E ORNEY GENERAL

F EWAS

January 15, 1962

Dr. J.W. Edgar Opinion No. WW-1240 Commissionerof Education State OfficeBuilding Re: Does a teacher awarded Austin, Texas a written and approved continuing contractby
a common or rural high school district,which specifiesno 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 contractby a common or rural high school district, which contract specifiesno employmentperiod or years it shall cover,has a valid and enforceable contract for services not permitted to be performed.

The specific fact situationwhich gave r+,seto 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 teacherswho 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 contractwould continue effective until resignationby the teacher or dismissal for justifiable cause. However,neither the contract itself nor other minutes or records of the school district reflectwhat period of time the contractwas intended to
cover. A teacher in the districtwas employed under one of these types of contracts,beginning in September, 1960. She served thereunder,and was paid salarybased on the State minimum salary schedule therefor. On July 28, 1961, she was notified that her contractwith the distrzrtwould not be continued for *he&961,-62schoolyear. She has not been permitted to teach in the current 1961-62 schoolyear. There is nothing present in the fact situationwhich would indicate that the teacherwas dismissed for justifiable cause.Honorable J.W. Edgar, page 2 (W!t1-1240)

In answering the questionsposed, we mst begin by noting that a Rural High School District is classifiedas a common schooldistrict, and as such is subject to al; the statutoryprovisions 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 limitationmay 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 terminationdate upon"the jace of the contract. I:Je must now determine justhow long the contract in questionmay run, within the three-year limitation.

The Board of School Trusteeshas authority to write teacher employment contracts three (3)years. fo: any period up to and including Paragraph 2 of the sample contractprovided by you provides for salary adjustments from year to year, and for salary to be paid in twelve (12)monthly installments. These statementsare 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:

"Whereno 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 theirwritten or oral negotiations, the usages of business, the situationand object of the parties, the nature of the employment,and all the circumstances surrounding the transaction.
"Regardless.therefore, of the absence of any express stipulationregarding the term of employment,a dispute as to the duration of 2 contract of employment is to be settledwith reference to the terms of the contract, the nature of the serviceswh+ch were agreed to be performed,and the attending circumstanceswhich 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 considerationthe situation of theHonorable J.W. Edgar, page 

### 3 (W-1240)

parties, and the objects they had in view. In
case the contracthas 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, indefiniteas to its duration If such custom or usage fixes the term of the employment.

"As to the presumption tobe indulgedwhere the contract appears to have specifiedno 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 contractwas made with reference thereto, According to the general rule as laid down by a majority of the courts,however, contracts of employmentwhich mention no period of duration, which are in a true sense Indefiniteand without stipulation for an implied minimum period, are deemed terminableat will of either party; and the burden of proving the contrarymust 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 dealingwith 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 contractswill apply.

Texas follows the majority rule laid down above. St. Louis SouthwesternRy. Co. of Texas v. Griffin, 106 Tex. 

### 477, 171S W 

### 703 (1914); Island lake Oil Co. v. Hewitt, 

### 244 S.W. 193 2d 

### 18 (Civ.App. 1931, error ref.). In the latter case, at page 6ti;. 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 performancemay 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 statementmade in your request to the effect that "it
was thought locally that the contractwould continue effective until resignationby the teacher or d!.smissal for justifrab!e cause.;~'~'No.further'informatlon is'givenwith regard to any~negot%&tibns ~ConduCtedor r&~presen:tations~ given by or between the variousparties to the contracts in question.Honorable J.W. Edgar, page 4 (WW-1240)

In considerationof 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:;elimitation placed thereonby 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 thirdyear is dependent upon the intention of the parties and is a question of fact, and not resolvableby this office.

SUMMARY

A teacher awarded a written and approved "continuing"contractby a common or rural high schooldistrictwhich specifiesno 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 thirdyear is one of fact, and not resolvableby theAttorney General.

Very trulyyours,

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: HoughtonBrownlee, Jr.