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Smith v. Nelson8/9/2001
ON MOTION FOR REHEARING
Publish
Pete Smith signed a contract with Zapata County Independent School District to serve as a high school football coach and athletic coordinator. Mid-year he was reassigned, without a change in pay, to serve as a physical education teacher in an elementary school. When the school district denied his grievance seeking reinstatement, Smith sought to appeal to the State Commissioner of Education. The Commissioner may hear a grievance regarding a written employment contract between a school district and its employee if a violation of the contract "causes or would cause monetary harm to the employee." See Tex. Educ. Code Ann. ยง 7.057(a)(2)(B) (West 1996). The Commissioner dismissed Smith's appeal, finding that the alleged violation of his contract did not cause him monetary harm. The district court affirmed that decision. We first affirmed that ruling on the ground that Smith failed to allege facts affirmatively demonstrating monetary harm. (Opinion dated January 11, 2001.) On motion for rehearing, we recognized that the issue of monetary harm had been presented to the Commissioner and held that he erred in dismissing Smith's appeal for lack of jurisdiction. (Opinion dated March 15, 2001.) However, we granted the motion for rehearing without receiving or seeking a response from appellees, as required by Rule 49.2 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 49.2. That provoked a second motion for rehearing from appellees who asked us to reconsider the jurisdictional question, which we have done. Now, a majority of the court holds that the issue of monetary harm was properly before the Commissioner and that the Commissioner correctly determined that the contract violation of which Smith complains did not cause him monetary harm as contemplated by section 7.057(a)(2)(B) of the Education Code. We withdraw our earlier opinion and judgment dated March 15, 2001, and substitute this opinion in its stead. We affirm the district court's judgment affirming the Commissioner's order dismissing Smith's appeal for want of jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
Smith signed a three-year contract with the school district to be high school athletic coordinator and head football coach from July 1997 through June 2000. The contract provided that Smith would be "subject to assignment and reassignment of positions or duties, additional duties, changes in responsibilities or work, transfers, or reclassification at any time during the contract term." It further provided that " o right of tenure nor any other contractual obligation, other expectancy of continued employment, or claim of entitlement is created beyond the contract term."
In October 1997, Smith was relieved of his coaching duties and reassigned as a physical education teacher at Zapata South Elementary School. The district did not change Smith's pay as a result of the reassignment. Smith filed an administrative grievance, alleging that " othing in the contract or elsewhere authorizes purported reassignment to classroom teacher," and that he had not received notice of any deficiencies in his performance, had not been given an opportunity to respond to any allegations that led to his reassignment, and was "given no due process prior to" his reassignment. Smith contended he had been unlawfully reassigned and sought reinstatement as head football coach. Following a grievance conference, the district superintendent denied Smith's grievance, finding that the contract allowed for Smith's reassignment and that reinstatement was "not a viable option."
After the district's board of trustees denied his grievance in January 1998, Smith filed a petition for re
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