Honorable Harry Knox Opinion No. O-2339 

Chairman, State Board of Control Re: Approval by Board of Control 

Austin, Texas of Expenditure of State Funds 

for payment of cigarette stamps 

purchased under a requisition 

not complying with Article 16, 

Section 21 of the Constitution 

Dear Sir: of Texas. 

Your letter of May 7, 1940, and the contract and photostatic 

copy of a requisition for the purchase of cigarette tax stamps, which 

you enclosed, reveal the following facts: 

On July 6, 1937, a contract was entered into by the State 

of Texas, acting by and through the Cigarette Tax Stamp Board (composed 

of the Board of Control), for the furnishing of cigarette tax stamps for 

a two year period beginning May 15, 1937, and ending May 15, 1939. On 

September 19, 1939, subsequent to the expiration of the aforesaid contract, the Board of Control issued a requisition to the Steck Company 

for One Hundred Million (100,000,000) cigarette tax stamps. In your 

letter, it is stated that "This order for the printing of stamps was 

given to the Steck Company without public advertising for bids or competitive bidding, without any contract having been awarded, and without the approval of the Governor, Secretary of State, and the Comptroller". It is then shown that after delivering these stamps to the State 

Treasurer, the Steck Company has filed invoices, for the number of stamps 

printed under this requisition, to the Board of Control for approval; 

which approval is necessary before the State Comptroller can issue warrants for the payment of said invoices. It is further stated that the 

Minutes of the Board of Control, since the date of the expiration of 

the above mentioned contract, do not disclose the declaration of any 

emergency which could permit the purchase of such stamps without competitive bids, and the award of a contract as is required by law. 

After presenting these facts, you request our opinion on the 

following question: 

"Can the Board of Control legally approve the expenditure of 

State funds for the payment of the above-mentioned invoices for 

cigarette tax stamps delivered under the terms of the attached 

requisition, although such stamps were purchased without a contract, without public advertising for bids or competitive bidding, 

without the approval of the Governor, Secretary of State, and the 

Comptroller?" 
. - 

Honorable Harry Knox, page 2 (O-2339) 

Article 16, Section 21, Constitution of Texas, provides: 

"All stationery, and printing, except proclamations and such 

printing as may be done at the Deaf and Dumb Asylum, paper, and 

fuel used in the Legislative and other departments of the government, except the Judicial Department, shall be furnished, and the 

printing and binding of the laws, J 'ournals, and department reports, 

and all other printing and binding and the repa'ring and furnishing the halls and rooms used for the meetings cf fho Legislature 

and its committees, shall be performed under contra?, t.o be given 

to the lowest responsible bidder, below such maximum price, and 

under such regulations, as shall be prescribed by law. No member 

or officer of any department of the government shall be in any 

way interested in such contracts; and all such contracts shall 

be subject to the approval of the Governor, Secretary of State 

and Comptroller." 

Article 607 to 630b, Vernon's Rev~i.sed Civil Statutes, 1925, 

are the regulations passed by the Legislature for the purpose of effectuating the above quoted provision of the Constitution. A. G. Opinion No. 0~2260, 1940. Article 7047c-1, Section 3, Vernon's Civil Statutes, creates the Cigarette Tax Stamp Board (consisting of the Board 

of Control) and provides that the printing and manufacturing of such 

stamps shall be let to the lowest and best bid. In letting the contract 

of July 6, 1937, the Cigarette Tax Stamp Board determined that the furnishing of these was printing, and the contract was awarded under the 

terms of, and in compliance with, Article 607 to 630b,,supra,, and Article 16, Section 21, of the Constitution of Texas. In view of the fact 

that the Cigarette Tax Stamp Board has determined that the furnishing 

of these stamps is printing and since the courts will ordinarily adopt 

and uphold any reasonable construction placed upon a statute by an exer~utive officer or department charged with the duty of administering 

the Act, (39 Tex. Jur., Sec. 126, p0 235) we are of the opinion that 

the furnishing of cigarette tax stamps under the requisition of September 19, 1939, is printing. Therefore, before a purported contract for 

these stamps would be binding upon the State, it must have been made 

in compliance with the mandates of the Constitution. In our Opinion 

No. 0-2260, we held that the provisions of Article 16, Section 21, of 

the Constitution are mandatory; and until such alleged contracts are 

approved by the Governor, Secretary of the State, and Comptroller, they 

are not binding upon the state and are in effect no contract. We follow this opinion and since the purported contract, or requisition, of 

September 19, 1939, was not approved by the Gove'rnor, Secretary of State, 

and Comptroller, there was no contract. See State ex i-e1 State Publishing Company vs* Hogan, Secretary of State (Sup. Ct. of Montana, 1899), 

56 Pac. 818; Ellison vs. Oliver (Sup. Ct. of Arkansas, 1929), 227 S. W. 

586. In view of the fact that Article 16, Section 21, of our Constitution provides that all printing shall be performed under contract, 

and since these stamps were not furnished under contract (because the 
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Honorable Harry Knox, page 3 (O-2339) 

requisition we.6 not approved a8 stipulated in the Constitution), it 

is the opinion of this Department that you may not properly approve 

the expenditure of State funds for the payment of the invoices for cigarette stamps delivered under the terms of the attached requisition. 

In 80 holding (that this purported contract of September 19, 

1939, is not binding on the State and that you, therefore, cannot properly approve the invoices for cigarette stamps purchased under said 

requisition), we have not failed to consider Article 618, Vernon's Revised Civil Statutes, 1925, which, in part, provides: 

"Should all bide on any contract be rejected, or the 8ucce88- 

ful bidder fail to execute bond as provided herein, or should the 

contract be abrogated, the Board shall let a new contract in the 

manner provided herein. The Board may in its discretion make such 

temporary arrangement to meet the emergency as the public interest 

may demand." (Underscoring ours) 

In this connection, we do not pass upon the question of whether 

or not an emergency existed which would have authorized the Board to 

make "temporary arrangement." This is a question of fact to be determined from all the surrounding circumstances; however, even assuming 

an emergency did exist, it is the opinion of this Department that even 

"temporary arrangement", made by the Board to meet emergencies, must 

comply with the mandates of the Constitution and this is based on the 

well-settled proposition that when a statute is susceptible to two constructions, under one of which it would be unconstitutional, while under 

the other it would be valid, the latter must prevail. 

Yours very truly 

APPROVED MAY 31, 1940 

Is/ Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

ATIOPNEY GENERAL OFTEKAS 

By /s/Walter R. Koch 

Walter R. Koch 

Assistant 

By /s/ Harry A. Shuford 

Harry Shuford 

HS:ew:lm 

APPROVED 

OPINION 

COMMITTEE 

BY /s/ BWB 

CHAIRMAN