Public school teachers in the state of Texas are employed under three types of contracts:
- Probationary Contracts
- Term Contracts
- Continuing Contracts
How do I know what kind of contract I have? First, the District is required by the Education code to give you a copy of your contract, and the contract will usually specify. That is, it should say at the very top Probationary Contract, Term Contract, or Continuing Contract. However, whatever it is called, it is the contract’s specific language, terms, and characteristics that make it a Probationary, Term, or Continuing contract. These characteristics are discussed below. The safest way to figure out what type of contract you have is to take it to an experienced school law attorney. (Also, you are more likely to have a Term or Continuing Contract the longer you have been teaching in the state and in a particular district—a topic also discussed in more detail below.)
What if the District wants to fire me? Regardless of the type of contract, your contract will be for a term, meaning the District promises to employ you for a specific amount of time—usually, until the end of the current school year or longer. If the District seeks to end your employment before your contract has expired, you are, almost without exception, entitled to a special hearing procedure, regardless of what type of contract you have. That procedure, often called a Subchapter F or Chapter 21 hearing, is discussed below. On the other hand, the District may non-renew your contract without affording you the same level of procedural protections—i.e., without a hearing in front of an impartial judge, etc. In the case of a non-renewal, the type of contract can make all the difference in the world. In either case, whether you are proposed for termination or non-renewal, we can help provide you with appropriate guidance.
What if the District wants to non-renew me? In cases of a proposed non-renewal, your relief (what you can do to fight it) depends on the type of contract you have.
If you have a probationary contract, the District’s Board can vote to non-renew your contract if doing so is in the best interest of the school district. See Tex. Educ. Code § 21.103(a). Not only is this a broad, wishy-washy terminology, but the Board’s decision cannot be appealed. (Id.). That is, the board’s decision is final and may not be appealed. (Id.). That said, only the District’s Board of Trustees can fire you or non-renew your contract. The Board of Trustees must take a vote on a recommendation made by the Superintendent. The Superintendent’s recommendation may and usually does follow the recommendation of a principal and assistant superintendent. Your best chance to fight a non-renewal is before it gets to the Board for a vote. So, being proactive can be very important. If you think you might be non-renewed, we may be able to help. The importance of being proactive is discussed here, in our article on grievances and performance appraisal.
If you have a term contract, you can also be non-renewed in the best interest of the school district. The difference is that you may appeal the non-renewal. This starts with notice. First, the Board of Trustees must notify you in writing no later than the 10th day before the last instructional day of the current school year. If they don’t, they must employ you in the same professional capacity for the next school year. Once you get notice, you have 15 days from the date you receive the notice of non-renewal to appeal. If you timely appeal, you are entitled to a hearing before the board of trustees (or its designee). You are allowed to be represented by an attorney, and entitled to hear the evidence against you, cross-examine adverse witnesses, and present your own evidence. But, again, your best change to fight the non-renewal is before it gets to the Board. If you think you are being non-renewed, you need to consult with an attorney, with experience in this field.
Unlike Probationary and Term contracts, Continuing contracts may not be non-renewed because they have no specific time, after which the contract ends. A Continuing contract continues essentially forever. Therefore, it does not have to be renewed each school year, or at the end of the term. Since it continues (whether renewed or not) and since it does not need a renewal to continue, a Continuing contract cannot be non-renewed. It can only be terminated for cause. See below. If the district is threatening to take any action against your continuing contract you need to seek legal advice immediately. Continuing contracts can be very valuable.
What makes these types of contracts (Probationary, Term, and Continuing) different? The contracts afforded to public school teachers provide those teachers with protections that other employees may and usually do not have. However, as discussed above, the level of protection varies based on the type of contract you have and the type of adverse employment action that the School District proposes to take against you. Moreover, the contracts also vary based on their duration and to whom they may be awarded.
Finally, the type of contract can affect your timelines. In all cases, timelines for filing appeals or grievance is very important. The following is a summary of the differences between the contracts:
Probationary Contracts. Probationary contracts are usually awarded to new teachers—that is, teachers that are new to the profession or new to a district. If you are employed as a teacher by a district for the first time or if you have not been employed by the district for two consecutive school years, you must, absent rare circumstance, be employed under a probationary contract. A probationary contract can only be for one school year. If you have been employed as a teacher in public education for less than five of the eight years preceding your employment by the district, your probationary contract can be renewed for two additional one-year periods, for a maximum period of three school years–i.e., 3 probationary contracts. By contrast, if you have been working as a public school teacher for five of the last eight years or more, your probationary period may not exceed one year. In other words, in this case, you can only have one probationary contract.
Alternatively, you may also agree to accept a probationary contract. That is, teachers with enough experience to qualify for a term or continuing contract may consent to another year with a probationary contract, usually because the alternative is a nonrenewal, discharge or termination. “Notice under this subsection must inform the teacher of the school district’s offer to return the teacher to probationary contract status, the period during which the teacher may consider the offer, and the teacher’s right to seek counsel. The district must provide the teacher at least three business days after the date the teacher receives notice under this subsection to agree to be returned to probationary contract status.”
Under a probationary contract, if your termination is proposed mid-contract (e.g., before the end of the current school year), you are probably entitled to a Chapter 21 hearing, which is discussed in more detail below. If you are placed on administrative leave with or without pay, or if the District indicates that they are going to terminate your employment, you need to contact our firm or some other experienced school law attorney.
When it comes to non-renewals, a school district may non-renew a probationary contract for virtually any reason at all so long as it is in “the best interest of the school district.” That said, federal and state laws forbid discrimination and retaliation. See our section on discrimination and retaliation, and whistleblower protections. Moreover, when a probationary teacher is non-renewed, he or she has no appeal rights.
Term Contracts. Term contracts must be awarded, when legally permitted probationary period has elapsed. So, for instance, if you are a new teacher (or one who hasn’t taught for 5 of the last 8 years), you can be given to four consecutive probationary contracts. Usually, the district must award you a term contract by the end of the third consecutive year. In no case, can they employ under a probationary contract for more than four consecutive years. At that point, they must either terminate your employment or give you a term or continuing contract. For teachers, that have been teaching for 5 of the last 8 years or more, the district must give you a term contract after you have served your one probationary year.
A District’s Board may non-renew a Term contract if the non-renewal is in the best interest of the school district. If you wish to appeal that determination, you may appeal to the Board of Trustees. Remember there are tight timelines. You should seek legal assistance as soon as you learn of the possible non-renewal. The Board of Trustees in turn will hold a hearing. At that hearing, you will usually be entitled to present documentary evidence, witnesses, and the argument of counsel.
To terminate a term contract, the Board must vote to propose your termination. Then, you should receive notice of the Board’s decision—that you are up for termination. The reason they can’t simply fire you and must vote to propose your termination is that you are entitled to due process of law under the US Constitution and process afforded by the Education Code. Specifically, you are entitled to a chapter 21 hearing.
Once you receive notice that the Board voted to propose your termination, you have a tight timeline (15 days as of this writing) to request a hearing from the Commissioner of Education, under Subchapter F of Chapter 21 of the Education Code.
Continuing Contracts. A District is never required to give you a continuing contract. There is no entitlement to tenure. However, if you have one, count your lucky stars. You need not worry about a non-renewal. A continuing contract is not for a specific term of years, say one or two school years. “Each teacher employed under a continuing contract is entitled to continue in the teacher’s position or a position with the school district for future school years without the necessity for annual nomination or reappointment until the person: (1) resigns; (2) retires . . . ; (3) is released . . . at the end of a school year because of necessary reduction of personnel as provided by Section 21.157; (4) is discharged for good cause as defined by Section 21.156 and in accordance with the procedures provided by this chapter; (5) is discharged for a reason stated in the teacher’s contract that existed on or before September 1, 1995, and in accordance with the procedures prescribed by this chapter; or (6) is returned to probationary status, as authorized by Section 21.106.” Tex. Educ. Code § 21.154
If the District is claiming to non-renew your continuing contract, they are really seeking to terminate it. To end a continuing contract, the District must propose your termination, the Board most vote to accept that proposal, and then you will receive notice of the proposal. Once you receive notice that the Board has voted to propose your termination you have 10 days to notify the Board of your decision to appeal. If you fail to timely appeal, you will likely lose your contract and be terminated.
A continuing contract teacher may be discharged (or suspended without pay) by a school district for good cause. Good cause is defined as “the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state.” Tex. Educ. Code § 21.156. A continuing contract teacher may be released at the end of a school year in case of a reduction in force. However, what qualifies as a reduction in force is defined by the Education code.
Regardless of the reason you are given, if you have a continuing contract and the district is threatening to discharge you, you need an attorney. The district should provide you with written notice of a proposed action. If you discover or even just believe that your continuing contract may be at risk, you need to seek legal assistance.
Subchapter F, Chapter 21 Hearings. As mentioned above, anytime a district proposes to terminate a contract mid-contract, before the time specified in the contract has elapsed, you are entitled to a Subchapter F, Chapter 21 hearing. A Chapter 21 hearing entitles you to a number of procedural protections and appeal rights, to extensive to detail completely here. However, the most important thing is that you seek legal advice as soon as you learn that the district is likely to terminate your contract. Strict time limits, if not met, can prevent you from getting your hearing, which is a shame.
Under Subchapter F, Chapter 21, you are entitled to an independent hearing examiner, someone that is not employed by the district or associated with the district. In fact, independent hearing examiners cannot be associated with any school district, a teacher in any dispute with a school district, or an organization of school employees, school administrators, or school boards. Effectively, this means the hearing examiner, while a licensed attorney, will not be a school law lawyer. This is meant to ensure that the hearing officer is unbiased.
A Subchapter F, Chapter 21 hearing is like a mini-trial, which is why it is so important to get legal counsel. The hearing examiner may issue subpoenas for the attendance of witnesses and the production of documents at the hearing, may administer oaths, and rule on motions and the admissibility of evidence, among other things. Further, the hearing examiner may, and likely will, allow the parties to take depositions or utilize other forms of discovery before the hearing. At the end of the process, the hearing examiner will make findings of fact and conclusions of law, and a recommendation to the Board of Trustees. The central issue is usually whether there was good cause to support the termination. The Board may then accept or reject that recommendation. If you are facing a proposed termination, if you have requested a Subchapter F, Chapter 21 hearing, please contact us. You need to be represented by an attorney.