- 

42 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

ALD c. MANN 

, Q! 

r”“n 0mm”AL 

2 

Honorable Geo. H. Sheppard 

Comptroller 02 Pub110 Aooounts 

Austin, Texas 

Dear Mr* ShapQarU: 

or a.~;. 

to the State 

tion drawn againet 

Fund appropriated 

oard of Vooatfonal 

you advlee this do1s olaim require8 

tate Board of Control b eie authorized to issue 

conneotion With Grant.9 Made ror Expenae8 0r 

suoh Agenoies Pursuant to Title III 0r the 

Sooial Seourlty Aot.” 

Artlole 034 of the Revised Civil Statute8 provldesr 

c The Board of Control shall purohaee all 

the ~uppllee used by eaoh Department of the 

State Government, lnoludlng the State Prison 
Hon. Gee. H. Sheppard, page 2, 

system, and e,aoh eleemoeynary Institution, 

Normal sohool, AgrIoultural and Yeohanloal 

college, University of Texas, and eaoh and 

all other State sohools or Departmenta of 

the State mvernment heretorore or hereafter 

oreated. Suoh supplies to Inolude furniture * 

and fixtures, teohnloal Instruments and books, 

and all other things required by the dliierent departments or InstItutIons, exoept atrlotly perishable goods." 

We have several times held that thla statute 

evldenoed a State polloy that supplies, equipment and llko 

thlnga required by the different departments or Instltntlons of the State should be purchased upon oontraot made 

by the Board 0r Contra?. CopIes,oi theae oplnlons have In 

moat Instances been given to you, and, of oourse, are In 

your rileso 

There Is no ocoasion for departure from this ee-: 

tablished rule in the absence of some statutory authority, 

either expressly given, or by neoessary implioatlon. 

The Legislature by Aats or the 434 Legislature 

(1933) 1st. C. S. p. 274, oh. 99, 8 1, has providedr 

"The Legislature of Texas does hereby 

aooept the provisions and.benefIts of an Aot 

or Congress passed June 2, 1920, emended June 

5, 1924, entitled: 'An Aot to provide ior the 

promotion of Vooational Rehabilitation of persons disabled In Industry or otherwIse, and 

their return to 01~11 em.ployment.~ 

"2. The Treasurer off Texas be, and he Is 

hereby authorized and cesn~wered to reoeive the 

funds appropriated under said Aot of Uongresa, 

an4 is authorized to make disbursements therefrom upon the order of the State Board or Vooatlonal fiduoatlon. The State Board of Yooatlonal Eduoatlon Is empbwered and Inetruoted 

to oo-operate with the terms and oondItIons 

expressed in the Aot or Uongress aforesaid. 
Hon. Geo. H. Sheppard, page 3. 

Woo. 2-a. The Vocational Rehabllltatlon DivisIon;through the Supervisor of 

Rehabilitation, is authorized to reoeive ' 

gifts an4 donations ror rehabilitation work, 

said gifta and donations to be 4eposIted by 

thaupervlsor of Rehabilitation in the State 

Treasury, subjeot to the matching of same 

with llederal Funds up to suoh amount as the 

Federal Government may allooate per biennium 

to the State ror said work, and whloh has not 

already been met with state appropriationa 

for said biennium." 

This Act, in our opinion, does not repeal the 

prior Aot (Artiole 634) above quoted. There has been no 

express repeal, and repeals by lmplIoatIon are not favored and will not be permitted exoept where the two Aots 

speak with reapeot to the same subjeot matter, and are so 

inconsistent as that both may not stand as the law upon 

the subjeot at the same time. 

The language of Art1018 2676-1, fi 2 most nearly 

In conflict with Artlole 634 Is, "the Treasurer or Texas 

* I * Is authorized to make dlabursemente therefrom (funds 

appropriated un4er the Aot or Congress) upon the order oi 

the State Board for Vooatlonal EduoatIon.* There Is no 

real oonrliot, it Is only apparent. 

Artiole 634 does not undertake to olothe the 

Board of Control with final dlsoretlon In the matter of 

need 0r our Institutions an4 departments ror supplies or 

equipment, It merely requires when that need Is shown.to 

the Boar4 ofControl by proper request for requisition 

the oontraot for the purchase of suoh supplies or equ 1 pment Is to be made by the Board of Control rather than by 

the department or Institution making the requisition., 

This Is espeolally true In those oases where, as here, the 

f'lnal dlsaretlon as to need Is in the department or lnstltutlon making t,ho retisltion. 

Both Artiales 0r the statute oan stand, and 

should.stand, and be given full roroe an4 etieot. By doing so, the State'6 polloy to require all departmental an4 
--. 

45 

Hon. Geo. B. Sheppard, page 4. 

institutional supplies and equipment to be~purohaeed 

through the Boar4 of Uontrol ae a oontraot agency is 

respeoted, without lessening the power of the State 

;;B;dlro; Foatlonal Eduoatlon, a8 provided In Artlole 

- , . The oentral purohaslng agenay Is an eoonomIca policy only. 

Neither 4oes the holding above Indioated Impair or In anywIse disrupt the harmonious oooperation 

between the Ofiloe or Zduoatlon or the United States and 

.the.State of Texas through its State Boar4 of Vooatlocal 

Education. A oareiul reading or Vocational Division 

Bulletin No. 113, revised 1938, Issued by the Unite4 States 

Department of Interior, oonflrms the aorrectness of our oonaluslon aa the question of oooperatlon between the authorized agencies Is ooncerned. 

That wholesome aooperatlon oontemplated an4 

demanded by the Ofiiae of Eduoation, and expressly granted 

and realpmoate4 by the Legislature of Texas, pertains to 

the larger an4 humane work or distributing funds aTproprlated by the Unite4 States for vooatlonal rahabIIItatIono 

We will next consider whether or not the Board 

of Control whose duty It is as we have seen to make pur- ' 

ohases for the various state institutions an4 departments 

may by approval of the olalms of persons who have made sa i e 

or supplies or equipment directly to an institution or bepartment without the purohase having been made by the Board 

of Control, so that suoh c&aims may be passed by the Comptroller ror warrant In any event, an4 If so In what cases 

or under what olroumstanoee such belated approval by the 

Boar4 or Control will authorize the payment of such a olalm. ~ 

Artlole 034a of the Revised 01~11 Statutes Is as 

r0n0w8 f 

%eo. 1. The Board of aontrol shall In all 

pub110 oontraots to be let or awarded by It Invite bids an4 furnish proposals to those deslroua or bidding on suoh rorms as It may deem 

proper. Said Boar4 may plaoe any person, firm 

or oorporatlon a0 desiring on a State mailing 
Hon. Geo. H. Sheppard, page 5* 

list which said list shall entitle said holder 

to a copy of the proposal on any contract that 

Is to be let. To be entitled to reoeive suoh 

State mailing list, said holder shall first 

pay In advance an annual service oharge to be 

determined by the Board of Control which ssme 

shall not be less than Five ($5.00{ Dollars 

nor more than Seven Dollars and Fifty ($vo50) 

Cents. 

“Sea. 2. Where any bidder or prospeotlve 

bidder, other than those appearing on said 

State mailing list, desires to bI4 on any contract to be let by said Board, he shall pay 

suoh amount for the proposal or proposals furnished to him, as said Board may determine Is 

Just an4 neoessary; provided, however, in the 

event said Board rinds that a servioe oharge 

may work a hardship on some particular bidder 

or olass of bidders, it may forego suah oharge 

and shall be authorized to burnish such propose1so 

“Sea. 3. All amounts oolleoted from the 

annual servloe charge of’ those on the State 

mailing list or rrom proposals furnished shall 

be deposited In the State Treasury in the name 

of the *State Board of Control Speoial Service 

Acoount,’ an4 enough or said rws so collected 

shall be used by said Board an4 paid out as other 

rm4s are to defray all necessary expenses an4 

charges In conneotlon with the making an4 furnishing or said proposals.* 

Artlole 631 of the statutes provides for.the appointment or a ohlef of the division of purohaslng, an4 

subsequent articles further regulate the manner of making 

purohases by the Boardo 

These various statutes make It olear that the 

method of purchasing su$plIes and equipment presoribed by 

the statutes Is mandatory with the exoeptions contained in 

Articles 634, 660 an4 perhaps other pertinent statutes* 

In other words, the Boar4 of Control Itself has no authority to make purahases exoept in the manner presoribed by 
Hon. Geoo H. Sheppard, page B. 

these statuteso 

In Sluder vs. City of San Antonio, 2 9. W. (2) 

841, the Supreme Court held through an opinion written 

by the Commission that a olty having entered Into a contract In a manner not authorized by law which oontract was 

therefore void should be held liable upon a quantum merult 

where it reoeived the ~benefit of the oontraot; the aontraot 

being one which the oity ha4 general power to make lf It 

ha4 pursued the required formalities. It was pointed out 

this was not making valid the original ~014 oontraot, but 

the~lIabIlIty was pre4loated upon the legal oonaeptlon of 

an Implied agreement to pay for the value of the perrormanoe by the other party whloh ha4 been aooepted by the 

olty. 

It Is elementary law that where one without authority so to 40 executes an instrument in the name Or 

another that other may by adoption or ratlfloatlon make the 

contraat his own, and will of course be bound by Its terms. 

*A void oontraot; however, may not be galvanized Into life 

by ratification, approval or adoption whatsoever. There Is 

no question of ratification Involve4 In the present situation slnae th 

50 

oontraot was not the purported oontraat of 

the Board or ntrol but was one axeouted by the State Boar4 

of Voaatlonal Eduoatlon through Its dlraotor. Suah contraot 

Is Invalid and void In that the State Board of Vooatlonal 

Eduaatlon ha4 no power to make suoh a oontraot. It oould 

not, therefore, have validity imparted to It by any aot or 

the Boar4 of Control whatsoever. 

In suoh a oase the Board of Control by approving 

the purohase an4 sale olalm thus unlawfully attempted makes 

the transaatlon Its own purohase within the meaning of : 

Artlole 634 of the Statutes where the transaction was one 

the Board Itself 00~14 have made in the manner attempted by 

the Institution. The erreot of such approval of the olaia 

would be to make the purohase that of the Board of Control 

In substantial oompliance with the requirement of ArtIole 

634 of our statutes. The validity of such alaIm would be 

predloated upon the aat or the Board In making the purohase 

Its own, and not upon any Imparted validity to the original 

void undertaking of the institution. 

From what we have said it would follow that the 

Boar4 of Control would have no authority to approve a olaim 
ior a 

prorla p” 

sharr not mado in aooordanoe with the mandatory 

ona of ths Btetuto. spaoirloally, the mar4 of 

Control muld have no authority to apprwa ouoh a alala 

where the puroharo wau one required by the statute8 to be 

upun oompetltfre bide, It coula only be efrootiv9 in those 

case6 where the puPaham wan one which the goard oi Control 

itself oould have made in tim manner attezgtsd by the in&Itutlion. 

In this oonneotlon we are of the opinion that it 

these Item06 r l qul en;ni ;;p 1108 were 0r ruoh nature aa 

that oompetltim bl iif ik~ordbl. the law NOtid 

have no applioation to aueh a case, It does not requlro M 

impos8iblo thing. 

If the itema of puroham In the present oam wre 

such aa that the purahase should have been pads upon oompetitlve blda, thrn the Soard of Control would have no authority to approve the audit for papaant. If, on the other 

hand, the itma were of suoh nature a8 that the mard could 

have purohased them without competltivo bids, then the 

soar& in lt8 dlsorstlon would have the authority to ap rove 

the olallp tho effoot of *p?ioh approval would In our op % ion 

‘be a substantial oanpUanoe with the statute8 of purchase 

and would entitle the olaim to be passed for a warrant oi 

we have not oonsidrrod, and 

to a 60sb whet0 the mppliee involved 

;ydlme the Board ia oalled upon for 

. suoh a oaae 18 not berore uu. 

exprem no 0pLaion 

have been oonmmed 

a apprwal or the 

aa 

at