New Information about Contract Resignations and Contract Abandonment

By Kevin Lungwitz

The post-COVID “Great Resignation” is hitting Texas public education. Governor Abbott appointed a Teacher Vacancy Task Force which issued a report in February 2023, saying there is a “steep increase in teacher attrition rates … Research and data connect attrition rates to challenges related to compensation, working conditions, and training.”¹ While the Task Force seeks to solve this problem, this article gently reveals how you (and other educators) can lawfully get out of the employment contract.

Can I Get Out of My Contract After I Sign It?
No matter if you have a term, continuing or probationary contract, you can get out of your contract for the upcoming schoolyear if you resign in writing at least 45 days before the first day of instruction.² The 45th day before the first day of instruction is also known as the “penalty-free resignation date,” because neither the school district nor the TEA can penalize you for invoking this right. More on this later. The resignation must be sent to the board president or the president’s designee at the post office address of the school district, by certified or registered mail, and be post-marked by that day. If hand-delivered, have someone in the superintendent’s office sign for receipt.

A bonus for multi-year contract holders: You may resign without penalty and without permission before either of the two contractual school years begins, as long as you do so by the penalty-free resignation date. The contract is binding on the district for the full two years, but it is only binding on you for one year at a time.

Is It 45 Days Before Instruction or Duty?
Is It Workdays or Calendar Days?
The penalty-free resignation date is 45 calendar days before student instruction. Look at the school calendar and, to be extra safe, count backwards 46 calendar days from the first day of student instruction. Mark this day on your calendar.

My District Wants Me to Sign My Contract in the Spring for Next School Year, But I May Be Looking Elsewhere
Always sign the contract in the spring and always sign it by the district’s deadline. It is immediately binding on the district for the following school year, but now you have until the penalty-free resignation day to look for greener pastures. It’s easier to find a job when you have a job. This could give you (and your teachers) up to about 100 days to land a better job while you have a job.

What If I Resign After the Penalty-Free Resignation Date?
If you are working for Cactus Thorn ISD and you get a job offer in Rose Bud ISD five days before the first day of instruction, you must obtain the permission of Cactus Thorn ISD to resign, or you could be vulnerable to an SBEC sanction. A word of caution: Don’t resign from your old contract until you have a new contract in your hand. Verbal promises from superintendents, HR directors and principals are not binding.

Contract Abandonment: New Laws, New Rules
An employee who resigns after the penalty-free resignation date may have “abandoned the contract.” The district can report this to the TEA, which might punish the educator.3 Historically, SBEC assessed a minimum one-year suspension for contract abandonment. However, if the educator can show “good cause” for resigning, the educator may avoid a sanction.

In 2021, the laws changed to say if the educator resigns in writing between 30-44 days before the first day of instruction, SBEC may not revoke or suspend the certificate. Further, SBEC must consider mitigating circumstances before assessing punishment.⁴ This is big news. If the 45th day before the first day of instruction is the penalty-free resignation date, then the 30th day before the first day of instruction is the “no suspension, no revocation” date. Here is what this looks like:

45 days before the 1st day of instruction: Penalty-free resignation territory.

44-30 days before the 1st day of instruction: Educator needs good cause to avoid sanction, otherwise SBEC may sanction, but SBEC may not suspend or revoke the certificate. A standard sanction in this instance is an inscribed reprimand, barring “mitigating factors.”

Less than 30 days before 1st day of instruction: Educator needs good cause to avoid sanction, otherwise SBEC may sanction. A standard sanction is a 1-year suspension, barring “mitigating factors.”

What is Good Cause?
If the educator can prove good cause for resigning after the penalty-free resignation date, the educator may escape punishment. According to TEA regulations, good cause can be:

1. Serious illness or health condition of the educator or close family member of the educator;
2. Relocation to a new city as a result of change in employer of the educator’s spouse or partner who resides with the educator;
3. Significant change in the educator’s family needs that requires the educator to relocate or to devote more time than allowed by current employment; or
4. The educator’s reasonable belief that the educator had written permission from the school district administration to resign.⁵

What are Mitigating Factors?
If the educator cannot prove good cause and is subject to punishment, SBEC must consider whether mitigating factors exist before assessing punishment. SBEC will consider whether the educator…

1. Gave written notice to the school district 30 days or more [before] the 1st day of instruction for which the educator will not be present;
2. Assisted the school district in finding a replacement educator …;
3. Continued to work until the school district hired a replacement educator;
4. Assisted in training the replacement educator;
5. Showed good faith in communications and negotiations with the school district;
6. Provided lesson plans for classes following the educator’s resignation;
7. Changed careers within the field of education:
   1. to a position that required a different class of educator certification…(i.e., teacher to assistant principal);
   2. to a position with a higher level of authority within the principal class of certificate (i.e., assistant principal to principal); or
   3. to a position in an open-enrollment charter school or a district of innovation that is equivalent to the positions described in clauses i) and ii) of this subparagraph;
8. Had a reduction in base pay, excluding stipends, as compared to the educator’s base pay for the prior year at the same school district;
9. Resigned due to working conditions that reasonably posed an immediate threat of significant physical harm to the educator; or
10. Any other relevant circumstances or facts.

If you need to resign after the penalty-free resignation date, consult TEPSA or an attorney. There are other rules not discussed here. It would be best to have someone help you dot all your i’s, cross all your t’s, and understand your rights and responsibilities.

Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.

Endnotes
¹Teacher Vacancy Task Force Final Report, “Developing a Thriving Teacher Workforce in Texas” February 2023, https://tea.texas.gov/sites/default/files/tvtf-final-report.pdf
²Tex. Educ. Code §§21.105(a); 21.160(a); 21.210(a).
³Tex. Educ. Code §§21.105(c); 21.160(c); 21.210(c).
⁴Tex. Educ. Code §§21.105(f); 21.160(f); 21.210(f).
⁵Title 19 Tex. Admin. Code Sec. 249.17 (d)(1).

TEPSA News, May/June 2023, Vol 80, No 3

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Note: Information from Legal Ease is believed to be correct upon publication but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.