. . ._ 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 surplus property, 

and whether the Board may 

transfer property from one 

Dear Mr. Vowell: institution to 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 surplus property 

or supplies of institutions? (This type 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, surplus property or supplies 

from one institution to another, under its jurisdiction?" 

We have assumed in answering your request that your first 

question inquires whether the Board for Texas State Hospitals and 

Special Schools may dispose of obsolete and junk items to the 

public by advertisenent and bids, as opposed to a transfer of the 

goods to another State agency. 

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 following powers: 

II 

. . . Effective September 1, 1949, the control and management of, and all rights, privileges, 

powers, and duties incident thereto including 

building, design and construction of the Texas State 

Hospitals and Special Schools which are now vested 
. . - 

Honorable Raymond W. Vowell, page 2. (w-319 1 

in and exercised by the State Board of Control shall 

be transferred to, vested in, and exercised by 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 same manner as they do for other State agencies," 

At the time this statute was enacted, Articles 640, 666 

and 666-1, Vernon's Civil Statutes, were the statutes under 

which the State Board of Control exercised its power of selling 

and transferring surplus properties and supplies, These Articles provided as follows: 

Article 640: 

"When any institution accumulates an amount 

of supplies on hand in excess of its needs, and another 

institution is in need of such supplies, the Board 

shall be authorized to transfer any of such supplies 

from the institution having such excess to such 

institution in need of such supplies, and the debit 

and credit shall be 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 

cost under the general contract for such supplies 

for the fiscal year, otherwise the debit and credit 

shall be made on the basis of the general contract 

price for that year." 

Article 666: 

"All personal 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-xas Prison System, when it 

has become unfit for use, or be no longer nkeded, shall 

be placed under the jurisdiction of the State Board of 

Control, and the State Board of Control 'may sell such 

property after advertising it no less than four (4) 

days in a newspaper in the county wherein the property 

is located, notice of sale, setting out the time and 

place of sale and the property to be sold, shall be 

posted in three (3) public places, one being in the 

court house in the county wherein the property is 

located. Provided, however, that if the estimated 

value of such personal property is less than One 

Hundred ($100.00) Dollars and not sufficient to justify the cost of advertisement in newspapers as outlined 

above, the State Board of Control may sell such property in any manner that it deems for the best inter- 
Honorable Raymond W. Vowell, page 3. (w-319 1 

est of the State. The money derived from the sale 

of such property, less the expenses of advertising 

the sale, shall be deposited in the State Treasury, 

to the credit of the appropriation of the State 

Agency which transferred such property to the State 

Board of Control for 4qspeqTtion. The credit to the 

appropriation of such State Agency shall be ,made to 

the appropriation for such State Agency from which 

such property could be purchased. 

"The State Board of Control shall make a 

written report to the Comptroller after 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. 

"This report shall be signed by the State Board 

of Control and a member of the State Agency having 

control of the property before sale." 

Article 666-l: 

"Any property 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, 

Institutions of Higher Learning and the Texas Prison 

System, may be transferred by the State Board of Control to any institution or State Agency in need of 

same, and the proper debit and credit shall be made 

on the basis that such property can be purchased in 

the market at the time of the transfer, if a market 

exists, and if not, at its actual or intrinsic value 

as set by the State Board of Control. The State 

Comptroller shall, upon information furnished by the 

State Board of Control, debit the appropriation of 

the State Agency receiving such transferred property, 

from which such property could have been purchased, 

and credit the appropriation, from which such property could have been purchased, to the State Agency 
Honorable Raymond W. Vowell, page 4. (w-319 1 

that transferred such property to the State Board 

of Control; provided, however, that the provisions 

of this section shall not apply to property acquired 

from the Federal Qovernment and transferred from 

one Eleemosynary Institution to another and the 

sale of supplies manufactured by the Texas Prison 

System; and provided further, that any State Agency 

may offer such property which has become unfit for 

use OP no longer needed 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 formerly been vested in the State Board of Control. 

Thus, it acquired the power to transfer excess supplies from one 

institution to another when the proper bookkeeping procedures 

were followed. Articles 640, 666-1, Vernon's Civil Statutes. 

Article 666 grants to the Board of Control the authority to sell personal property when the same is unfit or not 

needed, but specifically exempts 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 or power 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 Schools acquired the 

right to transfer surplus personal property or property not 

needed by one institution to another institution, provided the 

accounting debit3 and credits prescribed by Articles 640 and 

666-l were 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 Salvage and Surulus Act r\e 1057, 'Y:E~!T 

Senate Bill 190, Acts 55th Legislature,R.S. 1957, Ch.414, p.l247. 

In Senate Bill 189 the Legislature specifically repealed Article 

640, and Senate Bill 190 specifically repealed Article 666-1, 

Vernon's Civil Statutes. The question presented is whether the 

powers granted the Board for Texas State Hospitals and Special 

Schools by the provisions of Article 317413, through reference to 

the provisions of Articles 640 and 666-l were affected or made 

invalid by the repeal of Articles 640 and 666-l by the Acts of 

the 55th Legislature above mentioned. 
Honorable Raymond W. 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 Schools by transferring to such Board the 

powers previously possessed by the State Board of Control under 

Articles 640 and 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 640 and 666-l will 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 statute which refers to and adopts the 

provisions of a prior statute is not repealed or 

affected by the subsequent repeal of the prior 

statute. In such case, the incorporated provisions, considered as a part of the second statute, 

continue in force, 

peal. . . .' 

and are unaffected by the reIt should be pointed out that the Salvage and Surplus 

Act of 1957, supra, specifically exempted only the State "eleemosynary institutions . This term was defined in Opinion WW251, and does not include the Board for Texas State Hospitals 

and Special Schools per se. Therefore, the transfer of surplus 

property may be made fromone institution to another, but not 

from the Board itself to an institution, or vice versa, since 

the property of the Board is covered by the Salvage and Surplus 

Act of 1957, and the powers of the Board are curtailed to that 

extent. 

In summary and 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 Board may transfer surplus property 

with the reimbursement and accounting transactions provided by 

Article 640 and Article 666-1, between eleemosynary institutions as that term is defined by Opinion WW-251. However, the 

Board for Texas State Hospitals and Special Schools would not 

be authorized to transfer surplus property to any other agency 

or department of the State Government since all other departments are covered by the terms of Senate Bi,ll 190. 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 conflict with its terms. 
Honorable Raymond W. Vowell, page 6 (WW-319) 

SUMMARY 

The Board for Texas State Hospitals 

and Special Schools may transfer 

surplus property between thoselnstltutions under the provisions of Article 3174b. This power was not affected by the enaction of Senate Bills 

189 and 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