            E   ATTORNEY         GENERAL
                    OFTEXAS




Honorable L. A. Woods
State Superintendent of Public Instruction
Austin, Texas
Dear Sir:             Opinion No. o-6262
                      Re: Authori.tgof State Board of Edu-
                           catlon to change any textbook
                           adopted for any grade to any other
                           grade from time to time. Also re-
                           lated question.
       Your communication to this department, dated November
2, 1944, reads in part as follows:
      "Article 2851 of the Revised Civil Statutes
   provides, in part, that - Textbook contracts and
   bonds shall be prepared by the Attorney General.
   The Attorney General's Department, some years ago
   prepared the contract form which the State Board
   of Education has been using to contract with text-
   book companies on regularly adopted textbooks.
      "At recent meetings of the State Board of
   Education two resolutions were passed, copies of
   which are attached hereto.
       "The State Board of Education has ordered
    these two resolutions to be included as part of
    the contractual agreement between the textbook
    company and the State Board of Education.
      "Since It is the duty of the Attorney General
   to prepare the contract forms, Is it permissible
   for the State Board of Education to make the above
   mentioned resolutions a part of the contractual
   agreement?
      "One resolution provides that "Any textbook
   adopted for any grade may be changed to any other
   grade from time to time by the State Board of Ed-
   ucation, and be subject to and in accordance with
   the rules as prescribed by the State Board of Ed-
   ucation from time to time.'
Honorable L. A. Woods, page 2        o -6262


       "It appears that this resolution may be in con-
    fllct with Article 2860 of the Revised Civil Statutes.
      "I would like to know whether the State Board of
   Education has the authority to adopt a textbook for
   one grade, and then, by Board order, during the life
   of the contract, designate that the book shall be
   used in some grade other than the one for which it
   was adopted?"
      We shall answer your questions in the order submitted.
       Article 2851, Vernon's.Annotated Civil Statutes, pro-
vides, among other things, that the text-book contracts and
bonds In connection therewith "shall be prepared by the Attor-
ney General." The forms for such contracts and bonds have
heretofore been prepared by this department. Such forms have
heretofore been used by the State Board of Education for the
purposes intended. The purpose of this provision, in our
opinion, was to make sure that such contracts and bonds con-
formed to the statutory requirements. As long as no provisions
therein conflict with such requirements, we know of no reason
why approval should not begiven by this department, regardless
of by whom such provisions were inserted. It is to be noted
that at the end of each contract and bond appear the prlnted
words "APPROVED AS TO FORM:" Underneath said words is a line
for signature. Underneath said line are the printed words
"Assistant Attorney General." Thus, the construction of said
provision by this department attaches to the legality of form
rather than to preparation. The legality of such contracts is
not based upon who prepared same. Their legality is based upon
their contents and conformity to the statutes. Should such
contracts contain provisions repugnant to and in conflict with
statutory requirements, same should not receive the approval
of this department. It follows, therefore, that any proposed
changes in the contract forms heretofore prepared by this de-
partment should first be submitted to us for an opinion as to
their legality. By such procedure, the likelihood of illegal
provisions and resulting delays can be avoided.
       The resolution and stipulation in eluded in each con-
tract regarding the manufacturing specifications and standards
for free textbooks do not conflict with any statutory provi-
slons. It is therefore our opinion that same are legal and
will receive our approval.
       It is the further opinion of this department that the
resolution and stipulation included in each contract, regard-
ing the change of any textbook adopted for any grade to any
other grade from time to time h -the State Board of Education,
Honorable L. A. Woods, page 3          0 -6262


Is in conflict with certain statutory provisions. It is there-
fore our opinion that same are illegal and cannot receive our
apprbval.
       'IA11persons are presumed to know the law and
    to have contracted with reference to it. The laws
    which subsist at the time and place of the making
    of a contract and where it is to be performed enter
    Into and form a part of it, as If they were ex-
    pressly referred to or incorporated in Its terms;
    and the contract must be construed with reference
    to them." 10 Tex. Jur., pp. 316-317, par. 182.
       At an election held on November 6, 1928, Section 8 of
Article 7 of our Constitution was amended to read as follows:
       "The Legislature shall provide by law for a State
    Board of Education, whose members shall be appointed
    or elected in such manner and by such authority and
    shall serve for such terms as the Legislature shall
    prescribe not to exceed six years. --
                                        The said board
                              as may be prescribed h

       Thereafter, by Acts of 1929, 41st Legislature, 2nd C.S.;
P. 12, Ch. 10, the present State Board of Education was created,
with certain powers and duties prescribed. Said Chapter 10
is listed In Vernon's as Arts. 2675b-1 to 2675b-10   both in-
clusive. Certain powers and duties of said Beard a;e listed
under Art. 2675b-5. Subdivision (e) thereof reads as follows:
      "The State Textbook Commission shall no longer
   meet or function after the taking effect of this Act
   (Arts. 2675b-1 to 2675b-10, supra), and the duties
   heretofore devolving by law upon the State Textbook
   Commission shall be performed b the State Board of
   Education, createTin this Acts-Arts.mb-1 -- to
   2675b-10, supra), and the State Board of Education,
   hereby created shall for the purpose of disposing
   of textbook matters meet at times and places that
   the State Textbook Commission is required to meet
   and act under existing law." (Emphasis ours)
        Section (f) of said Art. 2675b-5 reads in part as fol-
lows:
       "Said Board of Education shall appoint a Text-
    book Committee to be composed of five members, each
    of whom shall be s experienced @    active educator
    engaged in teaching, & -the &lic   schools & Texas,
Honorable L. A. Woods, page 4        o-6262


   and it shall be the duty of said Textbook Committee,
   to examine the books submitted for adoption and
   make their recommendations in writing to said State
   Board of Education relative to the teachable value
   of the books submitted respectively. The Textbook
   Committee, provided for hereln, shall hold their
   meetings when and where said State Board of Educa-
   tion shall determine . . . . . .' (Emphasis ours.)
      Art. 2843, V.A.C.S., provides In part as follows:
      "The Textbook Commission (whose duties have been
   transferred by Art. 2675b-5, supra, to the State Board
   of Education) . . . . shall have authority to select
   and adopt a uniform system of textbooks to be used in
   the public free schools of Texas, and the books so
   selected and adopted shall be prlnted In the English
   language, and shall include and be llmited to text-
   books on the following subjects: . . . .
      "Said Textbook Commission shall also adopt a
   multiple list of books for use in the high schools
   of the State, said multiple list including not
   fewer than three (3) nor more than five (5) text-
   books on the following subjects:. . . . and for
   each high school branch of study any one of several
   of the textbooks of said multiple list adopted for
   the subject may be selected; provlded, however,
   that the several textbooks do not exceed the allow-
   able number equivalent to one textbook for and used
   in any hfgh school as the textbook or In such a
   branch in that high school, but when such book or
   books is or are ~0 chosen h local authorities from
   the multiple list adopted such book or books shall
   be continued In that high school for the entire
   five (5) years of the adoption period. Provided,
   however, that the multiple list herein provided for
   shall apply to all high schools classed by the
   Department of Education as high schools of the
   first class. For use in all other high schools
   a uniform system.&textboo&    on each subject men-
   tloned above shall be selected by the commission;
   provided, that In any city or Independent school
   district having more than one high school of the
   first class said city or independent school dls-
   trict shall adopt from asid multiple list for use
   in each of.said high schools the same books and
   shall use said books~so adopted for a period of
   not less than five (5) years.
.




    Honorable L. A. Woods, page 5         o-6262


           “Specific rules as to the manner of the se-
        lection of books by the high school %arbemade
        by the State Textbook Commission.
            “The commission, as herein provided for , shall
        adowt textbooks 2 accordance with the provisions
        of~~~this
        --e      Act for every public free school in this
        State and no public free school in this State shall
        use any textbook unless same has been previously
        adopted and approved by this commission; and the
        commission shall prescribe rules under which all
        textbooks adoDted and aDDrove& shall & _introGed
        or used be z in theuublic schools of the State.ff
        mphasis    0urs.r
           While said Art. 2843 has been amended in 1941 by the
    47th Leg., p. 1388, Ch. 627, the last above quoted paragraph
    was brought forward in said amendment exactly as It appeared
    in the original act passed by the 39th Legislature Acts of
    1925, p. 417, Ch. 176, Section 5. Said Section is listed as
    Art. 2843 of the 1925 Revised Statutes.
           Section 22 of said Ch. 176 appears in the Revised Stat-
    utes of 1925 as Art. 2860. This article was amended by Acts
    of 1927, 40th Leg., p. 308, Ch. 213, par. 8. It is listed,
    as amended, in Vernon’s Ann. Civ. Stat. as Art. 2860, and
    reads as follows:
           “The books adopted,by the commission under
        the provisions of this Act shall be introduced and
        used as textbooks to the exclusion of all others
        in public free schools of this State for such per-
        iod of years as may be determined by the commission
        not to exceed six years in any case; provlded the
        right to the exclusive use of new books during the
        first three years of the term of any contract shall
        be waived by the contracting publishers to provide
        for the gradual introduction of new books; and pro-
        vided further that nothing in this Act shall be
        construed to prevent or prohibit the trustees of
        school districts from purchasing textbooks with the
        local maintenance funds and furnishing free text-
        books to the students in the event that no con-
        tracts are made by the State. Acts 1927, 40th Leg-
        islature, p. 308, Ch. 213, B 8."
           The amendment only substituted “three” for “two” in the
    clause “provided the right to the exclusive use of new books
    during thf first two years,” and “shall” for “mag” and publish-
    ers” for parties In the clause “may be waived by the con-
    tracting parties.” The final clause, “Said Commisslon shall
Honorable L. A. Woods, page 6        0 -6262


not contract for any book of which any member of the nominating
committee, or any member of said commission Is or may be author,"
was also omitted in said amendment.
       It will thus be seen that the amendments to both Arts.
2843 and 2860, R. C. S. 1925, did not change the meaning of
either article in reference to the introduction and ~88 of
textbooks in the public free schools of Texas. In this con-
nection, said articles are the same as originally enadal by
the 39th Legislature in 1925, p. 417, Ch. 176, Sections 5 and
22. Art. 2843 empowers the commission (now State Board of
Education) to "prescribe rules under which all textbooks
adopted and approved shall bf introduced QT w    by or in the
public schools of the State.   Art. 2860 provides that "The
books adopted . . . under the provisions of this Act shall be
used as textbooks to the exclusion of all others in public
free schools of this State for such period of years as may be
determined by the commission (now State Board of Education),
but not to exceed six years in any case." If, therefore, there
is any conflict in these two provisions, the one quoted from
Art. 2860 must control. "Where irreconcilably conflicting
acts are passed at the same time, or where parts or sections
of the same act are in irreconcilable conflict, the act or
provision later in position prevails as the latest expression
of the legislative will, and repeals the other in so far as
there is irreconcilable conflict." 39 Tex. Jur. pp. 139-140,
par. 74.
        It Is our opinion, however, that no such conflict ex-
ists. In the case of American Book Co., v. Marrs, Superintend-
ent, (Tex. Sup.) 253 S.W. 817, it was held that the State
Board of Education had the following exclusive powers regard-
ing free textbooks: (1) to ascertain the number of books
needed; (2) to determine the amount and set aside from the
available school fund the necessary funds for the purchase of
same; (3) and to determine who are contractors with the State.
Also, that it Is the duty of said Board to purchase and distri-
bute free textbooks under the management of the Superintendent
ofubllc    Instruction. Said case is referred to and followed
in the Supreme Court case of Charles Scribner's Sons v. Rarrs,
Superintendent, in 262 s .w. 722, which is most Instructive
concerning the history of free textbooks in our State. The
two cases just referred to were rendered in 1923 and 1924 re-
spectively. The State Textbook Commission was thereafter
created and empowered with the performance of certain duties.
Acts of 1925, 39th Leg., p. 417, Ch. 176. However, by Acts of
1929, 41st Leg., 2nd C.S., p. 12, Ch. 10, par. 5 (Art. 267513-5,
V.A.C.S.), said duties were transferred to the State Board of
Education. Under our present Constitution and statutes, the
exclusive powers of said State Board regarding free textbooks
Honorable L. A. Woods, page 7         o-6262


are the same as listed in the American Book Co. case, supra.
We find no authority, either expressed or implied, whereby
any textbook adopted for any grade may be changed to any other
grade from time to time by the State Board of Education. Such
procedure would be in direct violation of the exclusion pro-
vision contained in Art. 2860, supra. It would also conflict
with paragraph 8 of the textbook contract form prepared by
this department, which is based on said Art. 2860, and reads
as follows:
       "The textbooks covered by this contract will be
    introduced and used gradually in the public free
    schools of Texas during the first three years of the
    term of the contract, the details to be determined
    by the State Superintendent of Public Instruction
    subject to the approval of the State Board of Educa-
    tion. During the remaining years of the contract
    period, said                   ~111 be used in all
    public free schools of the State of Texas to the
    exclusion of all others of the same grade and on the
    same subject."
       Said paragraph just quoted is also in furtherance of
the provisions of Art. 2870, R.C.S., 1925, which reads as fol-
lows:
       "The purchase and distribution of free text-
    books for the State shall be under the manage-
    ment of the State Superintendent of Public Instruc-
    tion, subject to the approval of the State Board
    of Education."
       Article 2844, V.A.C.A., provides for adoptlon of sup-
plementary readers for the first seven grades and such other
supplementary books for use In said elementarg grades. Such
supplementary books shall only be used to supplement the
      book on reading. "In no case shall supplemental books
basal --
be adopted for other subjects."
      ~Sections 1 of Art. 2911a, V.A.C.S., provides for the
designation of certain grades or sections of grades in elemen-
tary schools in which the Spanish language may be taught.
Section 2 of said article provldes for the purchase and dls-
tribution of textbooks for such instruction in such grades or
sections of grades so designated.
       Except as hereinabove stated, we have found no statutes
which speclfg that textbooks in any subject shall be adopted
for a particular gradeor grades. It appears therefore that
such books are provided on the basis of subjects and not on
Honorable L. A. Woods, Page 8        0-6262


the basis of grades.
       Art. 2656, V.A.C.S., charges thenState Superintendent
with the admlnistratlon of the school laws and a general su-
perintendency of the business relating to the public schools
of Texas.
        Art. 2657, V.A.C.S., requires the State Superintendent
to "advise and counsel with the school officers of the
counties, cities and towns and school districts as to the
best methods of conducting the public schools." He is also
empowered thereby to issue instructions and regulations bind-
ing for observance on Q    officers and teachers In +& cases
wherein the provisions of the school law may require interpre-
tation - - - , also in cases that may arise in which the law
has no provision, and where necessity requires some rule in
order that there may be no hardships - - -, and no delays or
inconvenience in the management of school affairs." (Emphasis
ours .)
       It is clear, therefore, that in all instances not other-
wise provided by statute, the grade levels for instruction in
required or permitted subjects must be determined and fixed by
the State Superintendent of Public Instruction. When such
grade levels are thus established, It is the duty of the State
Board of Education to adopt textbooks In said subjects based
on the teachable value of said books for said grade levels.
Sectlon (f) of Art. 2675b-5, supra. After said textbooks have
been so adopted In conformity with our statutes, same shall
be introduced and used as such to the exclusion of all others
on said subjects in their respective grade levels. They are
to be thus used for such period of years as may be determined
by the State Board,of Education, not to exceed six years in
any case. Art. 2860, supra. Books chosen from the multiple
list of books adopted for use Yn the high schools of Texas,
shall be continued in the respective high schools In which
said books are chosen for not less than five years of the adop-
tion period. Art. 2843, V.A.C.S.
       It therefore is the opinion of this department that
your last question submitted must be answered in the negative.
Honorable L. A. Woods, page 9        O-6262


                                Very truly yours,
                            ATTORNEY GENERAL OF TEXAS


                                By s/L. I-I.
                                           Flewellen
                                     L. H. Flewellen
LHF:1w:wc

APPROVED DEC. 5, 1944
s/Grover Sellers
ATTORNEY GENERAL CF TEXAS
Approved Opinion Commlttee By s,kFG Chairman
