.. ._ r

**THE** 

### A~ORNEY GENERAL

OFTEXAS

Honorable Raymond W. Vowel1 Opinion No. WW-319 Acting Executive Mrector Texas State Hospitals and Re: Whether or not, under ArtiSpecial Schools cle 3174b, Section 2, VerAustin, Texas non's Civil Statutes, the Board for Texas State Hospitals and Special Schools may sell surplusproperty, and whether the Board may transferproperty from one Dear Mr. Vowell: institutionto another.

You have submitted for OUP opinion the following questions which we quote from your letter of September 24, 1957:

"(1) May this Board sell surplusproperty or supplies of institutions? (Thistype of property consists of obsolete, excess, or junk items which are not needed or desired by other institutions.)
"(2) Nay this Board transfer,with or without reimbursement, surplusproperty or supplies from one institutionto another, under its jurisdiction?"

We have assumed in answeringyour request that your first question inquireswhether the Board for Texas State Hospitals and Special Schoolsmay dispose of obsolete and junk items to the public by advertisenentand bids, as opposed to a transfer of the goods to another Stateagency.

We have been referred to the provisions of Article 

### 3174 Section 2, Vernon's Civil Statutes,which grants to the Board'for Texas State Hospitals and Special Schools the followingpowers:
II

. . . Effective September 1, 1949, the control and management of, and all rights,privileges, powers, and duties incident thereto including building, design and constructionof the Texas State Hospitals and Special Schoolswhich are now vested. . -

Honorable Raymond W. Vowell, page 2. 

### (w-3191

in and exercisedby the State Board of Control shall be transferred to, vested in, and exercisedby the Board for Texas State Hospitals and Special Schools, Provided,however, that the Board of Control shall continue to handle purchases for such institutions in the samemanner as they do for other State agencies,"

At the time this statutewas enacted,Articles 

### 640,666 and 

### 666-1,Vernon's Civil Statutes,were the statutesunder which the State Board of Control exercised itspower of selling and transferring surplusproperties and supplies, These Articlesprovided as follows:

Article 

### 640:

"Whenany institutionaccumulates an amount of supplieson hand in excess of its needs, and another institution is in need of such supplies,the Board shallbe authorized to transfer any of such supplies from the institutionhaving such excess to such institution in need of such supplies,and the debit and credit shallbe made on the basis that such supplies can be purchased in the open .market at the time of the transfer,when it is less than the costunder the general contract for such supplies for the fiscal year, otherwise the debit and credit shallbe made on the basis of the general contract price for that year."
Article 

### 666:

"Allpersonal property belonging to the State, regardless of where it is located.under the control of-any State Agency, with the exception of State Eleemosynary Institutions,Colleges, Institutions of Higher Learning and the Te-xasPrison System,when it has become unfit for use, or be no longernkeded, shall be placed under the jurisdictionof the State Board of Control, and the State Board of Control 'maysell such property after advertising it no less than four (4) days in a newspaper in the countywherein the property
is located,notice of sale, setting out the time and place of sale and the property to be sold, shallbe posted in three 

### (3)public places, one being in the court house in the countywherein the property is located. Provided,however, that if the estimated value of suchpersonal property is less than One Hundred ($100.00)Dollars and not sufficientto justify the cost of advertisement in newspapers as outlined above, the State Board of Controlmay sell suchproperty in any manner that it deems for the best inter-HonorableRaymond W. Vowell, page 

### 3. (w-3191

est of the State. The money derived from the sale of suchproperty, less the expenses of advertising the sale, shallbe deposited in the State Treasury, to the credit of the appropriation of the State Agency which transferred suchproperty to the State Board of Control for 4qspeqTtion. The credit to the appropriation of such StateAgency shallbe ,madeto the appropriation for such StateAgency from which suchproperty could be purchased.

"The State Board of Control shallmake a written report to the Comptrollerafter each sale. The report shall include the following items:

"(1) Name of the newspaper and the dates of advertisement of notice of sale; or if posted, the date and place of posting;

"(2) Bach article received;


### “(3) lshTdprice

for which each article was ; "(4) The name and address of the person to whom each article was sold.
"Thisreport shall be signedby the State Board of Control and a member of the StateAgency having control of the property before sale."
Article 666-l:

"Anyproperty which has become unfit for use, or no longer needed, when placed under the jurisdiction of the State Board of Control 'by any State Agency, including State Eleemosynary Institutions, Colleges, Institutionsof Higher Learning and the Texas Prison System,may be transferredby the State Board of Control to any institutionor State Agency in need of same, and the proper debit and credit shallbe made
on the basis that suchproperty can be purchased in the market at the time of the transfer, if a market exists, and if not, at its actual or intrinsicvalue
as setby the State Board of Control. The State Comptroller shall,upon information furnishedby the State Board of Control, debit the appropriation of the StateAgency receiving such transferred property, from which suchproperty could have been purchased, and credit the appropriation, from which suchproperty couldhave been purchased, to the State AgencyHonorable RaymondW. Vowell, page 4. (w-319 1

that transferred suchproperty to the State Board of Control;provided, however, that the provisions of this section shallnot apply to property acquired from the Federal Qovernmentand transferred from
one Eleemosynary Institutionto another and the sale of suppliesmanufactured by the Texas Prison System; and provided further, that any State Agency may offer suchproperty which has become unfit for use OP no longerneeded as a trade-in on new property of the same type when such exchange is for the best interest of the State." Through the provisions of Article 3174b, the Board for Texas State Hospitals and Special Schools acquired the rights and powers, insofar as the property of such Board was concerned, which had formerlybeen vested in the State Board of Control. Thus, it acquired the power to transfer excess supplies from one institutionto another when the proper bookkeepingprocedures
were followed. Articles 640, 666-1,Vernon's Civil Statutes.

Article 666 grants to the Board of Control the authority to sellpersonal property when the same is unfit or not needed, but specificallyexempts the personal property under the control of the State Eleemosynary Institutions. Therefore, it is our further opinion that the Texas State Hospitals and Special Schools did not acquire the right orpower to sell unfit
or unneeded personal property through Article 3174b, Vernon's Civil Statutes.

Therefore,we conclude that under Article 317413 the Board for Texas State Hospital3 and Special Schoolsacquired the right to transfer surpluspersonal property or property not needed by one institution to another institution,provided the accounting debit3 and creditsprescribed by Articles 640 and 666-lwere followed. It is our further conclusion that the Board for Texas State Hospitals and Special Schools did not acquire the right to sell unfit or unneeded personal property.

In 1957 the Legislature enacted the State Purchasing Act of 1957, being Senate Bill 189,Acts 55th Legislature,R.S.1957, Ch. 304, p. 739, and the Salvageand Surulus Act r\e1057, 'Y:E~!T Senate Bill 190, Acts 55th Legislature,R.S.1957, Ch.414,p.l247. In Senate Bill 189 the Legislature specificallyrepealedArticle 640, and Senate Bill 190 specificallyrepealedArticle 666-1, Vernon's Civil Statutes. The questionpresented is whether the powers granted the Board for Texas State Hospitals and Special Schoolsby the provisions of Article 317413,through reference to the provisions of Articles 640 and 666-l were affected or made invalidby the repeal of Articles 640 and 666-l by the Acts of the 55th Legislatureabove mentioned.HonorableRaymondW. Vowell, page 

### 5. (w-319)

It is our opinion that the effect of Article 31741, was to describe the powers granted to the Board for Texas State Hospitals and Special Schoolsby transferringto such Board the powers previously possessed by the State Board of Controlunder Articles 

### 640and 

### 666-1,Vernon's Civil Statutes. Accordingly, the vitality of the powers of the Board for Texas State Hospitals ard Special Schools depends only upon the effectiveness of Article 3174b, and the repeal of Articles 

### 640and 

### 666-lwill not arfect the powers granted by Article 3174b.

In 82 C.J.S. Statutes, g 301, page 517, the rule is stated as follows:

"A statutewhich refers to and adopts the provisions of a prior statute is not repealed or affected by the subsequentrepeal of the prior statute. In such case, the incorporatedprovisions, consideredas a part of the second statute, continue in force, peal.

. . .' and are unaffected by the reIt shouldbe pointed out that the Salvage and Surplus Act of 1957, supra, specificallyexempted only the State "eleemosynary institutions

. This term was defined in Opinion WW251, and does not include the Board for Texas State Hospitals and Special Schoolsper se. Therefore, the transfer of surplus property may be made fromone institutionto another, but not from the Board itself to an institution,or vice versa, since the property of the Board is coveredby the Salvage and Surplus Act of 1957, and the powers of the Board are curtailed to that extent.

In summaryand in answer to your first question, it is our opinion that the Board for Texas State Hospitals and Special Schools did not acquire the power to dispose of unwanted property, but the Boardmay transfer surplusproperty with the reimbursementand accounting transactionsprovided by Article 

### 640 and Article 

### 666-1,between eleemosynary institutions as that term is defined by OpinionWW-251. However, the Board for Texas State Hospitals and Special Schoolswould not be authorized to transfer surplusproperty to any other agency or department of the State Government since all other departments are coveredby the terms of SenateBi,ll190. It,being the latest enactment and the expression of the Legislaiure's intent,xill control,and by its terms repeals all laws or parts of laws in conflictwith its terms.HonorableRaymond W. Vowell, page 

### 6 (WW-319)

SUMMARY

The Board for Texas State Hospitals and Special Schoolsmay transfer surplusproperty between thoselnstltutionsunder the provisions of Article 3174b. Thispower was not affected by the enaction of Senate Bills 

### 189and 190, Acts 55th Legislature,R.S. 

### 1957. The Board for Hospitals and Special Schools does not have the power to sell or dispose of worn-out or unwanted property to the public.

Very truly yours,

Jm:jl:zt

APPROVED:

OPINION COlQXTTF3 Bee. P. Blackburn, Chairman

Wallace Finfrock L. P. Lollar Arthur Sandlin Richard Stone

REVI~3.4ED

FOR THE ATTORNEY GE2JZRAL

BY: James N. Ludlum