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 to purchase glass. 

Dear Dr. Painter: 

Your request for a reconsideration of our opinion 

No. V-482 is as follows: 

“Reference is made to your opinion No. 

V-482, dated January 24, 1948. and addressed 

to Honorable George H. Sheppard, Comptroller 

of Public Accountp. One of the accounts presented by Mr. Sheppard and ruled on in the 

opinion as being within the province of the 

Board of Control had to do with the ‘installation of a plate glass top for 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 of the Board of Regents of The 

University of Texas and not of the Board of 

Control, May I respectfully request your consideration of these facts and circumstances as 

set out below: 

“The claim involved was in favor 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. 10 x 34 Plate Glass - PE 

8 pc. 7t x 34 Plate Glass - l 

4 pc. 12 x 12 - Cut on job 

Installed on serving counter-(Cafeteria) 

With felt 81 cement $85.68’ 

“The installation of the plate glass involved 

was in fact a part of a major permanent improvement project under an Educational Facilities Contract with the Federal Works Agency of the United 

States Government.~Project ,No. Tex. 41-V-12. Under this contract. FWA furnished surplus Government buildings and erected them on the 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 in the contract for use as 

a cafeteria, this building alone involving 11,231 

square feet of floor space. The University was 

required to furnish all costs of site preparation, 

bringing up the utility lines to the building, and installing furniture and equipment in the building. 

The majority of the furniture and equipment involved was furnished by the Government out of 

surplus Government stocks; but much of the equipment, especially that required for the operation of 

the cafeteria, was damaged and required repair 

and renovation in addition to being put in place. 

Some of the work required to be done by the University was accomplished by contracts and some 

of it was done with our regular maintenance staff. 

The procurement of the plate glass involved in 

the claim described above was for glass to be installed in brackets attached to the serving counter designed in such a way to serve as a dessert 

compartment above the counter itself, and the 

glass and bracket supports constituted an integral 

part of the serving counter. 

“Our procedure in contracting for the purchase of the glass and its installation was to call 

for bids to be opened at lo:30 A. M. October 1, 
Hon. Theophilus S. Painter, Page 3 (V-677) 

1947. on the basis of a specification in form 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, San Antonio, Texas. 

MOzly one proposal was received. namely, 

that of Binswanger and Company: and since their 

quotation involved a price which was considered 

fair and reasonable and since the work was needed 

in order to complete the installation of the equipment necessary to opzriing of the 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, a formal contract agreement was not prepared 

and executed: but instead, a purchase order was 

issued as evidence of our acceptance of the proposal and authorization to proceed with the installation. 

“The actual installation of the 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 of these materials was for and in 

connection with ‘a major permanent improvement,’ 

inasmuch as the materials installed became a part 

of the structure itself, and, therefore, exclusively 

under the jurisdiction of the Board of Regents 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 of the building, coming under the exclusive jurisdiction of the 
Hon. Theophilus S. Painter - Page 4 (v-677) 

Board of Regents, and not under the State Board 

of Control o . . . 

‘As a matter of fact. we think our interpretations in this respect are, consistent with the ruling of your Opinion No. V-482, or. at any rate, that 

they should be so considered. 

“May I respectfully request that on the basis 

of the facts given you with respect to the 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 of Regents of The University of Texas.” 

We thank you for the very full statement of the basic 

facts upon which you seek such reconsideration. 

The answer to your question is controlled by a consideration of the two statutes having to do with the expenditure of 

moneys of the State on behalf of The University of Texas. They 

are Articles 634 and 2592 of the Revised Civil Statutes as the same 

have been amended. 

Article 2592, insofar as it is pertinent, is as follows: 

“The Board of Regents of the University of 

Texas . . ., shall, with the approval of the Legislature, expend the available University fund for 

the construction of buildings on the campuses . . . 

and for the extension and improvement of their 

campuses and for the equipment of buildings 

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 of the 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 and fixtures, technical instruments and 

books, and all other things required by the different departments or institutions, except strictly 

perishable goods.’ 

The latter Article is a part of Chapter 3 of 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 of Article 2592 down to and including the 50th have made appropriations for the maintenance of the University of Texas of all the 

Available University Fund except that portion of the 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 and the appropriation for this biennium authorize the Board of Regents of the University to expend 

its Available Fund for the purposes mentioned. If there were no 

other statutes to control the expenditure of this 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 of this implicatioa is materially weakened when we 

consider that at the time of the passage of Article 2592 there was 

in effect a statute which evidenced a policy that purchase of certain supplies should be made through a central purchasing agency. 

While it is true that if there is any conflict between the provisions 

of Article 2592 and Article 634, the provisions of Article 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 of the Legislature. 
Hon. Theophilus S. Painter - Page 6 (V-677) 

This brings us to a consideration of what expenditures authorized by Article 2592 and the Appropriation Bill are 

covered by Article 634; and, specifically, whether Article 634 

covers an item such as the glass top which we now learn from 

your request was a part of a construction project which was tied 

to and became a part of the realty. Article 634 speaks in terms 

of supplies which are principally items of personal property. 

There is nothing in this statute which attempts to give the Board 

of Control authority to make contracts for construction projects 

on the campuses of educational institutions, or to make purchases 

of those 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 of Regents of 

the University by Articles 2592 and 2593. 

In Attorney General’s Opinion No. O-5698 this Department advised the University that the phrase “contracts for the 

construction of permanent improvements” as used in Article 2593 

embraces contracts for the alteration and major repair of existing buildings, and construction of improvements and additions to 

existing buildings, as well as for the erectfon of new structures. 

The holding of that opinion indicates that with regard to items of 

construction, improvements and repairs, the Board of Regents is 

the ultimate authority. It would be an extremely anomalous situation if the governing body of the school was empowered to make 

contracts for the construction, repair, and improvements of the 

buildings under its control, and yet 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 of Regents the sole authority 

with respect to the purchases of supplies as were needed to repair, construct, and erect buildings on the campus. 

Therefore, based upon the new and additional facts 

presented in your request, you are advised that the contract for 

the plate glass purchased by the University, being a part of a 

construction project, did not have to be approved by the Board 

of Control, This is in accord with ,our Opinion No. V-482 which 

was written on an entirely different set of facts relating to the 

same glass. There it was treated’as personalty without knowledge that it was used as part of a construction project. 
Hon. Theophilus S. Painter - Page 7 (V-677) 

.SUMMARY 

The University of Texas does not have to 

secure the approval of the Board of Control on 

a contract for the purchase of plate glass used 

for and in a construction project. Art. 2592, V. 

c. s. 

Yours very truly, 

ATTORNEYGENERALOFTEXAS 

Assistant 

MH:erc 

ATTORNEYGENERAL