Hon. F. E. Mitchell Opinion No. O-4845

County Attorney Re: Liability of district for salary Callahan County of school superintendent Baird, Texas
Dear Sir: Wehave received your letter of recent date which we quote in part as follows:

“The trustees of Putnam Independent School District in Callahan County employed a superintendent in the summer of 1941, on ayearly basis, the salary to be paid in monthly installments. The term of such employment was from July 1, 1941 to July 1, 1942.

“Said superintendent closed the school term about May20, 1942, and was paid the monthly installment for the month May, 1942. The superintendent then left before June 1, 1942, and secured employment elsewhere, moving away from the school district and having no further contact with the school. Heis nowdemanding the last monthly installment for the month of June, 1942. His theory is that under his employment hewas not required to domore than finish the school for the year 1941-42, while the trustees think it was his duty to remain for the full year, in order to see after the interest of the school and the students, in such matters as making transcripts of credits, etc., and I have given them myopinion to the effect that they are correct in this matter, his employment being for the year, though paid in monthly installments. MayI have your opinion as to whether or not the said superintendent is entitled to said last month’s installment under the facts stated above.” Article 2781, Vernon’s Annotated Civil Statutes, pro

### vides as follows:

“The Board of Trustees of any city or town or any independent school district may employ a superintendent, principal, teacher, or other executive officers in the schools therein for aterm not to exceed three years, provided that the Board of Trustees of an independent school district which had a scholastic population of 5,000 or more in the last preceding scholastic year mayHon. F. E. Mitchell, page 2 (O-4845)

employ a superintendent, principal, teacher, or other executive officers in the schools therein for aterm not to exceed five years. All twelvQadded)This opinion necessarily will be general in nature. In the first place, this department is not authorized to pass on questions of fact. In the second place, wedonot have the contract of employment before us for examination. Weassume that such contract was legally entered into, that it calls for services’over aperiod ‘of 12months, and that, the board of trustees has done nothing in the nature of breaching th%econtract.

Youwill notice that Article ,,2781provides that 12 monthcontracts shall begin onJuly 1st and end onJune 30th. Evidently; the board of ‘trustees had this provision In mind when the contract was entered into. If the contract called for the services of,the superintendent fo.r a,period of 12months and the superintendent left at the end of 11months and did not perform ~services during the 12th.month, such action ,being in noway .caused by the~‘board of trustees, then it is our opinion that the school district is not liable for his salary for the 12th month.

Wequote-,the following from Corpus Juri s, Volume 

### 56, page 

### 396: ”

?The rules of law relating to the ,performance ,and,breach of contracts generally, apply to, contracts between teachers and the school authorities. ,Both parties must perform the. contract according t.o its terms.ll, The following appears onpage 411 of the same volume:

“Failure ~of:the teacher to perfarm.his part of the contract is adefense to an action by him to recover damages for its ,breach,by the school.board, as where he failed-to secure acertificate, or voluntarily abandoned his employment before the end ofhis term.” In view of the foregoing you are respectfully ,aavi.sed that where a superintendent is employed under Article 

### 2781,supra, by the board of trustees of an independent Scholl district under a’contract for alp’eriod of 12months’and such superintendent, through-,no fault or action onthe part of the board.of trustees, leaves, at the, end,‘of,the .llth month anddoes not pe~rform any. I

Hon. F. E. Mitchell, page 3 (O-4845)

services during the 12th month of the contract, the school district is not liable to the superintendent for his salary for the 12th month. This opinion is expressly limited to the fact situation presented and the assumptions made. Very truly yours ATTORNEY

GENERAI,

OFTEXAS By/s/ George W.Sparks George W.Sparks, Assistant APPROVED

OCT9, 1942 /s/ Grover Sellers FIRST ASSISTANTATTORNEY GENERAL! APPROVED:OPINIOti COMMITTEE BY: BWB,CHAIRMAN GWS:db:wb