E ORNEY GENERAL 

F EWAS 

January 15, 1962 

Dr. J. W. Edgar Opinion No. WW-1240 

Commissioner of Education 

State Office Building Re: Does a teacher awarded 

Austin, Texas a written and approved 

continuing contract by 

a common or rural high 

school district, which 

specifies no employment period or years 

it shall cover, have 

a valid and enforceable 

contract for services 

not permitted to be 

performed, and related 

Dear Dr. Edgar: questions. 

You have requested this office to render an opinion 

on the question of whether a teacher awarded a written and 

approved contract by a common or rural high school district, 

which contract specifies no employment period or years it 

shall cover, has a valid and enforceable contract for services not permitted to be performed. 

The specific fact situation which gave r+,se to your 

question is as follows: In May, 1960, the Board of Trustees 

of a rural high school district adopted a revised teacher 

contract form, locally termed "continuing" orlextended." This 

form of contract, awarded to all the district teachers who had 

taught in the district for at least one full school term, had 

a beginning date, but no date of termination, Your letter 

indicates that it was thought locally that the contract would 

continue effective until resignation by the teacher or dismissal for justifiable cause. However, neither the contract 

itself nor other minutes or records of the school district 

reflect what period of time the contract was intended to 

cover. A teacher in the district was employed under one of 

these types of contracts, beginning in September, 1960. She 

served thereunder, and was paid salary based on the State 

minimum salary schedule therefor. On July 28, 1961, she was 

notified that her contract with the distrzrt would not be 

continued for *he &961,-62 school year. She has not been 

permitted to teach in the current 1961-62 school year. There 

is nothing present in the fact situation which would indicate 

that the teacher was dismissed for justifiable cause. 
Honorable J. W. Edgar, page 2 (W!t1-1240) 

In answering the questions posed, we mst begin by 

noting that a Rural High School District is classified as a 

common school district, and as such is subject to al; the 

statutory provisions regulating common school districts. 

Article 292213, Vernon's Civil Statutes. 

Under Article 2750a-2, Vernon's Civil Statutes, 

teacher emolovment contracts tnav not be written for a oeriod 

to exceed 'three (3) years. This limitation may not be 

avoided. Fikes v. Sharp, 112 S.W.2d 774 (Civ. App. 1938, 

error ref.) Thus, a "continuing" contract could not continue 

in existence for a neriod in excess of three (3) years, 

regardless of the lack of a termination date upon"the jace 

of the contract. I:Je must now determine just how long the 

contract in question may run, within the three-year limitation. 

The Board of School Trustees has authority to write 

teacher employment contracts 

three (3) years. 

fo: any period up to and including 

Paragraph 2 of the sample contract provided 

by you provides for salary adjustments from year to year, and 

for salary to be paid in twelve (12) monthly installments. 

These statements are the only express guide that we have as to 

the intent of the parties as to duration. In 35 American Jurisprudence 456, Master and Servant 819, the following appears: 

"Where no definite term of employment is 

expressed, there is no inflexible rule governing 

the duration of the relationship. In such cases, 

the duration of the employment must be determined 

by circumstances in each particular case. it is 

dependent upon the understanding and intent of the 

parties, to be ascertained from their written or 

oral negotiations, the usages of business, the 

situation and object of the parties, the nature 

of the employment, and all the circumstances surrounding the transaction. 

"Regardless. therefore, of the absence of 

any express stipulation regarding the term of 

employment, a dispute as to the duration of 2 

contract of employment is to be settled with 

reference to the terms of the contract, the 

nature of the services wh+ch were agreed to be 

performed, and the attending circumstances which 

evidence the intention of the parties, and this 

is true where the contract is in writing, 2s well 

as where it is oral; in either case, the court 

takes into consideration the situation of the 
Honorable J. W. Edgar, page 3 (W-1240) 

parties, and the objects they had in view. In 

case the contract has been made with reference 

to a general custom or business usage which 

enters Into and becomes a part of the agreement, 

the contract is not, of course, indefinite as 

to its duration If such custom or usage fixes 

the term of the employment. 

"As to the presumption to be indulged where 

the contract appears to have specified no definite 

period, the authorities are not in harmony. According to some of the decisions, particularly 

those of the English courts, a general hiring 

will be taken to have been for one year, regardless of the nature of the service or employment, 

unless there is shown to have been a custom relating to the duration of the term, and it appears 

that the contract was made with reference thereto, 

According to the general rule as laid down by a 

majority of the courts, however, contracts of 

employment which mention no period of duration, 

which are in a true sense Indefinite and without 

stipulation for an implied minimum period, are 

deemed terminable at will of either party; and 

the burden of proving the contrary must be assumed 

by the party who asserts that the employee is 

engaged for a definite period." 

The above, of course, refers to private contracts, while we 

are dealing with a problem in the public area; nevertheless, 

the situation is so analogous that it is felt that this 

particular segment of the law of private contracts will apply. 

Texas follows the majority rule laid down above. St. 

Louis Southwestern Ry. Co. of Texas v. Griffin, 106 Tex. 477, 

171 S W 703 (1914); Island lake Oil Co. v. Hewitt, 244 S.W. 

193 

2d 18 6 (Civ. App. 1931, error ref.). In the latter case, at page 

ti;. App. 1922, error dism.); Kennedy v. McMullen, 39 S.W. 

174, it was stated that "As a general proposition, a contract 

indefinite as to the time of its performance may be terminated 

by either party by giving notice of his intention to do SO.~ 

In relating the specific fact situation to the general 

propositions of law found above, we are immediately confronted 

with the statement made in your request to the effect that "it 

was thought locally that the contract would continue effective 

until resignation by the teacher or d!.smissal for justifrab!e 

cause.;~'~'No.further'informatlon is'given with regard to any~negot%&tibns ~ConduCted or r&~presen:tations~ given by or between the 

various parties to the contracts in question. 
Honorable J. W. Edgar, page 4 (WW-1240) 

In consideration of the foregoing, it is'the opinion 

of this office that: (1) The type of contract in question is 

indefinite as to time of termination, but may not ex<:end for 

a period in excess of three (3) years, by virtue of t:;e limitation placed thereon by Article 2750a-2, Vernon's Civil Statutes; 

I : 1 

the contract is good for a minimum period of one (1) year; 

the question of whether or not the parties are bound for a 

second or third year is dependent upon the intention of the 

parties and is a question of fact, and not resolvable by 

this office. 

SUMMARY 

A teacher awarded a written and approved 

"continuing" contract by a common or rural high 

school district which specifies no employment 

period or years it shall cover has a valid and 

enforceable contract for services for one (1) 

year, but not more than three (3) years. Article 

2750a-2, Vernon's Civil Statutes. The question 

of whether on not the parties are bound for a 

second or third year is one of fact, and not 

resolvable by the Attorney General. 

Very truly yours, 

MLQ:dhs:kh 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

J. Arthur Sandlin 

Linward Shivers 

Riley Eugene Fletcher 

WILL WILSON 

By Malcolm L. Quick 

Assistant 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Houghton Brownlee, Jr.