THEA~~OIC~~TEH' GENERAL OPTE~A~
HonorableFred Erisman CriminalDistrict Attorney ~EtFegg~*uIlty Lagview, Texas
Dear Sir:
OpinionNo. O-952 Re: Validityof Teachers'Contracts.
We are in receiptof your letter of June 8, 1939, in which the follmlng facts and questionsare 'presentedfor ov opinion.
You statezthaton March 30, 1939, three days prior Go the school trustee election,'thetrustees, of the White Oak Common School electedteachersfor the next two years and executedtheir contracts. Only two of the three trusteessigned the.cctitracts, and at the followingelec'tionone of these trusteeswas defeat&end the presentBoard, as now constituted,has refused to recognizefive of the teachers'with whom contractswere made &I March 30, 1939.
You wish to knar vihetherthe five contractsmentionedabove are such leg+1 and binding c&tracts that the 'CountySchool Superintendentmust approve them, in the absenceof any other showingof fraud or the like.
Your also state that the presentSuperintendenthas e valid contractfor two years,with one year remainingto be served. The Board of Trustees desiresto dispensewith his servicesand ask that he vacate.thepremises forthwith. They also desire to pey his entiresalary for the remaining year under this contract.
You wish to be advisedas to whether the Board of Trusteesten legallytake such action.
Article2750a,Revised Civil Statutes,1925, providesthat commonschool districttrusteesmay make contractswith teachersfor a period of time not in excess of two years, and furtherprovidesthat no contract'&y be signedby the trusteeduntil the duly electedtrusteehas qtilifieaand taken the oath of office.
This departmentconstruedthe above statute in OpinionNo. O-04,~dated. March 16, 1939, addressedto the HonorableEmmettWilburn,CountyAttorney, Center,Texas, in which it was ruled that a commonschool districttrustee, whose term of office expireson May 1, may join with,oneof the remaining HonorableFred Erismsn,June 14, 1939, Page 2 (O-92)
trusteesand executevalid teachers contractsfbr the next year, prior to the electionof the new trustee. We encloseherewitha copy of that opinion.
It has been repeatedlyheld that teachers'contractsfor commonschool districtsarenot bindinguntil they have been approvedbY the County Superintendent; however, it does not follow that a duly elected Board of School Trusteesmay, without cause, refuse to honor teachers' contractsenteredinto by their predecessorsbefore such contractshave 'beenapprovedby the'CountySuperintendent.
In Miller vs. Smiley (T. C. A. 1933) 65 S. W. (26) 417, writ of error refused,the court stated:
'we cannotbring ourselvesto believethat a mere fortl::'-~ 11 change in the membershipof the board, prior to the formal approvalof the County Superintendent of the lawful contractstheretoforemade by the board, permit such contractsto be arbitrarilyrevokedby the naw bcd)rd and the CountySuperintendent without any charge of fraud, impositioil or mutual mistake,and with no hearing given the teacheron such in- tendedrevocationof their~ contracts.
'It+eema to us that to hold otherwisewould be to violate the plainest priiioiplesof fairnessand justice,and to acquiescein arbitraryand dictatorialpowersnot conferredby our statutesupon the boards of school trusteesor County Superintendents."
See also White vs. Porter,78 9. W. (2d) 287. It is our opinionthat in the absenceof some other valid reason,other than a mara change in the membershipof a schoolboard, the COU&' school Superintendent should approvethe five contractsmentionedabove.
In Temple IndependentSchool DistrictVS. Proctor (T. C. A. 19%) 9'7S. W. (26) 1047, (writof error refused),it was held that % School Super- intendentcould &force his legal possessionof such Offbe .by injunction