, I 

Hon. J. W. Edgar 

Commissioner of Educat.ion 

201 East 11th Street 

Austin, Texas 

Dear Dr. Edgar: 

Opinion No. M- 667 

Re: Authority of Texas Education 

Agency to consider damages as 

part of administrative appeal 

of a teacher discharged by a 

local school district. 

regard to 

follows: 

from 

By recent letter you have requested an opinion in 

the above stated, and we quote from your letter as 

"As reflected In the enclosed excerpt 

Minutes of the meeting of the State Board 

of Education on June 6, 1970, the State Board 

has acted to submit to the Office of Attorney 

General the following questions, the answers 

to which will prove helpful In its review of 

an appeal now pending: 

1. Does responsibility or authority exist In 

the Commissioner of Education or the State 

Board of Education in a proper appeal, wherein it is decided that a teacher was dismissed 

from teaching without just cause and without 

pay prior to termination of his contract, to 

determine and direct payable as an item of 

damages moving-expenses Incurred and claimed 

by the teacher In looking for and securing 

other employment? 

2. Or, in computations relative to the determination of loss of salary as damages and the 

mitigation thereof, may moving-expense be 

deducted from total salary earned by the 

teacher elsewhere from date of dismissal to 

expiration day of the teacher contracts thereby indirectly to allow moving-expense as an 

item of damages?" 

We answer "No" to both of your questions and will discuss them together. 

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Hon. J. W. Edgar, Page 2 (M-667) 

The issues of unliquidated damages and penalties are 

inherently judicial in nature. Foree v. Crown Central Petroleum 

Corporation. 471 S.W.2d 712. 116 tTex.Sua. 19bX). This decision 

ana mfurther hold that in the absence of-a-clear statute, 

the courts are not ousted from their original primary jurisdiction 

to determine these issues. Gregg v. Delhi-Taylor Oil Cor 

Tex. 26, 344 S.W.Zd 411, 415 (1961); State v. Harrington, +&$?W.,d 

467, 474 (Tex.Sup, 1966, cert.den. 38b U S 944). Lacour v. Devers 

Canal Co., 319 S.W.2d 951 (Tex.Ctv.App. i&g, e&or ref., n.r.e.); 

Attorney General Opinion addressed to the State Board of Education, 

dated July 16, 1930, holding that damages for breach of contract 

could not be determined by the state agency under the statutory 

powers of that agency but such was a question for a court to 

determine. 

We do not find any statutes authorizing either local 

school boards, the Commissioner of Education or the State Board 

of Education to consider or award damages to a public school 

teacher incidental to his teaching contract. The Texas Education 

Code, Section 21.215 contains certain provisions relative to the 

discharge of a teacher or the termination of his contract before 

its expiration and also provides for appeal from the local board 

of trustees to the Commissioner of Education and the State Board 

of Education. Further provisions with reference to the powers 

and duties of the Commissioner of Education and to such appeals 

are provided in Sections 11-52 and 11.13 of this Code. We find 

no authority in these Sect-fona nf this Code, nor in any other 

star;ute, which vests In eltiherlocal ;chool boards or the Commissioner or the State Boaru ot' Educatfon any power to consider 

or adjudicate damages of any kind incidental to any question 

arising under a teacher's contract. 

Our research falls to disclose either statutory authorization or case law prior to the effective date of the Texas 

Education Code, September 1, 1969, which recognizes the power 

of any of the above named school. agencies to award damages. Such 

cases have restricted their consideration to the reinstatement of 

teachers' contracts and the riah% of the teacher to receive the 

compensation contracted for. &ckGount 1,S.D. v, Jackson, 152 

S.W.2d 400 (Tex.Civ.App. 1941,???ror ref.); Gragg v. Hill, 58 S.W.2d 

150 (Tex.Clv.App. 1933> error ref.); and StamrmCity ---"-2-.-- I.S.D,, 

357 S.W.2d 618 (Tex.Civ.App. 1962, no wriK 

Clearly.> no jurisdictional power to pass upon non-liquidated 

damages has been granted to either a local school board or to the 

Commissioner of Education or the State Board of Education. The 

principles discussed in the case of MSddleton,~v, Texas Power & Light 

co., 108 Tex. 96, 185 S,W. 5,56 (1916aZ~opin. of CtTrpp* on certified 

-'3 189 - 
Hon. 3. W. Edgar, page 3 (~-667) 

questions, 188 S.W. 276, aff. 249 U.S. 152), which concerned the 

award of unllquidated damages fixed by the Legislature under the 

Workmen's Compensation Act, support our holding. 

SUMMARY 

Neither the Commissioner of Education nor the 

State Board of Education has the authority to determine the amount of unliquidated damages on an 

appeal by a teacher dismissed without cause by a 

school district. 

Prepared by Melvin E. Corley 

Assistant Attorney General 

Qeneral of Texas 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Dan Green 

Jerry Roberts 

James Mabry 

Roger Tyler 

FADE F. QRlFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WRITE 

First Assistant 

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