1 District Judge of the Eastern District of Louisiana,

sitting by designation. United States Court of Appeals

Fifth Circuit



## FILED

July 30, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-50625

RUTH NUNEZ,

Plaintiff-Appellant,

versus

PATRICIA SIMMS; GLENNA ARCHER,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Texas

Before GARWOOD and HIGGINBOTHAM, Circuit Judges, and FELDMAN,

District Judge. 1

GARWOOD, Circuit Judge:

Plaintiff Ruth Nunez (Nunez) appeals the di strict court's

judgment on the pleadings in accordance with F E D

. R. C IV

. P. 12(c)

in favor of defendants. We affirm.

Factual and Procedural Background

Nunez was hired as a school teacher by the El Paso Independent

School District (District) in 1996. At that time, Nunez was2

issued a probationary contract in accordance with Chapter 21,

Subchapter C, of the Texas Education Code because she did not

qualify for a standard teaching certificate. Nunez had obtained a

temporary eme rgency permit from the State Board of Educator

Certification on August 1, 1996. These emergency permits expire

three years after their issuance, meaning that Nunez's permit

expired in August of 1999.

After a teacher has been employ ed under a probationary

contract for at least three consecutive years, state law permits a

school district to employ a teacher under a continuing co ntract.

Tex. Educ. Code Ann. § 21 .153. On April 7, 1998, the District

issued Nunez a continuing contract pursuant to the provisions of

section 21.153 of the Texas Education Code.

Nunez claims that on October 31, 2000, she spoke with Farah

Green (Green), a certif ication officer for the District, who

allegedly told her she could continue teaching as a "permanent

substitute" until she passed the EXET exam needed to obtain

standard certification. Nunez received a letter from defendant

Glenna Archer (Archer) dated October 30, 2000, advising her that,

because her emergency permit had expired and because she did not

therefore meet certification requirements, she was being terminated

from full-time employment effective November 1, 2000. Nunez

alleges she received this letter on November 2, 2000, while

appellees claim she was given the letter on October 30.3

Nunez filed a civil rights suit on September 12, 2001, against

Patricia Simms (Simms), the school principal at Western Hills

Elementary School w here Nunez taught, and Glenna Archer, Interim

Associate Superintendent fo r Human Resources for the District,

alleging that her discharge violated her procedural due process

rights insofar as she did not receive proper notice and an

opportunity to be heard. The defendants answered, claiming the

affirmative defense of qualified immunity and arguing Nunez had no

property interest in her contract beca use her certification had

expired by its terms. After Nunez filed a second amended complaint

and answer to the defendants' affirmative defenses, the defendants

moved for judgment on the pleadings in accordance with F ED

. R. C IV

.

P. 12(c), maintaining that Nunez had not alleged the violation of

a clearly established constitutional right as she had no property

interest in continued employment with the District.

On May 17, 2002, the district court granted th e defendants'

motion to dismiss all claims. The court concluded, pursuant to

Texas law, that absent certification, Nunez could not be employed

as a teacher, that the employment contract was therefore void, and

that Nunez consequently had no property interest in continued

employment. The district court further found that the conduct of

the defendants in terminating Nunez was objectively reasonable.

Nunez timely filed notice of appeal.4 Discussion

In analyzing a claim of qualified immunity we first determine

whether the plain tiff has alleged the violation of a clearly

established federal constitutional right. H are v. City of Cornith,

Miss., 135 F.3d 320, 325 (5th Cir. 1998). If the plaintiff does

so, the court must then assess whether the defendant's conduct was

objectively reasonable in light of clearly established law. Id. at

326. The plaintiff's showing of a violation of a clearly

established constitutional right is a “prerequisite” to overcoming

the qualified immunity defense; failure to do so obviates the need

to address the second step of the analysis. Martine z v. Texas

Dep't of Criminal Justice, 300 F.3d 567, 576-77 (5th Cir. 2002).

In order to allege a due process deprivation of a property

interest under the Fourteenth Amendment, the pl aintiff must

demonstrate a "legitimate claim of entitlement" to that interest.

Board of Regents v. Roth

, 92 S.Ct. 2701, 2709 (1972). In the

employment context, the sufficiency of a claim of entitlement must

be decided b y reference to state law. B ishop v. Wood

, 96 S.Ct.

2074, 2077 (1976).

In its Order of Dismissal, the district court found that the

pleadings establish that Nunez's employment terminated because her

temporary, emergency permit had expired, and she was not holding,

and could not present, a standard Texas teaching certificate. The

court stated, “Thus, pursuant to applicable provisions of the Texas5

Education Code, including Sections 21.003 and 21.053, she could not

be employed as a classroom teacher, the e mployment contract that

had been issued to her was not binding, and she could not be paid

as a classroom teacher.” The court therefore held:

“Under controlling authorities of the United States Court

of Appeals for the Fifth Circuit, including Montez v. San

Antonio Independent School District, 817 F.2d 1124 (5th

C ir. 1987), of the Texas courts, G rand Prairie

Independent School District v. Va ughan, 7 92 S.W.2d 944

(Tex. 1990), and Swanson v. Houston Independent School

District, 800 S.W.2d 630 (Tex. App.

- Houston [14th

Dist.] 1990, writ denied), and the Texas Commissioner of

Education, Peters v. Dallas Independent School District,

TEA Docket No. 087-R2-400 (Tex. Comm'r Educ. 2000), and

Pitts v. Houston Independent School District, TEA Docket

No. 023b-R1-995 (Tex Comm'r Educ. 1996), the employment

contract that had been issued to the Plaintiff was void,

and she had no property interest in continued employment.

Plaintiff has failed to allege a violation of a clearlyestablished consti tutional right. The conduct of the

Defendants was objectively reasonable in light of

clearly-establishe d law. They did not violate any of

Plaintiff's clearly-established constitutional rights.”

This court reviews de novo a dismissal pursuant to Rule 12(c).

Brittan Communications Int’l Corp. v. S.W. Bell Tel. Co

., 313 F.3d

899, 904 (5th Cir. 2002). Heightened pleading in qualified

immunity cases requires that plaintiffs rest their complaint on

more than conclusions alone and plead their case with precision and

factual specificity. Reyes v. Sazan, 1 68 F.3d 158, 161 (5 th Cir.

1999).

On appeal Nunez argues that a property interest attached to

her continuing contract when it was entered into, at which time she

held valid emergency certification. A public school teacher has a6

constitutionally protected property interest in continued

employment if he can demo nstrate a reasonable expectation of

continued employment. C oats v. Pierre

, 890 F.2d 728, 732 (5th Cir.

1989). Nunez contends that, once this constituti o nal property

interest attached, it could only be removed through

constitutionally adequate procedures.

The T exas Education Code defines “teacher” as a “classroom

teacher, counselor, or other full-time professional employee who is

required to hold a certificate issued under Subchapter B.” Tex.

Educ. Code Ann. § 21.101 (Vernon 1996). “A person may not be

employed as a teacher, teacher intern or teacher trainee,

librarian, educational aide, administrator , or counselor by a

school district unless the person holds an appropriate certificate

or permit issued as provided by Subchapter B.” I d. at § 21.003.

Subchapter B provides for the issuance of emergency certificates.

Id. at § 21.041(b)(2). An “emergency certificate” under section

21.041 is equivalent to an “emergency permit.” 19 Tex. Admin.

Code. § 230.512 (West 1998).

The State Board for Educator Certification may issue emergency

permits when a superintendent c annot secure an appropriately

certified individual to fill a vacant position. Id. at § 230.501

(a),(b). An emergency permit is valid for the remainder of the

school year for which it is activated, and an indiv idual may not

serve more than two additional years in the same assignment. Id.7

at § 230.502 (b),(d). An individual may also not serve as a

classroom teacher for more than three years without obtaining

standard certification. Id. at § 230.502(d).

After a “teacher” has been employed under a probationary

contract for at least three consecutive years, the school district

may elect to employ the teacher under a continuing contract. Tex.

Educ. Code Ann. § 21.153 (Vernon 1996). Nunez alleges, and the

defendants do not dispute, that she was issued an emergency permit

on August 1, 1996, an d that on April 7, 1998, she was issued a

continuing contract following three years' employment under a

probationary contract.

Section 21.154 of the Texas Education Code states that:

"Each teacher employed un der a continuing contract is

entitled to continue in the teacher's position or a

position with the school district for future school years

without the necessity for annual nomination or

reappointment until the person:

1) Resigns;

2) retires under the Teacher Retirement System of

Texas;

3) is released from employment by the school district

at the end of a school year because of necessary

reduction of personnel as provided by Section 21.157;

4) is discharged for good cause as defined by Section

21.156 and in accordance with the procedures provided

by this chapter;

5) is discharged for a reason stated in the

teacher's contract that existed on or before

September 1, 1995, and in accordance with

procedures prescribed by this chapter; or

6) is returned to probationary status, as

authorized by Section 21.106.”

Section 21.053 of the Education Code provides:

“(a) A person who desires to teach in a public school8

shall present the person’s certif icate for filing with

the employing district before the person’s contract with

the board of trustees of the district is binding.

(b) An educator who does not hold a valid certificate may

not be paid for teaching or work done before the

effective date of issuance of a valid certificate.”

Paragraph 5 of the classroom teacher continuing contract form

dated April 7, 1998, signed by Nunez, provided in pertinent part:

“Employee shall comply with, and be subject to, state and federal

law and District policies, rules, regulations, and administrative

directives as they exist or may hereafter be amended.” Paragraph

6 of the contract stated:

“This contract is conditioned on Employee's

satisfactorily providing the certification, service

records, teaching credentials, and other records required

by law, the Texas Education Agency, the State Board for

Educator Certification, the State Board of Education, or

the District. Failure of Employee to maintain

certification in the position(s) to which assigned may be

grounds for dismissal.”

Pursuant to these statutes, it is clear that Nunez was not

qualified to serve as a teacher following the expiration according

to its terms of her certification. We next address the effect of

this on Nunez's contract and the extent to which, under that

contract, she had a property interest in her job at the time of her

termination sufficient to implicate the constitutional guarantee of

due process.

A condition subsequent is "a condition referring to a future

event, upon the happening of which the obligation becomes no longer

binding upon the other party, if he chooses to avail himself of the9

condition." Rincones v. Windberg, 705 S.W. 2d 846, 848 (Tex. App.

- Austin 1986; no writ); Black’s Law Dictionary 293-94 (6th Ed.

1990). The provision in the continuing contract here established

both the initial provision of cer tification and the subsequent

maintenance of it throughout the contract as conditions subsequent.

While it is true that the contract states that failure to maintain

c ertification “may be grounds for dismissal,” thereby suggesting

dismissal is not always automatic, such permissive phrasing is

nonetheless consistent with the definition of a condition

subsequent, which gives the party not obligated by the condition

the choice of whether to avail himself of the opportunity to

terminate the contract. Moreover, if the contract were interpreted

to give Nunez a property right in continued employment as a teacher

after her certificate expired according to its terms and she was

not otherwise certified, then it would be to that extent invalid

and ultra vires

. Thus, in M ontez v. South San Antonio ISD

, 817

F.2d 1124 (5th Cir. 1987), we held that an uncertified teacher had

no property right to continued employment under a continuing

contract of employment as a teacher because under Texas law “a

teacher must be certified in order to be entitled to a continuing

contract of employment” and “[a]ny contract purporting to give him

more than that allowed by Texas law was beyond the power of the

school district and was thus ultra vires ” and “bestowed no property2 Nunez seeks to distinguish Montez on the ground that she, unlike the Montezplaint iff,

was certified at the time she entered into the continuing contract. However, the contract did not

purport to give her a right to continued employment at anytime while she was uncertified and, as

we held in Montez , Texas law would preclude any such continuing contract.

10 interest on” the teacher. Id . at 1126. 2

In Robey v. Union Hill Indep. Sch. Dist, TEA Docket No. 235-

R2-395 (Tex. Comm'r Educ. 1996), a Texas Education Agency

administr ative proceeding, it was found that an employee who did

not complete course work required to maintain his emergency permit,

as required by his con tract, “failed to perform the condition

subsequent contained in his contract.” Therefore, the “Respondent

is excused from its obligation to em ploy [him]. . . for the

remainder of the

. . . scho ol year. The issue of just cause for

termination need not be considered.” The language in that contract

was so mewhat more explicit than in the case s ub judice, as it

stated, in part, “I have been advised and understand that to

establish my eligibility for permit re newal I must complete a

minimum of six semester hours as specified on my deficiency plan

and provide evidence of succe ssful performance on the competency

examination of basic skills approved by the State Board of

Education...” However, Nunez's contract was substantively

indistinguishable, as it also clearly provided that her failure to

maintain certification was grounds for dismissal.

Nunez relies on Frazier v. Garrison ISD

, 980 F.2d 1514 (5th

Cir. 1993). The individual plaintiffs in that case held continuing11

teachers certificates when the Texas legislature passed a new law

requiring teacher competency testing and providing for revocation

of a teache r’s certification if the teacher failed the Texas

Examination for Current Administrators and Teachers (TECAT). Those

plaintiffs were also employed as teachers at school districts under

fixed term contracts. Because they failed the TECAT, the

plaintiffs’ teacher certificates were revoked, although absent the

new law and the teacher’s failure of the test called for thereby,

the certification would have continued in effect according to its

terms. By reason of the revocation of their teachers certificates,

the plaintiffs were terminated from their fixed term contracts with

the school districts prior to the end of the stated contract term.

They claimed, among other things, deprivation of property without

due process of law, because according to the teachers “‘[n]o

mechanism was created t o challenge erroneous test results or

terminations. The plaintiffs [Teachers] did not receive a due

process hearing.’” Id . at 1528. We noted that the teachers had a

constitutionally protected property interest in continued

employment during the term of their fixed term contracts. Id . at

1529-30. However, we held that they w ere afforded due process

because :

“.

. . the Teachers were given more than one opportunity

to pass the TECAT and, further, there were procedures in

place that afforded the Teachers t h e opportunity to

appeal the revocation of their certification to the Texas

commissioner of education, and the right to judicial

review of that administrative proceeding in a state12

district court.” Id . at 1530.

We did not hold that any due process hearing at the school board

level was required, and plainly inferred that it was not

. In other

words, the plain implication of Frazier is that once a teacher’s

certification validly terminates, the school board may, without a

hearing, terminate the teacher notwithstanding that her fixed term

contract has not expired.

What obviously distinguishes Frazier from this case is that in

Frazier the teacher’s certificate was revoked, prior to the time it

would otherwise expire by its own terms, on account of some alleged

default of the teacher (failure of the TECAT) occurring after the

certification was issued and in effect, while here Nunez’s

certificate simply expired by the mere passage of the time it was

to remain in effect as provided by its own terms.

Moreover, Nunez knew at the time she entered into the

contract, or should have known from the language in the contract

and the prov isions of Texas law, that the contract gave her no

right to continued employment while she remained uncertified when

her certificate expired by its own terms. Accordingly, she could

have no reasonable expectation of continued employment after the

expiration of the term of her certification. In P erry v.

Sindermann

, 92 S. Ct. 2694, 2700 (1972), the Supreme Court held

that a mere subjective "expectancy" is not liberty or property

protected by the Due Process Clause. Therefore, regardless of what13

N unez's subjective expectation was, it would not have been

objectively reasonable for her to believe, at the time of entering

i nto the contract, that her entitlement to teach would ext end

beyond the point that her certification expired by its own terms.

Finally, in Frazier, the plaintiffs challenged both the lawfulness

of the examination itse lf and its scoring (“erroneous results”),

and claimed their continuing certificates were wrongfully revoked.

Here, by contrast, Nunez does not dispute t hat her certification

properly expired by its own terms, nor does she challenge the

lawfulness of the certification system or claim entitlement to, or

wrongful denial of, any certification.

Nunez points to Roberts v. Houston Independent School

District

, 788 S.W. 2d 107, 109 (Tex. App.—Houston [1st Dist.] 1990,

writ denied), a case which we relied on in F razier for the

proposition that teachers have a property right in their continuing

contracts. Frazier, 980 F.2d at 1529. However, R oberts involved a

termination based on the poor performance of a teac her who

maintained valid certification. Consequently, the question of

whether the property interest created when the contract was entered

into ended when certification expired by its own terms was not at

issue.

Nunez also maintains that state law does not require

termination for lack of certification. While she does not dispute

that lapsed certification constitutes valid grounds for3 Section 21.156 provides

“(a) A teacher employed under a continuing contract may be discharged at

any time for good cause as determined by the board of trustees, good cause being

the failure to meet the accepted standards of conduct for the profession as

generally recognized and applied in similarly situated school districts in this state.

(b) In lieu of discharge, a school district may suspend a teacher without pay

for good cause as specified by Subsection (a) for a period not to extend beyond the

end of the current school year.”

14 termination, Nunez argues that it is not automatically required by

state law. Nunez cites section 21.156(b) of the Education Code as

allowing the school board to pro vide for suspension without pay

until the end of the school year in lieu of discharge for “good

cause as specified by Subsection (a).” But, section 21.156(a)

applies only to discharge on the ba sis of school board

determination o f the teacher’s “failure to meet the accepted

standards of conduct for the profession as generally recognized and

applied.” 3 Nothing of the sort is involved here. Nunez also cites

Texas Attorney General's Opinion No. JC-0185 (2000), which states

that a teacher who loses certification can be converted into a

"permanent substitute." Even if these provisions were applicable,

however, they only give the District the option of continuing to

employ Nunez in some capacity without violating state law, but in

no way bind them to do so. Therefore, this contention by Nunez

does not undercut the conclusion that her contract was no longer

binding on the school once her certification expired by its own

terms, making h er at most an at-will employee bereft of a vested

property right in her job.15

N unez further argues that only a superintendent can fire a

teacher because termination of teachers is one power listed among

the duties of superintendents in section 11.201(d)(4) of the

Education Code. There is no suggestion, however, in this provision

that this is an exclusive power of the superintendent. Moreover,

whether the prope r state law procedures were followed in Nunez's

termination is irrelevant to the threshold question of whether she

had a property right in her job after her certification had expired

by its own terms.

Because Nunez had no property interest in continued employment

after her certification lapsed, the clearly established

constit utional right of due process is not implicated. As

demonstrating violati o n of a constitutional right is a

“prerequisite” to overcoming the qualified immunity defense,

failure to do so obviates the need to address the second step of

the analysis. Martinez, 300 F.3d at 576-77 (5th Cir. 2002).

Hence, we need not addr ess whether the procedures followed in

terminating Nunez were objectively reasonable.

Conclusion

For the foregoing reasons, the district court's decision is

AFFIRMED.