Dr. J. W. Edgar Opinion No. M-123 

Texas Education Agency 

Austin, Texas Rer Whether House Bill 166, 

Acts 60th Legislature 

(Continuing Contract Law) 

is mandatory or permissive 

Dear Dr. Edgar: and related questions. 

You have requested the opinion of this office upon 

several questions concernin 

ti 

House Bill 166, Acts 60th Legislature, Regular Session, 19 7, which Is an act providing for 

a teacher tenure plan on the basis of a written "probationary 

contract" or "continuing contract.' 

The first question you posed is set forth as follows: 

"1. Is House Bill 166 mandatory or permissive? That is to say: May public free 

school distrfcts after August 28, 1967, contract 

their teachers pursuant to prior statutes: Article 2750a, 2750a-2, 2781, for future year(s) not 

to exceed three (2750a-2); in independent school 

districts, written or unwritten, for year(s) not 

to exceed three or five (2781)--and thereby not 

be subject to any provision set out In House Bill 

166. Note: Section 3(d)." 

Section 2 of House Bill 166, Acts 60th Legislature, 

Regular Session, 1967, reads as follows: 

"Sec. 2. Teachers to be employed by either 

probationary contracts or continuing contracts. 

Each teacher hereafter employed by'any school 

district in this State shall be employed under, 

and shall receive from such district, a contract 

that is either a 'probationary contract' or a 

'continuing contract' in accordance with the 

provisions of this Act if the school board 

chooses to offer such teacher a 'probationary 

contract' or a "continuing contract,' All such 

contracts shall b i iti in such form as 

may be promulgate: b; 1: apE%ved by the State 

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Dr. J. W. Edgar, page 2 (M-123) 

Commissioner of Education of the State of Texas, 

and shall embody the terms and conditions of 

employment hereinafter set forth, and such 

other provisions not 1ncons;stent with this 

Act, as may be appropriate. (Emphasis added.) 

A cardinal rule of construction requires that we should 

give effect to every provision of a statute, If possible. We 

can also look to the legislative history during the course of 

enactment as an aid to construction. Felton v. Johnson, 112 

Tex. 412, 247 S.W. 837, 70 A.L.R. 5 (1923). 

House Committee Amendment Number One which was substituted for the original bill in the House of Representatives 

and adopted with amendments by the House of Representatives added 

the langu+ge, 'if the school board chooses to offer the continuing 

contract. Later the Senate amended Section 2 of H.B. 166 to read 

as follows: "if the school board chooses to offer such teacher a 

'probationary contract' or a 'continuing contract.'* 

The Senate also added Section 9 as a new section to 

House Bill 166, making the Act cumulative of existing law, which 

section now reads as follows: 

“Sec. 9. All rights and privileges granted 

by this Act shall be cumulative of existing law, 

and should any portion hereof be found to be In 

conflict with any provision of zxisting law, the 

provision hereof shall prevail. (Emphasis added.) 

The House of Representatives then adopted House Bill 

166 as amended by the Senate. 

By the addition of the above language to this bill, 

It appears that the Legislature intended to give school boards 

a choice of whether to adopt the tenure plan set out in this Act 

to continue teacher contracts under existing law, making House 

&I 166 a permissive Act. 

It is our opinion that after August 28, 1967, public 

free school districts may contract wfth teachers pursuant to 

Articles 2750a, 275Ca-2, 2781, Vernon's Civil Statutes, or If 

they choose they may contract with their teachers under the 

provisions of House Bill 166, Acts 60th Legislature, Re ular 

Session; if the tenure plan as set out In House Bill 16 E , 60th 

Legislature, Regular Session, Is adopted by a school board, then 

such tenure plan becomes mandatory for such school district. 

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. 

Dr. J. W. Edgar, page 3 (M-123) 

The second question you asked to be answered Is as follows: 

"2. Are teachers as defined In Set, l(c)# 

who hold and districts which award written 

contracts before August 28, 1967, pursuant to 

present lawnject ~to the provisions of House 

Bill 166, especially those provisions concerning 

rights, appeals and procedures prescribed in 

Sections 3, 4, 5, 6, 7, and 8; or shall the prevailing and differing Procedures on Hearings and 

Appeals (copy enclosed) apply with respect to 

them?'l 

In view of our holding that House Bill 166, Acts 60th 

Legislature, Regular Session, 1967, is permissive, rather than 

mandatory, and, further, that said bill is made cumulative of all 

other laws, It is our opinion that unless a school board adopts 

the provisions of House Bill 166, teacher contracts would be governed 

by prior law. 

Your third question is as follows: 

"3. If House Bill 166 is construed permissive: May a school district after August 28, 

employ some of its teachers amined in Sec. 

lo under a written contract conforming and subjecting them to House Bill 166; and contract other 

such teachers pursuant to the prior existing laws, 

the latter to be recognized as not holding a 'probationary' or 'continuin 

meaning of House Bill 16 2 

' contract within the 

?" 

We have answered that House Bill 166 is permissive; however, once a school board adopts the tenure plan, then In our opinion 

all teacher contracts come under the terms and provisions of House 

Bill 166. 

Your fourth question asks whether or not House Bill 166 

applies to the following personnel: 

"a* Administrative personnel; viz., superintendents, full-time principals and supervisors 

who (as teacher is defined in Set, lc) may not 

be 'engage? in clase:room instruction of academic 

subjects,. 

Sections l(c) and 4(b) of House Bill 166, read as follows: 

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Dr. J. w. Edgar, page 4 (M-123) 

"(c) 'Teacher' means one engaged in classroom instruction of academic subjects who holds 

a permanent teaching certificate under the laws 

of this State and for whom certification is required by the employing board of trustees. 

I, 

. . . 

"(b) The board of trustees may grant to a 

person who has served as superintendent, principal, 

supervisor, or other person employed in any administrative position for which certification is 

required, at the completion of his service in such 

capacity, a continuing contract to serve as a 

teacher as defined in Subsection (c) of Section 

1 above; and the period of service in such other 

capacity shall be construed as contract service 

as a teacher within the meaning of this Act. 

It is our opinion that in construing the above provisions, administrative personnel do not come under the provisions of House Bill 

166 if they are not engaged In classroom instruction. 

You next ask whether the Act covers: 

"Vocational teachers who Instruct In full 

time vocational subject; only, as distinguished 

from academic subjects. 

Webster's Third International Dictionary defines the 

following terms: 

"Academic - One (as a professor or student) 

that is associated with or a member of an institution of learning (as a university)." 

"Teacher - One that teaches or instructs; 

one whose occupation Is to Instruct." 

"Vocational Education - Training for a 

specific occupation in agriculture, trade, or 

industry through a combination of theoretical 

teaching and practical experience provided by 

many high schools in their commercial and technical 

divisions, and by special institutions of collegiate standing (as a college of agriculture, a 

school of engineering, or a technical institute.)" 

Therefore, as voeatlonal teachers teach theory In classrooms, as well 

as instruct in the practical aspects of such vocational training, it 

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Dr. J. W. Edgar, page 5 (M-123) 

is our opinion that a vocational teacher would come under the provisions of this Act. 

Your letter sets out that: 

"Relative to ,paragraphs a and b: It is 

observed that the 'probationary' contract shall, 

begin on September 1, whereas Article 2781 provides that all twelve-month contracts shall 

begin on July 1. Most superintendents and prlncipals are employed for twelve months, as are 

some of the vocational teachers and other professional employees. See also: Section 4(b).* 

It IS ouropinion that contracts entered into under prior 

laws will commence on the,date set out under those laws and the c.ontracts entered~ into'under House Bill 166, will commence on September 

1st of each year. 

You also ask whether the Act applies to: 

"A part-time principal who does no': 

teaching; or one who does some teaching." 

Any part-time principal who does part-time teaching would 

be considered a teacher under the provisions of Sec. l(c), supra, 

and any principal who does no teaching would not come under the provisions of this Act, 

In addition you ask whether the Act includes: 

"Librarians and vieltln 

7 

teachers designated 

as special service teachers Article 2922-12, Sec. 

2) but who do not engage in classroom instructions." 

Under the terms of Sec. l(c), suprap only those engaged 

in classroom instruction can qualify to come under the provisions 

of House Bill 166. 

Your final question is as follows: 

"Finally, would this Agency be correct In 

construing House Bill 166 as not having appllcation to teachers of State institutional independent 

school districts (created under Article 2666 prior 

to enactment of Article 2756~ or subsequent thereto 

by creative laws> Article 2668a, et seq.) such as, 

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Dr. J. W. Edgar, page 6 (M-123) 

The Texas School for the Blind and Texas School for 

the Deaf placed under the jurisdiction of~the 

CentraI Education Agency (Article 2654-1, Sections 

4 and 5), and whose employees like other State employees are primarily financed, provided for In 

and subject to the provisions of the general appropriation bill. See t House Bill 12, 59th Legislature, 

Regular Session, 1965, Article IV, at pages 185-187." 

Section l(a) of House Bill 166, reads as follows: 

"(a) 'School district' shall mean and lnelude any independent school district, rural high 

school district, common school district, or other 

public free school corporation created or organized 

under the laws of this State, and any city or town 

having control of the public free schools therein." 

By the terms of the definition of "School district", as 

above set out, the provisions of House Bill 166, would not apply to 

those state schools set out in your final question. 

SUMMARY 

1. House Bill 166, 60th Legislature, Regular 

Session, 1967, is discretionary in that after August 

28, 1967, a school board is given a choice of coming 

under the Act by adopting the tenure plan set out in 

said Act, or continuing to contract under prior existing laws. 

2. Once the school board adopts the tenure plan 

set out in House Bill 166, 60th Legislature, Regular 

Session, 1967, the tenure plan becomes mandatory for 

such school district. 

3. Administrative personnel do not come under 

the provisions of House Bill 166, 60th Legislature, 

Regular Session, 1967, unless they are engaged In 

classroom instructions, if the tenure plan is adopted 

by a school board. 

4. Vocational teachers would come under the 

provisions of House Bill 166, 60th Legislature, Regular 

Session, 1967, if the tenure plan is adopted by a 

school board. 

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. . 

Dr. J. W. Edgar, Page 7 (M-123) 

5. House Bill 166, 60th Legislature, Regular 

Session, 1967, does not apply to teachers of State 

lnstitutlonal independent school districts such as 

The Texas School for the Blind and Texas School for 

the Deaf. 

truly yours, 

eneral of Texas 

Prepared by William J. Craig 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

A. J. Carubbi, Jr., Chairman 

Staff Legal Assistant 

W. 0. Shultz, Co-Chairman 

Pat Bailey 

Houghton Brownlee 

James Broadhurst 

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