Dr. J. W. Edgar OpinionNo. M-123

Texas Education Agency Austin, Texas Rer Whether House Bill 166, Acts 60th Legislature (ContinuingContract Law) ismandatory or permissive Dear Dr. Edgar: and related questions.

You have requested the opinion of this officeupon 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 "continuingcontract.'

The first question you posed is set forth as follows: "1. Is House Bill 166mandatory 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)--andthereby 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 employedby either probationary contracts or continuing contracts. Each teacher hereafter employedby'any school district in this State shallbe employedunder, and shall receive from such district, a contract that is either a 'probationarycontract' or a 'continuingcontract' in accordancewith the provisions of this Act if the schoolboard chooses to offer such teacher a 'probationary contract' or a "continuingcontract,' All such contracts shallb i iti in such form as may be promulgate:b; 1: apE%ved by the State

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Commissioner of Education of the State of Texas, and shall embody the terms and conditions of employmenthereinafter set forth, and such other provisionsnot 1ncons;stentwith this Act, as may be appropriate. (Emphasisadded.)
A cardinalrule of constructionrequires that we should give effect to every provision of a statute, If possible. We can also look to the legislativehistory 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 CommitteeAmendment Number One which was substituted for the originalbill in the House of Representatives and adopted with amendmentsby the House of Representatives added the langu+ge, 'if the schoolboard chooses to offer the continuing contract. Later the Senate amended Section 2 of H.B. 

### 166 to read as follows: "if the schoolboard chooses to offer such teacher a 'probationarycontract' or a 'continuingcontract.'*

The Senate also added Section 9 as a new section to House Bill 

### 166,making the Act cumulative of existing law, which sectionnow 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 conflictwith any provision of zxisting law, the provision hereof shall prevail. (Emphasisadded.) The House of Representatives then adoptedHouse Bill 

### 166as amended by the Senate.

By the addition of the above language to this bill, It appears that the Legislature intended to give schoolboards a choice of whether to adopt the tenure plan set out in this Act to continue teacher contractsunder existing law,making House &I 

### 166a permissive Act.

It is our opinion that after August 

### 28, 1967,public free schooldistrictsmay contractwfth teacherspursuant to Articles 2750a, 275Ca-2, 2781,Vernon's Civil Statutes, or If they choose they may contractwith their teachersunder 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 schoolboard, then such tenure plan becomesmandatory for such school district.



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Dr. J. W. Edgar, page 

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The second questionyou asked to be answered Is as follows: "2. Are teachers as defined In Set, l(c)# who hold and districtswhich award written contractsbefore August 28, 

### 1967,pursuant to present lawnject ~tothe provisions of House Bill 

### 166,especially those provisions concerning rights, appeals and proceduresprescribed 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 saidbill ismade cumulative of all other laws, It is our opinion that unless a schoolboard adopts the provisions of House Bill 

### 166,teacher contractswould be governed by prior law.

Your third question is as follows: "3. If House Bill 

### 166 is construedpermissive: May a schooldistrict after August 28, employ some of its teachers amined in Sec. lo under a written contract conformingand 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' contractwithin the 

### ?"
We have answered that House Bill 

### 166 is permissive;however, once a schoolboard 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* Administrativepersonnel; viz., superintendents, full-timeprincipals and supervisors who (as teacher is defined in Set, lc)may not be 'engage?in clase:room instructionof academic subjects,. Sections l(c) and 4(b) of House Bill 166, read as follows:

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"(c) 'Teacher'means one engaged in classroom instruction of academic subjectswho holds a permanent teaching certificateunder the laws of this State and for whom certification is required by the employingboard of trustees. I,

. . . "(b) The board of trusteesmay 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 shallbe 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: "Vocationalteacherswho Instruct In full time vocational subject; only, as distinguished from academic subjects. Webster's Third InternationalDictionary defines the following terms:

"Academic - One (as a professor or student) that is associatedwith or a member of an institution of learning (as a university)." "Teacher - One that teaches or instructs; one whose occupation Is to Instruct." "VocationalEducation -Training for a specific occupation in agriculture, trade, or industry through a combination of theoretical teaching and practical experienceprovided by many high schools in their commercialand technical divisions, and by special institutionsof 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 vocationaltraining, it



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

Your letter sets out that: "Relativeto ,paragraphsa 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 superintendentsand prlncipals are employed for twelvemonths, 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'underHouse Bill 166, will commence on September 1st of each year.

You also ask whether the Act applies to: "Apart-time principal who does no': teaching; or one who does some teaching." Any part-time principalwho does part-time teaching would be considered a teacherunder the provisions of Sec. l(c), supra, and any principalwho does no teachingwould not come under the provisions of this Act,

In addition you ask whether the Act includes: "Librariansand 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 construingHouse Bill 

### 166as not having appllcation to teachers of State institutional independent school districts (createdunder Article 

### 2666prior to enactment of Article 2756~ or subsequentthereto by creative laws>Article 2668a, et seq.) such as,

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The Texas School for the Blind and Texas School for the Deaf placed under the jurisdictionof~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. Seet 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) 'Schooldistrict' shallmean and lnelude any independent school district, rural high schooldistrict, common schooldistrict, 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 "Schooldistrict", 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 schoolboard is given a choice of coming under the Act by adopting the tenure plan set out in saidAct, or continuing to contract under prior existing laws. 

### 2. Once the schoolboard adopts the tenure plan set out in House Bill 

### 166,60th Legislature,Regular Session, 1967, the tenure plan becomesmandatory for such school district. 

### 3. Administrativepersonnel 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 schoolboard.



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Dr. J. W. Edgar, Page 

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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 Preparedby 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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