              E        ORNEY        GENERAL
                        F    EWAS




                     January 15, 1962

Dr. J. W. Edgar                 Opinion No. WW-1240
Commissioner of Education
State Office Building           Re:   Does a teacher awarded
Austin, Texas                         a written and approved
                                      continuing contract by
                                      a common or rural high
                                      school district, which
                                      specifies no employ-
                                      ment period or years
                                      it shall cover, have
                                      a valid and enforceable
                                      contract for services
                                      not permitted to be
                                      performed, and related
Dear Dr. Edgar:                       questions.
          You have requested this office to render an opinion
on the question of whether a teacher awarded a written and
approved contract by a common or rural high school district,
which contract specifies no employment period or years it
shall cover, has a valid and enforceable contract for ser-
vices not permitted to be performed.
          The specific fact situation which gave r+,seto your
question is as follows: In May, 1960, the Board of Trustees
of a rural high school district adopted a revised teacher
contract form, locally termed "continuing" orlextended." This
form of contract, awarded to all the district teachers who had
taught in the district for at least one full school term, had
a beginning date, but no date of termination, Your letter
indicates that it was thought locally that the contract would
continue effective until resignation by the teacher or dis-
missal for justifiable cause. However, neither the contract
itself nor other minutes or records of the school district
reflect what period of time the contract was intended to
cover. A teacher in the district was employed under one of
these types of contracts, beginning in September, 1960. She
served thereunder, and was paid salary based on the State
minimum salary schedule therefor. On July 28, 1961, she was
notified that her contract with the distrzrt would not be
continued for *he &961,-62 school year. She has not been
permitted to teach in the current 1961-62 school year. There
is nothing present in the fact situation which would indicate
that the teacher was dismissed for justifiable cause.
Honorable J. W. Edgar, page 2 (W!t1-1240)


          In answering the questions posed, we mst begin by
noting that a Rural High School District is classified as a
common school district, and as such is subject to al; the
statutory provisions regulating common school districts.
Article 292213,Vernon's Civil Statutes.
          Under Article 2750a-2, Vernon's Civil Statutes,
teacher emolovment contracts tnavnot be written for a oeriod
to exceed 'three(3) years. This limitation may not be
avoided. Fikes v. Sharp, 112 S.W.2d 774 (Civ. App. 1938,
error ref.) Thus, a "continuing" contract could not continue
in existence for a neriod in excess of three (3) years,
regardless of the lack of a termination date upon"the jace
of the contract. I:Jemust now determine just how long the
contract in question may run, within the three-year limitation.
          The Board of School Trustees has authority to write
teacher employment contracts fo: any period up to and including
three (3) years. Paragraph 2 of the sample contract provided
by you provides for salary adjustments from year to year, and
for salary to be paid in twelve (12) monthly installments.
These statements are the only express guide that we have as to
the intent of the parties as to duration. In 35 American Jur-
isprudence 456, Master and Servant 819, the following appears:
          "Where no definite term of employment is
      expressed, there is no inflexible rule governing
      the duration of the relationship. In such cases,
      the duration of the employment must be determined
      by circumstances in each particular case. it is
      dependent upon the understanding and intent of the
      parties, to be ascertained from their written or
      oral negotiations, the usages of business, the
      situation and object of the parties, the nature
      of the employment, and all the circumstances sur-
      rounding the transaction.
          "Regardless. therefore, of the absence of
      any express stipulation regarding the term of
      employment, a dispute as to the duration of 2
      contract of employment is to be settled with
      reference to the terms of the contract, the
      nature of the services wh+ch were agreed to be
      performed, and the attending circumstances which
      evidence the intention of the parties, and this
      is true where the contract is in writing, 2s well
      as where it is oral; in either case, the court
      takes into consideration the situation of the
Honorable J. W. Edgar, page 3 (W-1240)


     parties, and the objects they had in view. In
     case the contract has been made with reference
     to a general custom or business usage which
     enters Into and becomes a part of the agreement,
     the contract is not, of course, indefinite as
     to its duration If such custom or usage fixes
     the term of the employment.
         "As to the presumption to be indulged where
     the contract appears to have specified no definite
     period, the authorities are not in harmony. Ac-
     cording to some of the decisions, particularly
     those of the English courts, a general hiring
     will be taken to have been for one year, regard-
     less of the nature of the service or employment,
     unless there is shown to have been a custom re-
     lating to the duration of the term, and it appears
     that the contract was made with reference thereto,
     According to the general rule as laid down by a
     majority of the courts, however, contracts of
     employment which mention no period of duration,
     which are in a true sense Indefinite and without
     stipulation for an implied minimum period, are
     deemed terminable at will of either party; and
     the burden of proving the contrary must be assumed
     by the party who asserts that the employee is
     engaged for a definite period."
The above, of course, refers to private contracts, while we
are dealing with a problem in the public area; nevertheless,
the situation is so analogous that it is felt that this
particular segment of the law of private contracts will apply.
          Texas follows the majority rule laid down above. St.
Louis Southwestern Ry. Co. of Texas v. Griffin, 106 Tex. 477,
171 S W 703 (1914); Island lake Oil Co. v. Hewitt, 244 S.W.
193 ti;. App. 1922, error dism.); Kennedy v. McMullen, 39 S.W.
2d 18
    6 (Civ. App. 1931, error ref.). In the latter case, at page
174, it was stated that "As a general proposition, a contract
indefinite as to the time of its performance may be terminated
by either party by giving notice of his intention to do SO.~
          In relating the specific fact situation to the general
propositions of law found above, we are immediately confronted
with the statement made in your request to the effect that "it
was thought locally that the contract would continue effective
until resignation by the teacher or d!.smissalfor justifrab!e
cause.;~'~'No.further'informatlon
                                is'given with regard to any~nego-
t%&tibns  ~ConduCtedor r&~presen:tations~
                                       given by or between the
various parties to the contracts in question.
Honorable J. W. Edgar, page 4 (WW-1240)


          In consideration of the foregoing, it is'the opinion
of this office that: (1) The type of contract in question is
indefinite as to time of termination, but may not ex<:endfor
a period in excess of three (3) years, by virtue of t:;elimita-
tion placed thereon by Article 2750a-2, Vernon's Civil Statutes;
     the contract is good for a minimum period of one (1) year;
I: 1 the question of whether or not the parties are bound for a
second or third year is dependent upon the intention of the
parties and is a question of fact, and not resolvable by
this office.

                          SUMMARY
         A teacher awarded a written and approved
     "continuing" contract by a common or rural high
     school district which specifies no employment
     period or years it shall cover has a valid and
     enforceable contract for services for one (1)
     year, but not more than three (3) years. Article
     2750a-2, Vernon's Civil Statutes. The question
     of whether on not the parties are bound for a
     second or third year is one of fact, and not
     resolvable by the Attorney General.
                                Very truly yours,
                                WILL WILSON



                           By   Malcolm L. Quick
MLQ:dhs:kh                      Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
J. Arthur Sandlin
Linward Shivers
Riley Eugene Fletcher
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
