Chapter 21 of the Texas Education Code gives term contract employees statutory due-process rights above and beyond that provided by the U.S. Constitution before terminating, discharging, or nonrenewing those employees.  While those employees enjoy the extra protection others do not, it can make decisions in the best interest of the district difficult. Districts may retain employees whose performance is mediocre or downright dreadful because it is simply too expensive or too difficult to pursue termination, discharge, or nonrenewal.  Therefore, districts should ensure that only those who are entitled to Chapter 21 contracts are on Chapter 21 contracts. 

         If an employee is not entitled to a Chapter 21 contract under the Texas Education Code, the school district has the discretion to hire that employee as an at-will employee, a non-Chapter 21 Term Contract employee, or a Chapter 21 contract employee.  Look at your Board Policy DCE (LOCAL) with regard to these employees. 

What are the advantages to a non-Chapter 21 Term Contract or At-Will employment?

         An at-will employee may quit at any time.  Likewise, a district may terminate an at-will employee for any non-discriminatory, non-retaliatory reason.  This type of employment allows both parties the most flexibility but provides no guarantees of continued employment.  A district likely would not want to employ a person in a difficult-to-fill position as an at-will employee, as the time gap in filling the position may significantly interfere with the operations of the school. 

        A non-Chapter 21 Term Contract employee is employed from a specific start date to a specific end date.  During the term of the contract, the employee can only be terminated for good cause or in accordance with the terms of the contract.  The employee is entitled to some form of procedural due process prior to termination during the contract term.  There is not a prescribed form of procedural due process under state law, and the Commissioner's hearing process does not apply.  A constitutional minimum of adequate prior notice of the reasons for termination, an opportunity to present evidence in support of further employment and to test the evidence in support of termination is all that is required.  At the end of the contract term, it is not necessary to follow contract non-renewal procedures, either, as the contract ends at the specific date set in the contract.  If the district wishes to continue employment, it would offer another Term Contract.  This is the type of contract used by all types of employers.  This type of contract provides greater flexibility than a Chapter 21 Term Contract both during and at the end of the contract term. 

Who is entitled to a Chapter 21 Contract?

      The following employees must be employed under a Chapter 21 probationary, term or continuing contract:

• A full-time classroom teacher (averaging four or more hours per day teaching in an academic instructional setting or a career and technology instructional setting, but not a teacher's aide or a full-time administrator).  Tex. Educ. Code � 5.001(2).
• Principal
• Librarian
• Nurse
• Counselor
• Educational Diagnostician

Tex. Educ. Code � 21.002(a). 

• Other full-time professional employees required to hold certification from SBEC either by SBEC or by district requirement for that position. See Tex. Educ. Code � 21.101, 21.151, and 21.201(1); see also Figure 19 Tex. Admin Code � 231.1(e)(Assignments); Board Policy DCE (LOCAL). 

Who is not entitled To Chapter 21 Contracts?

        If your district's business manager also happens to hold SBEC Certification as a classroom teacher, is he/she entitled to a Chapter 21 Contract?  No, because SBEC does not require a business manager to hold certification.  The answer would only be yes if your district has decided to give business managers a Chapter 21 contract anyway.  See Board Policy DCE (LOCAL).  Business Managers are generally employed at-will or with non-Chapter 21 Term Contracts.

        If your district employs a teacher to teach part-time, averaging less than 4 hours of instructional time per day, a district should consider employing this person at-will.  Especially in tough financial times, this would provide the district with the ability to easily reduce personnel cost. 

        If your district employs a teacher on a local district teaching permit, that employee is not entitled to a Chapter 21 contract, unless Board Policy DCE (LOCAL) says otherwise, as that employee is not certified by SBEC.  See Tex. Educ. Code � 21.055. 

What action is necessary to "nonextend" a multiple year Chapter 21 Term Contract?

           A board may take affirmative action to "nonextend" a two or more year Chapter 21 Term Contract or it may simply take no action to extend so long as it is clear in the motion and board minutes that this employee's contract has been addressed separately and distinctly from other employees.

What action is necessary to "nonrenew" a Chapter 21 Term Contract at the end of the term?

           There is a common misconception that a Chapter 21 Term Contract somehow expires at the end of its term; it does not. In the absence of a resignation, a board must take affirmative action to "nonrenew" a Chapter 21 Term Contract of the contract term. This action must be taken in strict compliance with Board Policy DFBB (LEGAL) and DFBB (LOCAL). Chapter 21 grants the employee the right of a written notice of the proposed nonrenewal stating the reasons for the proposed action. 

*2013 STATUTORY REQUIREMENT*

ALL EMPLOYMENT DECISIONS 

          Effective September 1, 2013, � 21.352 of the Texas Education Code was amended to include a requirement that school districts use a teacher's consecutive appraisals from more than one year, if available, in making the district's employment decisions. This rule has yet to be fully interpreted and is written very broadly. Therefore, we recommend that the District (through campus administration, the Superintendent and/or the Board of Trustees, as appropriate) review a teacher's consecutive appraisals before any employment decision is made by the District, especially those adverse to the employee. 

           In an abundance of caution, when considering the termination of a contract employee (probationary or term), we recommend that a teacher's available, consecutive appraisals be reviewed and attached to the Superintendent's recommendation as evidence of compliance with this new law. 

             Chapter 21 also allows the employee the right to request, within 15 days of receipt of the notice, a hearing before the board. At this hearing, the District bears the burden of demonstrating its reasons (typically through effective employee documentation) for the proposed action by a preponderance of the evidence. See Tex. Educ. Code � 21.207. Following board action to nonrenew a term contract, the employee is also entitled to written notice of this action. See Tex. Educ. Code � 21.208. The employee is also entitled to appeal an adverse board decision to the Texas Commissioner of Education who will conduct a substantial evidence review. See Tex. Educ. Code � 21.209. This makes it critical that a school district build an effective record (before a certified court reporter) at the local hearing. Failure to comply with any of these procedural steps may result in the automatic extension of the employee's term contract.

When must a district decide whether to nonrenew a term contract at the end of the contract term?

        A district/board must take action to nonextend or to propose nonrenewal of a term contract no later than the "10th day before the last day of instruction in a school year." A board's failure to give the notice required by Subsection (a) within the time specified constitutes an election to employ the teacher in the same professional capacity for the following school year. See Tex. Educ. Code � 21.206. 

So how does a district switch over, if it has been issuing Chapter 21 contracts to those not entitled? 

      Contact your general counsel to get fact-specific legal advice. 

What if a district does not give a Chapter 21 Contract to an employee who is entitled to one?

As always, please do not hesitate to contact us if we can be of any assistance to you!