# THE ATTOWNEY GENERAL 0~ TEXAS 

# AUSTIN.

TEXAS September 8.1940

Hon. Theophilus S. Painter, President The University of Texas University Station Austin, Texas Opinion No, V-677. Re: Reconsideration of Opinion **No.** V-482 relating to the authority of The University of Texas topurchase glass.

Dear Dr. Painter:

Your request for a reconsideration of our opinion No. V-482 is as follows:

“Reference is made toyour opinion No. V-482, dated January 24, 1948. and addressed to Honorable George H. Sheppard, Comptroller of Public Accountp. One ofthe accounts presented by Mr. Sheppard and ruled on in the opinion as being within the province of the Board of Control had todowith the ‘installation of aplate glass topfor the serving courtter in the cafeteria.’ Apparently, the information before your office with regard to this claim did not present the true facts and circumstances regarding the claim, which facts and circumstances we respectfully submit would have resulted in a ruling that the transaction was the responsibility ofthe Board ofRegents of The University of Texas andnot ofthe Board of Control, May Irespectfully request your consideration ofthese facts and circumstances as set outbelow:
“The claim involved was infavor of Binswangu and Company. P. 0. Box 911,Austin, Texas, in the amount of $85.68. The invoice described the items furnished as follows:Hon. Theophilus S. Painter, Page 2 (V-677)

“‘8 pc. 10x 34 Plate Glass - PE 8pc. 7t x 34 Plate Glass - l 4pc. 12x 12 - Cut onjob
Installed on serving counter-(Cafeteria) With felt 81cement $85.68’
“The installation ofthe plate glass involved
was infact apart of amajor permanent improvement project under an Educational Facilities Contract with the Federal Works Agency ofthe United States Government.~Project ,No. Tex. 41-V-12. Under this contract. FWA furnished surplus Government buildings anderected them onthe University campus so as to provide thirteen separate structures with an aggregate floor space of 112,693 square feet. One of the thirteen b&dings was specifically designated inthe contract for use as a cafeteria, this building alone involving 11,231 square feet offloor space. The University was required tofurnish all costs of site preparation, bringing upthe utility lines to the building, and installing furniture and equipment inthe building. The majority of the furniture and equipment involved was furnished by the Government out of surplus Government stocks; but much ofthe equipment, especially that required for the operation of the cafeteria, was damaged and required repair and renovation in addition to being putin place. Some ofthe work required tobe done by the University was accomplished by contracts and some ofit was done with our regular maintenance staff. The procurement ofthe plate glass involved in the claim described above was for glass tobe installed inbrackets attached to the serving counter designed in such away to serve as a dessert compartment above the counter itself, andthe glass andbracket supports constituted anintegral part ofthe serving counter.
“Our procedure in contracting for the purchase ofthe glass and its installation was to call for bids to be opened atlo:30 A. M. October 1,Hon. Theophilus S. Painter, Page 3 (V-677)

1947. onthebasis of a specification inform at: tached hereto.

“Requests for bids were sent **to** the following firms:

“Calcasieu Lumber Company, Austin, Texas Binswanger and Company, Austin. Texas Austin Glass Corporation, Austin, Texas Becker Lumber Company, Austin, Texas Pittsburgh Plate Glass Company, SanAntonio, Texas. MOzly one proposal was received. namely, that of Binswanger and Company: and since their quotation involved aprice which was considered fair and reasonable and since the work was needed in order to complete the installation of the equipment necessary to opzriing ofthe cafeteria, the bid
was accepted and the contract awarded notwithstanding the fact that only one bid was actually received. Because of the small size of the transaction, aformal contract agreement was not prepared **and** executed: but instead, apurchase order was issued as evidence of our acceptance ofthe proposal and authorization toproceed with the installation.
“The actual installation ofthe plate glass involved was accomplished during the early part of October, 1947. The cafete,ria was first opened for business on December 6, 1947.

“It is respectfully submitted that the abovestated facts and circumstances clearly show that the purchase ofthese materials was for andin connection with ‘a major permanent improvement,’ inasmuch as the materials installed became apart of the structure itself, and, therefore, exclusively under thejurisdiction ofthe Board ofRegents of The University of Texas under the ruling in Opinion No. V-482; but in any event, the purchase was for the initial equipping and furnishing ofthe building, coming under the exclusive jurisdiction oftheHon. Theophilus S. Painter - Page 4 (v-677)

Board of Regents, and not under the State Board of Control o
. . .

‘As amatter offact. we think our interpretations in this respect are, consistent with the ruling ofyour Opinion No. V-482, or. at any rate, that they should be so considered. “May Irespectfully request that onthe basis ofthe facts given you with respect tothe plate glass purchase referred to earlier in this letter that you modify that portion of Opinion No. V-482 so as to hold that such purchase was in the responsibility of the Board ofRegents of The University of Texas.”

We thank you for the very full statement ofthebasic facts upon which you seek such reconsideration.

The answer toyour question is controlled by aconsideration ofthe two statutes having to dowith the expenditure of moneys ofthe State onbehalf of The University of Texas. They
are Articles 634 and 2592 ofthe Revised Civil Statutes as the same have been amended.

Article 2592, insofar as it is pertinent, is as follows:
“The Board ofRegents of the University of Texas

. . ., shall, with the approval ofthe Legislature, expend the available University fund for the construction ofbuildings on the campuses
. . . andfor the extension and improvement oftheir campuses andfor the equipment ofbuildings thereon in the proportions and amounts hereinafter indicated

. . .-
Article 634 is as follows:
“The Board of Control shall purchase all the supplies used by each Department ofthe State Government, including the State Prison System, and each eleemosynary institution, Normal school, Agricultural and Mechanical College, University of Texas, and each and all other State Schools or De-Hon. Theophilus S. Painter - Page 5 (V-677)

partments of the State Government heretofore or hereafter created, Such supplies to include furniture andfixtures, technical instruments and books, and all other things required by the different departments or institutions, except strictly perishable goods.’
The latter Article is apart of Chapter 3of Title 20 creating the Board of Control. making that body the general purchasing agency for the State departments and institutions.

The various Lcgfslatures from the enactment ofArticle 2592 down to and including the 50th have made appropriations for the maintenance ofthe University of Texas of all the Available University Fund except that portion ofthe fund appropriated to the Agricultural and Mechanical College of Texas. The rider to the Appropriation Bill for the University of Texas (Acts 1947. 50th Legislature, H. B. 246, Sec. 5). provides in part as follows:

“Sec. 5. o
. , The residue of said Available Fund, if any, may be expended for permanent improvements, equipment, instructional and other educational services, repairs and physical plant operation and maintenance.”
Both Article 2592 andthe appropriation for this biennium authorize the Board ofRegents of the University to expend its Available Fund for the purposes mentioned. Ifthere were no other statutes to control the expenditure ofthis money. then the implication would be strong that the intention of the Legislature
was to delegate to the governing body of the University the exclusive authority to **make** any and all purchases required. However, the strength ofthis implicatioa is materially weakened when we consider that atthe time ofthe passage ofArticle 2592 there was in effect astatute which evidenced apolicy that purchase of certain supplies should be made through a central purchasing agency. While it is true that ifthere is any conflict between the provisions ofArticle 2592 and Article 634, the provisions ofArticle 2592 (a later Act) would necessarily control. we are required by the principles of statutory construction to reconcile as far as possible these two expressions ofthe Legislature.Hon. Theophilus S. Painter - Page 6 (V-677)

This brings us to aconsideration ofwhat expenditures authorized by Article 2592 andthe Appropriation Bill are covered by Article 634; and, specifically, whether Article 634
covers anitem such as the glass topwhich we now learn from your request was apart of a construction project which was tied to andbecame apart ofthe realty. Article 634 speaks in terms of supplies which are principally items ofpersonal property. There is nothing inthis statute which attempts to give the Board of Control authority tomake contracts for construction projects
onthe campuses of educational institutions, or to make purchases ofthose supplies which go into such construction projects. Attorney General’s Opinion No. V-482 and O-3768. **On** the contrary, this responsibilfty is expressly vested in the Board ofRegents of the University **by** Articles 2592 and 2593.

InAttorney General’s Opinion No. O-5698 this Department advised the University that the phrase “contracts for the construction ofpermanent improvements” as used in Article 2593 embraces contracts for the alteration and major repair of existing buildings, and construction ofimprovements and additions to existing buildings, as well as for the erectfon ofnew structures. The holding ofthat opinion indicates that with regard to items of construction, improvements and repairs, the Board of Regents is theultimate authority. Itwould be an extremely anomalous situation ifthe governing body ofthe school was empowered to make contracts for the construction, repair, andimprovements ofthe buildings under its control, andyet the purchase of supplies to carry out those contracts rest&l with the Board of Control. Even in the absence of a contract for the work, we believe that the Legislature intended to make the Board ofRegents the sole authority with respect to the purchases of supplies as were needed to repair, construct, and erect buildings onthe campus.

Therefore, based upon the new and additional facts presented inyour request, you are advised that the contract for the plate glass purchased by the University, being apart of a construction project, didnot have tobe approved by the Board of Control, This is in accord with ,our Opinion No. V-482 which
was written on an entirely different set offacts relating to the
same glass. There itwas treated’as personalty without knowledge that it was used as part of aconstruction project.Hon. Theophilus S. Painter - Page 7 (V-677)

.SUMMARY
The University of Texas does not have to
secure the approval ofthe Board of Control on a contract for the purchase ofplate glass used for and in aconstruction project. Art. 2592, V.
c. s.
Yours very truly,

ATTORNEYGENERALOFTEXAS

Assistant

**MH:erc** ATTORNEYGENERAL