Hon. C. C. Chessher.   Chairman
State Board of Education
Austin, Texas                        Opinion No. V-088

                                     Re:   Authority of present State
                                           Board of Bducation to make
                                           textbook adoption under sub-
Dear   Sir:                                mitted facts.

              We refer to your recent inquiry concerning the author-
ity and duty of the present existing State Board of Education (in view
of the provisions   of Senate Bills Nos. 115 and 116, enacted by the 51st
Legislature)   to proceed with and make textbook adoptions on Novem-
ber 14. 1949, under the existing textbook laws.    We quote your two
submitted questions:

               “1. Is the State Board of Education authoriz-
       ed to continue with plans for making a textbook adop-
       tion the second Monday in November,         1949, which in-
       cludes the appointment of a State Textbook Commit-
       tee. authorization   of their expenses,   issuing instruc-
       tions to them, setting a date for their meeting, issu-
       ing a proclamation     calling for bids on textbooks,   and
       d0iq.al.l   the other customary    things necessary   to
       comply with the existing statutes in making a text-
       book, adoption.

              “2. Is is the mandatory duty of the State Board
       of Education to issue a proclamation,  give notice of
       the same as provided by existing laws, and make ‘an
       adoption of free textbooks on November 14. 19497”

              Section 1 of Article II of Senate Bill 115, Acts of the
51st Legislature,    as amended by H.B. 964. Acts of the 51st Legisla-
ture, provides for the creation of an elective State Board of Educa-
tion to consist of twenty-one     members.   Sections ,2 and 3 thereof
authorize and prescribe     the procedure to be folIowed in a special
election to be held on the second Tuesday in November,        1949, at
                                                                                .




Hon. C. C. Chessher.         page 2       (V-888)




which shall be elected the initial membership   of this first elec-
tive State Board, .which membership   shall hold office until Janu-
ary 1, 1951. Section 4 thereof reads in part:

               “The term of office of the initial members
        of the State Board of Education elected in the
        aforesaid election . . . shall begin upon certifi-
        cation by the Secretary    of State of the results of
        said election.   Each member      . . shall subscribe
        to the official oath of office, and give bond in the
        amount of . . . ($10,000)   payable to the Governor
        of the State of Texas, conditioned upon the faith-
        ful performance    of his duties. said bond to be
        filed with the State Comptroller.”

                 Section   3 of Article     VII of S. B. 115 reads   in part:

               ‘The State      Board of Education. as hereto-
        fore established      by law, is hereby terminated
        and abolished as       of the date of the aualification
        of the members        of the State Board of Education
        herein    provided    . . . ” (Emphasis     added)

              Under Section 4 of Article II quoted, the term of office
of the initial members    of the elective State Board will begin on
certification  of election results by the Secretary     of State of the
election required to be held on November        8. 1949. Section 3 of H.B.
964 provides that the returns shall be canvassed by the Secretary
of State as provided in Article’3034.l      The Secretary    of State, un-
der Article 3034, V.C.S..    may canvass the returns of said election
and certify the results thereof yen the fifteenth day after the elec-
tion, the day of election excluded.”     Article 3035 requires that:

               “When the returns have been counted, the
        Governor shall immediately      make out, sign and
        deliver a certificate of election . . . to the per-



l/   This provision of H.B. 964 amends the provisions        of S.B. 115.
     Section 3 of Article II of S.B. 115 provided that the returns
      should be made to the Secretary     of State within 5 days after
      the election and that the Secretary    of State shall, within 15 days
      after the election, canvass the returns.
Hon. C. C. Chessher.     page 3   (V-888)




      sons who shall have received the highest num-,
      ber of votes for each . . . of said offices.”

              Thus, the earliest possible beginning date of the
terms of office of the initial members!of   the elective Board of
Education would be November 23, 1949. that being the day when
the Secretary   of State may canvass and certify the results of the
election.

              Since Section 3 of Article VII of S.B. 115, above quot-
ed, provides that the present appointive Board of Education is
abolished   “as of the date of the qualification of the members”   of
the elective State,Board,   it follows that the present appointive
Board shall continue in office and perform the duties attendant
upon that office until supplanted by the elective Board, as provid-
ed by law.

             It should be noted also that Section 8 of Article II of
S.B. 115. as amended, requires that a meeting of the initial Board
members    elected shall be called by the Secretary     of State within
ten (10) days after said election returns have been canvassed,       or
as soon as practicable   thereafter.   Until such meeting is called
and the members     meet in official session,   no business   could be
consummated     by the new elective Board.     The section. however,
would have no effect on those provisions      of the Act which provide
for the abolishment   of the appointive Board.

             The present appointive Board, therefore.    having auth-
ority to act until its abolishment  becomes  effective, has the power
to perform all those duties prescribed    by existing laws necessary
to carry out the purpose and complete plan of the textbook laws,
Article 2742 to 2876j; V.C.S..   as amended.

             Article   2842 provides   in part:

             “It shall be the duty of the State Board of
      Education . . . to meet annually on the second
      Monday in November,       and at such other times
      as it may be called together by the Chairman for
      the purpose of considering      the advisability of con-
      tinuing or discontinuing,    at the expiration of each
      current contract, any or all of the State adopted
      textboooks in use in the public schools of Texas.
Hon. C. C. Chessher.        page 4   (V-888)




      and of making        such adoptions as are provided
      for in Articles       2843, 2844, and 2844a . . . as
      amended     . . .*

              Article   2846 provides     in part:

             “When texts are to be selected and adopt-
      ed under the provisions    of this law, or where a
      contra#   for a text then in use is about to expire,
      the chairman of the Commission       (State Board of
      Education) shall. two months in advance of the
      meeting of the Commission      at which time the
      adoption mayabe made. give public notice by
      having printed in the public press a notice to
      the effect that such meeting will be held and that
      adoptions will be made, and by sending written
     .notices to all persons,  firms or corporations    in
      whose behalf such notices shall have been re-
      quested. . . .’

              See attached Attorney General’s          Opinion No. O-5477
as modified   by Opinion No. O-6231.

             We are informed in your letter that several contracts
for textbooks expire on August 31, 1950. and it becomes     necessary
for the State Board on November     14. 1949, to extend such contracts
or to enter into new contracts   covering books in the same subject
fields.  Further, you advise that it has been the custom of the
State Board to have the Textbook Committee       meet two weeks prior
to the date of adoption to formulate its report to the State Board
on textbooks submitted for adoption.     Such meeting this year would
be held on October 31. prior to the adoption date of November 14.
1949. As hereinafter   stated, the question of whether expiring con-
tracts should be renewed or new contracts      entered into in Novem-
ber 1949 is within the discretion of your Board.

              Article   267513-5,    subsection   f.‘. provides   in part:

             “The State Board of Education shall ap-
      point annually a Textbook Committee    to be com-
      posed of nine members.each    of whom shall be
      an experienced   educator engaged in the public
Hon. C. C. Chessher.     page 5       (V-888)




      schools   of Texas.   . . .

             “It shall be the duty of the Committee    to
      examine all books submitted for adoption and
      make its recommendation       in writing to the
      State Board of Education relative to the teach-
      able value of books in the grades and subjects
      for which they have been submitted.       The Text-
      book Committee     shall hold its meetings where
      and when the State Board of Education shall de-
      termine and shall receive the same compensa-
      tion as the members     of the State Board of Edu-
      cation as provided for in Section 10 of this Act.*

              Article 2675b-5,   Subsection f (S.B. 148, Chap. 144.
Acts 49th Legislature,    R.S. 1945). providing for a Textbook Com-
mittee is still in effect, unless superseded    by Article IV of S.B.
115, 51st Legislature.

            Section    1 of Article     IV reads:

             “There is hereby created a State Textbook
      Committee    to replace the present textbook com-
      mittee created by Senate Bill No. 148, Chapter
      144, Acts of the 49th Legislature.  Regular Ses-
      sion, 1945. pith duties herein provided..

            Section    2 of Article     IV provides:

             “The State Commissioner     of Education,
      as hereinafter  created, annually at the meeting
      of the State Board held on the first Monday in
      May shall recommend     to the State Board the
      names of fifteen (15) persons,  . . . for appoint-
      ment to the Textbook Committee      for a term of
      one (1) year.*

            Section    3 of Article     IV reads    in part:

             “The State Board shall approve or re-
      ject said nominations: and if any names shall
      be rejected the Commissioner    shall nominate
Hon. C. C. Chessher,     page 6   (V-888)




      others  until there shall be selected fifteen
      (15) Persons,   . . . who shall be named by the
      State Board of Education to membership        on
      the Textbook Committee.”

               As previously   reasoned herein, there can be no elec-
tive State Board of Education created under S B. 115, as amended,
prior to November      23. 1949. We think Sections 2 and 3 of Article
IV. above quoted, are intended to provide an appointive State Text-
book Committee      for assistance    to the elective Board of Education
created by the Gilmer-Aikin        laws in textbook selections.    Section
2 specifically   requires that the names of recommended         appointees
for such Committee      shall be presented to the State Board on the
first Monday in May.      Article IV of S.B. 115 contemplates     the crea-
tion of a State Textbook Committee         at the time and in the manner
therein provided, to replace the Textbook Committee           now author-
ized under Article 2675b-5,      subsection    f. Until such time, it is
apparent that the present committee         is authorized to act under
the presently existing laws.

              We are advised that it has been the practice of the
present State Board of Education to discharge the Textbook Com-
mittee appointed by it under authority of Article 2675b-5(f).   V.C.
S.. (after acceptance  of its textbook recommendations)   on the
adoption date fixed in Article 2842, the second Monday in Novem-
ber.

             Accordingly,  we are of the opinion that the State Board
of Education is authorized to continue with plans for making a text-
book adoption the second Monday in November.         1949, which includes
the appointment of a State Textbook Committee.        authorization  of
their expenses,  issuing instructions   to them, setting a date for
their meeting. issuing a proclamation     calling for bids on textbooks,
and doing all customary   things necessary     to comply with the exist-
ing statutes in making a textbook adoption.      However, we do not
here pass upon the availability   of funds with respect to payment of
per diem and expenses of the Textbook Committee          or the present
Board of Education after August 31, 1949.

            Referring now to your second question. the provisions
of Articles 2842 and 2846 are mandatory to the extent that they re-
quire the present State Board of Education to meet on the second
Hon. C. C. Chessher,    page 7   (V-888)




Monday in November      (November 14, 1949) as provided in Article
2842 for the purpose of “considering * the matter therein express-
ed, and insofar as they require the chairman to give the public no-
tice provided in Article 2846. V.C.S.    “where a contract for a text
then in use is about to expire.”    However, it is not mandatorily
provided therein that adoptions or renewals be made at that time.
The adoption and renewal authority is discretionary.       If, after con-
sidermg the advisability   of continuing or discontinuing    expiring
textbook contracts or of making adoptions, the Board should de-
termine that there exists no necessity    for continuing or discontin-
uing contracts  or making adoptions at the November       meeting, it
is under no mandatory duty at such meeting to continue or discon-
tinue contracts  about to expire or to make adoptions as are pro-
vided for in the textbook statutes.

              But before the Board of Education may act on the con-
tinuance or discontinuance    of expiring contracts  or may make any
adoptions of textbooks at its November     14 meeting, there must
have been compliance     with the public notice provisions  of Arti-
cle 2846.  In short, the Board cannot act in matters of adoption at
its November    14 meeting unless there has been notice published
in accordance   with and for the time required in Article 2846.

                            SUMMARY

             The present appointive State Board of Edu-
      cation is authorized to continue with plans for
      making textbook adoptions on the second Monday
      in November,   1949, and to do all the customary
      things necessary   to comply wkth existing text-
      book statutes in making a textbook adoption.

             The present Board is under a duty to meet
      on the second Monday in November       as provided,
      and for the purposes expressed,     in Article 2842.
      It is not mandatory,   however,~ that the Board make
      adoptions or renewals at such meeting, this au-
      thority being discretionary.    But the Board can-
      not make adoptions at such November meeting
Hon. C. C. Chessher,   page 8 (V-888)




     unless there has been notice published in accord-
     ance with and for the time required in Article
     2846.

                                    Yours very truly,

                             ATTORNEYGENERALOFTEXAS




CEO:b:bh:mw                        Chester E. Ollison
                                           Assistant




                             ATTORNEY    GENERAL
