Return to Probationary Contract Status A Viable Alternative to Term Contract Termination or Nonrenewal

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As an administrator, you may be dissatisfied with the mediocre performance of a particular teacher who is employed under a Chapter 21, Education Code, term contract.  Nonrenewing that teacher means scrutiny by lawyers of the amount and quality of the adverse documentation accumulated during the past school year and, possibly, a complex and expensive due process hearing in front of the school district’s board of trustees.  If the thought of taking a mediocre teacher through the nonrenewal process makes you frustrated at the system, perhaps, attempting to return that teacher to probationary status under Texas Education Code section 21.106 is the right solution for your situation.

Texas Education Code section 21.106 permits the following:

In lieu of discharging a teacher employed under a continuing contract, terminating a teacher employed under a term contract, or not renewing a teacher’s term contract, a school district may, with the written consent of the teacher, return the teacher to probationary contract status.

There are two methods for accomplishing the teacher’s return to probationary status.  The first method requires that, prior to the teacher’s agreement to return to a probationary contract, the school district must give written notice to the teacher that the school board has already taken action to propose the discharge, termination, or nonrenewal of the teacher’s contract.  Since the teacher has to experience the initial action of the board proposing the termination or nonrenewal of his or her term contract, this method is less often used than the second method to return a teacher to a probationary contract.

The second method requires only written notice to the teacher that the superintendent intends to recommend to the board the teacher’s discharge, termination, or nonrenewal prior to the teacher’s agreeing to return to probationary status.  This notice given to the teacher, according to subsection 21.106(d), must inform her as follows:

Notice . . . must inform the teacher of the school district’s offer to:

  1. Return the teacher to probationary contract status;
  2. The period during which the teacher may consider the offer; and
  3. 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.

Therefore, under this second method, a teacher may agree to be returned to a probationary contract three days after receiving written notice indicating: (1) that that it is the superintendent’s intention to recommend to the school board the discharge, termination, or nonrenewal of the teacher’s current term contract; and (2) containing the information above. 

Returning a mediocre teacher to probationary status may not be the appropriate remedy under all circumstances, but it does provide an alternative to going through the complex and expensive termination and nonrenewal hearing process if your circumstances permit it.

For more information about this alternative to terminating or Non-renewing a teacher may be received by contacting any of the attorneys in Underwood’s School Law Section.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.

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