#216-R2-687
DOCKET NO. 216-R2-687
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THEODORE L. HUNTER, ET AL.
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V.
HOUSTON INDEPENDENT
SCHOOL DISTRICT
BEFORE THE STATE
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COMMISSIONER OF EDUCATION
THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Theodore L. Hunter, Ernest Ingram, Maxine Jackson,
Claudette Y. Johnson, Thomas E. Malone, Betty J. McCollum,
Jesse C. Moore, Felix B. Phillips and Bula C. Thompson,
Petitioners, appeal from a decision of the Houston Independent School District Board of Trustees, Respondent, terminating their employment because of failure to perform
successfully on the Texas Examination of Current Administrators and Teachers (hereinafter "TECAT") on or before June
30, 1986.
Respondent filed a Motion to Dismiss on July 22, 1987,
to which Petitioners responded on August 12, 1987.
Petitioners are represented by Robert E. Hall, Attorney
at Law, Houston, Texas. Respondent is represented by Janet
Little Horton, Attorney at Law, Houston, Texas. The Hearing
Officer appointed by the Commissioner of Education was
Cynthia D. Swartz. Terry J. Johnson was subsequently
appointed Hearing Officer for the purpose of issuing a proposal for decision.
On July 27, 1988, a Proposal for Decision was issued
containing the recommendation that Petitioners' appeal be
dismissed. Exceptions and replies were timely filed.
Findings of Fact
After due consideration of the evidence and matters
officially noticed, in my capacity as State Commissioner of
Education, I make the following Findings of Fact:
1. Each Petitioner was employed as a teacher under a
continuing contract by Respondent during the 1985-86 school
year. (Pet. Rev., par. 4).
2. None of the Petitioners performed satisfactorily on
the TECAT on or before June 30, 1986. (Pet. Response to
Motion to Dismiss, p. 2).
3. Petitioners received notice of proposed termination
by letters dated August 15, 1986. Thereafter, each Petitioner requested a hearing regarding their proposed termination. (Pet. Rev., par. 7, 8).
4. Hearings were afforded the Petitioners in April
1987, wherein the Board terminated the employment of the
Petitioners. (Pet. Rev., par. 8).
5. Each of the Petitioners passed the TECAT prior to
the date of their termination hearing. (Pet. Rev., par. 4).
Discussion
Petitioners contend that the Respondent wrongfully terminated their employment based on their failure to pass
TECAT on or before June 30, 1986. It is undisputed that the
Petitioners failed to pass the TECAT on or before June 30,
1986. Tex. Educ. Code Ann. +13.047(d) provides that:
Each teacher must perform satisfactorily on the
applicable examination on or before June 30, 1986,
to teach the subject at a particular level unless
a school district establishes to the satisfaction
of the commissioner of education that there is
emergency need. A teacher may not teach under a
determination of emergency need for more than one
school year. (emphasis supplied).
Respondent, a continuing contract school district, is
governed by Tex. Educ. Code Ann. +13.110, which provides in
pertinent part:
Any teacher employed under a continuing contract
may be released at the end of any school year and
his employment with the school district terminated
at that time, or he may be returned to probationary contract employment for not exceeding the
three succeeding school years, upon notice and
hearing (if requested) as hereinafter provided,
for any reason enumerated in Section 13.109 of
this code or for any of the following additional
reasons.
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(8) failure by a person required to take an
examination under Section 13.047 of this
code to perform satisfactorily on at
least one examination under that section
on or before June 30, 1986. (emphasis
supplied).
The Petitioners' subsequent passage of the exam does
not negate the fact that the Petitioners did not pass the
TECAT on or before June 30, 1986, as required by statute.
Accordingly, Respondent acted in accordance with +13.110(8)
when it terminated Petitioners for their failure to pass the
TECAT on or before June 30, 1986.
Finally, Petitioners contend that they were entitled
pay between the date of their proposed termination and the
date on which the Petitioners were in fact terminated.
ever, Tex. Educ. Code Ann. +13.047(a) provides that
How-
The board shall require satisfactory performance
on an examination prescribed by the board as a
condition to continued certification for each
teacher and administrator who has not taken a certification examination under Section 13.032(e) of
this code.
Under Tex. Educ. Code Ann. +13.045(b):
a teacher or superintendent who does not hold a
valid certificate or emergency permit shall not be
paid for teaching or work done before the effective date of issuance of a valid certificate or
permit.
Petitioners did not pass the TECAT before the date of their
notice of proposed termination and are, therefore, not
entitled to payment. Accordingly, Respondent's motion to
dismiss should be GRANTED for Petitioners' failure to state
a claim for which relief can be granted. 19 TAC 157.22.
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my
capacity as State Commissioner of Education, I make the
following Conclusions of Law:
1. Respondent acted in accordance with Tex. Educ. Code
Ann. +13.110(8) when it terminated Petitioners for their
failure to pass the TECAT on or before June 30, 1986.
2. Petitioners were not entitled to receive pay from
the date of their notice of proposed termination to the date
of the Petitioners' actual termination because they did not
hold a valid certificate or emergency permit at the time of
their proposed termination.
3. Petitioners' appeal should be DISMISSED for failure
to state a claim for which relief may be granted.
O R D E R
After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and Conclusions of Law, in my capacity as State Commissioner of
Education, it is hereby
ORDERED that Petitioners' appeal be, and is hereby,
DISMISSED for failure to state a claim for which relief may
be granted.
SIGNED AND ENTERED this _____ day of ________________,
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W. N. KIRBY
COMMISSIONER OF EDUCATION