E ATTORNEY GENERAL

OFTEXAS

Honorable L. A. Woods State Superintendent of Public Instruction Austin, Texas

Dear Sir: OpinionNo. o-6262 Re: Authori.tgof State Board of Educatlon to change any textbook adopted for any grade to any other grade from time to time. Also related question.

Your communication to this department,dated November 2, 1944, reads inpart as follows:

"Article2851 of the Revised Civil Statutes provides, inpart, that -Textbook contracts and bonds shallbe preparedby the AttorneyGeneral. The Attorney General'sDepartment, someyears ago prepared the contract formwhich the State Board ofEducation has been using to contractwith textbook companies on regularly adopted textbooks.

"Atrecent meetings of the State Board of Education two resolutionswere passed, copies of which are attached hereto.

"TheState Board of Education has ordered these two resolutions to be includedas part of the contractualagreement 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?

"Oneresolution provides that "Anytextbook adopted for any grade may be changed to any other grade from time to time by the State Board of Education, and be subject to and in accordancewith the rules as prescribedby the State Board of Education from time to time.'Honorable L. A. Woods, page 2 o-6262

"Itappears that this resolutionmay be in confllctwith Article 2860 of the Revised Civil Statutes.

"Iwould like to knowwhether 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 shallbe used in some grade other than the one forwhich it
was adopted?"

We shall answer your questions in the order submitted.

Article 2851,Vernon's.AnnotatedCivil Statutes,provides, among other things, that the text-book contractsand bonds In connection therewith "shallbe preparedby theAttorney General." The forms for such contracts and bonds have heretoforebeen prepared by this department. Such forms have heretoforebeen 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 contractsand bonds conformed to the statutoryrequirements. As long as no provisions therein conflictwith such requirements,we know of no reason why approval shouldnot begiven by thisdepartment, regardless of by whom suchprovisionswere inserted. It is to be noted that at the end of each contract and bond appear the prlnted words "APPROVEDAS TO FORM:" Underneath saidwords is a line for signature. Underneath said line are the printed words "AssistantAttorney 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 isbased upon their contents and conformity to the statutes. Should such contracts contain provisions repugnant to and in conflictwith statutoryrequirements, same shouldnot receive the approval of this department. It follows, therefore, that any proposed changes in the contract forms heretoforeprepared by this department 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 contract regarding the manufacturing specificationsand standards for free textbooksdo not conflictwith any statutoryprovislons. 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,regarding the change of any textbook adopted for any grade to any othergrade from time to timeh the State Board of Education, -Honorable L. A. Woods, page 3 0-6262

Is in conflictwith certain statutoryprovisions. It is therefore our opinion that same are illegaland cannot receive our apprbval.

'IA11 persons are presumed to know the law and to have contractedwith 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 theywere expressly referred to or incorporated in Its terms; and the contractmust be construedwith reference to them." 10 Tex. Jur., pp. 316-317,par. 182.

At an electionheld onNovember 6, 1928, Section 8 of Article 7 of our Constitutionwas amended to read as follows:

"TheLegislature shall provide by law for a State Board of Education,whose members shallbe appointed
or elected in suchmanner 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

P. Thereafter,by Acts of 1929, 41st Legislature, 2nd C.S.; 12, Ch. 10, the present State Board of Educationwas created, with certain powers and duties prescribed. Said Chapter 10 is listed InVernon's as Arts. 2675b-1 to 2675b-10 both inclusive. Certainpowers and duties of said Beard a;e listed under Art. 2675b-5. Subdivision (e) thereof reads as follows:

"TheState 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 heretoforedevolving by law upon the State Textbook Commission shall be performed b the State Board of Education, createTin this Act 2675b-10, supra), s- -- Arts.mb-1 to and the State Board of Education, hereby created shall for the purpose of disposing of textbookmatters meet at times and places that the State Textbook Commission is required to meet and act under existing law." (Emphasisours)

Section (f) of saidArt. 2675b-5 reads in part as follows:

"SaidBoard of Education shall appoint a Textbook Committee to be composed of five members, each of whom shallbe 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 inwriting to said State Board of Education relative to the teachablevalue of the books submittedrespectively. The Textbook Committee,provided for hereln, shall hold their meetings when and where said State Board of Education shalldetermine

. . . . . .' (Emphasisours.)

Art. 2843,V.A.C.S., provides In part as follows:

"TheTextbook Commission (whoseduties have been transferredby 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 selectedand adopted shall be prlnted In the English language,and shall includeand be llmited to textbooks on the following subjects:

. . . . "SaidTextbook Commission shall also adopt a multiple list of books for use in the high schools of the State, saidmultiple list includingnot fewer than three (3)nor more than five (5) textbooks on the following subjects:.

. . .and for each high schoolbranch of study any one of several of the textbooks of saidmultiple list adopted for the subjectmay be selected;provlded,however, that the several textbooksdo not exceed the allowable 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 suchbook or books is or are ~0 chosenh 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 classedby the Department of Education as high schools of the first class. For use in all other high schools
a uniform system.

&textboo& on each subjectmentloned above shall be selectedby the commission; provided, that In any city or Independent school district havingmore than one high school of the first class said city or independent schooldlstrict shalladopt from asid multiple list for use in each of.said high schools the samebooks and shalluse saidbooks~so adopted for a period of not less than five (5)years..

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

“Specificrules as to the manner of the selection of books by the high school%arbemade by the State Textbook Commission.

“Thecommission,as hereinprovided for
, shall adowt textbooks2 accordancewith theprovisions of~~~this

Act for every public free school in this --e State and no public free school in this State shall
use any textbookunless same has been previously adopted and approved by this commission;and the commission shallprescribe rules under which all textbooksadoDted and aDDrove& shall & _introGed
or used be z in theuublic schools of the State.ff mphasis 0urs.r

While saidArt. 2843 has been amended in 1941 by the 47th Leg.,
was brought

p. 1388, Ch. 627, the last above quoted paragraph forward in said amendment exactlyas It appeared in the originalact passed by the 39th LegislatureActs 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 Statutes of 1925 as Art. 2860. of 1927, 40th Leg., This articlewas amended by Acts p. 308, Ch. 213, par. 8.
as amended, inVernon’s Ann. It is listed,

reads as follows: Civ. Stat. as Art. 2860, and

“Thebooks adopted, by the commissionunder the provisions of this Act shall be introducedand used as textbooks to the exclusion of all others in public free schools of this State for suchperiod of years as may be determined by the commission not to exceed six years in any case; provlded the right to the exclusiveuse of new books during the first three years of the term of any contract shall be waived by the contractingpublishers to provide for the gradual introductionof new books; and provided further that nothing in this Act shallbe construed to prevent or prohibit the trustees of schooldistricts from purchasing textbookswith the local maintenance funds and furnishing free textbooks to the students in the event that no contracts are made by the State. Acts 1927, 40th Legislature,p. 308, Ch. 213, B 8."

The amendment only substituted “three”for “two” in the clause “providedthe right to the exclusiveuse of new books during thf firsttwo years,” and “shall”for “mag”andpublishers” for parties In the clause “maybe waived by the contracting parties.” The final clause, “SaidCommisslon shallHonorable L. A. Woods, page 6 0-6262

not contract for any book ofwhich any member of the nominating committee, or any member of said commission Is or may be author,"
was also omitted in said amendment.

Itwill thus be seen that the amendments to both Arts. 2843 and 2860, R. C. S. 1925,did not change themeaning of eitherarticle in reference to the introductionand ~88 of textbooks in the public free schools of Texas. In this connection, 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 (nowState Board of Education) to "prescriberules under which all textbooks adopted and approved shallbf introduced QT w by or in the public schools of the State. Art. 2860 provides that "The books adopted

. . .under the provisions of thisAct shall be used as textbooks to the exclusion of all others inpublic free schools of this State for such period of years as may be determined by the commission (nowState Board of Education), but not to exceed sixyears in any case." If, therefore, there isany conflict in these two provisions, the one quoted from Art. 2860must control. "Where irreconcilablyconflicting acts are passed at the same time, or where parts or sections of the same act are in irreconcilableconflict, the act or provision later in position prevails as the latest expression of the legislativewill, and repeals the other in so far as there is irreconcilableconflict." 39 Tex. Jur. pp. 139-140, par. 74.

It Is our opinion,however, that no such conflict exists. In the case of American Book Co., v. Marrs, Superintendent, (Tex.Sup.) 253 S.W. 817, itwas held that the State Board of Education had the following exclusivepowers regarding 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 determinewho are contractorswith the State. Also, that it Is the duty of saidBoard topurchase and distribute free textbooksunder 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 ismost Instructive concerning the history of free textbooks in our State. The two cases justreferred to were rendered in 1923 and 1924 respectively. The State Textbook Commissionwas thereafter created and empoweredwith the performance of certainduties. 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.), saidduties were transferred to the State Board of Education. Under our present Constitutionand statutes, the exclusivepowers of said State Board regarding free textbooksHonorable 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 procedurewould be in direct violation of the exclusionprovision contained inArt. 2860, supra. Itwould also conflict with paragraph 8 of the textbook contract form preparedby this department,which isbased on saidArt. 2860, and reads
as follows:

"Thetextbooks coveredby this contractwill be introducedand 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 Superintendentof Public Instruction subject to the approval of the State Board of Education. 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 justquoted is also in furtherance of the provisions ofArt. 2870, R.C.S., 1925,which reads as follows:

"Thepurchase and distribution of free textbooks for the State shall be under the management of the State Superintendent of Public Instruction, subject to the approval of the State Board of Education."

Article 2844,V.A.C.A., provides for adoptlon of supplementary readers for the first sevengrades and such other supplementarybooks for use In said elementarggrades. Such supplementarybooks shall only be used to supplement the basal book on reading. -- "Inno case shall supplementalbooks be adopted for other subjects."

~Sections 1 ofArt. 2911a,V.A.C.S., provides for the designation of certain grades or sections of grades in elementary schools inwhich the Spanish languagemay be taught. Section 2 of said article provldes for the purchase and dlstribution 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 particulargradeor grades. It appears therefore that such books are provided on the basis of subjects and not onHonorable L. A. Woods, Page 8 0-6262

the basis of grades.

Art. 2656,V.A.C.S., charges then State Superintendent with the admlnistratlon of the school laws and a general superintendency of the business relating to the public schools of Texas.

Art. 2657,V.A.C.S., requires the State Superintendent to "adviseand counselwith the school officers of the counties, cities and towns and schooldistricts as to the best methods of conducting the public schools." He is also empowered thereby to issue instructionsand regulationsbinding for observance onQ officers and teachers In +& cases wherein the provisions of the school lawmay require interpretation - - - ,also in cases that may arise inwhich the law has no provision,and where necessityrequires somerule in order that there may be no hardships - - -, and no delays or inconvenience in themanagement of school affairs." (Emphasis

ours .)

It is clear, therefore, that in all instancesnot otherwise provided by statute, the grade levels for instruction in required or permitted subjectsmust be determined and fixedby 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 subjectsbased
on the teachablevalue of said books for said grade levels. Sectlon (f) of Art. 2675b-5, supra. After said textbookshave been so adopted In conformitywith our statutes, same shall be introducedand used as such to the exclusion of all others
on said subjects in their respective grade levels. They are to be thus used for suchperiod 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, shallbe continued in the respective high schools Inwhich saidbooks are chosen for not less than five years of the adoption period. Art. 2843,V.A.C.S.

It therefore is the opinion of this department that your last question submittedmust 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

APPROVEDDEC. 5, 1944 s/GroverSellers ATTORNEY GENERAL CF TEXAS
Approved Opinion CommltteeBy s,kFG Chairman