         THE          ATTOWNEY                   GENERAL
                         0~ TEXAS
                          AUSTIN.        TEXAS


                             September     8.1940



Hon. Theophilus S. Painter,      President
The University   of Texas
University Station
Austin, Texas                        Opinion No, V-677.
                                     Re: Reconsideration    of Opinion
                                          No. V-482  relating to the
                                          authority of The University
                                          of Texas to purchase glass.

Dear   Dr. Painter:

              Your request    for a reconsideration   of our opinion
No. V-482   is as follows:

              “Reference    is made to your opinion No.
       V-482,  dated January 24, 1948. and addressed
       to Honorable George H. Sheppard, Comptroller
       of Public Accountp.     One of the accounts pre-
       sented by Mr. Sheppard and ruled on in the
       opinion as being within the province of the
       Board of Control had to do with the ‘installa-
       tion of a plate glass top for the serving court-
       ter in the cafeteria.’   Apparently,  the informa-
       tion before your office with regard to this claim
       did not present the true facts and circumstances
       regarding the claim, which facts and circum-
       stances we respectfully     submit would have re-
       sulted in a ruling that the transaction   was the
       responsibility    of the Board of Regents of The
       University    of Texas and not of the Board of
       Control,    May I respectfully  request your con-
       sideration   of these facts and circumstances   as
       set out below:

              “The claim involved was in favor of Bins-
       wangu and Company. P. 0. Box 911, Austin,
       Texas, in the amount of $85.68.   The invoice
       described  the items furnished as follows:
Hon. Theophilus   S. Painter,   Page   2   (V-677)




             “‘8 pc. 10 x 34 Plate Glass - PE
                8 pc. 7t x 34 Plate Glass - l
                4 pc. 12 x 12 - Cut on job

               Installed on serving    counter-(Cafeteria)
               With felt 81 cement                   $85.68’

              “The installation    of the plate glass involved
      was in fact a part of a major permanent improve-
      ment project under an Educational Facilities           Con-
      tract with the Federal Works Agency of the United
      States Government.~Project         ,No. Tex. 41-V-12.    Un-
      der this contract. FWA furnished surplus Govern-
      ment buildings and erected them on the University
      campus so as to provide thirteen separate struc-
      tures with an aggregate floor space of 112,693
      square feet.    One of the thirteen b&dings        was
      specifically   designated in the contract for use as
      a cafeteria,   this building alone involving 11,231
      square feet of floor space.        The University   was
      required to furnish all costs of site preparation,
      bringing up the utility lines to the building, and in-
      stalling furniture and equipment in the building.
      The majority of the furniture and equipment in-
      volved was furnished by the Government out of
      surplus Government        stocks; but much of the equip-
      ment, especially     that required for the operation of
      the cafeteria,   was damaged and required repair
      and renovation in addition to being put in place.
      Some of the work required to be done by the Uni-
      versity was accomplished         by contracts   and some
      of it was done with our regular maintenance           staff.
       The procurement      of the plate glass involved in
      the claim described      above was for glass to be in-
      stalled in brackets attached to the serving coun-
      ter designed in such a way to serve as a dessert
      compartment      above the counter itself, and the
      glass and bracket supports constituted an integral
      part of the serving counter.

             “Our procedure in contracting for the pur-
      chase of the glass and its installation was to call
      for bids to be opened at lo:30 A. M. October 1,
Hon.   Theophilus   S. Painter,   Page   3   (V-677)




       1947. on the basis    of a specification    in form   at:
       tached hereto.

              “Requests     for bids were    sent to the follow-
       ing firms:

              “Calcasieu  Lumber Company, Austin, Texas
              Binswanger   and Company, Austin. Texas
              Austin Glass Corporation, Austin, Texas
              Becker Lumber Company, Austin, Texas
              Pittsburgh Plate Glass Company, San An-
                 tonio, Texas.

               MOzly one proposal was received.     namely,
       that of Binswanger   and Company: and since their
       quotation involved a price which was considered
       fair and reasonable   and since the work was needed
       in order to complete the installation    of the equip-
       ment necessary    to opzriing of the cafeteria,  the bid
       was accepted and the contract awarded notwith-
       standing the fact that only one bid was actually re-
       ceived.   Because of the small size of the transac-
       tion, a formal contract agreement      was not prepared
       and executed: but instead,    a purchase order was
       issued as evidence of our acceptance      of the propos-
       al and authorization   to proceed with the installation.

              “The actual installation    of the plate glass in-
       volved was accomplished      during the early part of
       October, 1947.   The cafete,ria was first opened for
       business on December      6, 1947.

               “It is respectfully    submitted that the above-
        stated facts and circumstances         clearly show that
        the purchase of these materials         was for and in
        connection with ‘a major permanent improvement,’
        inasmuch as the materials        installed became a part
        of the structure itself, and, therefore,       exclusively
        under the jurisdiction     of the Board of Regents of
        The University    of Texas under the ruling in Opin-
        ion No. V-482;    but in any event, the purchase was
        for the initial equipping and furnishing of the build-
        ing, coming under the exclusive jurisdiction          of the
Hon. Theophilus     S. Painter     - Page 4    (v-677)




        Board of Regents,       and not under the State Board
        of Control o . . .

               ‘As a matter of fact. we think our interpre-
        tations in this respect are, consistent  with the rul-
        ing of your Opinion No. V-482,    or. at any rate, that
        they should be so considered.

               “May I respectfully request that on the basis
        of the facts given you with respect to the plate glass
        purchase referred to earlier in this letter that you
        modify that portion of Opinion No. V-482 so as to
        hold that such purchase was in the responsibility    of
        the Board of Regents of The University    of Texas.”

              We thank you for the very full statement            of the basic
facts   upon which you seek such reconsideration.

             The answer to your question is controlled by a consid-
eration of the two statutes having to do with the expenditure of
moneys of the State on behalf of The University   of Texas.  They
are Articles  634 and 2592 of the Revised Civil Statutes as the same
have been amended.

              Article   2592,    insofar   as it is pertinent,   is as follows:

               “The Board of Regents of the University       of
        Texas . . ., shall, with the approval of the Legis-
        lature, expend the available University    fund for
        the construction   of buildings on the campuses     . . .
        and for the extension and improvement      of their
        campuses    and for the equipment of buildings
        thereon in the proportions     and amounts herein-
        after indicated . . .-

              Article   634 is as follows:

                “The Board of Control shall purchase all the
        supplies used by each Department of the State Gov-
        ernment, including the State Prison System, and
        each eleemosynary    institution,   Normal school, Ag-
        ricultural  and Mechanical    College,  University of
        Texas, and each and all other State Schools or De-
Hon. Theophilus   S. Painter   - Page   5   (V-677)




      partments of the State Government heretofore         or
      hereafter  created,    Such supplies to include fur-
      niture and fixtures,    technical instruments   and
      books, and all other things required by the differ-
      ent departments     or institutions, except strictly
      perishable  goods.’

            The latter Article is a part of Chapter 3 of Title 20
creating the Board of Control. making that body the general pur-
chasing agency for the State departments   and institutions.

             The various Lcgfslatures     from the enactment of Ar-
ticle 2592 down to and including the 50th have made appropria-
tions for the maintenance    of the University  of Texas of all the
Available  University   Fund except that portion of the fund appro-
priated to the Agricultural   and Mechanical    College of Texas.   The
rider to the Appropriation    Bill for the University  of Texas (Acts
1947. 50th Legislature,   H. B. 246, Sec. 5). provides in part as
follows:

             “Sec. 5. o . , The residue of said Available
      Fund, if any, may be expended for permanent im-
      provements,   equipment, instructional   and other
      educational services,    repairs and physical plant
      operation and maintenance.”

              Both Article 2592 and the appropriation      for this bien-
nium authorize the Board of Regents of the University         to expend
its Available  Fund for the purposes mentioned.       If there were no
other statutes to control the expenditure of this money. then the
implication   would be strong that the intention of the Legislature
was to delegate to the governing body of the University        the exclu-
sive authority to make any and all purchases       required.    However,
the strength of this implicatioa    is materially  weakened when we
consider that at the time of the passage of Article 2592 there was
in effect a statute which evidenced a policy that purchase of cer-
tain supplies should be made through a central purchasing agency.
While it is true that if there is any conflict between the provisions
of Article 2592 and Article 634, the provisions      of Article 2592 (a
later Act) would necessarily     control. we are required by the prin-
ciples of statutory construction     to reconcile as far as possible
these two expressions     of the Legislature.
Hon. Theophilus    S. Painter   - Page   6 (V-677)




              This brings us to a consideration      of what expendi-
tures authorized by Article 2592 and the Appropriation          Bill are
covered by Article 634; and, specifically,       whether Article 634
covers an item such as the glass top which we now learn from
your request was a part of a construction        project which was tied
to and became a part of the realty.      Article 634 speaks in terms
of supplies which are principally     items of personal property.
There is nothing in this statute which attempts to give the Board
of Control authority to make contracts for construction          projects
on the campuses     of educational institutions,   or to make purchases
of those supplies which go into such construction        projects.    At-
torney General’s     Opinion No. V-482 and O-3768.       On the contrary,
this responsibilfty   is expressly  vested in the Board of Regents of
the University    by Articles  2592 and 2593.

               In Attorney General’s      Opinion No. O-5698 this Depart-
ment advised the University        that the phrase “contracts   for the
construction    of permanent improvements”         as used in Article 2593
embraces     contracts for the alteration and major repair of exist-
ing buildings,    and construction    of improvements     and additions to
existing buildings, as well as for the erectfon         of new structures.
The holding of that opinion indicates that with regard to items of
construction,    improvements      and repairs,   the Board of Regents is
the ultimate authority.     It would be an extremely      anomalous situa-
tion if the governing body of the school was empowered to make
contracts for the construction,       repair, and improvements      of the
buildings under its control, and yet the purchase of supplies to
carry out those contracts rest&l with the Board of Control.            Even
in the absence of a contract for the work, we believe that the Leg-
islature intended to make the Board of Regents the sole authority
with respect to the purchases        of supplies as were needed to re-
pair, construct,    and erect buildings on the campus.

             Therefore,   based upon the new and additional facts
presented in your request, you are advised that the contract for
the plate glass purchased by the University,     being a part of a
construction  project,  did not have to be approved by the Board
of Control,   This is in accord with ,our Opinion No. V-482 which
was written on an entirely different set of facts relating to the
same glass.    There it was treated’as   personalty   without knowl-
edge that it was used as part of a construction     project.
Hon. Theophilus   S. Painter   - Page   7   (V-677)




                          .SUMMARY

             The University   of Texas does not have to
      secure the approval of the Board of Control on
      a contract for the purchase of plate glass used
      for and in a construction   project. Art. 2592, V.
      c. s.

                                            Yours     very   truly,

                               ATTORNEYGENERALOFTEXAS




                                                Assistant




                               ATTORNEYGENERAL

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