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# The Attorney General ofTexas
September 11, 1990

Honorable Hamp Atkirr3on, Chairman Public Education House ofRepresentatives Austin, Texas 16769

Dear Representative Atkinson:
Youhave 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 as&sequent board have the power to rescind suchaction, 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 Pursuant to article 2761,V.T.C.S., (since repealed; E, now, E&c. Code S23.26), beards of such districts could only hire teachers u&r a“fixed term contract” for as many asthree or five years, depend* rpcn the size of the district. Term contracts cover a specified time period and dDnot establish tenure rights an behalf of the employee. Board ofRegents v.Roth, 406U.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 2691-50established atenure 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, 561S. W.2d560 (Tex. Civ. App. - Waco 1976, -rerdnr.e.);Midway Ind. School District, 469S.W.2d706 (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

ofSubchapter Cofthe Education Code, states, inpertinent 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 beappropriate.
Sections 13.102through 13.ll6 of the Education Code set forth the conditions tmder which such contracts may beawarded and, ifnecessary, terminated.
At the outset, we note that it is mclear whether aboard must actually “adopt” the continuirg contract law. On the one hand, the language ofsection 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’

... ifthe 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 ofadoption come under its pipvisions. See, e.g., Hix v. Tulaso-Midway 2nd. School District, srpra; Garcia v. Pharr, San Juan, Alamo Ind. School District, 513S.W.2d636 (Tex. Civ. App.-Corpus Christi 1974, writ ref’d nr.e.1. A 1973amendment 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 berescinded.
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 ofthe district” TheUnited States Supreme Court has approved the concept of local control, San Antonio Ind. School District v. Rodriguez, 4l.lU.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, 356S.W. 2d 192(Tex. Civ. App. - Houston 1962, no writ). The question whether a beard may rescind adecision to adopt the continuing contract law must beanswered inlight ofthis public policy.

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

A cardinal tule of statutory construction is that the true meanirrr of a statute should bedetermined 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. Wethink the element o~oice is cruciaL There isIY)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 isnoth@ 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 ofthis 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 oflocal 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, weconclude that adecision to adopt the provisions of Chapter 13,S&chapter Cofthe Education Code may be rescinded.
Youhave also asked:
Ifaboard may rescind suchaction:

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 befound inthe 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 13.102provides, inpertinent 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 13.107provides, inpertinent part: Each teacher with whom a continuirg contract tms been made as herein provided shall be entitled to continue in his position ornpadtion 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 13.101makes 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 aprobationary or continuirg contract with its teachers, it thereby creates a bindirg contract which isgoverned by the terms ofthat 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 -isentifled ‘to confinue %Ihis wition a a position with the school district... without the necessity fa annual nomination a reappointment” until such time asone ofthe stated events occurs. Educ. Code s13.107. Aboard decision to rescind its adoption ofthe continuirg contract law would have no effect upcn this entitlement, which was created in ncontract validly executed by two parties with full authority to so contract under nlaw 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 ofthe district to the teachers whohave 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, 303U.S.95, reh. den., 303
as. 667 0938).

P- 755Honorable liamp Atkinson - PageFive (NW-23a)

Similarly, one must look to the continuing contract law to ascertain the rights and obligations of a teacher under aprobationary contract, “which shall be la afiied term as therein stated... [not to exceed three **a,** where permitted, fourschool 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 ofreclusion, but, provi&d he a she isfirst terminated, see Education Code sections 13.103,and 13.104,may thereafter begiven aterm contract.T should be noted that a teacher underaprobationary contract would, unless terminated in accordance with sections 13.103and 13.104,automatically beentitled to acontinuing 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 oftheir contract, pursuant to sections 13.103and 13.104,be awarded term contracts. Ifnot terminated in this manner they would be entitled to acontinuirg 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. Ifit 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 ofthe 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 intheir contract Upan termination ofthe contract and in accordance with the procedures sat forth in the continue contract law, they may beawarded term contracts.

MARK WHITE Attorney General ofTexas
JOHN W.FAINTER, JR. First Assistant Attorney General Prepared by Susan Garrison Assistant Attorney General

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

APPROVED: OPINION COMMIITEE
C. Robert Heath, Chairman Susan Garrison Rick Gllpin Laura Martin Bruce Youngblood

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