 PlRiOE   DANIEL
A-YN-       OENRIRAx.




                                              .renwry 24, 1948

          Hon. Qeo. H. Shepperd
          Comptroller of Public Accounts
          Austin,          Texas                   opinion    No. v-482
                                                   Rer     The necessity     for
                                                           stete owned educe-
                                                           tiona 1 ina titutionr
                                                           to wke wrtaia .pur-
                                                           chaw    thrciugh the
                                                           Bosrd of Control
          Deer Nr. Sheppepd~:
                     York, opin$on request          dot&     J?oiremb& 20, i.94'7,
          is aa Pollowsr
                              "I hive been pSesented Vitlj seyeral~ rc-~
                        counts for .the,~pUFCheee of lumber, sheet-rook,
                        g1ms axid $$C.
                                “me purihaees ‘bare osde for tbe purport’
                        .of making needed repeLra at l State ownad edu~
                        oationel    Institution., Such repairs were made
                        by .peraona employed by the sohools,   come Fe-
                         oeiring a m?nthly w8ge, others so much per
                        hour or day. These supplies vere purahaeed dl-
                         mot by the schools and not by the State Board
                         OS ,Control.
                              *?leaae advise ii I bati ~legrlly pear t&
                        payment the rttrched   aocounts in the’ form %a
                        vhloh they are preuented to me, or should I for-
                        ward them to the Stete Board of Control for their
                        rpproval.
                               ‘It would be greatly rppreclated   if in en-
                        mrerlng this request you would dmw the line of
                        demarcation aa to the authority     of the Board of
                        Directore   of the 8ohoola and the State Borrd of
                        Control,   in the expendltwe  ot etate funds for
                        building   materiela rud equipment.
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    Hon. Oeoi Ii. Shepperd   - Page 2      (V-482)


              “In connection with this request please
         refer to your Opinion No. O-3768 and Article
         634 of the Revised Civil Statutes*”
               The authority   end method of the Boerd of Control
    to make purchases for ‘State institutions   is set out in Ar-
    ticles  631 to 664, V.C.S.    Particularly pertinent  to your
    inquiry me   Articles   634, 634a and 660, which respectively
    provide t
                ‘Art. 6342 ‘The B,oerd of Control shall
         purcti,ee all the supplies used by each De-
         parhtent of the Jtate Qovernment, including
         the St&e Prison System, end eech eleemoeg-
         nery Utstitution,‘~Ro,rmal     school, AgHculturel
         6133Mechanioel College,      University    of Texas,
         and. e$& und eW!.other Stete Schools or De-
         p.srtmWts of the Stete ffovernment heretofore
         or hereafter    created.   Such suppILes      to in-
         elude furni.ture and flxturee,       technical   in-
         struments and books. and all other thlnns
         r&u&red by the different        departments’ 05 in-
         et1tutions,    except etrtctlg    perishable    goods *”
         @w-Q’        ad+4            ~\
               “ThenB’osrd of Control shall In Ella pub-
         lic contra~ote to be let or awarded by it in-
         vite bide end furnish proposals t-o those de-
         alrow   of’ bidd:lng ‘on’such forms es it may
         deem-proper,.    .Ssrld Boerd msy’place any person,
         firm or eorporetlon      ‘so’ desiring oh:8 State
         melling 1istUhloh       seid list aMel entitle
         said holder' to e copy of the propose1 on any
         contreat that ‘$a, to’be lets. ; . en, “,        ‘,
                *Art. 660. In csse of emergency,         and
         whelk ertioles     ere necessary end needed by any
         i.nstitution’~~end    if ‘ia impraatlceble    to In-
         clude them inthe        annual contract,    the super-
         inten&nt shell ‘melhe a requiaitio’n        for same
         to:.tke Board of Control;      and the Board msy
         forthwith purchaee such article          in the open
         market.”
              One of the dccounts which acaompanled your re-
    quest was submitted by the. University    of Texas and cov-
    ered the lnstalletlon    of’8 plate glass top for the serving
    counter in their ,cafeterla . Undbubtedly, this item should
    have been purchased through the Board of Control In eccord-
    ante with the provisions     of the above quoted statutes,
Hon. Geo. H. Sheppard - Page 3      IV-482)


           However, since the supplies “were purchased direct
by the schools end not by the State Board of Control,”      the
question IS whether they may now be approved and paid.         In
this connection   we wish t3 call your attention   to Attorney
Generel 1s Opinion No. O-2612.    The question raised was wheth-
er the Board of Control could ratify a contract     for the pur-
chase of supplies made by the State Board of Vocational      Bdu-
cation.   The conclusion,  8s expressed in a quotation from the
opinion wa8 2
            “If the items of purchase in the present      .
     case were suoh sS that the purchase should
     have been made upon competitive     bids, then the
     Board of Control would have no authority      to
     approve the audit for payment.      If, on the oth-
     er hand, the items were of such nsture aa that
     the Board could have purchased them without com-
     petitive   bide, then the Board in its discretion
     would ,have the euthority    to approve the o&aim
     the effect    of which approval would in our opin-
     ion be a substantial    compllence with the stat-~
     utes of purcI&aBe and would entitle     the o~leimto
     be passed for 8 warrant of payment.”
            Foll’&ing~ ,t4e principles   expressed in that oplnloo,
we hold that if’ the purchase made ,bg the Unlveralty was suah
aa should have been submitted to the Board of Control for
competitive   bids, then the contract made for tihe glass ~a-:
unauthorieed, and oannot be approved.       But if the facts were
such that then purchase might have been considered       an ‘,etaer-
genoy” purcQaee under Article       660, then no compktltive   bids
were required;     end the Board of Control may now adopt then
Unlversl.ty~s oontract as its own.
           Ae to how this particular     purchase should be clss-
slfied we expr:e~aa:no. opinion since that depends upon the
actual fecta aurroundlng the transaction,        to be determi.ned by
the Board of Cotitrol.      It might be entirely   poaelb1.e to aon-
slder a ~,rep.siti to a aervlng counter, which Is needed every
day, as an “emergency” pur&aae.
              Turning now to the eccounte submltted by Sam Houa-
ton State     Teachers College, we wish to call your attention to
Artiole     2647, Section 1, which reeds 1~ part:
           “1.    The Board   of ‘Regents of the State
     Teachers’ College is      charged with the re-
     aponalbility    of the   general control and man-
     agement of all State      Teachers I Colleges for
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    Roll. Geo. H. Sheppard   - Page 4   (v-482)



         white persons and may erect,        equip and repair
         bulldings;  e L os’
              In former Attorney General Is Opinion No. O-3768,
    to which you refer,    this Department held that the State
    Board of Control was not required to approve the plans and
    designs or let contracts    for the construction  of the bulld-
    lngs or other major improvements at the State’s     higher edu-
    cational institutions.     We adhere to that holding.
                Since the purchases at Sam Houston State Teachers
    College were for the purpose of constructing   additional
    classroom apace, we belleve that they fall within the cate-
    gory of a “major permanent Improvement” and as such need not
    be, approved by the Board of Control.


                 1. Purc*aes  of supplies,, furniture,   and
         fixtures   for the University  of Texas should be
         made through the :Board -of Control.    .However,
         the Boati, meg ratify a contract    made by the Uni-
         vezraitg for the purchase of glass,    if the Board
         finds that It was an emergency purchase.      Art.
         634,.:634a  .a& 660, V.C.S.   Opinion O-2612.
                2. The Ba,rd of Control need not approve
         the purchase of building materials used for a
         major permanent Improvement at Sam Houston
         State Teachers College.   Art. 26,47 V.C.S., Opln-
         i.011 No., G-2647.

                                              Yours very truly
                                        ATTORNEXGENRRAL
                                                     OFTRXAS

                                        BY

                                                            Assistant


                                        APPROVEDa


                                    -EXECUTIVE ASSISTANT
