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OFFICE OF THE ATTORNEY GENERAL OF TEXAS

**AUSTIN**
**ALD c.**  **MANN ,**  **Q!**

**r ”“**  **n 0mm**  **” AL**  **2**

Honorable Geo. H. Sheppard Comptroller02 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

conneotionWith 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, lnoludlngthe State PrisonHon. Gee. H. Sheppard,page 2,

system, and e,aoh eleemoeynaryInstitution, Normal sohool,AgrIoulturaland Yeohanloal college,University of Texas, and eaoh and all other State sohools or Departmentaof the State mvernment heretororeor hereafter oreated. Suoh supplies to Inolude furniture * and fixtures, teohnloal Instrumentsand books, and all other things requiredby the dliierent departmentsor InstItutIons,exoept atrlotly perishablegoods."

We have several times held that thla statute evldenoed a State polloy that supplies, equipmentand llko thlnga requiredby the differentdepartmentsor Instltntlons of the State should be purchasedupon oontraotmade by the Board 0r Contra?. CopIes,oitheae oplnlonshave In moat Instancesbeen given to you, and, of oourse, are In your rileso

There Is no ocoasion for departure from this ee-: tablishedrule in the absence of some statutoryauthority, either expresslygiven, or by neoessary implioatlon.

The Legislatureby Aats or the 434 Legislature (1933) 1st. C. S. p. 274, oh. 99, 8 1, has providedr

"The Legislatureof Texas does hereby aooept the provisionsand.benefItsof an Aot or Congress passed June 2, 1920, emended June 5, 1924, entitled: 'AnAot to provide ior the promotion of VooationalRehabilitationof persons disabled In Industry or otherwIse,and their return to 01~11 em.ployment.~

"2. The Treasureroff Texas be, and he Is hereby authorizedand cesn~wered to reoeive the funds appropriatedunder said Aot of Uongresa, an4 is authorized to make disbursementstherefrom upon the order of the State Board or Vooatlonalfiduoatlon.The State Board of YooatlonalEduoatlon Is empbweredand Inetruoted to oo-operatewith the terms and oondItIons expressed in the Aot or Uongress aforesaid.Hon. Geo. H. Sheppard,page 3.

Woo. 2-a. The VocationalRehabllltatlon DivisIon;through the Supervisorof Rehabilitation,is authorizedto reoeive ' gifts an4 donations ror rehabilitation work, said gifta and donations to be 4eposItedby thaupervlsor of Rehabilitationin the State Treasury, subjeot to the matching of same with llederal

Funds up to suoh amount as the Federal Governmentmay allooateper 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 (Artiole634) above quoted. There has been no express repeal, and repealsby lmplIoatIonare not favored and will not be permitted exoeptwhere the two Aots speak with reapeot to the same subjeotmatter, and are so inconsistentas 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 conflictwith Artlole 634 Is, "the Treasureror Texas * I * Is authorizedto make dlabursementetherefrom (funds appropriatedun4er the Aot or Congress)upon the order oi the State Board for VooatlonalEduoatIon.* There Is no real oonrliot, it Is only apparent.

Artiole 634 does not undertaketo olothe the Board of Controlwith final dlsoretlonIn the matter of need 0r our Institutionsan4 departmentsror supplies or equipment,It merely requireswhen that need Is shown.to the Boar4 ofControlby proper request for requisition the oontraot for the purchaseof suoh supplies or equ p1 ment Is to be made by the Board of Control rather than by the departmentor Institution making the requisition., This Is espeolallytrue In those oaseswhere, as here, the f'lnal dlsaretlonas to need Is in the departmentor 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 departmentalan4--. 

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Hon. Geo. B. Sheppard,page 4.

institutionalsupplies and equipment to be~purohaeed through the Boar4 of Uontrol ae a oontraotagency is respeoted,

without lessening the power of the State ;;B;dlro;Foatlonal Eduoatlon,a8 provided In Artlole

- , . The oentral purohaslngagenay 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.Stateof Texas through its State Boar4 of Vooatlocal Education. A oareiul reading or VocationalDivision BulletinNo. 113, revised 1938, Issued by the Unite4 States Department of Interior, oonflrms the aorrectnessof our oonaluslon aa the question of oooperatlonbetween the authorized agencies Is ooncerned.

That wholesome aooperatlonoontemplatedan4 demanded by the Ofiiae of Eduoation, and expresslygranted and realpmoate4 by the Legislature of Texas, pertains to the larger an4 humane work or distributingfunds aTproprlated by the Unite4 States for vooatlonalrahabIIItatIono

We will next considerwhether or not the Board of Controlwhose duty It is as we have seen to make pur- ' ohases for the various state institutionsan4 departments may by approval of the olalms of personswho have made sa ie

or supplies or equipmentdirectly to an institutionor bepartment without the purohasehaving 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 olroumstanoeesuch belated approvalby the Boar4 or Controlwill 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 oorporatlona0 desiring on a State mailingHon. Geo. H. Sheppard,page 5*

list which said list shall entitle said holder to a copy of the proposal on any contractthat 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 determinedby 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 proposalor 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 particularbidder
or olass of bidders, it may forego suah oharge and shall be authorizedto 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 *StateBoard 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 expensesan4 charges In conneotlon with the making an4 furnishing or said proposals.*

Artlole 631 of the statutesprovides for.theappointment or a ohlef of the division of purohaslng,an4 subsequentarticles further regulate the manner of making purohasesby the Boardo

These various statutesmake It olear that the method of purchasingsu$plIes and equipmentpresoribedby the statutes Is mandatorywith the exoeptionscontainedin 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 presoribedbyHon. 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 Commissionthat a olty having entered Into a contract In a manner not authorizedby law which oontractwas thereforevoid should be held liable upon a quantummerult where it reoeivedthe ~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 pre4loatedupon the legal oonaeptlonof
an Implied agreementto pay for the value of the perrormanoe by the other party whloh ha4 been aooepted by the olty.

It Is elementarylaw 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 contraathis own, and will of course be bound by Its terms. *A void oontraot;however,may not be galvanized Into life by ratification,

approval or adoptionwhatsoever. There Is no questionof ratificationInvolve4 In the present situation slnae th

50 oontraotwas not the purported oontraatof the Board or ntrol but was one axeouted by the State Boar4 of VoaatlonalEduoatlon through Its dlraotor. Suah contraot Is Invalid and void In that the State Board of Vooatlonal Eduaatlonha4 no power to make suoh a oontraot. It oould not, therefore,have validity imparted to It by any aot or the Boar4 of Controlwhatsoever.

In suoh a oase the Board of Control by approving the purohase an4 sale olalm thus unlawfullyattemptedmakes the transaatlonIts own purohasewithin the meaning of : Artlole 634 of the Statuteswhere the transactionwas one the Board Itself 00~14 have made in the manner attemptedby the Institution. The erreot of such approval of the olaia would be to make the purohase that of the Board of Control In substantialoompliancewith the requirementof ArtIole 634 of our statutes. The validity of such alaIm would be predloatedupon the aat or the Board In making the purohase Its own, and not upon any Impartedvalidity to the original void undertakingof the institution.

From what we have said it would follow that the Boar4 of Controlwould have no authority to approve a olaimior 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 

### Item6

0r 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