### R-449

Hon. L. A. Uoods State Suprintendent

f! of Public Instruction Department of Education Austin, 'Texas Op;inion No,,V-213

Re: Maximum pric~e the State maypay for school te,xtbooks, and related fact questions.

Dear Sir:

Werefer to your le,tter of May1, 

### 1947, from which wequote in part?

"A~rtic~e~~

2&2,,~R~,.

C.AS.,,provfdes Lnpart as, fol?&ws: 1;.

. . 'Th83 maximum price at mch.the Texas State Text Ekaek Commiss,ion,shall ,eontract to pay f.o.b. the Texas~depos&tory of the publisher, for any books to be used ,inthe public schools of thXs Stateshall not exceed the mininnunpr5ce at whic:hthe publisher sells such b:ooks &wholesale quantities,, f.o.b. the publisher's publish$,ng house, after all discounts, have been,deducted.

. .I

"Sectian 4 of the Official Texas Textbook Contract Formprepared by the Attorney Beneralt~s office provides as folloua: *It is hereby expressly stipuEated that the pr*ic:es,hereby c,ontracted to be paid the pubUsher f.o.b. its Texas depository for the books herein described and to be use% in the public ,schools of ' this State shall never exceed the minimum price at which the pubUsher sells such books in whol~e%alequantities f.o.b. the publisher*s publishing house, after all discounts have ,been deduc.ted. The saidHon. L. A. wOoas- Page 

### 2-4-213

publisher covenants andagrees to file in the offloe of the State SuperIntendent of Public InsOructlon between June 1 andJune 15 of each year, a sworn statement listing the lowest net wholesale price and terms of sale of all books herein contracted for whensold to other states, counties, dealers, depositories, schools, Individual purchasers, or otherpurchagers-, Andthe said publisher further covenants andagrees that if at,any tine during the period of this cemtruct any book or books herein namedor any editions thereof substantially slmllar to the official samples @nfile in the office of the State Superintendent shs2.P be sold at a lower net wholesale price, f.o,b, publisher@s shipplng point tc any state, county, 

### dealer, depsn%toriea, school, individual, pr others than the price agreed upon in this contract, then such lowersprice shall immediately become the contract price between the publisher andthe State, of Texas provlded the State desires to accept such books in the revised or changed editlon,~

“Twobooks were adopted in another State in day, 1946 at aprice of 984 EODT for eaoh of the books. TAe con-

‘tract-% effective as of July- 1, 1946. In November, 1946these samebooka as far as content is concerned were offered to the Texas State Board ofEducation and a contract nas awarded at 8.90 per oopg for each of the twobooks* The only differences wehave been ab&sto find in the books offered in both states relates to the design on the Covers. Thepagiaatlon Is identical and the content the same. The contract which was awarded by the Texas State Board of Education is effective as of September 1, 1947. Wehave only recently discovered that the books were being supplied to another state at the present time at the lower price. ,e

.

“In view of the foregoing statutoryHon. L. A. 

### WOoda - ‘Page 

### 3

provisions andtam of the contractural agreement, we deialre to submit for your consideration andrequest your opinion on the following quentionr:

“1) Is the State of Texas entitled to urchase these books at the price of s.at Per copy which Is the pnice at which they are being supplied to public schools in a neighboring state, or must the State of Texas pay the price of $*90 stipulated in Its contract?

“2) If a textbook is under contract in another state for a five-year period at a stipulated price, maythe State of Texas contract to purchase this book or substantially similar editlcas. thereof at
a higher price at any time during the period In which the book Is under contract in the other State?”

There being no statement in the submitted facts to the contrary, weassume for the purposes of this opinion that requirements cOnditions.and revisions of Artlcles 2842 as amended’by Acts 1945 

### 28t6 2847 2848 2849, 2a5i, 2853, 2854 and 2856, v: C, St, ha& been’met and that there exists b reason thereof a contract effective September 1, % 19 7,,as approved by the Board of Education andthe publisher of the twotextbooks In question executed Ainaccordance with Article 2675b-5 and 2854, v, c. s.
Thepricer whih the Ward .of Education &F contract to pay for 

### textbooks adoptbd for use In Vie public school% of Texas Is governed byArtiole 

### 2852, V, C. S. It provides that the maxiarmprice fro,bu the Texas depository of the publisher shall, not exceed the lninimum price at which the publisher ,selXs such book in wholesale quantitiee frolbr the publisher’s publishing house, after all discounts have been deducted, Furthermore, It provides that any contract nad~efor such book at a higher price than the maxlnmm herein fixed shall be void.

Se&ion 4of the Official Texas Contract Form, heieinabove quoted, incorporates in substance the ftied maximum

price provision of Artlcls 2852, Under said contract foon, the publisher further agrees that if at anytiae during the period of the contract any books namedtherein or gubstantially similar to theeofficial samples on file in the office of State Superintendent

. i,Hon. L, 

### A, Woods- 

### Page 4 - 

### V-213

shall be sold 

### at alower net wholesale price f.o,b, publlsherle sn;lpping point 

### to any State, etc+, than the price n&reed upon in the contract, then such lower pr8,ce ahall become the oentraat price between ii==%%&P and the State of Texas,, t ‘epu {x&uphasisoure)

It is our opinion that the phrase,

“minimumprice at which the publisher sells such book in wholesale quantit1ee8, f#o#b,, the publisherls publi@hin$ place, after all dlscowz$ts have been deduoted a8 employe,dinArtiole 2852, should be construed to meanthat mlnimumprice, whatever it maybe, as evidenced on the sample copies of the books offered for sale and submitted to the Board of Education pursuant to the provisions of Article 

### 2846, andon the.basis of Whioh said offer the State Board of Educatgon andthe publisher execute their contract,*

If, in fact, on the date the contract
was consummatedbetween the Board of Education and the publisher, the publisherfs mlnlmumprice for the textbook in question, or books substantially similar, ia the lowest net price at whhich they are Bold or offered for saY.ein whOle8ale quantities f,o,b. the publisherla publishing house to other States, counties or other purchasers, then, in our opinion, the price contracted for is in conformity with the provisions of Article 

### 2852. If, however, subsequent to the consummation of the contract, the publisher offers and sells said textbook, or substantially similar books, at a lower net price than provided for in the contract, then the terms Bf the contract epecifically provide that such lower price shall immediately become the contract price between the publlsher and the State of Texas.

Stated in another manner, wedonot believe that the minimum 2852 can properly be conserioe C1aUs.ein Article rued to meanthat lowest net price at which like textbooks were offered and contracted for in wholesale quantities, f.o,b, the publisherr publishing house, at a time prior to that date whenthe like textbeoks were offered for sale to the State of TaXas and en the basis of which said offer a contract has been consummated,_ .’

Hon. L. A, Woods - Page 5A-V-213

based net aale price for the textbook@ ,Mqu,+lon, or books substantially eimi$ar thereto, II@@9otz :per copy for e&h of the books at ,$hedaMathe~c%W@@ct.w&econsvrumat,ed between the Boar&lof Pduca.t:ion @MIthe publisher, the State muatpay the price g,tSpt@*Wd in,the contract for book8 furnished thereumder, unWtes,anduntil the publisher reduoe.a its price when>,under the terms of the conWWt, the $oWm price wlXl Wiediately and automatically becow the contract pr%ce between the State and the publieher,

AccordIn&?, our answer ta your second ques-, tion is in the,afMrmative asium&ngthe contract made in the other State for a five-year period was consummated at a time prfor to the Texas contract and assuming the lower mlnlmumsal,es price offer of the publisher madeto the other State was madeat a time prior to the time it submitted its samples andbid to the State of Texas.

~Bztted .oni2he:eavbag%t;ed factie~,the State of Texas mu@ pay .qO#per copy per textbook or .boGka.~&~Wta&ia&ly s&eilar

during the term ,of thC coritnoct.

!l%eerSwteao* 0f a Iong term contract betweema,p&M~ber and &other State prorL~ for the ,eaXeof textbooks at a c:erta&n f&,x+$prl;c,e would not preclude Ohi?TexaieState Aboardof Education from contractlag *#$%Ia$d publisher for sb&%ar textboolar at a higheir price, when...

non, L, A, Woode- Page CL-V-213

the higher pMce at the time the Board cmmmmate8 the controct~ does not exceed the minimumprice at which the publisher sells such books In wholesale qimntltles, f.o.b, the publisher~s PUbiiShing house, after all discounts have been deducted. Very truly yours

ATTOFtNEY

QW OFTEXAS

Ghester E. Ollison

Assistant 

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