Ron. L. A. 

### wood3

State Superintendent Department bf Education Austin, Texas

,,., Dear Sir: OpinionNo, O-6945 Re: Disposition t6 be made of sample textbookswhich were submltteaby various publishing comp&iiesbut which were not adopted by the State Board of Education

Your request for opinionhas been receivedlandcarefully considered,

by thLLs

department. We quote from your request
as follows:

'Article2846 of theRevised Civil Statutes provides, in substance, that at least thirtydays prior to the date of the meeting of the State Board of Education every person, firm, or'corporation desiring to submitbLds shall filewith the State Superintendent of Public~~Instruction nine copi~es

of each book on which a bid will be submltted.

"Article2856 of the Revised Civil Statutes provides, in part, that the State SuperMtendent shall carefully label and file away the samples adopted as furnished for exam1natlon to the Board
as descrlbed in the statutementioned above.

"Iwould like for you to advlse me what dispositLon shouldbe made of the remaining samples of books thatwere submitted to me by the various publishing companieswhich books were not adopted,"

Articles 2846, 2855, 2856 and 2876e, Vernon's Annotated Texas Civil Statutes, read as follows:

Art02846.
II 0 0 0 D

. "Depositsof Samples, At least thirtydaysHon. L. A.

### w00as-page 2 o-6945

prior to the date of the meeting of the saM Commission, everyperson, firm or corporationdesiring to submit bids shall filewith the State Superintendent of Public Instructionnine copies of each book onwhich a bid will be submitted, in each of which copies there shallbe printed or stampeda statement of the price at which such book and special editions thereof are sold-in other places under State or county adoptions, and the minimum quantltles ofwhich itwill be sold at such prices, and there shall be also printed or stamped Ln suchbooks a statement of the publisher's catalogueprice of the
same and special editions thereof, togetherwfth trade discounts and the condltlonsunderwhich, and the-purchasersto whom, suchdiscounts are allowed, and the place of delivery. There shall also be printed or stamped in each book the price at which it is offered to-Texas, f.o.b, the Publlsher's Texas depository,with and without exchange. There shall also be printed or stamped in each book; the mlnimum wholesale price at which such book, and special editions thereof, are sold f;o.b. the shippingpoint of the publisher ana the
name of the shippingpoint shall also be stated.

. "BFdsand Cash~

Deposits. Bids/when filed~by the publishers, shall state spec~flcallyat what priceeach book will be~furnlshea,and such bid shall be accompaniedby specimen copies of eachbook offered, and it shallbe required that eachbi~dder depositwith the Treasurer of the State of.Texas' such
sum of money as the Commission,mayrequire, to beg not less than five hundred ($500:00)dollars, nor more than twenty-fivehundred ($2,5OO.OO)dollars, accorcling to the valne of the books each bidder may propose to supply; * 0 D Such deposits shallbe returned to the unsuccessfulbidders on certificate of the State Superintendentthat no contract has been awarded
on the bid for which the sum was deposited. Acts 1927, 40th Leg,, pa 308, ch, 213 1 4.”

Art, 2855 -Deposit to be returned

"Whenany person has been awarded a contract and he has filed his bond and contractwith the commlsslonand the same has been approved, the commission shall make an ora.+ on the Treasurer of the State reciting such fact, and thereupon the Treasurer shall return the deposit of such bidder to him; but if any successfulbidder shall fail toHon. L. A. Woods - page 3 o-6945

make and execute the contract and bond as herelnbefore provided, the Treasurer shallplace the deposit of such bidder In the State Treasury to the credit of the available' school fund, and the commission shall readvertlse for other bids to supply such books which said biddermag~~havefalled to supply. All unsuccessfulbLaaers shallhave their deposit returned to them by the state treasurer as soon as the commissionhas decided not to accept their bids."

Art. 2856. Commission to issueproclamation

"As soon as the State shall have entered into the contract for the furnishing of books for the public schools of this State under the provision of this Act, it shall be the duty of the Commission to issue Its proclamation of such fec~ts to the people of the State; and the State Superintendent of Public InstructLon shall carefully label and file away the copies of the books adopted
as furnished for examination to the board; and such copies of such books shall be securelykept and the standard of quality and mechanical excellence of~~the

book or books so furnfshed under this Act shall be maintained in said books so furnished under contract authorizedby thisAct during the contlnuance of the contract,"

Art. 2876e. Dlsposltlon of textbooks

"TheState Superintendent of Public Instruction, with the approval of the State Board of Education, may provide for the disposition of such textbooks as are no longer In a fit condition to be used for purposes of instruction,or for discarded books remaining the property of the State. In case of the disuse of books in fair condition, inspectorsof the StateDepartment of Education may require the continuance of the use of said books,"

In OpinionNo. O-5443 of thisDepartment the following inquirywas propounded by the Department of Education, towit:

"TheState Board of Educatlon~ at its July 6th meeting directed that' your advice be sought in regard to the following.matter.

"Thereare on hand ln the State depository at Austin many textbooks on various subjectsHon. L. A. Woods -page 4 o-6945

which have accumulated because of the expiration of the contract for the particular books and replacement by adoption of other books in the subject field. The Board desires to know what authoritiesare empowered to dispose of such of these books as are neither under current adoption
nor **USed** as supplementary sourcematerial In the public free schools. Your attention 13' directed toTArticle 2876e of the Revised Statutes of 19250 The Board has beenapproached wlth a 

### proposal for sale of the usuable textswhich have been discarded because of the expiration of the adoption period, and desires to be advised concerning its authorltg in the matter of the sale of these books, and of free textbookswhich, because of condition,are no longer usable in the public free schools."

Our answer to the above quoted inquiry in' Opinion No. O-5443, after quotingArticle 2%76e, V.A.C.S.was as follows:

"This statuteappears to deal speciflcally with the very essence of your Inquiry,and supplies the answer thereto, While the books mentioned are not in an unfit 'conditionto be used', they nevertheless are 'discardedbooks remaining the property of the State.' Therefore they may be disposed of. by the State Superintendent of Public Instruction; with the approval of the State Board of Education.

"The effect of this statuterequires the joint action -- that is,by initiativeand approval-- of the State Superintendentand of the State Board to effect a sale."

However, OpinionNo. O-5443 is not applicable to your question because the samplebooks you inquire about have never been adopted as textbooks and thereforewould not come under the provisions of Article 2%76e, Analyzing the above quoted 

### StatUteS itwould seem that the unsuccessfulbidders ,would be entitled to have their sample copies of textbook8returned to 'themif they desired them returned. It also appears that if they did not want them returned but chose to abandon them to the State OP make a gift of them to the State they could do 80,

However, It is OUT opinion that any such sampleswhich become State propertyby gift OP abandonment s,hould be disposed of in the manner provided by Article 666, Vernon's AnnotatedHon. L. A, Woods - Page 5 o-6945

Texas Civil Statutes,which article reads as follows:

'Allpropertybelongrng to the state,regardless ofwhere it is located,under the control of any department, commlssion,board, or other state agency,with the exception of state eleemosynary Institutions,colleges, and institutionsof higher learning,when it shallbecome unfit for use, or shallbe no longer needed, shall be placed under the jurisdictionof the Board of Control,and the Board of Control shall sell suchpro advertising it not less than four (4 Perty after days in a newspaper in the countywherein the property is situated, ProvIdea,however, that if no newspaper is published In the countywhereln the property is situated,notice of said sale setting out the time and place of sale and the property to be sold shell be posted in three (3) public places, one being in the court house In the countywherein the property 13 situated, Provided,however, that if the value of such ($100.00

Personalproperty is less than OneHundred Dollars and not sufficient to justify the cost of advertisement in newspapersas outlined above, the Board of Control may sell such property in any manner that It deems for the best interest of the State. The money from the sale of such property, less the expense of advertising the sale, shallbe deposited in the State'Treasury to the credit of then General Revenue Fund. And provided further, that any propertyplaced in then hands of the Board of Control, **as** outlinedherein, may be transferredby the Board of Control to any department, commission,board or state agency In need of same, and the debit and credit shallbe made on the basis that such property can be pur**chased** in tbmarket at the time of the transfer, If a market exists, and if not, at its actual or intrinsicvalue as set by the Board of Control. The Board of Control shallmake a written report to the Comptrollerafter each sale. The report shall include the following items:

"1* Name of the newpeper and the dates of advertisement of notice of sale; or Ifposted, the date and place of **pO8ting.**
"2

. Each Article received.

“3***** The price forwhich each articlewas sold.Hon. L. A. Woods - page 6 o-6945

“40 The name and address of the person to whom each articlewas sold,.

"This~ report shall be signed by the Bbard of Controland a member of the department, commission,board or state agency having control of the property before sale." As amended Acts 1943, 48th Leg. p. 272, ch. 171, xl0
Very truly yours

ATTORNEYGENERAL OF TEXAS

By s/Wm. J. Fanning Wm. J.'Fannlng Assistant

WJF:BT:wc

APPROVEDDEC 6, 1945 s/Carlo8 C. Ashley FIRST ASSISTANT ATTORNEY GENERAL
Approved Opfnion CommitteeBy s/BWB Chairman