Ron. L. A. wood3
State Superintendent
Department bf Education
Austin, Texas
                                     ,,.,
Dear Sir:             Opinion No, O-6945
                      Re: Disposition t6 be made of sample
                           textbooks which were submlttea by
                           various publishing comp&iies but
                           which were not adopted by the
                           State Board of Education
       Your request for opinion has been received land careful-
ly considered,by thLLsdepartment. We quote from your request
as follows:
       'Article 2846 of the Revised Civil Statutes
    provides, in substance, that at least thirty days
    prior to the date of the meeting of the State
    Board of Education every person, firm, or'corpor-
    ation desiring to submit bLds shall file with
    the State Superintendent of Public~~Instruction
    nine copi~esof each book on which a bid will be
    submltted.
       "Article 2856 of the Revised Civil Statutes
    provides, in part, that the State SuperMtendent
    shall carefully label and file away the samples
    adopted as furnished for exam1natlon to the Board
    as descrlbed in the statute mentioned above.
       "I would like for you to advlse me what dis-
    positLon should be made of the remaining samples
    of books that were submitted to me by the various
    publishing companies which books were not adopted,"
       Articles 2846, 2855, 2856 and 2876e,   Vernon's Annotated
Texas Civil Statutes, read as follows:
       Art 0 2846.
       II0 0 0 D .

       "Deposits of Samples,   At least thirty days
Hon. L. A. w00as - page 2         o-6945



    prior to the date of the meeting of the saM Com-
    mission, every person, firm or corporation desiring
    to submit bids shall file with the State Super-
    intendent of Public Instruction nine copies of each
    book on which a bid will be submitted, in each of
    which copies there shall be printed or stamped a
    statement of the price at which such book and special
    editions thereof are sold-in other places under
    State or county adoptions, and the minimum quantltles
    of which it will be sold at such prices, and there
    shall be also printed or stamped Ln such books a
    statement of the publisher's catalogue price of the
    same and special editions thereof, together wfth
    trade discounts and the condltlons under which,
    and the-purchasers to whom, such discounts are
    allowed, and the place of delivery. There shall
    also be printed or stamped in each book the price
    at which it is offered to-Texas, f.o.b, the Pub-
    llsher's Texas depository, with and without ex-
    change. There shall also be printed or stamped in
    each book; the mlnimum wholesale price at which
    such book, and special editions thereof, are sold
    f;o.b. the shipping point of the publisher ana the
    name of the shipping
                  .      point shall also be stated.
       "BFds and Cash~Deposits.   Bids/when filed ~by
    the publishers, shall state spec~flcally at what
    priceeach book will be ~furnlshea,and such bid shall
    be accompanied by specimen copies of each book
    offered, and it shall be required that each bi~dder
    deposit with the Treasurer of the State of.Texas'such
    sum of money as the Commission,may require, to begnot
    less than five hundred ($500:00) dollars, nor more
    than twenty-five hundred ($2,5OO.OO) dollars, accorcl-
    ing to the valne of the books each bidder may propose
    to supply; * 0 D Such deposits shall be returned to
    the unsuccessful bidders on certificate of the State
    Superintendent that no contract has been awarded
    on the bid for which the sum was deposited. Acts
    1927, 40th Leg,, pa 308, ch, 213 1 4.”
      Art, 2855 - Deposit to be returned
       "When any person has been awarded a contract
    and he has filed his bond and contract with the
    commlsslon and the same has been approved, the
    commission shall make an ora.+ on the Treasurer
    of the State reciting such fact, and thereupon the
    Treasurer shall return the deposit of such bidder
    to him; but if any successful bidder shall fail to
Hon. L. A. Woods - page 3         o-6945


    make and execute the contract and bond as hereln-
    before provided, the Treasurer shall place the
    deposit of such bidder In the State Treasury to
    the credit of the available'school fund, and the
    commission shall readvertlse for other bids to
    supply such books which said bidder mag~~havefalled
    to supply. All unsuccessful bLaaers shall have
    their deposit returned to them by the state trea-
    surer as soon as the commission has decided not
    to accept their bids."
      Art. 2856.   Commission to issue proclamation
      "As soon as the State shall have entered
   into the contract for the furnishing of books
   for the public schools of this State under the
   provision of this Act, it shall be the duty of the
   Commission to issue Its proclamation of such fec~ts
   to the people of the State; and the State Super-
   intendent of Public InstructLon shall carefully
   label and file away the copies of the books adopted
   as furnished for examination to the board; and such
   copies of such books shall be securely kept and
   the standard of quality and mechanical excellence
   of~~thebook or books so furnfshed under this Act
   shall be maintained in said books so furnished under
   contract authorized by this Act during the contln-
   uance of the contract,"
      Art. 2876e. Dlsposltlon of textbooks
      "The State Superintendent of Public Instruction,
   with the approval of the State Board of Education,
   may provide for the disposition of such textbooks as
   are no longer In a fit condition to be used for
   purposes of instruction, or for discarded books re-
   maining the property of the State. In case of the
   disuse of books in fair condition, inspectors of
   the State Department of Education may require the
   continuance of the use of said books,"
       In Opinion No. O-5443 of this Department the following
inquiry was propounded by the Department of Education, towit:
       "The State Board of Educatlon~at its July
    6th meeting directed that'your advice be sought
    in regard to the following.matter.
       "There are on hand ln the State depository
    at Austin many textbooks on various subjects
Hon. L. A. Woods - page 4         o-6945



    which have accumulated because of the expiration
    of the contract for the particular books and
    replacement by adoption of other books in the
    subject field. The Board desires to know what
    authorities are empowered to dispose of such of
    these books as are neither under current adoption
    nor USed as supplementary source material In the
    public free schools. Your attention 13'directed
    toTArticle 2876e of the Revised Statutes of
    1925 0 The Board has beenapproached wlth a pro-
    posal for sale of the usuable texts which have
    been discarded because of the expiration of the
    adoption period, and desires to be advised con-
    cerning its authorltg in the matter of the sale
    of these books, and of free textbooks which, be-
    cause of condition, are no longer usable in the
    public free schools."
       Our answer to the above quoted inquiry in'Opinion No.
O-5443, after quoting Article 2%76e, V.A.C.S. was as follows:
      "This statute appears to deal speciflcally
   with the very essence of your Inquiry, and supplies
   the answer thereto, While the books mentioned are
   not in an unfit 'condition to be used', they never-
   theless are 'discarded books remaining the property
   of the State.' Therefore they may be disposed of.
   by the State Superintendent of Public Instruction;
   with the approval of the State Board of Education.
       "The effect of this statute requires the joint
    action -- that is, by initiative and approval--
    of the State Superintendent and of the State Board
    to effect a sale."
       However, Opinion No. O-5443 is not applicable to your
question because the sample books you inquire about have never
been adopted as textbooks and therefore would not come under
the provisions of Article 2%76e,
       Analyzing the above quoted StatUteSit would seem that
the unsuccessful bidders ,wouldbe entitled to have their sample
copies of textbook8 returned to 'themif they desired them re-
turned. It also appears that if they did not want them returned
but chose to abandon them to the State OP make a gift of them
to the State they could do 80,
       However, It is OUT opinion that any such samples which
become State property by gift OP abandonment s,houldbe disposed
of in the manner provided by Article 666, Vernon's Annotated
Hon. L. A, Woods - Page 5          o-6945



Texas Civil Statutes, which article reads as follows:
        'All property belongrng to the state, regard-
   less of where it is located, under the control of
   any department, commlssion, board, or other state
   agency, with the exception of state eleemosynary
   Institutions, colleges, and institutions of higher
   learning, when it shall become unfit for use, or
   shall be no longer needed, shall be placed under
   the jurisdiction of the Board of Control, and the
   Board of Control shall sell such pro erty after
   advertising it not less than four (4P days in a
   newspaper in the county wherein the property is
   situated, ProvIdea, however, that if no newspaper
   is published In the county whereln the property is
   situated, notice of said sale setting out the time
   and place of sale and the property to be sold shell
   be posted in three (3) public places, one being in
   the court house In the county wherein the property
   13 situated, Provided, however, that if the value
   of such ersonal property is less than One Hundred
   ($100.00P Dollars and not sufficient to justify
   the cost of advertisement in newspapers as out-
   lined above, the Board of Control may sell such
   property in any manner that It deems for the best
   interest of the State. The money from the sale
   of such property, less the expense of advertising
   the sale, shall be deposited in the State'Treasury
   to the credit of thenGeneral Revenue Fund. And
   provided further, that any property placed in then
   hands of the Board of Control, as outlined herein,
   may be transferred by the Board of Control to any
   department, commission, board or state agency In
   need of same, and the debit and credit shall be
   made on the basis that such property can be pur-
   chased   in tbmarket at the time of the transfer,
   If a market exists, and if not, at its actual or
   intrinsic value as set by the Board of Control.
   The Board of Control shall make a written report
   to the Comptroller after each sale. The report
   shall include the following items:
       "1 * Name of the newpeper and the dates of
    advertisement of notice of sale; or If posted, the
    date and place of pO8ting.
       "2 . Each Article received.
       “3 *   The price for which each article was sold.
Hon. L. A. Woods - page 6        o-6945



       “4 0 The name and address of the person to whom
    each article was sold,.
        "This~report shall be signed by the Bbard of
    Control and a member of the department, commis-
    sion, board or state agency having control of
    the property before sale." As amended Acts 1943,
    48th Leg. p. 272, ch. 171, xl0
                              Very truly yours
                             ATTORNEY GENERAL OF TEXAS

                               By s/Wm. J. Fanning
                                    Wm. J.'Fannlng
                                    Assistant

WJF:BT:wc

APPROVED DEC 6, 1945
s/Carlo8 C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opfnion Committee By s/BWB Chairman
