         OFFICE   OF THE ATTORNEY    GENERAL   OF TEXAS
                            AUSTIN




state Board of Education
Austin, Texas
Dear Sirs:                     Opinion No. O-
                               Re:

          We have received your letter
which you ask the opinion of this aeper
ing question:
        _ May the Board of Educati$-&@rove     the
     asslgument of a textbook c
     the bond of the original
     er in force and effect a
          We are info                      ts were entered
into between the *A”                       d the Board of
                                             1937, November

to rBn Publishing
                                      tail the methods for the
                                           See Articles 2839-
                                      Textbook Commission was
                                    e, its statutory duties
                                    ara of Education.




                       t from the statutes governing the
                      is any provision relative to the as-
                        The Legislature meticulously outlin-
ed the steps to be taken by the Text Commission (now, the
                       I
                                ,/-‘
.e
                           ‘.   ‘..
3.                                                        I




     Stdte Board of Education, pege 2                                       .


     Board of Education) inthe purchase of textbooks and the award
     of contrects. The omission of any provision regarding .theas-
     signment of contracts would clearly indicate that the Textbook
     Conunissionhad no authority or.power either,to permit or-ap-,l-
     prove such assignments.
                   In Texas Jurjsprudence,Volume 34..psges~440-441~,it
     iS   said:.
                WPublic officers and governmental and ad-
          *,~ministrative
                        boards possess only such powers as
          'are expressly conferred upon them by law or are <-:
           necessary implied from the powers so conferred.
          :.They.cannotlegally perform acts not,authox&zed,.
           by existing law. . . ."
                                      I   i.~.,.   ..~,
               .But even aside from the principle announced above, .we _.
     are convinced from a reading of statutes thst it.was clearly
     the Legislative intent i&t the Board of Education should have
     no such.authority.                                        .~.
              .                                                 .:
                Article 2846 provides that when %here'is'to.be-a
     meeting'for the selection of textbooks public notice shall be
     given of the meeting and ~thatwritten notice shall be given.to
     all persons or firms who request the same. Provision is made
     for the deposit of samples by those who wish to bid on the books;
     each such sample shall have the price printed .orstamped there-
     in. Provision is also made for bids~and cash deposits.
      _. :i
                Article 2847 provides for.'thefiling of'bids anh‘aiso
     for.the filing of an affidavit to be executed by~the inaividual
     bidder or a member of the firm or the president and secretary
     of the corporationbidding. The affidavit shall contain various
     statements,among which are that no member of the Commission is
     in any way interested in such individual, firm or corporation
     bidding; the names of any and all persons who may have at any
     time during the preceding year received, either directly or in-
     directly, any money or other thing of value from said company
     for services rendered the State; the names of all the people
     employed to act for such bidder, directly or indirectly, in any
     way whatsoever in securing the contract or in the preparation
     of its bids, .etc, The statements made in the affidavit are aec-
     lared to be warranties, and "if found to be untrue, shall sub-
     iect the contract~to forfeiture and authorize a recovery on the
                     :'
       .
                       .:
                            . .                     1

                        .    .




    State Board of Education, page 3                                      .
                                                                      ,

    bbnd to the full amount thereof, as liquidated damages, unless
    it be shown that such mis-statement or non-disclosure of fact
    was unintentional or an oversight on the part of said publish-
.   er."
              Provision is made that the maximum price for the
    bBoks under the contract shall not exceed the minimum price
    at which the publisher sells the books in wholesale quanti-
    ties, and that a contract providing for a higher price shall
    be void. (Article 2852) Provision is made that no books shall
    be purchased from anyone connectedwith a trust and that the
    bidder shall file an affidavit stating that he is not connect-
    ed directly or indirectlywith a trust. (Article 2853)

              These and other statutory provisions are clearly
    indicative of the Legislative intent that the Board of Educa-
    tion should have no authority to permit or approve assign-
    ments of textbook contracts. These safeguardswere put in
    the statutes for the benefit of the State of Texas and its
    citizens, to secure for school children the best books at a
    fair price, to assure the people that they would set full value
    for their tax money, and to eliminate the possibility of fraud
    and .&eception. These same safeguards could be entirely avert-
    ed if the assignment of textbooks contracts could be made;
    Surely this was not intended by the Legislature,
              In view of the foregoing, it is the considered.opin-
    ion of this department that assignments of textbook contracts,
    awarded under the provisions of Chapter 16 of the Revised
    Civil Statutes of Texas, may not be approved by the Board of.
    Education.
              We do not mean to hold in this opinion that the pub-
    lisher to whom the contract was awarded may not make a bona
    fide agreement with another publisher to the effect that the
    second publisher will furnish the books called for the State
    contract, and also comply with the other provisions of the
    contract.. This is purely private matter with which the
                                      3

    Board of Education has nothing to do. Eowever, the original
    contracting publisher would be liable on his bond for the per-
    formance of the contract. The indemnificationof the pub-
    lisher if the second publisher fails to live up to the terms
    of their agreement is matter for the two publishers to work
                                  3

    out between themselves.
            r-              ,.        .
    .*,~I                        ..
                                          ..... -:I~


       Board of Eduoaticin,page 4


                We will answer your question specificallyad follows:
      'rhe'
          Board of Education has no authority to approve an assign-
      ment of a textbook contract. However, the matter of the orig-
      itialcontracting publisher making a contract with a second pub-
.     lisher as mentioned above is a private'matterover which the
      Board of Education has no jurisdictionor authority. In any
      ~eventthe original contracting party would be liable on his
      bona.
                We trust that this opinion satisfactorilyanswers
       the question in which you are interested.
                                                       Yours   very truly
       APPROVXD SEFT. 20, 1941              ATTORNEY GXNERAL OF TEXAS
       /s/ Grover Sellers
                                            BY
       PIRsT ASSISTANT                                  . /s/ Glenn R. Lewis
       ATTORNEY GZiERAL                                            Assistant


                                                               George W. Sparks
       GWS:db
       APPROVZD OPINION COMKVITEE BY BWB CMIRMAN




                                                                 .

                                                                              .
