OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

state Board of Education Austin, Texas Dear Sirs:

We have which you ask the ing question:

_ May the received your letter

opinion of this aeper Board of Educati$-&@rove the asslgumentof a textbook c the bond of the original er in force and effect a OpinionNo. ORe:

We are info into between the *A” ts were entered d the Board of 1937, November
to rBn Publishing tail the methods for the See Articles 2839- Textbook Commissionwas e, its statutoryduties ara of Education.

t from the statutesgoverning the is any provision relative to the asThe Legislaturemeticulously outlined the steps to be taken by the Text Commission (now, theI .e ,/-‘
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Stdte Board of Education,pege 2

. Board of Education) inthe purchase of textbooksand the award of contrects. The omission of any provision regarding .theassignmentof contractswould clearly indicate that the Textbook Conunission

had no authority or. power either,

to permit or-ap-,lprove such assignments.

iS In Texas Jurjsprudence, Volume 34..

psges~ 440-441~,

it said:. WPublic officersand governmentaland ad- *,~ministrative

boards possess only such powers as 'are expressly conferredupon them by law or are <-: necessary implied from the powers so conferred. :.They.cannot

legallyperform acts not,authox&zed,. by existing law. . . ." I i.~.,. ..~, .But even aside from the principleannounced above, .we are convinced from a reading of statutes thst it.was clearly _. the Legislative intent i&t the Board of Education should have no such.authority. .~.

. .: Article 2846 provides that when %here'is'to.be-a meeting'for the selection of textbooks public notice shall be given of the meeting and ~that written notice shall be given.to all persons or firms who request the same. Provision is made for the deposit of samplesby those who wish to bid on the books; each such sample shall have the price printed .orstamped therein. Provision is also made for bids~and cash deposits.

_. :i Article 2847 provides for.'the filing of'bidsanh‘aiso for.the filing of an affidavit to be executedby~the inaividual bidder or a member of the firm or the presidentand secretary of the corporationbidding. The affidavit shall contain various statements,among which are that no member of the Commissionis in any way interestedin such individual,firm or corporation bidding; the names of any and all personswho may have at any time during the precedingyear received, either directly or indirectly, any money or other thing of value from said company for servicesrendered the State; employed to act for such bidder, the names of all the people directly or indirectly,in any way whatsoever in securing the contract or in the preparation ofits bids, .etc, The statementsmade in the affidavitare aeclared to be warranties,and "if found to be untrue, shall subiect the contract~toforfeitureand authorizea recovery on the

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State Board of Education,page 3

. , bbnd to the full amount thereof, as liquidateddamages, unless it be shown that such mis-statementor non-disclosureof fact was unintentionalor an oversighton the part of said publisher." Provision is made that the maximum price for the bBoks under the contract shall not exceed the minimum price at which the publisher sells the books in wholesale quantities, and that a contractproviding for a higher price shall be void. (Article2852) Provision is made that no books shall be purchased from anyone connectedwith a trust and that the bidder shall file an affidavit stating that he is not connected directly or indirectlywith a trust. (Article2853)

These and other statutoryprovisionsare clearly indicativeof the Legislativeintent that the Board of Education should have no authority to permit or approve assignments of textbook contracts. These safeguardswere put in the statutes for the benefit of the State of Texas and its citizens, to secure for school children the best books at a fair price, to assure the people that they would set full value for their tax money, and to eliminatethe possibilityof fraud and .&eception.These same safeguardscould be entirelyaverted if the assignment of textbooks contracts could be made; Surely this was not intendedby the Legislature,

In view of the foregoing,it is the considered.opinion of this departmentthat assignmentsof textbook contracts, awarded under the provisionsof Chapter 16 of the Revised Civil Statutes of Texas, may not be approved by the Board of. Education.

We do not mean to hold in this opinion that the publisher to whom the contractwas awardedmay not make a bona fide agreementwith another publisher to the effect that the second publisherwill furnish the books called for the State contract,and also complywith the other provisions of the contract..This is purely 3 privatematter with which the Board of Education has nothing to do. Eowever, the original contractingpublisherwould be liable on his bond for the performance of the contract. The indemnification of the publisher if the secondpublisher fails to live up to the terms of their agreement is 3 matter for the two publishers to work out between themselves.r- ,. .

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. Board of Eduoaticin, page 4

We will answer your question specifically ad follows: 'rhe' Board of Education has no authority to approve an assignment of a textbook contract. However, the matter of the origitial contractingpublishermaking a contractwith a second publisher as mentioned above is a private'matterover which the Board of Education has no jurisdictionor authority. In any ~eventthe original contractingparty would be liable on his bona. We trust that this opinion satisfactorily answers the question in which you are interested. Yours very truly APPROVXD SEFT. 20, 1941 /s/ Grover Sellers PIRsT ASSISTANT ATTORNEY GXNERAL OF TEXAS
BY

. /s/ Glenn R. Lewis ATTORNEY GZiERAL Assistant
George W. Sparks GWS:db APPROVZD OPINION COMKVITEEBY BWB CMIRMAN

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