Untitled Texas Attorney General Opinion ( 1951 )

AunTIN 11. .x-EeAa
PRICE DANIEL
ATTcl*NEYGENERAL
September 24, 1951
Hon. James I-I.Moore Opinion Ho. V-1292
County Attorney
Ange lina County Re: Validity of a contract
Lufkin, Texas for the superintendent
of a rural. high school
district which was ex-
ecuted on June I., 1950,
for the two years from
July 1, 1951, to June
Dear Slrr 30, 1953.
We quote from your letters in substance
as follows:
On June 10, 1948, Huntington Rural
High School District entered into a
contract with J. B. Kannenburg to be its
superintendent for a period of the three
years, 1948-49, 1949-50 and 1950-51, the
employment to begin on July 1, 1948, and
expiring on June 30, 1951.
On June 1, 1950, one year prior to
the expiration date of the foregoing
contract, the board of trustees executed
a new contract with Kannenburg. This
second contract is for a term of two
years commencing July 1, 1951, and end-
in& June 30, 1953. It was approved by
the county superintendent.
The truatees’contend that this Bec-
ond contra.ct is void in that it violates
Article 275Oa-1, V.C.S. Their 4ispositlon
is not to recognize Its validity for any
period of tims.
Queryr Is the superintendent’s em-
ployment contract, dated June 1, 1950,
providing for his employment to begin in
a future year (July I., 1951) and to ex-
pire two years thereafter, totally void
by reason of Article 2750a-1, or is the
Hon. James H. Moore, page 2 (V-1292)
contrsct severable and therefore valid
for, the 1951,752 year?
The district in qUeStiOn iB Classified as
a rural high school district, Bnlletin 512, TeXa8
Education Agency 1950-5~, and a8 BUCh it i8 Subject
to the same provisions and restrictions applicable
to conmon school district8 except where otherwise
provided. Article 2922k, V.C.S. Therefore, Article
375Oa-1, V.&S. controls a8 to the period of time
for which a superintendent% contract may run ,&try
Gen. Op. V-1229, and not Article 2781, V.C.S., which
is applicable to independent district3 only.
,Article 275Oa-1 provide3 as fOllOWBS
?Frustees Of any Common School MB-
trict . . . Shall have authority to make
contracts for a period of time not'ln ex-
ces8 of two (2) years with principals,
superintendents, and teachers of Said
Common School Districts . . . provided
that BUCh cc8&%ct8 Shall be approved
by the County Superintendent. ??o con-
tract may be Sign8ff by the Trustees of
hIIIIIIOR
School MStriCtB . . . until the
newly elected trustee or trustees have
ualified and t8ken the oath of office."
9mphaBiB added.)
The last sentence of Article 275Oa-1 ha3
been construed to mean that a board of trustees of
a rural high school district has no authority to
execute or sLan teach8rs' contracts during the time
between the e!.ectimof the district's new trustee8
and their qualification. Att'y Oen. Op. V-l051
(1950).
Section 4 of Article 2774a, V.C.S., vests
the control and management of a rural high BChOO~
district in a boar& 3f seven trustees. That ZPW
provide3 for an election annualiy Of two or three
trustees for;the bcmrd. It 18 thus possible that
once in any three-y88r trustee election period it8
entire membership amv change. Furthermore, the
board of trustees of a ruz%?d.high school district
is constituted a body politic and corporate and as
such may contract and be contracted with. Arts.
2748, 2922k, V.C.S.
ROII. James H. Moore, page 3 (V-1292)
Therefore, any lawful contract8 made by
a rural high school district board are corporate
contracts, and not the contract8 of individuals
who then constituted the board. By Statute, it is
a continuing corporate body. It8 membership may
change but the body corporate does not. The cor-
porate body after the first Saturday In April of
each year is the same a8 it was preceding that
trustee election day. True, the new officers 818
not like then lawful contracts made through the o9d
. officers prior to election day, but that doe8 not
affectthe validity of such contracts. They will
have a like privilege of makfng lawful contracts
near the close of their terms, which they can pass
OR t0 their BUCCeBSOr8. State v. Board of Eduoa-
w, 118 S.E. 877 (W. Va. Sup. 1923).
In Town of Pearsall v. Woolls, 50 S.W.
959 (Tex. 'Xv. App.1899) it d I Gulf Bitullthlc
Co. v. Rueces County 11 6.: 2: 30; TComm. App l$%),
the School board e&red in& a written contra&.
dated June 27, 1898 (four days before the expiraiion
of their office: Art. 3953, R.C.S. 1895). with MI-S.
Woolls to teach for .the immediate ensuing school
term beginning September 1, 1898. In upholding the
validity of her contract, the court stated3
" It i8 well settled, also,
that a'bia;d of 8ChOOl trustees may
make contracts for teacher8 for the
term of BChOOl succeeding their term
of office."
Prom the opinion in Miller v. Smile& 65
S.W.2d 417, 420 (Tex. Civ. Appm, error ref.) we
quote as followsr
(I
But we cannot bring our-
selves io'billeve that a mere fortuitous
change in the YWmber8hip of the board,
prior to the formal approval by the coun-
tg SUperiI&8ndent of the lawful contracts
theretofore msde by the board, pemnits
such contract8 to be arbitrarily revoke&
by the new board and the county superin-
tendent without any charge of fraud, lm-
position or mutual misteke, and with no
I L hearing given the tOdch8r8 of such in-
tended revocation of their contracts.
Hon. James H. Moore, page 4 (v-1292)
"It seems to us that to hold other-
wise would be to violate the plainest
principles of fairness and justice,
and to acquiesce in arbitrary and dic-
tatorial power8 not conferred by our
statutes upon the boards of BChOOl
trustees, or county superintendents."
For-other authorities to the effect that
school boards may make lawful contracts for employ-
ment of teachers or superintendents for the immed-
iate ensulna school vear or terms which will be
If, therefore, the contract in question
herein, dated June 1, 1950, is a lawful contract
(is BUCh 8 contract as may have been made under the
contractusl powers Vested in the school board of a
rural high school district under Article 2750a-l),
it is binding on the present board, in the absence
of,fraud, imposition, or mutual mistake in its mek-
iD&.
It is contended on behalf of Mr. xannen-
burg that in the event the contract is not valid for
the entire term contemplated, the ContlgCt is sever-
able and velid for the year beginning July 1, 1951.
This is based on the fact that the trUBteeS had the
authority to contract for two years from June 1,
1950, and under the theory advanced, the final year
of the lg.68 contract (beginning July 1; 1950) and
the first year of the 1950 contract (beginning July
1, 1951) would CW~tpriSe the two-gear period.
Although under the holding in Smith v. :
Morton Independent School DiSt, 85 S.W.2-
?Xv. App. 1935, writ dism.) it might appear that "t%
contract here involved is severable, we think Such
Hon. James H. .&ore, page 5 (V-1292)
a conclusion is foreclosed by the decision in
Fikes v. Shar 112 S.W.2d 774 (Tex. Civ. App.
1938, error pe%.). In that case it was held
under Article 2750 (prior to the enactment of
Article 2750a which was superseded by Article
2750a-1; see Att'y Qen. Op. 1051) the trustees
of a common school district had no power to con-
tract with teachers fora period longer than one
year.
In that case, on the night of April 3,
1957, after the polls for trustee election held
on that day were7closed, two trustees of the
common school district met and elected five
teachers for the immediate ensuing scholastic
year. Thqexecuted contracts with the teachers
covering,such one-year period, which were filed
with the county school superintendent on April
20. On April 26 there was a meeting of the trus-
tees, at which all three were present, and the
same teachers were elected for the ensuing two-
term period (1937-38 and 1938-39). These con-
tracts were filed with the county superintendent
April 28. On August 20 the county superintendent
erased the provisions calling for the two-year
employment and substituted therefor a one-year
term employment. There was an appeal from this
action to the county school board and frond that
action to the State Board of Education, result-
ing in the disapproval of the contracts by the
latter. Suit was then filed by appellants (teach-,
ers) in the nature of an appeal from that action.
We quote from the opinion of the Court as fol- :
lowsr
"After careful consideratkon of
our statutes and their uniform inter-
pretation, we have reached the con-
clusion that the contracts were void,
in that they were for a period lower
than one year. . . ." (Emphasis added.)
It is to be observed that the Court held
that those two-year written contracts were totally
void, even though the county superintendent at-
tempted to change their term to cover only one
yeap to confrom with what he though the law per-
mitted. Thus, school board employment contracts
executed to cover a period of time which exceeds
Hon. James H. Moore, page 6 (V-1292)
the time permitted by the laws governing that
board are totally void. Under the law and the
facts in the Fikes case, the school board could
have entered ma lawful teacher contract to
cover the ensuing year 1937-38, and did enter
a two-year contract covering the terms of 19370
38 and 1938-39, yet the court did not hold the
invalid two-year contract was severable and
valid for the immediate ensuing 1937-38 period.
Article 275Oa-1, enacted in 1941, ex-
pressly authorizes the school boards of districts
classified as common to execute contracts with
teachers, principala, and superintendents for a
periqd. of time not to exceed tvo’years. But fol-
lowing the holding and in the light of the ma-
soning in the’ pikes case, such a board, fzincethe
enactment of Ame 275Oa-1, would have no au-
“,thmity to enter into a contract for a three-year
period of time,
Under the facts herein submitted, the
School board of the HUitil@on district on June 1,
1948, contracted with J. H. Itarmenburg to be its
superintendent for a three-year period of time.
The tems of that contract have been performed.
However, for the pw?poses of this opinion, we must
assume by virtue of the holding in the Fikes case
that on June 1, 1950, when the HuntirigtiB7Tatrlct
executed with Kannenburg the’two-year contract
under consideration herein, there then existed no
valid contract between the district and Mr. Kaunen-
burg.
Clearly under the facts submitted, under
Article 275ba-1, and in the light of the author-
ities afommantioned, the Huntington school board
on Suue 1, 1950, could have entered into a contract
with J. H. Kmnenburg, the term of employment to
begin July 1, 1950, and to terminate on June 30,
1952 But that they did not do. The contract ox-
l
scutea on June 1, 1950, provides for the employ-
ment term to comn~nce an July 1, 1951,and to ter-
minate June 30, 1953.
The question is thus reduced to the fol-,
louing general propoaitiont Under Article 275Oa-1
is a school board of a common district e!?zPouered
to make a contract with a superintendent for an
, .)
Hon. James H. Moore, page 7 (V-1292)
employment period not to exceed two years, the term
of employment to begin after and beyond the im-
mediate ensuing school year or term? In the instant
matter, if the Huntington board as constituted on
June 1, 1950, could lawfully enter such a two-year
contract to begin on July 1, 1951, then it could,
conceivably, have contracted for it to have com-
menced in 1952, 1953, 1954, or possibly any future
date.
We think that an examination of Article
2750a-1, containing, as it does, an express limits,-
tion period of two years, leads to the inevitable
conclusion that the legislature intended that the
contractual power therein granted shall be limited
to employment for the immsdiate ensuing two school
years. If not so limited and construed, then the
i school trustees might employ teachers, principals,
and. superintendents for any number of future years
beyond the immediate next ensuing two years, tie
the hands of their successors in office, and wrest
from the control of the people the schools which
they are required to support. The spirit of that
st.atute is repugnant to the idea that one board of
trustees, by contract wholly to be performed in the
future , insa, year or years beyond the imtnediate~en-
suing year, can divest future boards of the power
to select teachers, principals, and superintendents,
and make contracts therefor, and indirectly take
from the people all the advantages to be derived
from annual elections. This conclusion is strength-
ened by the universal practice of employing teachers,
principals, and superintendents for one or two year
periods, the employment period of which is to begin
the immediate next ensuing school term or period.
In every case cited herein, the contract considered
by the court therein was for employment beginning
the next ensuing school term or year. In an ex-
haustive search for authorities,we have been unable
to find a oing;Bzase involving the validity of a
teacher contract, the term of which was to begin
beyond the immediate ensuing school year or period.
In short and by way of illustration,
under the facts submitted, we think the Huntington
school board on June 1, 1950, had authority by
virtue of Article 2750a-1 to contract with Mr.
Ksnnenburg for anemployment period of one year or
two years beginning on July 1, 1.950, and terminat-
. . . .
Hon. James R; Moore, page 8 (V+92)
ing on June 30 of 1951 or 1952, depending on
whether the contract was for a one or two-year
period. But the ,spirit and intent of Articl6
2750a-1, with its two-year employment limita-
tion, militates against a cons*ruction thereof
authorizing the board on June 1, 1950, to con-
tract for his services for an employment period
of one or two years duration to begin on July 1,
1951, and to terminate ,on June 30 of 1951 or
1952.
Accordingly, we agree wfth you that
the two-year contract dated June 1,. 1950, ex-
ecuted by the board of trustees o``.duntington
Rural High School District with J. H. Kannen-
burg, for superintendent services to commence
on July 1, 1951, and terminate on June 30,
1953; is void, and, as such, is unenforceable
for any period of time. AttOy Gen. Op. O-3465
(1941).
SUMMARY
Under the facts submitted and in
view of the two-year employment lim-
itation in Article 2750a-1, V.C.S., the
superintendent employment contract ex-
ecuted by the Huntington Rural Righ
School District on June 1, 1950, for a
two-year employment term to begin on
July 1, I.951 and to terminate on June
30, 1953, is void and unenforceable for
any period of time. Fikes v. Sha
112 S.W.28 774,,(Tex. Civ. App. 1
error ref.); Town of Pearsall v. Woolls,
50 S.W. 959 (Tex. Civ. App.m; Attry
Gen. Opsr O-3456 (1941) and V-1051
( 1 950) l
APPROVEDr Yours very truly,
J. C. Davis, Jr. PRICE DAEIEL
County Affairs Division Attorney General
Jesse P. Luton, Jr.
Reviewing Assistant --Lf%ik+m-
BY
Everett Hutchinson Chester E. Ollison
Executive Assistant Assistant
CEOfawo