.’

                                                                               R-980




                                             OFFICE           OF’

                          THE ATTORNEY                         GENERAL
                                           AUSTIN.       TEXAS
     PRICE  DANIEL                      December   23, 1947
     ATTORNEYGENERAL


            Honorable L. A. Woods                  Opinion No. V-465
            State Superintendent    of
                Public  Instruction                Re:   Authority of State Board of
            Department   of Education                    Education to adopt “consum-
            Austin, ~Texas                               able” textbooks.

            Dear   Sir:

                         Your letter of recent date inquiring as to the legality
            of awards of contracts  by the State Board of Education for -consum-
            able” textbooks~ reads, in part, as follows:

                           “In recent years several contracts have been
                   awarded for textbooks which are in the general classi-
                   fication of workbooks and which are used up each year
                   or each half year.     For the most part such books are
                   used by the pupils in the pre-primer     and primer lev-
                   els of the first grade although there is a growing ten-
                   dency to extend upward such adoptions.      There are now
                   in existence   contracts   on worktype books in the pre-
                   primer,    primer,  first, and second grade levels.

                          “Contracts   on worktype books are very expen-
                   sive since a complete supply must be purchased an-
                   nually; and because of the very nature’of such books,
                   they are more expensive to produce than traditional
                   types of textbooks.

                          *
                              . . . .

                          “At the recent textbook adoption, a contract was
                   awarded for consumable     textbooks in Handwriting for
                   grades one and two. The contract period on this par-
                   ticular award was fixed at six years.      This means that
                   for the two grades involved the State must purchase a
                   complete set of new Handwriting books for each of the
                   six years, or approximately     two million copies at
                   $0.195 per copy.    For all other grades the traditional
                   type copybooks for Handwritfng were adopted, and al-
                   though they are paper-bound,     records of the past years
                   indicate that they will last three or more years.     The
                   contract period on these books was for six years also,
                   and the State will probably have to buy for grades three,
Honorable    L. A.   Woods,     Page 2 (V-465)




      four, five, six, seven, and eight approximately   two
      million copies only at $0.11 each.    The purchase of
      consumable    type books on this basis in Handwriting
      for grades one and two will cost more than five times
      as much as traditional type books would cost.

             ‘Please  give me the benefit          of your opinion   con-
      cerning the following question :

               “Is it legal for the State Board of Education
            to award contracts    on consumable  textbooks,
            in Handwriting for grades one and two? *

              Article   2842,    V.C.S.,   provides:

             “It shall be the duty of the State Board of Edu-
     cation . . . to meet . . . for the purpose of considering
     the advisability     of continuing or discontinuing,     at the
     expiration     of each current contract,      any and all of the
     State adopted textbooks if used in the public schools
     of Texas, and of making such adoptions as are pro-
     vided for in Articles      2843, 2844, and 2844a, Revised
     Civil Statutes, 1925, as amended.          Before making any
     change in the adopted series,       however, the State Board
     of Education shall, upon thorough investigation,          satisfy
     itself that a change is necessary        for the best i&Z
     of the school children and that such change is consistent
     with financial economy.        Provided,    that unless new texts
     better suited to the requirements         of the school’and   at a
     price and quality satisfactory       to the Board are offered
     to supplant existing texts, then the Board shall renew the
     existing contracts      for such a period as may be deemed
     advisable not to exceed a period of six (6) years. . .
     Provided further that before the Board shall determine
     to displace any book upon which the contract is expiring,
     it shall, before making a new contract for a new text,
     ascertain    through the office of the State Superintendent
     of Public Instruction the number of usable books of the
     kind on which the contract has, or is about to expire,
     there are on hand, and also the estimated number of
     such books that would be required to supply the needs
     of the Schools of the State using said books for the first,
     second, and third years immediately           succeeding   the ex-
     piration of the contract on said books . . . If, upon con-
     sideration of the cost of the books required to supply
     such needs for such a period, hit appears to the Board
     that it will be economical      to do so, it may make a con-
     tract with such publisher to furnish such books during
     said first, second year or third year period with a view
Honorable    L. Ai Woods,       Page   3 (V-465)




       to using, up the entire supply of such books on hand
       instead of wasting the same at the expiration of the
       original   contract.   At the expiration of such period,
       the Board....hall then make a contract for a textbook
     ‘!~on the subject . . . The series of copy books and
       series of drawing books shall each be considered      as
       one book. . .”

             Article 2843,       V.C.S.,  as amended by Senate Bill No. 215,
50th Legislature,.&gular          Session, Acts 1947, reads, in part, as fol-
lows:

              ‘The Textbook Co-ission      (State Board of
      Education) authorized’by   this Act shall have author-
      ityto select and adopt a uniform system on textbooks
      to be used in the public free schools of Texas, and the
      book6 60 selected and adopted shall be printed in the
      English language, and shall include and be limited to
      textbooks on the following 6ubjeCt6:     Spelling, reading,
          . a system of writing books, a system of drawing
      books, . . .”

              Article   2848,   V.C.S.,   provides:
               Y. . . The textbooks shall ,be selected and adopt-
      ed after a careiul       examination      and consideration      of
       all books presented,         and the books selected and adopt-
      ed shall    b6 those    Wfiidi,   in the  opinion of the c.o~is-
       sion, are most      acceptable      in the schools-quality,        me-
       chanical~constructfon,         paper, print, price, authorship,
       literary merits and other relevant matters being given
       such weight in making its decision as the Commission
      may deem advisable . . . no textbook shall be adopted
       until it ha6 been read carefully          and examined      by at
      least a majority       of the Commissron.”        (Kmpha616 in
       above quotatrons ours).

             Ar&e      2048, V.&i.,    vests the State Board of Education
with final discretionary    &uthor,ity to select and adopt those textbook6
authorized by statute which, in the opinion of the Board, are most ac-
ceptable in the schools,    the cost or price thereof being given such
weight in making its decision as the Board may deem advisable.

              Likewise,  as to previously   adopted textbooks on any subject,
the Board is further authorized under Article 2842, V.C,S.,       to make a
change provided it satisfies   itself “that a change is necessary    for the
best intere6t of the school children and that such change is consistent
with financial economy.”     Indeed, “unless new text6 better suited to
the requirement6    of the school and at a price and quality satisfactory
Honorable      L. A. Woods,   Page 4 (V-465)




to the Board are offered to supplant existing      texts,” the statute    pro-
vides that the Board shall renew the existing       contracts.

              Presumably,   the Board in adopting a new textbook in
Handwriting,   referred to in your letter a6 being in the ‘consumable*
form rather than in the traditional copy book form, has determined
that this Handwriting book adopted is the most acceptable      in the schools
and that it is best suited for the requirements   of the school or classes
involved, the matter of price and replacement    having been fully con-
sidered.

              We find no statutory requirement   that limits the Board in
its adoption or readoption of textbooks in respect to the selection of
text6 of the traditional type. It is true, the Legislature   has wisely
stressed   financial economy in the matter of adoption of textbooks and
has provided a procedure     to avoid waste, requiring the using up of
those textbook6 to be supplanted with new adoptions.       The primary
duty of the Board of Education in this matter is to select and adopt
such texts a6 should be for the best interest of the school children
of Texas.

               Accordingly,   we an6wer   your submitted     question   in the
affirmative.

                                    SUMMARY

               Acting under and by virtue of the provisions   of
       Article   2842, 2843 and 2848, V.C..S., the State Board
       of Education may legally award contracts on consumable
       textbooks in Handwriting for grade6 one and two.

                                           Yours   very   truly

                                 ATTORNEYGENERALOFTEXAS




                                          Chester E. Ollison
                                              Assistant
CEO/mw/JCP


                                  APPROVED     :
