, I

Hon. J. W. Edgar Commissionerof Educat.ion 201 East 11th Street Austin, Texas

Dear Dr. Edgar: OpinionNo. M- 667
Re: Authority of Texas Education Agency to considerdamages as part of administrativeappeal of a teacherdischargedby a local schooldistrict.
regard to follows:

from By recent letteryou have requested an opinion in the above stated, and we quote from your letter as

"Asreflected In the enclosed excerpt Minutes of themeeting 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 responsibilityor authority exist In the Commissionerof Education or the State Board of Education in a proper appeal,wherein it is decided that a teacherwas dismissed from teachingwithout just cause and without pay prior to terminationof his contract, to determine and direct payable as an item of damagesmoving-expenses Incurred and claimed by the teacher In looking for and securing other employment? 2. Or, in computationsrelative to the determination of loss of salary as damages and the mitigation thereof,may moving-expensebe deducted from total salary earned by the teacher elsewhere from date of dismissal to expirationday of the teacher contracts thereby indirectly to allowmoving-expenseas an item of damages?"
We answer "No" to both of your questionsand will discuss them together. -3188-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 originalprimary jurisdiction to determine these issues. Gregg v. Delhi-TaylorOil Cor +&$?W.,d Tex. 26, 344 S.W.Zd 411, 415 (1961);State v. Harrington, 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 StateBoard of Education, dated July 16, 1930,holding thatdamages for breach of contract could not be determinedby the state agencyunder the statutory powers of that agency but suchwas a question for a court to determine.

We do not find any statutesauthorizing either local schoolboards, the Commissionerof Education or the StateBoard 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 certainprovisionsrelative to the discharge of a teacher or the terminationof his contract before its expirationand also provides for appeal from the local board of trustees to the Commissionerof Education and the State Board of Education. Further provisionswith 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 Ineltiherlocal ;choolboards or the Commissioner or the State Boaru ot' Educatfon any power to consider or adjudicatedamages of any kind incidental to any question arising under a teacher's contract.

Our research falls to disclose either statutoryauthorization or case law prior to the effectivedate 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 considerationto the reinstatement of teachers' contractsand 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,???rorref.); Gragg v. Hill, 58 S.W.2d 150 (Tex.Clv.App.1933> error ref.); and StamrmCity I.S.D,, ---"-2-.-- 357 S.W.2d 618 (Tex.Civ.App.1962,no wriK

Clearly.>

no jurisdictionalpower to pass upon non-liquidated damages has been granted to either a local schoolboard 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. 249U.S. 152), which concerned the award of unllquidated damages fixed by the Legislatureunder the Workmen's CompensationAct, support our holding. SUMMARY Neither the Commissionerof Education nor the State Board of Education has the authority to determine the amount of unliquidateddamages on an appeal by a teacher dismissedwithout cause by a school district.

Preparedby Melvin E. Corley Assistant Attorney General Qeneral of Texas

APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman
Dan Green JerryRoberts JamesMabry Roger Tyler
FADE F. QRlFFIN Staff Legal Assistant
ALFREDWALKER Executive Assistant
NOLA WRITE First Assistant

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