R-449 

Hon. L. A. Uoods 

State Sup rintendent 

f! 

of Public Instruction 

Department of Education 

Austin, 'Texas 

Op;inion No,, V-213 

Re: Maximum pric~e the State 

may pay for school te,xtbooks, and related fact 

questions. 

Dear Sir: 

We refer to your le,tter of May 1, 1947, from 

which we quote 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 ,in the public 

schools of thXs Stateshall not exceed 

the mininnun pr5ce at whic:h the 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 Form prepared 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%ale quantities f.o.b. the 

publisher*s publishing house, after all 

discounts have ,been deduc.ted. The said 
Hon. L. A. wOoas - Page 2-4-213 

publisher covenants and agrees to 

file in the offloe of the State SuperIntendent of Public InsOructlon between June 1 and June 15 of each year, 

a sworn statement listing the lowest 

net wholesale price and terms of sale 

of all books herein contracted for 

when sold to other states, counties, 

dealers, depositories, schools, Individual purchasers, or otherpurchagers-, 

And the said publisher further covenants and agrees that if at, any tine 

during the period of this cemtruct any 

book or books herein named or any editions thereof substantially slmllar to 

the official samples @n file 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 lowers price shall immediately 

become the contract price between the 

publisher and the State, of Texas provlded the State desires to accept such 

books in the revised or changed editlon,~ 

“Two books were adopted in another 

State in day, 1946 at a price of 9 84 

EODT for eaoh of the books. TAe con- 

‘tract-% effective as of July- 1, 1946. 

In November, 1946 these same booka as 

far as content is concerned were offered 

to the Texas State Board of Education 

and a contract nas awarded at 8.90 per 

oopg for each of the two books* The only 

differences we have been ab&s to find in 

the books offered in both states relates 

to the design on the Covers. The pagiaatlon 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. We have 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 statutory 
Hon. L. A. WOoda - ‘Page 3 

provisions and tam of the contractural 

agreement, we deialre to submit for your 

consideration and request your opinion on 

the following quentionr: 

“1) Is the State of Texas entitled 

to urchase these books at the price of 

s.at P er 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, may the 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, we assume 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 and the publisher of the two textbooks In question executed Ain accordance with Article 2675b-5 and 2854, 

v, c. s. 

The pricer whih the Ward .of Education &F contract to pay for textbooks adoptbd for use In Vie public 

school% of Texas Is governed by Artiole 2852, V, C. S. 

It provides that the maxiarm price 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~e for such book at a 

higher price than the maxlnmm herein fixed shall be void. 

Se&ion 4 of 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 

any tiae during the period of the contract any books 

named therein or gubstantially similar to thee official 

samples on file in the office of State Superintendent 

. i, 
Hon. L, A, Woods - Page 4 - V-213 

shall be sold at a lower 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 ‘e pu 

{x&uphasis oure) 

It is our opinion that the phrase, 

“minimum price 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,d in Artiole 2852, 

should be construed to mean that mlnimum price, 

whatever it may be, 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, and on the.basis of Whioh 

said offer the State Board of Educatgon and the 

publisher execute their contract,* 

If, in fact, on the date the contract 

was consummated between the Board of Education 

and the publisher, the publisherfs mlnlmum price 

for the textbook in question, or books substantially similar, ia the lowest net price at whhich 

they are Bold or offered for saY.e in 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, we do not 

believe that the minimum 

2852 can properly be cons e 

rioe C1aUs.e in Article 

rued to mean that 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 when the 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 5 A-V-213 

based 

net 

aale price for the textbook@ ,M qu ,+lon, or books substantially eimi$ar thereto, II@@ 9otz : per copy for e&h 

of the books at ,$he daMa the ~c%W@@ct .w&e consvrumat,ed 

between the Boar&l of Pduca.t:ion @MI the publisher, the 

State muat pay the price g,tSpt@*Wd in ,the contract 

for book8 furnished thereumder, unWtes, and until 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&ng the 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 mlnlmum sal,es price offer of the publisher 

made to the other State was made at a time prior to the 

time it submitted its samples and bid to the State of 

Texas. 

~Bztted .on i2he :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%e erSwteao* 0f a Iong term contract betweem a, p&M~ber and &other 

State prorL~ for the ,eaXe of textbooks 

at a c:erta&n f&,x+$ prl;c,e would not preclude Ohi? Texaie State Aboard of Education 

from contractlag *#$%I a$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 minimum price 

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 OF TEXAS 

Ghester E. Ollison 

Assistant 

cEo:ajm 

.