Hon. Preston Smith                     Opinion No. M- 910
Governor of Texas
State Capitol Building                 Re:   Authority of the Governor
Austin, Texas 78711                          of Texas to enter Into
                                             certain open-end contracts
                                             of a stated term for com-
                                             puter services on behalf
Dear Governor Smith:                         of various State agencies.
          Your recent letter requesting the opinion of this office
concerning the referenced matter states, In part, as follows:
          “This requests your opinion as to the legality
     of my entering Into open-end services contracts of
     a stated term, on the part of the State of Texas,
     as the need for this type of contract may arise
     . . .
          “Two specific c’asesare now pending, and the
     proposed contracts are enclosed for your examlna-
     tlon. These cases Involve the purchase of computer
     operational program packages (‘software’ packages)
     by various State agencies. . . .
          “An individual agency now has the authority
     to negotiate Its own contract for such services;
     however, as Illustrated In the third enclosure to
     this letter, the pricing advantages of negotiating
     a single State contract for quantity ordering by
     all interested agencies are Immediately apparent
     . . .
           Section 10 of Article IV of the Constitution of Texas
 provides as follows:
          ‘He (the Governor) shall cause the laws to
     be faithfully executed and shall conduct, In person,
     or in such manner as shall be prescribed by law, all
     Intercourse and business .of the State with other
     States and with the United States.”


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Honorable Preston Smith, page 2        (M-9 10)



          The Interpretive commentary In Vernon's Civil Statutes,
In commenting on the foregoing constitutional provision, states,
In part, that:
          'The obligation placed by this section upon
     the governor to cause the laws to be faithfully
     executed Is, obviously, executive In nature. But
     this obligation, and the fact that the governor Is
     made the chief executive officer of the state, do
     not confer upon him any specific power. In construing
     state constitutions, the state courts have not derived,
     as has the Supreme Court of the United States with re-
     spect to the Federal Executive, any very large powers
     from such a general power or duty as to the duty to
     see that the laws be faithfully executed. The rule
     of delegated powers has been construed strictly as
     to the governor, so that he has no particular power
     unless granted to him, expressly or lmplledly.'
     (Emphasis added.)
          A recent Texas case has held that the governor has no
prerogative powers, and that he possesses only such powers and
duties as are vested In him by constitutional or statutory grant.
In Calvert v. Ad,ms, 388 S.W.2d 742 Tex.Clv.App.), rev'd on other
grounds, 39b S.W.26 948 (Tex.Sup. 19i5), the court sald:
          "In 81 c.J.S. States Sec. 60, p. 982, It Is
     stated that 'The Governor has no prerogative powers,
     but possesses only such powers and duties as are
     vested In him by constitutional or statutory grant.'
          "In Constantln v..Smith, 57 F.2d 227, D.C.,
     E.D. Tex., appeal dlsmlssed Sterling v. Constantln,
     287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375, the Court
     quoted with approval the following statement from
     Herllgy v. Donohue, 52 Mont. 601, 161 P. 164, L.R.A.
     1917B, 702 Ann.Cas. 1917C, 29: '(t)he Governor Is
     at all times amenable to the Constltutlon and laws
     of the state. They are the charters of his powers,
     and In them he must find the authority for his of-
     ficial acts."' 388 S.W.2d at p. 747.
           Neither our Constitution nor statutes provide, either
 expressly or by necessary Implication, for you to enter into con-
 tracts, such as those submitted with your letter, on behalf of
 various State agencies.

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Honorable Preston Smith, page 3            (M-910)



          Your question, accordingly, Is answered In the negative.
                      SUMMARY
          There exists no authorization, either in the
     Constitution or the statutes of the State of Texas,
     for the Governor to enter Into, on behalf of various
     State agencies, certain open-end contracts of a stated
     term for the furnishing of services of computer
     operational program packages.




Prepared by Austin C. Bray, Jr.
Assistant Attorney General

APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Rex White
Jim Swearlngen
Bob Lattlmore
Sally Phillips
MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant




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