Untitled Texas Attorney General Opinion ( 1967 )

Dr. J. W. Edgar Opinion No. M-123
Texas Education Agency
Austin, Texas Rer Whether House Bill 166,
Acts 60th Legislature
(Continuing Contract Law)
is mandatory or permissive
Dear Dr. Edgar: and related questions.
You have requested the opinion of this office upon
several questions concernin House Bill 166, Acts 60th Legis-
lature, Regular Session, 19ti
7, which Is an act providing for
a teacher tenure plan on the basis of a written "probationary
contract" or "continuing contract.'
The first question you posed is set forth as follows:
"1. Is House Bill 166 mandatory or per-
missive? That is to say: May public free
school distrfcts after August 28, 1967, contract
their teachers pursuant to prior statutes: Arti-
cle 2750a, 2750a-2, 2781, for future year(s) not
to exceed three (2750a-2); in independent school
districts, written or unwritten, for year(s) not
to exceed three or five (2781)--and thereby not
be subject to any provision set out In House Bill
166. Note: Section 3(d)."
Section 2 of House Bill 166, Acts 60th Legislature,
Regular Session, 1967, reads as follows:
"Sec. 2. Teachers to be employed by either
probationary contracts or continuing contracts.
Each teacher hereafter employed by'any school
district in this State shall be employed under,
and shall receive from such district, a contract
that is either a 'probationary contract' or a
'continuing contract' in accordance with the
provisions of this Act if the school board
chooses to offer such teacher a 'probationary
contract' or a "continuing contract,' All such
contracts shall b i iti in such form as
may be promulgate: b; 1: apE%ved by the State
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Dr. J. W. Edgar, page 2 (M-123)
Commissioner of Education of the State of Texas,
and shall embody the terms and conditions of
employment hereinafter set forth, and such
other provisions not 1ncons;stent with this
Act, as may be appropriate. (Emphasis added.)
A cardinal rule of construction requires that we should
give effect to every provision of a statute, If possible. We
can also look to the legislative history during the course of
enactment as an aid to construction. Felton v. Johnson, 112
Tex. 412, 247 S.W. 837, 70 A.L.R. 5 (1923).
House Committee Amendment Number One which was sub-
stituted for the original bill in the House of Representatives
and adopted with amendments by the House of Representatives added
the langu+ge, 'if the school board chooses to offer the continuing
contract. Later the Senate amended Section 2 of H.B. 166 to read
as follows: "if the school board chooses to offer such teacher a
'probationary contract' or a 'continuing contract.'*
The Senate also added Section 9 as a new section to
House Bill 166, making the Act cumulative of existing law, which
section now reads as follows:
“Sec. 9. All rights and privileges granted
by this Act shall be cumulative of existing law,
and should any portion hereof be found to be In
conflict with any provision of zxisting law, the
provision hereof shall prevail. (Emphasis added.)
The House of Representatives then adopted House Bill
166 as amended by the Senate.
By the addition of the above language to this bill,
It appears that the Legislature intended to give school boards
a choice of whether to adopt the tenure plan set out in this Act
to continue teacher contracts under existing law, making House
&I 166 a permissive Act.
It is our opinion that after August 28, 1967, public
free school districts may contract wfth teachers pursuant to
Articles 2750a, 275Ca-2, 2781, Vernon's Civil Statutes, or If
they choose they may contract with their teachers under the
provisions of House Bill 166, Acts 60th Legislature, Re ular
Session; if the tenure plan as set out In House Bill 16E , 60th
Legislature, Regular Session, Is adopted by a school board, then
such tenure plan becomes mandatory for such school district.
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Dr. J. W. Edgar, page 3 (M-123)
The second question you asked to be answered Is as follows:
"2. Are teachers as defined In Set, l(c)#
who hold and districts which award written
contracts before August 28, 1967, pursuant to
present lawnject ~to the provisions of House
Bill 166, especially those provisions concerning
rights, appeals and procedures prescribed in
Sections 3, 4, 5, 6, 7, and 8; or shall the pre-
vailing and differing Procedures on Hearings and
Appeals (copy enclosed) apply with respect to
them?'l
In view of our holding that House Bill 166, Acts 60th
Legislature, Regular Session, 1967, is permissive, rather than
mandatory, and, further, that said bill is made cumulative of all
other laws, It is our opinion that unless a school board adopts
the provisions of House Bill 166, teacher contracts would be governed
by prior law.
Your third question is as follows:
"3. If House Bill 166 is construed permis-
sive: May a school district after August 28,
employ some of its teachers amined in Sec.
lo under a written contract conforming and sub-
jecting them to House Bill 166; and contract other
such teachers pursuant to the prior existing laws,
the latter to be recognized as not holding a 'pro-
bationary' or 'continuin ' contract within the
meaning of House Bill 162 ?"
We have answered that House Bill 166 is permissive; how-
ever, once a school board adopts the tenure plan, then In our opinion
all teacher contracts come under the terms and provisions of House
Bill 166.
Your fourth question asks whether or not House Bill 166
applies to the following personnel:
"a* Administrative personnel; viz., super-
intendents, full-time principals and supervisors
who (as teacher is defined in Set, lc) may not
be 'engage? in clase:roominstruction of academic
subjects,.
Sections l(c) and 4(b) of House Bill 166, read as follows:
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Dr. J. w. Edgar, page 4 (M-123)
"(c) 'Teacher' means one engaged in class-
room instruction of academic subjects who holds
a permanent teaching certificate under the laws
of this State and for whom certification is re-
quired by the employing board of trustees.
I,
. . .
"(b) The board of trustees may grant to a
person who has served as superintendent, principal,
supervisor, or other person employed in any ad-
ministrative position for which certification is
required, at the completion of his service in such
capacity, a continuing contract to serve as a
teacher as defined in Subsection (c) of Section
1 above; and the period of service in such other
capacity shall be construed as contract service
as a teacher within the meaning of this Act.
It is our opinion that in construing the above provisions, adminis-
trative personnel do not come under the provisions of House Bill
166 if they are not engaged In classroom instruction.
You next ask whether the Act covers:
"Vocational teachers who Instruct In full
time vocational subject; only, as distinguished
from academic subjects.
Webster's Third International Dictionary defines the
following terms:
"Academic - One (as a professor or student)
that is associated with or a member of an in-
stitution of learning (as a university)."
"Teacher - One that teaches or instructs;
one whose occupation Is to Instruct."
"Vocational Education - Training for a
specific occupation in agriculture, trade, or
industry through a combination of theoretical
teaching and practical experience provided by
many high schools in their commercial and technical
divisions, and by special institutions of col-
legiate standing (as a college of agriculture, a
school of engineering, or a technical institute.)"
Therefore, as voeatlonal teachers teach theory In classrooms, as well
as instruct in the practical aspects of such vocational training, it
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Dr. J. W. Edgar, page 5 (M-123)
is our opinion that a vocational teacher would come under the pro-
visions of this Act.
Your letter sets out that:
"Relative to ,paragraphsa and b: It is
observed that the 'probationary' contract shall,
begin on September 1, whereas Article 2781 pro-
vides that all twelve-month contracts shall
begin on July 1. Most superintendents and prln-
cipals are employed for twelve months, as are
some of the vocational teachers and other pro-
fessional employees. See also: Section 4(b).*
It IS ouropinion that contracts entered into under prior
laws will commence on the,date set out under those laws and the c.on-
tracts entered~into'under House Bill 166, will commence on September
1st of each year.
You also ask whether the Act applies to:
"A part-time principal who does no':
teaching; or one who does some teaching."
Any part-time principal who does part-time teaching would
be considered a teacher under the provisions of Sec. l(c), supra,
and any principal who does no teaching would not come under the pro-
visions of this Act,
In addition you ask whether the Act includes:
"Librarians and vieltln teachers designated
as special service teachers 7Article 2922-12, Sec.
2) but who do not engage in classroom instructions."
Under the terms of Sec. l(c), suprap only those engaged
in classroom instruction can qualify to come under the provisions
of House Bill 166.
Your final question is as follows:
"Finally, would this Agency be correct In
construing House Bill 166 as not having appllca-
tion to teachers of State institutional independent
school districts (created under Article 2666 prior
to enactment of Article 2756~ or subsequent thereto
by creative laws> Article 2668a, et seq.) such as,
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Dr. J. W. Edgar, page 6 (M-123)
The Texas School for the Blind and Texas School for
the Deaf placed under the jurisdiction of~the
CentraI Education Agency (Article 2654-1, Sections
4 and 5), and whose employees like other State em-
ployees are primarily financed, provided for In
and subject to the provisions of the general appropria-
tion bill. See t House Bill 12, 59th Legislature,
Regular Session, 1965, Article IV, at pages 185-187."
Section l(a) of House Bill 166, reads as follows:
"(a) 'School district' shall mean and ln-
elude any independent school district, rural high
school district, common school district, or other
public free school corporation created or organized
under the laws of this State, and any city or town
having control of the public free schools therein."
By the terms of the definition of "School district", as
above set out, the provisions of House Bill 166, would not apply to
those state schools set out in your final question.
SUMMARY
1. House Bill 166, 60th Legislature, Regular
Session, 1967, is discretionary in that after August
28, 1967, a school board is given a choice of coming
under the Act by adopting the tenure plan set out in
said Act, or continuing to contract under prior exist-
ing laws.
2. Once the school board adopts the tenure plan
set out in House Bill 166, 60th Legislature, Regular
Session, 1967, the tenure plan becomes mandatory for
such school district.
3. Administrative personnel do not come under
the provisions of House Bill 166, 60th Legislature,
Regular Session, 1967, unless they are engaged In
classroom instructions, if the tenure plan is adopted
by a school board.
4. Vocational teachers would come under the
provisions of House Bill 166, 60th Legislature, Regular
Session, 1967, if the tenure plan is adopted by a
school board.
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Dr. J. W. Edgar, Page 7 (M-123)
5. House Bill 166, 60th Legislature, Regular
Session, 1967, does not apply to teachers of State
lnstitutlonal independent school districts such as
The Texas School for the Blind and Texas School for
the Deaf.
truly yours,
eneral of Texas
Prepared by William J. Craig
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
A. J. Carubbi, Jr., Chairman
Staff Legal Assistant
W. 0. Shultz, Co-Chairman
Pat Bailey
Houghton Brownlee
James Broadhurst
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