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 referenced matter states, In part, as follows: 

“This requests your opinion as to the legality 

of my entering Into open-end services contracts of 

a stated term, on the part of the State of Texas, 

as the need for this type of contract may arise 

. . . 

“Two specific c’ases are now pending, and the 

proposed contracts are enclosed for your examlnatlon. These cases Involve the purchase of computer 

operational program packages (‘software’ packages) 

by various State agencies. . . . 

“An individual agency 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 ordering by 

all interested agencies are Immediately apparent 

. . . 

Section 10 of Article IV of the Constitution of Texas 

provides as follows: 

‘He (the Governor) shall cause the laws to 

be faithfully executed and shall conduct, In person, 

or in such manner as shall be prescribed by law, all 

Intercourse and business .of the State with other 

States and with the United States.” 

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Honorable Preston Smith, page 2 (M-9 10) 

The Interpretive commentary In Vernon's Civil Statutes, 

In commenting on the foregoing constitutional provision, states, 

In part, that: 

'The obligation placed by this section upon 

the governor to cause the laws to be faithfully 

executed Is, obviously, executive In nature. But 

this obligation, and the fact that the governor Is 

made the chief executive officer of the state, do 

not confer upon him any specific power. In construing 

state constitutions, the state courts have not derived, 

as has the Supreme Court of the United States with respect to the Federal Executive, any very large powers 

from such a general power or duty as to the duty to 

see that the laws be faithfully executed. The rule 

of delegated powers has been construed strictly as 

to the governor, so that he has no particular power 

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 such powers and 

duties as are vested In him by constitutional or statutory grant. 

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 'The Governor has no prerogative powers, 

but possesses only such powers and duties as are 

vested In him by constitutional or statutory grant.' 

"In Constantln 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)he Governor 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 for his official acts."' 388 S.W.2d at p. 747. 

Neither our Constitution nor statutes provide, either 

expressly or by necessary Implication, for you to enter into contracts, such as those submitted with your letter, on behalf of 

various State agencies. 

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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 statutes of 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 furnishing of services of computer 

operational program packages. 

Prepared by 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 

ALFRED WALKER 

Executive Assistant 

NOLA WRITE 

First Assistant 

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