Allen v. Lumberton Independent School District , 1988 Tex. App. LEXIS 639 ( 1988 )

BURGESS, Justice,

dissenting.

I respectfully dissent. The majority effectively places every teacher in this state on the horns of a dilemma. TEX.EDUC. CODE ANN. sec. 13.101 (Vernon 1972) requires that every teacher be employed under a written contract. TEX.EDUC. CODE ANN. sec. 13.106 (Vernon 1972) requires a teacher to accept the continuing contract within 30 days of its offer or it shall be considered a refusal. Thus, as in this case, when the school district offers a continuing contract in March to begin in August and states only that the salary will be the State of Texas Minimum Foundation Salary plus local increment, without specifying that local increment, the teacher must sign a contract with an important provision, in effect, left blank. The majority would make the teacher bear this uncertainty. The system is better served by avoiding such an uncertainty. If a school district is indeed unable to predict what the local supplement will be at the start of the school year, it can set the salaries at the state minimum, without a supplement, and let its teachers look for more favorable economic conditions. It should do so by August 1 at the very least. Under TEX.EDUC.CODEANN sec. 13.116 (Vernon 1976), a teacher may only leave the employment of the district without penalty before August 1st. If the teacher fails to resign before that period, then a subsequent resignation results in a year’s suspension of the teacher’s certificate.

We must presume that the school district knew of all these various requirements that statutorily bound its teachers. Because the district did nothing regarding a new salary schedule prior to August 1 or prior to the day the teachers began working, the common law of contract there was no contract because there was no agreed upon consideration. Because the legislature has required that a contract be in force and adopted very stringent penalties, it is only logical to infer that the new contract would embody the provisions of the previous contract. To hold otherwise would require a finding of no contract and this cannot be under the code.

I would therefore hold that the teachers were entitled to the previous year’s salary schedule and would remand the case to the trial court for the determination of damages and attorney’s fees. Since the majority holds otherwise, I respectfully dissent.