7’. . 

THEA~TORNEYGENERAL 

OF -XAS 

AUSTIN xx. TEXAS 

October 10, 1960 

Honorable D. C. Greer 

State Highway Engineer 

State Highway Department 

Austin 14, Texas 

Opinion No. 'M-946 

Re: Whether Highway Department may provide in its 

bridge improvement conDear Pl- Greer: 

, tracts that the contractor may keep the portions 

of a dismantled bridge 

not needed by the Department, or whether such 

materials must be disposed 

of under Article 666 pertaining to the Soard of 

Control. 

Your opinion request reads as follows: 

"Much of the work we do on the State Highway 

System involves the replacement of existing bridges 

which are too narrow or too weak to meet today's 

traffic demands. On these jobs we have an item in 

our contract which requires the contractor to dismantle the old bridge. In the past, we have retained 

any of the materials in the bridge which were suitable for use on the State Highway System and have 

allowed the contractor to retain any other materials, 

even though they may have had some value. It was 

felt that due to the great amount of competition in 

the bidding on these jobs the value of the material 

would be reflected in the bids on the other items 

and that we had the authority to do this under Article 

6674k, which states as follows: 

'The State Highway Commission shall prescribe 

the form of such contracts and may include therein 

such matters as they may deem advantageous to the 

State. Such forms shall be uniform, as near as 

may be.' 

"Some time ago we had Attorney General Opinion 

O-6798 called to our attention wherein it was stated 

that the Health Department cauld not trade unneeded 

laboratory equipment for repair work on one of their 
. .‘? 

Honorable D. C. Greer, Page 2 W-946) 

buildings but that the equipment would have to be 

sold under the provisions of Article 666. 

"Would you please advise us whether the reasoning in that opinion applies to a contract for the 

improvement of the highway system or whether we have 

the authority to so dispose of such sur lus 

perty under the provisions of Article 6 iz 

pro7&k." 

You have correctly quoted Article 6674k. This article 

is under Chapter 1, Title 116, setting up the State Highway 

Commission, providing for the awarding of contracts, the 

maintenance of highways, and allied matters. The broad 

language of Article 6674k concerning the contents of contracts was never designed nor intended to give the State 

Highway Commission the authority to override positive statutes on the alienation of the title to State's property. 

It deals with an entirely different subject. 

In Attorney General Opinion 0-6798, about which you 

inquire, this office held that the Health Department could 

not trade unneeded laboratory equipment for repair work 

on one of their buildings, the basis of the opinion being 

that same would have to be sold under Article 666. We quote 

from the opinion. 

"The question here presented is whether 

public personal property which is no longer needed 

may be exchanged for work or services necessary 

in the repair of a public building. No authority 

for such an exchange has been found but to the 

contrary it appears that the disposition of the 

public personal property mentioned in your letter 

should be governed by Article 666, Vernon's Annotated Civil Statutes of Texas." 

That opinion is very much applicable and would bs our 

holding herein except for a recent statute later mentioned. 

Article Article 666 provides provides for the disposition disposition of either 

surplus surplus property property or salvage salvage property property under the direction direction 

of the Board of Control. Surplus property is defined to 

be "any personal personal property property which is in excess of the needs 

of any State agency and which is not required required for its 

foreseeable foreseeable needs." needs." Salvage Salvage property property is defined defined to be 

r'any personal personal property property which through through use, time, or accident accident 

is so depleted, worn out, damaged, used or consumed that 

it has no value for the purpose for which it was originally 

intended." 

is so depleted, worn out, damaged, used or consumed that 

it has no value for the purpose for which it was originally 

intended." 
. . . . 

Honorable D. C. Greer, Page 3 (W-946) 

It seems very clear that if the component parts of 

this dismantled bridge are useful and usable but are simply 

not needed by the State that they would be surplus property. 

This is the way you describe them. On the other hand, if 

(due to any of the things enumerated in the definition) they 

have no value for the purpose for which originally intended, 

clearly they would be salvage property. Thus, it is inescapable that this property falls in one category or the other; 

it is either surplus property or it is salvage property. 

Our Supreme Court in Chas. Scribner's Sons v. Xarrs, 

262 s..WO 622 held: "If state authorizes a certain officer 

or legal body to contract for it in regard to a certain 

subject, no other officer or governmental agency can exercise the authority." 

However, Article 666 has been amended and revamped 

by the Salvage and Surplus Act of 1957, which became effective September 1, 1957. While the Board of Control, in 

the main, is still charged with the duty of disposing of 

surplus and salva e property, 

5 

a notable exception is provided by Section We quote: 

"Any state agency may offer surplus or salvage 

property which has become unfit for use as a trade-in 

on new property of the same general type when such 

exchange is in the best interests of the state." 

Article 666, Sec. 6. 

This authority of "trade-inis is unlimited except as 

to the requirement that the new property be of the same 

general type as the surplus or salvage and that the exchange 

be in the best interests of the State. It is not restricted 

to typewriters, automobiles, or any specific kind of property; it would apply with equal force to the materials used 

in the construction of a bridge. 

Inquiry and inspection of your bridge contract forms 

reveal that the contracts are let upon unit bid price on 

many items. 3esides the various items of labor and construction there are items such as removing old bridge, 

structural steel beams, railing, piling, concrete and the 

many other things necessary to build the bridge0 Thus the 

contractor not only agrees to construct the bridge but also 

agrees to furnish the manifold materials requisite for the 

construction, The Highway Department, therefore, literally 

"buys It from the contractor these items. To say that a 

trade-in is not permitted for these materials is to engraft 

an exception on the statutes which the legislature did not 

see fit to put there. 
Honorable D. C. Greer, Page 4 (W-946 1 

You state in your opinion request 

the bidding the value of the material ‘( 

be reflected in the bids on the other i 

it is felt that in 

the surplus) would 

terns. This is likely 

true in some instances, but is not necessarily SO* 

Unless the contractor has some definite idea as to what 

he may expect in the way of these materials his bid would 

likely reflect nothing by way of an allowance. Such indefinite and unknown materials as he might eventually receive 

might turn out to be a complete "give-away" by the State. 

Ve have examined a bridge contract on a past construction job. A standard printed provision gives the contractor 

such dismantled materials as are left after the State has 

taken what it wants. However, in this instrument there is 

another sheet amendatory of the first one, wherein the materials to be taken by the contractor are specified. This should 

be done in every contract, and a slight addition to the bid 

sheets should be made, wherein the bidder shall specify how 

much allowance or trade-in credit will be given for the salvage and surplus materials. 3y doing these things you can 

make the deal a bona fide "trade-in," it will clearly come 

within the quoted part of Sec. 6 of Art. 666, and you will 

el.iminate the question as to whether "such exchange is in the 

best interests of the State." Should you not want to dispose 

of these materials as suggested then the services of the 

3oard of Control are open to you. 

said Sec. 6 says: 

The concluding portion of 

"And further provided that when re uested by 

such agency or institution to do so, an 8 under the 

terms and conditions set forth in Sections 4 and 5 

above, the 3oard of Control will dispose of said 

property as provided for in this acts" 

It is therefore our opinion and we so hold that the 

State Iii hway Department may when applicable proceed under 

Section % of Article 666 independently of the Board of Control. 

This means that you may offer any surplus or salvage property 

taken from an old bridge, which has become unfit for use for 

your purposes, as a trade-in on the materials of the same 

general type which will go into the construction of the new 

bridge, when the highway Department determines that suck exchange is in the best interests of the State; we therefore 

see no objection to your making provision in your bridge 

contracts, under these circumstances, that the contractor 

may have such surplus or salvage property as a trade-in, 

but the contract should reflect the materials which the 

contractor will get and the amount of the allowance or 

trade-in credit. 
Honorable D. C. Greer, Page 5 (W-946 1 

Under Article 666, Section 6, the Highway 

Department may, independently of the Board of 

Control, provide in its bridge contracts for 

the trade-in of surplus or salvage property 

which has become unfit for use9 the contract 

providing what materials the successful bidder 

will get and reflecting the amount of the 

trade-in credit on the new materials to go in 

the bridge, when, in the opinion of the Department, such exchange is in the best interests of 

the State. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

WRS:ncs 

APPROVED: 

OPINION COIJKITTEE 

W. V. Geppert, Chairman 

Bill Allen 

Ben Harrison 

H. Grady Chandler 

REVIE‘WED POR'THE ATTORNEY GENERAL 

BY: Leonard Passmore