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 

asslgument of a textbook c 

the bond of the original 

er in force and effect a 

Opinion No. 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 Commission was 

e, its statutory duties 

ara of Education. 

t from the statutes governing the 

is any provision relative to the asThe Legislature meticulously outlined the steps to be taken by the Text Commission (now, the 
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3. 

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Stdte Board of Education, pege 2 

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Board of Education) inthe purchase of textbooks and the award 

of contrects. The omission of any provision regarding .the assignment of contracts would 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 officers and governmental and ad- 

*,~ministrative boards possess only such powers as 

'are expressly conferred upon them by law or are <-: 

necessary implied from the powers so conferred. 

:.They.cannot legally perform acts not,authox&zed,. 

by existing law. . . ." 

I i.~.,. ..~, 

.But even aside from the principle announced above, .we 

are convinced from a reading of statutes thst it.was clearly 

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the Legislative intent i&t the Board of Education should have 

no such.authority. .~. 

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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 samples by those who wish to bid on the books; 

each such sample shall have the price printed .or stamped therein. Provision is also made for bids~and cash deposits. 

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Article 2847 provides for.'the filing of'bids anh‘aiso 

for.the filing of an affidavit to be executed by~the inaividual 

bidder or a member of the firm or the president and secretary 

of the corporation bidding. The affidavit shall contain various 

statements, among which are that no member of the Commission is 

in any way interested in such individual, firm or corporation 

bidding; the names of any and all persons who may have at any 

time during the preceding year received, either directly or indirectly, any money or other thing of value from said company 

for services rendered 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 

of its bids, .etc, The statements made in the affidavit are aeclared to be warranties, and "if found to be untrue, shall subiect the contract~to forfeiture and authorize a recovery on the 

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State Board of Education, page 3 . 

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bbnd to the full amount thereof, as liquidated damages, unless 

it be shown that such mis-statement or non-disclosure of fact 

was unintentional or an oversight on 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 contract providing for a higher price shall 

be void. (Article 2852) Provision is made that no books shall 

be purchased from anyone connected with a trust and that the 

bidder shall file an affidavit stating that he is not connected directly or indirectly with a trust. (Article 2853) 

These and other statutory provisions are clearly 

indicative of the Legislative intent that the Board of Education should have no authority to permit or approve assignments of textbook contracts. These safeguards were 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 eliminate the possibility of fraud 

and .&eception. These same safeguards could be entirely averted if the assignment of textbooks contracts could be made; 

Surely this was not intended by the Legislature, 

In view of the foregoing, it is the considered.opinion of this department that assignments of textbook contracts, 

awarded under the provisions of 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 contract was awarded may not make a bona 

fide agreement with another publisher to the effect that the 

second publisher will furnish the books called for the State 

contract, and also comply with the other provisions of the 

contract.. This is purely 3 private matter with which the 

Board of Education has nothing to do. Eowever, the original 

contracting publisher would be liable on his bond for the performance of the contract. The indemnification of the publisher if the second publisher fails to live up to the terms 

of their agreement is 3 matter for the two publishers to work 

out between themselves. 
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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 contracting publisher making a contract with a second publisher as mentioned above is a private'matter over which the 

Board of Education has no jurisdiction or authority. In any 

~event the original contracting party 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 COMKVITEE BY BWB CMIRMAN 

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