E ATTORNEY GENERAL 

OFTEXAS 

Honorable L. A. Woods 

State Superintendent of Public Instruction 

Austin, Texas 

Dear Sir: Opinion No. o-6262 

Re: Authori.tg of 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 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 textbook 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 Education, and be subject to and in accordance with 

the rules as prescribed by the State Board of Education from time to time.' 
Honorable L. A. Woods, page 2 o -6262 

"It appears that this resolution may be in confllct 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, provides, among other things, that the text-book contracts and 

bonds In connection therewith "shall be prepared by the Attorney 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 conformed 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 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 specifications and standards 

for free textbooks do not conflict with any statutory provislons. 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 

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 therefore our opinion that same are illegal and cannot receive our 

apprbval. 

'IA11 persons 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 expressly 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 

P. 

Thereafter, by Acts of 1929, 41st Legislature, 2nd C.S.; 

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 inclusive. 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 Act 

2675b-10, supra), 

s- Arts.mb-1 -- to 

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 follows: 

"Said Board of Education shall appoint a Textbook 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 Education 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 textbooks 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) textbooks 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 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 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 mentloned 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 dlstrict 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 selection 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 

--e of~~~this 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., 

was brought 

p. 1388, Ch. 627, the last above quoted paragraph 

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 Statutes of 1925 as Art. 2860. 

of 1927, 40th Leg., 

This article was amended by Acts 

p. 308, Ch. 213, par. 8. 

as amended, in Vernon’s Ann. 

It is listed, 

reads as follows: 

Civ. Stat. as Art. 2860, and 

“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 period 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 provided 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 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 “provided the right to the exclusive use of new books 

during thf first two years,” and “shall” for “mag” and publishers” for parties In the clause “may be waived by the contracting 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 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 (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 exists. In the case of American Book Co., v. Marrs, Superintendent, (Tex. Sup.) 253 S.W. 817, it was held that the State 

Board of Education had the following exclusive powers 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 determine who are contractors with the State. 

Also, that it Is the duty of said Board to purchase and distribute 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 respectively. 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 provision 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 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 just quoted is also in furtherance of 

the provisions of Art. 2870, R.C.S., 1925, which reads as follows: 

"The purchase 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 seven grades and such other 

supplementary books for use In said elementarg grades. Such 

supplementary books shall only be used to supplement the 

basal -- book on reading. "In no case shall supplemental books 

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 elementary schools in which the Spanish language may 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 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 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 "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 binding for observance on Q officers and teachers In +& cases 

wherein the provisions of the school law may require interpretation - - - , 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 otherwise 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 adoption 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