f 

The Attorney General of Texas 

September 11, 1990 

Honorable Hamp Atkirr3on, Chairman 

Public Education 

House of Representatives 

Austin, Texas 16769 

Dear Representative Atkinson: 

You have pased the followiq question: 

opinion No. Mw-238 

Re: Whether school boards 

may discontinue hiring 

teachers cn a “probationary cr 

eontinuirg contract basis.” 

lf a board of trustees of an independent school 

district adopts Subchapter C of Section 13 of the 

Texas E&cation Code, &es it or a s&sequent board 

have the power to rescind such action, or are it and 

future boards fcwever bound to offer probationary and 

continuirrg contracts to all present and prospective 

teachers? 

Prior to 1967, independent school district boards of trustees had no 

authority to adopt permanent tenure plans fa hiriw teachers. Promen v. 

Goose Creek Ind. School District, 146 S.W. 2d 460 (Tex. Civ. App. - 

Galveston 1941, writ dism’d., jamt. car.). Pursuant to article 2761, V.T.C.S., 

(since repealed; E, now, E&c. Code S23.26), beards of such districts could 

only hire teachers u&r a “fixed term contract” for as many as three or five 

years, depend* rpcn the size of the district. Term contracts cover a 

specified time period and dD not establish tenure rights an behalf of the 

employee. Board of Regents v. Roth, 406 U.S. 564 (1972). 

In 1967, the legislature enacted article 2691-56, V.T.C.S. (now Chapter 

13, Subchapter C of the Education Code), which changed the public policy 

regardirg teacher tenure. Article 2691-50 established a tenure plan whereby 

teachers may, following a probationary period, be awarded a “continuing 

contract” which is terminable anly for specified causes and in accordance 

with prescribed procedures. See E&c. Code gll.lOl, et seq. The tenure plan 

is discretionary; a school boardmay choose to implement its pmvisions or it 

may continue to hire teachers under term contracts. Cari v. South San 

Antonio Ind. School District, 561 S. W. 2d 560 (Tex. Civ. App. - Waco 1976, 

-rerdnr.e.);Midway Ind. School District, 469 S.W. 2d 706 

(Tex. Civ. App. -7orpus Christi 1973, writ FePd n.r.e.); Attorney General 

Opinion M-123 (1967 ). 
Honorable Hamp Atkirwon - Page Two (NW-2381 

Section 13.101 of Subchapter C of the Education Code, states, in pertinent part: 

Each teacher hereinafter employed by any school district... 

shall be employed mder... a contract that is either a ‘probationary contract’ a a ‘continuitg contract’ in accordance with 

the provisions of this s&chapter if the school bcerd chooses to 

offer such teacher a ‘probationary contract’ a a ‘continuirg 

contract’ All such contracts shall be in writing... and shall 

embody the terms and conditions of employment hereinafter set 

lath, and such other provisions not inconsistent with this 

stichapter as may be appropriate. 

Sections 13.102 through 13.ll6 of the Education Code set forth the conditions tmder 

which such contracts may be awarded and, if necessary, terminated. 

At the outset, we note that it is mclear whether a board must actually “adopt” 

the continuirg contract law. On the one hand, the language of section 13.101 suggests 

that adoption is innecessary and that a board may decide UI a case-by-case basis 

whether to award individual teachers a probationary a continuing contract or a term 

contract. “Each teacher hereinafter employed... shall receive... a ‘probationary 

contract’ or a ‘continuirg contract’... if the school bosrd chooses to offer such teacher 

a ‘probationary contract’ a a ‘contintiiig contract’.” (Emphases added). me other 

hand, mrts seem to have assumed that the tenure plan must be “adopted” in order to 

be effective, and that all teachers employed after the date of adoption come under its 

pipvisions. See, e.g., Hix v. Tulaso-Midway 2nd. School District, srpra; Garcia v. 

Pharr, San Juan, Alamo Ind. School District, 513 S.W. 2d 636 (Tex. Civ. App. - Corpus 

Christi 1974, writ ref’d nr.e.1. A 1973 amendment to section 23.26 of the E&cation 

Code states, moreover, that “This section does not apply to teacher’s contracts in... 

districts which bve adopted... Subchapter C, Chapter l3....” (Emphasis added). We 

deem it tmnecessary to address this question, however, since ycu Jwve specifically 

asked whether a school board that “adopts” the continuing contract law thereby 

irrevocably commits that district to offer probationary and continubg contracts to all 

present and prospective teachers. Assuming that “adopts” connotes formal beard 

action, we will limit our inquiry to the question whether such action, once taken, may 

later be rescinded. 

A fundamental concept lnderlyirg legislation affecting Texas school districts is 

that decisions concernirg the public schools should, whenever possible, be made and 

implemented at the local 1eveL The legislatw’s lcng-stand@ commitment to local 

control of public education finds expression in section 23.26 of the Education Code, 

which confers lpcn school trustees “the exclusive power to manage and govern the 

public free schools of the district” The United States Supreme Court has approved the 

concept of local control, San Antonio Ind. School District v. Rodriguez, 4l.l U.S. 1 

(1973), and Texas courts heve made clear their reluctance to interfere with school 

trustees’ exercise of their authority absent evidence of n clear abuse of discretion. 

Nichols v. Aldine Ind. School District, 356 S.W. 2d 192 (Tex. Civ. App. - Houston 1962, 

no writ). The question whether a beard may rescind a decision to adopt the continuing 

contract law must be answered in light of this public policy. 

P. 753 
Honorable Hamp Atkinson - Pege Three (MW-238) 

A cardinal tule of statutory construction is that the true meanirrr of a statute 

should be determined by considers the motives which induced the legisl&re to enact 

it. See_ 76 C.J.S. _~ls__ae-S~-~~~pistricts Sl66. As we Mfe observed, the 

leaislatwb intent in enactit a permissive tenure plan was clearly to give school 

b&Is a choica between hiri& &hers under that ohm a contractimc with them fa 

fixed terms. See, s, Carl v~Sc&h San Antonio In& School District, “w. We think 

the element o~oice is cruciaL There is IY) evidence in the continuim contract law 

itself a in s&sequent case law to indicate that the legislature inten&d this choice, 

cmce made, to be irrevocable. Absent such evidence, there is noth@ to srppat that 

conclusion. In this respect, it should be noted that when the legislature has intended 

that a school board decision to adopt a permissive statute should be irrevocable, it has 

clearly said so. For example, section 23.llff) of the Education Code, which permits 

election of school trustees by pceition, provides that: “Once the bcerd... has adopted 

the provisions of this section, neither the beard... nor their successors may rescind the 

action.” Had the legislnture intended the continuing contract law to be irrevocable, it 

could easily have provided nccordirgly. 

Moreover, it is cur opinion that the legislature did not, in light of its 

commitment to the concept of local control of public education, intend that a school 

board would, by adopting the tenure plan, irrevocably bind itself and, more 

importantly, its successors to that plan, which may for any number of reasons later be 

deemed tmdesirnble If a board is to be able to fulfill its statutory mandate to 

“manage and govern the... schools...,” Education Code section 23.26, it must have 

flexibility to change its policy directions unless it has clearly been prohibited from 

doing so. 

For these reasons, we conclude that a decision to adopt the provisions of Chapter 

13, S&chapter C of the Education Code may be rescinded. 

You have also asked: 

If a board may rescind such action: 

a. Do teachers already employed under continuti contracts 

have any vested right to continue tmder such contracts after the 

recission (even though all prospective teachers will enter tat&r 

term contracts)? 

b. Do teachers employed tmder probationary contracts have 

any vested right to continue under such contracts mtil they 

have been employed three years end can receive continuirg 

contracts (even though all prospective teachers will enter under 

term contracts)? 

In cur opinion, the answer to these questions may be found in the continuitg contract 

law itself. 
‘. 

Honorable Hamp AU&son - Page Pour (Mw-23a) 

Section 13.101 states that: 

. ..A11 [pmbationary and continuing contracts] shall be in 

writing, in such form as may be promulgated by... the 

commissioner of education, and shall embody the terms and 

conditions of employment hereinafter set forth.. . . 

Section 13.102 provides, in pertinent part: 

Any person who is employed as n teacher... la the first 

time, or who has not been employed by such district for three 

consecutive school years s&sequent to August 26,1967, shall be 

employed under n probationary contract,’ which shall be for a 

fixed term as therein stated;... no such contract shall be fa a 

term exceed@ three school years. . . . 

Section 13.107 provides, in pertinent part: 

Each teacher with whom a continuirg contract tms been 

made as herein provided shall be entitled to continue in his 

position or n padtion with the school district... fa future school 

years without the necessity for annual nomination a renppointment, tmtil such time as [one of the stated conditions occurs]. 

As Section 13.101 makes clear, executed probationary a continue contracts 

incorporate the provisions of the continuirg contract law, either expressly cr bg’ 

implication. When a school board exercises the choice given it by the legislature and 

enters into a probationary or continuirg contract with its teachers, it thereby creates 

a bindirg contract which is governed by the terms of that law. See Cummins v. Banes 

Ind. School District, 466 SW. 2d 913 (Tex. Civ App. - Austin l97e writ). Thus, one 

must look to section 13.101, et seq., to determine the rights and obligations of the 

parties to the antract. 

Under’ the continuitg contract law and, therefore, under the employment 

contract, a continuing contract teacher -is entifled ‘to confinue %I his wition a a 

position with the school district... without the necessity fa annual nomination a 

reappointment” until such time as one of the stated events occurs. Educ. Code s13.107. 

A board decision to rescind its adoption of the continuirg contract law would have no 

effect upcn this entitlement, which was created in n contract validly executed by two 

parties with full authority to so contract under n law that is still in effect In this 

respect, the contract is no different from any other valid contract, and its terms may 

not be altered without the consent of both parties. It follows, therefore, that t?e 

relationship of the district to the teachers who have entered into continuing contrac’d 

with n school board that later rescinds its decision to adopt the continuing cont’&ct 

law till continue to be governed by that law, as incorporated in those contracts, even 

after recission. See also Indiana ex rel. Anderson v. Brand, 303 U.S. 95, reh. den., 303 

as. 667 0938). 

P- 755 
Honorable liamp Atkinson - Page Five (NW-23a) 

Similarly, one must look to the continuing contract law to ascertain the rights 

and obligations of a teacher under a probationary contract, “which shall be la a fiied 

term as therein stated... [not to exceed three a, where permitted, four school years] .‘I 

Educ. Code Sl3.102. Purstmnt to the continue contract law, a teacher would be 

entitled to serve art the remainder of the term stated in a probationary contract 

executed prior to the date of reclusion, but, provi&d he a she is first terminated, see 

Education Code sections 13.103, and 13.104, may thereafter be given a term contract.T 

should be noted that a teacher under a probationary contract would, unless terminated 

in accordance with sections 13.103 and 13.104, automatically be entitled to a continuing 

contract. 

Accordingly, in answer to your third question, teachers serving mder n 

probationary amtract executed before a school board rescinds its adoption of the 

continuing contract law may, rpan termination of their contract, pursuant to sections 

13.103 and 13.104, be awarded term contracts. If not terminated in this manner they 

would be entitled to a continuirg contract. 

SUMMARY 

The board of trustees of an independent school district may 

rescind n decision to adopt Chapter 13, Subchapter C of the 

Education Code. If it does so, teachers with valid probationary 

or continuirrg contracts executed prior to the date of recission 

will continue to be governed after reciesion by their contracts 

incorporatitq the continuing contract law. Continuirrg contract 

teachers are entitled to be employed until cne of the specified 

conditions fa termination occurs, and they are entitled to the 

procedural safeguards afforded by the law. Probationary 

contract teachers are entitled to serve out the balance of the 

term stated in their contract Upan termination of the contract 

and in accordance with the procedures sat forth in the 

continue contract law, they may be awarded term contracts. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

Prepared by Susan Garrison 

Assistant Attorney General 

p. 756 
Honorable Hamp Atkinson - Page Six uw-238) 

APPROVED: 

OPINION COMMIITEE 

C. Robert Heath, Chairman 

Susan Garrison 

Rick Gllpin 

Laura Martin 

Bruce Youngblood 

p. 757