Hon. Preston Smith Opinion No. M- 910

Governor of Texas State Capitol Building Re: Authority of the Governor Austin, Texas 78711 of Texas to enter Into certain open-end contracts of a stated term for computer services on behalf Dear Governor Smith: of various State agencies.

Your recent letter requesting the opinion of this office concerning the referencedmatter states, In part, as follows:

“Thisrequestsyour opinion as to the legality ofmy entering Into open-end services contracts of a stated term, on thepart of the State of Texas, as the need for this type of contractmay arise

. . .“Two specific c’asesare now pending, and the proposed contractsare enclosed for your examlnatlon. These cases Involve the purchase of computer operationalprogrampackages (‘software’packages) by various State agencies.

. . . “An individualagency now has the authority to negotiate Its own contract for such services; however, as Illustrated In the third enclosure to this letter, the pricing advantages of negotiating a single State contract for quantity orderingby all interestedagencies are Immediately apparent

. . . Section 10 of Article IV of the Constitution of Texas provides as follows:

‘He (theGovernor) shall cause the laws to be faithfully executed and shall conduct, In person, or in suchmanner as shall be prescribed by law, all Intercourse and business .ofthe State with other States and with theUnited States.”

-4426-Honorable Preston Smith, page 2 (M-910)

The Interpretivecommentary InVernon's Civil Statutes, In commenting on the foregoing constitutionalprovision, states, Inpart, that:

'The obligationplaced by this sectionupon the governor to cause the laws tobe faithfully executed Is, obviously, executive In nature. But this obligation, and the fact that thegovernor Is made the chief executive officer of the state,do not conferupon him any specificpower. In construing state constitutions, the state courtshave not derived, as has the Supreme Court of theUnited States with respect to the Federal Executive,any very largepowers from sucha general power orduty as to the duty to see that the laws be faithfullyexecuted. The rule of delegated powers has been construed strictlyas to the governor, so that he has no particularpower unless granted to him, expressly or lmplledly.' (Emphasis added.)
A recent Texas case has held that the governor has no prerogative powers, and that he possesses only suchpowers and duties as are vested In him by constitutional or statutorygrant. In Calvert v. Ad,ms, 388 S.W.2d 742 grounds, 39b S.W.26 948 (Tex.Sup. i Tex.Clv.App.), rev'd on other 19 5), the court sald:
"In 81 c.J.S. States Sec. 60, p. 982, It Is stated that 'TheGovernorhas no prerogativepowers, but possesses only suchpowers and duties as are vested In him by constitutionalor statutory grant.' "InConstantln v.. Smith, 57 F.2d 227, D.C., E.D. Tex., appeal dlsmlssed Sterling v. Constantln, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375, the Court quoted with approval the following statement from Herllgy v. Donohue, 52 Mont. 601, 161 P. 164, L.R.A. 1917B, 702 Ann.Cas. 1917C, 29: '(t)heGovernor Is at all times amenable to the Constltutlon and laws of the state. They are the charters of his powers, and In them he must find the authority forhis officialacts."' 388 S.W.2dat p. 747. Neither our Constitutionnor statutesprovide, either expressly or by necessary Implication, for you to enter into contracts, suchas those submittedwith your letter, on behalf of various State agencies.

-4427-Honorable Preston Smith, page 3 (M-910)

Your question, accordingly, Is answered In the negative.

SUMMARY There exists no authorization, either in the Constitution or the statutesof the State of Texas, for the Governor to enter Into, on behalf of various State agencies, certain open-end contracts of a stated term for the furnishingof services of computer operational program packages.

Preparedby Austin C. Bray, Jr. Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Rex White Jim Swearlngen Bob Lattlmore Sally Phillips
MEADE F. GRIFFIN Staff Legal Assistant
ALFREDWALKER Executive Assistant NOLA WRITE First Assistant

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