction over the case under Texas Education Code section
7.057(a)(2)(B), which gives the Commissioner jurisdiction over violations of written employment contracts between
school districts and school distict employees, because there was no written employment contract. Id. That same principle
applies in this case--the Commissioner does not have jurisdiction under Texas Education Code section 7.057(a)(2)(B)
because there was no written employment contract between Petitioner and Respondent. The Commissioner does not have
the ability to interpret or enforce unwritten employment contracts, so the Commissioner cannot determine whether
Petitioner was improperly terminated [*9] in this case. See, e.g., Cooper v. Paris Indep. Sch. Dist. Docket No. 83-R2-197
(Comm’r Educ. 1997) (holding that when there was no written contract, the Commissioner could not enforce contract
termination requirements against a school district); see also, Hudson Indep. Sch. Dist. v. Lassiter, Docket No. 251-TTC-897
(Comm’r Educ. 1998) (″Since there was no written contract between Petitioner and Respondent, the Commissioner cannot
take action against Respondent...for abandonment of contact.″). The Commissioner does not have jurisdiction under Texas
Education Code section 7.057(a)(2)(B) to determine or enforce termination rights for the unwritten contract Petitioner
claims in this case.
However, Texas Education Code section 7.057(a)(2)(A) provides entirely separate grounds for the Commissioner’s
jurisdiction: the actions or decision of a school board that violate the school laws of this state. In Garza, the Commissioner
considered jurisdiction under section 7.057(a)(2)(A), but looked only to whether the school district had violated Texas
Education Code chapter 21, subchapter E by failing to follow the notice and hearing requirements for a term-contract
employee. The Commissioner [*10] found that the school district had not violated the term contract termination
requirements because there was no evidence that the superintendent in Garza had a term contract. Notably, the
Commissioner did not consider or address in Garza whether the school district violated Texas Education Code section
21.002--which requires that a school district employ each classroom teacher under a probationary, continuing, or term
contract--because that provision does not apply to superintendents. As this case does involve a classroom teacher, Texas
Education Code section 21.002 applies here, rendering Garza inapposite. More on point is Gonzalez v. Donna Indep. Sch.
Dist., Docket No. 074-R10-605 (Comm’r Educ. 2007), a case involving a classroom teacher where the Commissioner held:

    While there may be no written contract, Petitioner has reported to work and Respondent has paid him. There is
    a contract between Petitioner and Respondent. While the Commissioner lacks jurisdiction over this case based on
    Texas Education Code section 7.057 (a)(2)(B) because there is no written contract, the Commissioner does have
                                                                                                                  Page 4 of 6
                                           2014 TX Educ. Agency LEXIS 46, *10

    jurisdiction over this case based on Texas Education Code section 7.057 [*11] (a)(2)(A) because Petitioner alleges
    violations of the school laws of this state.

In this case, the Commissioner has jurisdiction section 7.057(a)(2)(A) to determine whether Respondent violated Texas
Education Code section 21.002 by failing to employ Petitioner under a Chapter 21 contract.

Chapter 21 Contract

Respondent’s failure to employ Petitioner under any of types of contracts listed in Texas Education Code section 21.002
is a violation of the school laws of Texas. In its decision on Petitioner’s grievance, the Board held that Petitioner was an
at-will employee because there was no executed written employment contract. The Board was wrong: the Commissioner
has previously held that a teacher employed by a school district to teach without a written contract cannot be an at-will
employee and must be given a Chapter 21 contract. Nield v. Beaumont Indep. Sch. Dist., Docket No. 024-R10-1110
(Comm’r Educ. 2012). In failing to approve any Chapter 21 contract for Petitioner, the Board violated Texas Education
Code section 21.002. As a result, the Board must approve a Chapter 21 contract for Petitioner.

Conclusion

Respondent violated the school laws of Texas not when its [*12] superintendent gave Petitioner an unauthorized document
labeled ″Probationary Contract″ and allowed him to sign it, but rather when the Board failed to approve any valid Chapter
21 contract to employ Petitioner as a teacher. Respondent’s local grievance policies were not included in the local record,
so there is not substantial evidence to support Respondent’s argument that Petitioner failed to exhaust administrative
remedies by filing his grievance too late. Moreover, there is no evidence in the record to show that Petitioner discovered
before he filed his grievance that the Board had not approved his contract, so there is no evidence to dispute his assertion
that his grievance was timely. Respondent employed Petitioner as a classroom teacher, so Respondent was legally obligated
to give Petitioner a Chapter 21 contract--classroom teachers cannot be at-will employees. Respondent must give Petitioner
a Chapter 21 contract for the 2012-2013 school year.

Exceptions

Both Petitioner and Respondent filed Exceptions to the Proposal for Decision. Petitioner excepted to a finding of fact that
stated it was Respondent’s Superintendent that gave Petitioner the Contract, because the record [*13] shows it was a
member of Respondent’s Board, and requested that the Commissioner add additional Conclusions of Law regarding
Petitioner’s contractual relationship with Respondent during the 2013-2014 school year. Respondent argued that the
Proposal for Decision inappropriately held that there was an oral contract in this case, set incorrect terms for that contract,
and disregarded Respondent’s interpretation of its own grievance policy with regard to when Petitioner should have filed
a formal grievance.

Petitioner is correct that Findings of Fact 4 and 5 incorrectly named the Superintendent as the person who gave Peitioner
the Contract. In fact, there is no evidence in the local record showing precisely which person associated with Respondent
gave Petitioner the Contract. Petitioner cites the Board’s findings of fact in this case, but the findings of fact from
Respondent’s Board cannot serve as evidence of the facts they describe. See, e.g., Chilton v. Alvin Indep. Sch. Dist., Docket
No. 031-R10-0107 (Comm’r Educ. 2009). The Findings of Fact have been amended accordingly.

Petitioner is incorrect in asserting that the Commissioner should make Conclusions of Law regarding the contractual [*14]
relationship between Petitioner and Respondent during the 2013-2014 school year. There is no evidence in the local record
to support findings beyond the 2012-2013 school year. Petitioner is welcome to pursue the grievance process with
Respondent to develop a local record regarding the contractual relationship between Petitioner and Respondent during the
2013-2014 school year in light of this decision, but that record is not currently before the Commissioner in this appeal. No
other changes will be made in response to Petitioner’s Exceptions.

With regard to Respondent’s concerns about the oral contract, the question of whether an oral contract existed between
the parties is irrelevant to the fact that Respondent violated the Texas Education Code by failing to employ Petitioner under
                                                                                                                  Page 5 of 6
                                            2014 TX Educ. Agency LEXIS 46, *14

a written Chapter 21 contract. The Conclusion of Law on the existence of an oral contract has therefore been removed from
the Decision of the Commissioner. However, Respondent is incorrect that the Conclusions of Law, which state Petitioner
is entitled to a term contract for the 2012-2013 school year and to be paid as a term contract employee was paid in
accordance with Respondent’s policies during that [*15] period, are somehow setting the terms for a contract that never
existed. Rather, these Conclusions of Law merely require Respondent to fulfill its legal obligation under the Texas
Education Code to provide its teachers with Chapter 21 contracts and the benefits attendant thereto. The Commissioner has
not specified precisely what Petitioner should have been paid--only that it should be what a Chapter 21 contract employee
in his position was due under Respondent’s policies for the 2012-2013 school year. In doing so, the Commissioner is not
interpreting an existing contract, but simply stating the impact of Respondent fulfilling the requirements of the Texas
Education Code. To avoid any confusion or misinterpretation, although Petitioner and Respondent agree that Petitioner
could only be employed under a term contract according to their mutual interpretation of Respondent’s policies and
Chapter 21, the Conclusions of Law have been amended to refer only to a Chapter 21 contract. No other changes to the
Proposal for Decision are necessary in response to Respondent’s Exceptions regarding the existence of Petitoner’s contract.

Respondent also excepts to Finding of Fact 10, on the grounds [*16] that it incorrectly fails to defer to Respondent’s
interpretation of its own local grievance policy. As an initial matter, Respondent’s local grievance policy was not included
in the local record for this case, and is therefore not properly before the Commissioner. Therefore, all references to specific
requirements under Respondent’s local grievance policy that appeared in the Proposal for Decision have been removed. The
discussion of the grievance policy has been amended to hold that there is no substantial evidence in the record of what
Respondent’s local grievance policy was. Without this evidence in the local record, Respondent cannot show that Petitioner
failed to exhaust his administrative remedies by missing the grievance deadline.

But regardless of what specific deadlines Respondent’s local grievance policy gave for filing a formal grievance, the parties
agree that the operative question to determine if Petitioner has exhausted administrative remedies is whether Petitioner
knew or should have known about the cause of his grievance significantly before he filed the grievance. While Finding of
Fact 10 may have been unclearly worded, the Commissioner’s finding is that Petitioner [*17] did not have reason to know
before he filed his grievance with Petitioner that the Board had failed to approve his contract, nullifying the contract. The
wording of Finding of Fact 10 has been revised in an effort to make it clearer. Aside from those described above, no other
changes will be made to the Proposal for Decision in response to Respondent’s Exceptions.

Conclusions of Law

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as
Administrative Law Judge, I make the following Conclusions of Law:

1. The Commissioner of Education has jurisdiction over this cause under Texas Education Code section 7.057(a)(2)(A).

2. Petitioner does not have a written contract with Respondent.

3. Petitioner filed his grievance timely.

4. Texas school districts cannot employ classroom teachers as at-will employees.

5. The contractual requirements of Chapter 21 of the Texas Education Code are mandatory.

6. Petitioner is entitled to a written Chapter 21 contract for the 2012-2013 school year.

7. Petitioner is entitled to the amount of pay that he should have received for the written Chapter 21 contract had it existed
during the [*18] 2012-2013 school year under Texas Education Code section 21.402 and Respondent’s policies, less the
amount of pay that he has already received.

8. Petitioner is entitled to accrue the Teachers Retirement System contributions that Respondent should have made for the
written Chapter 21 contract had it existed during the 2012-2013 school year, less any contributions Respondent already
made for Petitioner.
                                                                                                             Page 6 of 6
                                         2014 TX Educ. Agency LEXIS 46, *18

9. Petitioner’s appeal should be granted as specified. Any relief not explicitly granted 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 the Commissioner of Education, it is hereby

ORDERED that the Petitioner’s appeal be, and is hereby, GRANTED, and

FURTHER ORDERED that Respondent shall reinstate Petitioner as if he had a written Chapter 21 contract for the
2012-2013 school year, and pay all resulting back pay and benefits owed under such a contract in accordance with
Respondent’s polices that has not already been paid to Petitioner.

SIGNED AND ISSUED this 7th day of October, 2014.
           APPENDIX 3



Montgomery v. Richardson Indep. Sch. Dist.,
Tex. Educ. Agency Docket No. 007-R10-1008
           (Comm’r Educ. 2012)
                                 DOCKET NO. 007-R10-1008

DR. CINDY MONTGOMERY                              §     BEFORE THE
                                                  §
                                                  §
V.                                                § COMMISSIONER OF EDUCATION
                                                  §
RICHARDSON INDEPENDENT                            §
SCHOOL DISTRICT                                   §   THE STATE OF TEXAS

                          DECISION OF THE COMMISSIONER
                                      Statement of the Case
        Petitioner, Dr. Cindy Montgomery, appeals the action of Respondent, Richardson
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 Sandra Carpenter, Attorney at Law, Austin, Texas.
        The Administrative Law Judge issued a Proposal for Decision recommending that
Petitioner’s appeal be dismissed in part and denied in part.
                                         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 term contract for the
2007-2008 school year. Most of the terms of this contract are not in the local record.
Petitioner was employed by Respondent as an elementary school principal for the 2007-
2008 school year.
        2.      Petitioner was employed by Respondent under a term contract for the
2008-2009 school. The terms of this contract are in the local record. The contract is

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).


007-R10-1008
“For Professional Administrator.” Petitioner was employed as a Program Specialist II
for the 2008-2009 school year.
       3.       Petitioner was assigned to work the same number of days and was
scheduled to receive the same compensation for the 2008-2009 school year as Petitioner
received for the 2007-2008 school year.
       4.       As a Program Specialist II, Petitioner reports to the Director of
Professional Development. Petitioner’s general responsibilities concern all new teachers
and district-wide professional development.            Petitioner’s specific duties and
responsibilities as a Program Specialist II are unclear from the record.
                                        Discussion
       Petitioner contends that Respondent changed her professional capacity when it
reassigned her from the position of Elementary Magnet School Principal to the position
of Program Specialist II. In particular, Petitioner maintains that the position of a campus
principal is a distinct professional capacity.     Petitioner also contends that she was
demoted. Respondent denies Petitioner’s claims.
Demotion
       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 prohibit 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. Because Petitioner has not lost
salary or benefits 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.




#007-R10-1008                                2
Same Professional Capacity
         A “teacher2” 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
         clear. For example, an administrator who does not receive the required notice by
         April 13 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


2
  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.
3
  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.


#007-R10-1008                                         3
        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) 4. 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.
        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
capacity must be a legitimate professional capacity.               Young v. Leggett Independent
School District, Docket No. 175-R3-898 (Comm’r Educ. 1999). Petitioner’s 2007-2008
contract is not in the record and there is not evidence in the record as to what Petitioner’s
2007-2008 contract said as to the issue of Petitioner’s professional capacity. Assuming
that Petitioner’s 2007-2008 contract5 was for the professional capacity of administrator,
this professional capacity encompasses principals. A district is not required to employee
4
  The old Texas Education Code section 21.204 is the predecessor of the current Texas Education Code
section 21.206.
5
  Petitioner’s 2008-2009contract is entitled “For Professional Administrator.”


#007-R10-1008                                      4
a principal in the professional capacity of principal. A district may employee a principal
in the professional capacity of administrator. To determine if a district may reassign an
administrator, who is employed as a principal, to another position, the two positions need
to be compared.
Principal and Program Specialist II
       Applying the factors noted in Barich is difficult in this case because the record is
sparse as to issues of differences in authority, duties, and salary.       While Petitioner
contends that there is a significant difference in salary between her former principal
position and the compensation that the salary schedules assigns to a Program Specialist
II, Petitioner makes no citation to the record for this claim and the local record appears to
lack such information. The record does indicate that for the 2008-2009 school year,
Petitioner will retain the same salary and work days as Petitioner did for the previous
school year. Local Record, Tab 3.
Authority and Duties
       As to the comparison of authority and duties, Petitioner in her brief, after making
citations to the Texas Education Code concerning the duties of principals, states:
                There are no like provisions detailing the legislature’s expectations and
        demands of Program Specialists-whether category I, II, III, or MMIX. The only
        thing that can be said with certainly about Program Specialist is that they are not
        like principals in any meaningful way, shape, or form. Instead the position of
        Program Specialist II is a subordinate position at the Professional Development
        Center that contains no duties, responsibilities, or authority over the district’s
        students.
It is true that the Texas Education Code does not detail duties or expectations for
Program Specialists. As for the other claims, Petitioner fails to make citations to the
record. However, it is true that as a Program Specialist II Petitioner reports to the
Director of Professional Development. Local Record, Tab 3. Petitioner is correct that

her new position does not give her authority over students.          Local Record, Tab 7
attachment. It gives Petitioner responsibilities concerning all new teachers and district-




#007-R10-1008                                5
wide professional development. This is known from the job discretion for Professional
Development Specialist that is the record. It is a general description. Petitioner was told
by the Director of Professional Development what her specific responsibilities were to be
but the more specific description is not in local record. The record fails to provide a clear
picture of Petitioner’s duties and responsibilities in her new job.        As the grievant,
Petitioner had the burden of proof before the board of trustees. Applying the Barich
standards, a reasonable finder of fact could have concluded that Petitioner failed to meet
her burden of proof that the two positions at issue are not in the same professional
capacity. There is substantial evidence to support the denial of Petitioner’s grievance.
Conclusion
       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 has jurisdiction to 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.       The Commissioner does not have jurisdiction over demotion claims based
on Texas Education Code section 7.057(a)(2)(A).
       4.       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).
       5.       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


#007-R10-1008                                6
benefits based on an alleged violation of a written contract, the employee has not suffered
monetary harm.
       6.       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.
       7.       Administrator is a professional capacity as that term is used in Texas
Education Code section 21.206(b).
       8.       The professional capacity of administrator, as it applies to Texas
Education Code section 21.206(b), is a broad professional capacity.
       9.       A “teacher” who is employed as a principal may be employed in the
professional capacity of administrator. TEX. EDUC. CODE § 21.206(b).
       10.      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).
       11.      A grievant has the burden of proof before a school board.
       12.      As this case is an appeal of a school district’s decision, the substantial
evidence standard applies. TEX. EDUC. CODE § 7.057(c).
       13.      There is substantial evidence to support Respondent’s determination that

the two positions at issue that Petitioner held are not in different professional capacities.
TEX. EDUC. CODE § 21.206(b).
       14.      Respondent did not violate Texas Education Code section 21.206(b) when
it reassigned Petitioner from the position of elementary principal to the position of
Program Specialist II.
       15.      The Petition for Review should be dismissed in part and denied in part.




#007-R10-1008                                7
                                                 Order
        After due consideration of the record, matters officially noticed and the foregoing
Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Education,
it is hereby
        ORDERED that Petitioner’s appeal be, dismissed in part and denied in part.
        SIGNED AND ISSUED this ______ day of _______________________, 2012.



                                      ______________________________________
                                      ROBERT SCOTT
                                      COMMISSIONER OF EDUCATION




#007-R10-1008                                8
             APPENDIX 4

Title 19 Tex. Admin. Code §§150.1021; 150.1022;
        Title 19 Tex. Admin. Code §229.3
10/12/2015                                                        19 TAC Chapter 150   ubchapter


               Chapter 150. Commissioner’s Rules Concerning Educator Appraisal
                            Subchapter BB. Administrator Appraisal


  Statutory Authority: The provisions of this Subchapter BB issued under the Texas Education Code,
                            §21.354 and §39.054, unless otherwise noted.


  §150.1021. Commissioner­Recommended Administrator Appraisal Process: Performance Domains
  and Descriptors.

  (a)  he domains and descriptors used to evaluate each administrator in a school district may include the
  following.

               ( )  nstructional management.  he administrator promotes improvement of instruction through
               activities such as the following  monitoring student achievement and attendance  diagnosing
               student needs  helping teachers design learning e periences for students  encouraging the
               development and piloting of innovative instructional programs  and facilitating the planning and
               application of emerging technologies in the classroom.

               ( )  chool or organi ation morale.  he administrator fosters a positive school or organi ation
               morale through activities such as the following  assessing and planning improvement of the
               school, school district, or community environment  reinforcing e cellence  promoting a positive,
               caring climate of learning  and using effective communication s ills.

               ( )  chool or organi ation improvement.  he administrator promotes leadership in efforts to
               improve the school or organi ation through activities such as the following  collaborating in the
               development and articulation of a common vision of improvement  encouraging appropriate ris ­
               ta ing  and ensuring continuous renewal of curriculum, policies, and methods.

               (4)  ersonnel management.  he administrator manages personnel effectively through activities
               such as the following  delegating appropriately  recogni ing e emplary performance of teachers
               and staff  encouraging personal and professional growth and leadership among the staff
               complying with applicable personnel policies and rules  securing the necessary personnel
               resources to meet ob ectives  and evaluating the  ob performance of assigned personnel.

               ( )  anagement of administrative, fiscal, and facilities functions.  he administrator manages
               administrative, fiscal, and facilities functions responsibly through activities such as the following
               obtaining broad­based input for fiscal or financial analysis  compiling reasonable budgets and cost
               estimates  ensuring that facilities are maintained and upgraded as necessary  and managing a
               broad range of school operations (for e ample, attendance, accounting, payroll, transportation).

               ( )  tudent management.  he administrator promotes positive student conduct through activities
               such as the following  helping students develop a sense of self­worth  developing and
               communicating guidelines for student conduct  ensuring rules are observed uniformly
               disciplining students for misconduct in an effective and fair manner  supporting collaboration by
               wor ing with faculty  and encouraging the participation of students and parents.

               ( )  chool or community relations.  he administrator promotes a positive tone for school or
               community relations through activities such as the following  fostering collaborative educational
               efforts among members of the total school community  articulating the school mission and needs
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               to the community  see ing support for school programs  and involving himself or herself in
               community activities that foster rapport between the school district and the larger community.

               ( )  rofessional growth and development.  he administrator provides leadership in professional
               growth and development through activities such as the following  participating actively in
               professional associations  conducting himself or herself in an ethical and professional manner
               disseminating ideas and information to other professionals  and see ing and using evaluative
               information for improvement of performance.

               ( )  cademic e cellence indicators and campus performance ob ectives.

               ( )  chool board relations (for superintendents only).  he superintendent promotes and supports
               a positive relationship with the school district board of trustees through activities such as the
               following  meeting the board s needs for information  interacting with board members in an
               ethical, sensitive, and professional manner  demonstrating competence in written and verbal
               communications to the board  and recommending policies to the board to enhance teaching and
               learning.

  (b)  n developing appraisal instruments, the school district shall use the local  ob description as
  applicable.

  (c)   student performance domain shall be included in the appraisal of principals and superintendents as
  follows.

               ( )  he principal promotes improvement of the performance of students on the campus through
               activities such as comparing campus disaggregated student performance results to state
               accountability standards and to prior year performance.

               ( )  he superintendent promotes improvement of the performance of students in the district
               through activities such as comparing district disaggregated student performance results to state
               accountability standards and to prior year performance.

                       Source: The provisions of this §150.1021 adopted to be effective August 1, 1997,
                          22 TexReg 4200; amended to be effective June 11, 1998, 23 TexReg 5966.


  §150.1022. Commissioner­Recommended Administrator Appraisal Process: Procedures.

  (a)  o provide school districts ma imum fle ibility, the following procedures for administrator appraisal
  are established as minimum re uirements.  ach district shall establish an annual calendar providing for
  the following activities that shall involve both the administrator and the appraiser

               ( ) procedures for setting goals that define e pectations and set priorities for the administrator
               being appraised

               ( ) formative conference  and

               ( ) summative conference.

  (b)  ach school district shall involve appropriate administrators in developing, selecting, or revising the
  instruments and process.

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  (c)  efore conducting appraisals, an appraiser shall provide evidence of training in appropriate personnel
  evaluation s ills related to the locally established criteria and process.

  (d)  ach school district may implement a process for collecting staff input for evaluating administrators.
   f a school district implements a process for collecting staff input to evaluate administrators, the input
  must not be anonymous.

  (e)  tudent performance shall be a part of locally developed appraisal instruments for principals as
  specified in  e as  ducation  ode (      ),  . 4 and        . 4 and for superintendents as specified in
       ,    . 4.

  (f)  ach school district, with the approval of the board of trustees, may select the commissioner­
  recommended student performance domain for principals or may develop an alternative governed by the
  process outlined in       ,    . 4.

  (g) Districts using the commissioner­recommended student performance domain for principals shall meet
  the following re uirements.

               ( )  rincipals and their appraisers whose districts adopt the commissioner­recommended student
               performance domain shall satisfactorily complete appraiser training with a trainer and curriculum
               approved by the commissioner of education.  eriodic retraining shall be re uired.

               ( )  he commissioner­recommended student performance domain shall be implemented in
               accordance with procedures approved by the commissioner.

               ( )  he results on the commissioner­recommended student performance domain shall be
               incorporated into the local appraisal instrument.

               (4)  he results on the commissioner­recommended student performance domain shall be a
               primary consideration in determining a principal in need of assistance.  n intervention plan shall
               be re uired for a principal whose results on this domain fall below the commissioner s established
               standards.

               ( ) For a principal new to the campus or for a new campus, the results from the commissioner­
               recommended student performance domain shall be on a "report only" basis during the first year.
               Dropout and attendance data for the principal shall be on a "report only" basis for the first two
               years.

  (h)  ach school district, with the approval of the board of trustees, may select the commissioner­
  recommended student performance domain for superintendents or may develop an alternative governed
  by the process outlined in       ,   . 4.

  (i) Districts using the commissioner­recommended student performance domain for superintendents shall
  meet the following re uirements.

               ( )  uperintendents whose districts adopt the commissioner­recommended student performance
               domain shall attend an orientation approved by the commissioner.

               ( )  he results on the commissioner­recommended student performance domain shall be
               incorporated into the local appraisal instrument.

               ( )  he results on the commissioner­recommended student performance domain shall be a
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               primary consideration of the board in evaluating the superintendent.

               (4) For a superintendent new to the district, the results from the commissioner­recommended
               student performance domain shall be on a "report only" basis during the first year. Dropout and
               attendance data for the superintendent shall be on a "report only" basis for the first two years.

                       Source: The provisions of this §150.1022 adopted to be effective August 1, 1997,
                          22 TexReg 4200; amended to be effective June 11, 1998, 23 TexReg 5966;
                                 amended to be effective March 28, 1999, 24 TexReg 2021.


                                      For additional information, email rules@tea.state.tx.us.




http://ritter.tea.state.tx.us/rules/tac/chapter150/ch150bb.html                                                    /
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      Prev Rule                                                                                                                          ext Rule
                                        Texas Administrative Code
  T T 19                                  CAT
  PART 7                               TAT      AR      R     CAT R C RT CAT
  C APT R 229                         ACC      TA     T      T       R    CAT R PR PARAT
                                      PR RA
  R            229.3                  Re uired ubmissions o n ormation urve s and ther ata

   a ducator preparation programs PPs PP candidates beginning teachers ield supervisors school
  principals and administrators campus mentors and cooperating teachers shall provide to the Texas
    ducation Agenc T A sta all data and in ormation re uired b this chapter as set orth in
  subsection e o this section and the Texas ducation Code T C 21.0 5 and 21.0 52.

   b An individual holding a Texas issued educator certi icate ho ails to provide in ormation re uired
  b this chapter and the T C 21.0 5 and 21.0 52 as set orth in subsection e o this section ma be
  sub ect to sanction o his or her certi icate including the placement o restrictions inscribed or non
  inscribed reprimand suspension or revocation.

   c An Texas public school that ails to provide in ormation re uired b this chapter and the T C
   21.0 5 and 21.0 52 as set orth in subsection e o this section ma be re erred to the commissioner
  o education ith a recommendation that sanctions upon its accreditation status be imposed or ailure to
  compl ith this section and the T C 21.0 52.

   d An open enrollment charter school that ails to provide in ormation re uired b this chapter and the
  T C 21.0 5 and 21.0 52 as set orth in subsection e o this section ma be re erred to the
  commissioner o education ith a recommendation that sanctions be imposed or ailure to compl ith
  this section and the T C 21.0 52.

   e All re uired PP data or an academic ear shall be submitted to the T A sta annuall on
    eptember 15 ollo ing the end o that academic ear. All surve s and in ormation re uired to be
  submitted pursuant to this chapter b school administrators and principals shall be submitted b une 15
  o an academic ear in hich the school administrator and principal have had experience ith a
  candidate or beginning teacher ho as a participant in an PP. All surve s and in ormation re uired to
  be submitted pursuant to this chapter b PP candidates shall be submitted b August 1 o each
  academic ear in hich it is re uired.

       The ollo ing appl to data submissions re uired b this chapter.

      1      PPs shall provide data or all candidates as speci ied in the igure provided in this paragraph.

  Attached raphic

    2 Participants in an PP shall complete a surve in a orm approved b the tate oard or ducator
  Certi ication      C evaluating the preparation he or she received in the PP. Completion and
  submission to the     C o the surve is a re uirement or issuance o a standard certi icate.

    3 Principals or designated administrators in Texas public schools and open enrollment charter schools
  shall complete individual teacher per ormance surve s in a orm to be approved b the       C or each
https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=7&ch=229&rl=3              1/2
10/12/2015                                                            Texas Administrative Code

  beginning teacher under the supervision o an PP.

       Principals or designated administrators in Texas public schools and open enrollment charter schools
  shall complete surve s in a orm to be approved b the         C evaluating the e ectiveness o
  preparation or classroom success or each PP ith hich the principals or designated administrators
  have had experience in the previous ear.


  Source Note: The provisions o this 229.3 adopted to be e ective April 1                                      2010 35 TexReg 2          9
  amended to be e ective ctober 2 201 39 TexReg 395


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