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Smith v. Nelson

A loss of future earning capacity is not the kind of monetary harm contemplated by Texas Education Code '7.057(a)(2)(B).

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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. � 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.

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