State Board of Control Austin, Texas Gentlemen: Opinion No. O-1033 Re: Authority of State Board of Control to award contracts for various types ofprinting or binding to Texas Prison System. By your letter of June23, 1939,you advise thattheBoard of Control in accordance with theprovisions ofSection 21,Article 16,of our Constitution, and of Article 608et seq. ofthe Revised Civil **Statutes** of 1925,advertised for bids for printing, binding, and stationery supplies; thatamong thebids received was one from the Texas Prison System, the bid being signed “Texas Prison System by 0.JS. Ellingson. General Manager,- and the bid being accompanied by a bond made by theTexas Prison System, by O.J.S. Ellingson, General **Manager. as**  Principal, with two sureties certified to be good and sufficient, etc., by the County Clerk of Walker County.

You asked the opinion ofthis Department uponthequestion whether, under these circumstances, theState Board of Control can legally award a contract for various types ofprinting **or** binding tothe Texas Prison System onits low bid under the provisions of Section 21.Article 16 of the Constitution, and under thelaws ofthe State ofTexas.

Section 21ofArticle 16ofthe Constitution reads as follows: “All stationery, and printing, except proclamations and such printing as may be done atthe Deaf and Dumb Asylum, paper, andfuel **used** inthe Legislative and other departments of the government, except the Judicial Department, shall be furnished and the printing andbinding ofthe laws, journals, and department reports, and all other printing and binding andthe repairing andfurnishing the halls and rooms used for the meetings of the Legislature and its committees, shall be performed under contract, to be given tothelowest responsible bidder, below such maximum price, andunder suchState Board of Control, page 2

regulations, as shall be prescribed by law. No member or officer of any department ofthe government shall be in any way interested in such contracts; and all such contracts shall be subject to the approval of the Governor, Secretary ofState and Comptroller.” Article 608, Revised Civil **Statutes,** 1925,reads inpart as follows: “The Board shall contract for a term ofnot exceeding two years with responsible persons, firms, corporations, or associations of persons, who shall be residents of Texas, for supplying to the state all printing

. . . ” **Article** 613, **R.C.S.** 1925,provides that all bids or propos.als shall be accompanied by a bond or certified check; andby theprovisions of Article 614 it is required thatwhen any bid shall have been accepted, the Board shall require ofthe successful bidder a bond payable to the State **of Texas,**  conditioned for the faithful performance **of** the contract. The only exception from the constitutional provision requir~ing competitive bidding onstationery. printing, and binding, is contained in thatportion of Section 21of Article $6which reads:

Y .,

. l except proclamations and such printing as may be done atthe Deaf and Dumb Asylum,

. . . * By virtue ofthe provisions ofthe Constitution and ofthe laws of the State of Texas, contracts for all stationery and printing, except such printing as may be done at the Deaf and Dumb Asylum, **must be**  let to the lowest responsible bidder after having been submitted to competitive bidding. The same is true of contracts for binding.

.We find no constitutional or statutory authorization to the State Prison-System to bid on contracts **for** printing and binding to he let by the State Board of Control for the **use** and benefit ofthe State. More especially dowe note theentire absence of authority, express or implied, to give onbehalf oftheTexas Prison System the character ofbond tendered inthis case and required by the provisions of the Article regarding public printing above referred to.

It follows that, since the Texas Prison System ifwithout authori-*State Board **of** Control, page 3.

ty. express or implied, to execute such a bond as is required by the statute, the Board of Control is without authority under existing laws to award a contract for various types ofprinting or binding to said Prison System on its low bid. Itmust be noted in passing that theconstitutional provision above referred to requires the contract to be let to “thelowest responsible bidder.” This, of course, implies and requires competitive bidding; but, more than that, it requires that such bidding be by ‘responsible* bidders. We take the **term** ‘responsible bidder” to mean such a bidder as the State might hold responsible in damages inevent of such bidder’s failure to fulfill his contract according to its terms. If a contract should be entered intowith the Texas Prison System, andthe Texas Prison System should fail to comply with the **terms** thereof, causing the State to suffer damages, we would be confronted with thepeculiar and anomalous situation ofthe State seeking to recover damages of itself for a failure to perform a contract made and entered into with itself. An opinion * similar in most respects to this onewas rendered ,onMarch 24, 1931,by theHonorable James V. Allred. Attorney General of Texas, to the Honorable Claude D. Teer, Chairman of the Board of Control, Austin, Texas, and a copy of such opinion is attached hereto for your information. Yours very truly, ATTORNEYGENERALOF TEXAS BY s/ R. **W.** Fairchild

R. W. Fairchild Assistant RWF:PBP:da Enc. Approved Jul 5, 1939 APPROVED OPINION COMMITTEE

**BY** R.W.F. /s/ W. F. Moore Chairman FIRST ASSISTANT ATTORNEY GENERAL

* **V.** 319, P. 918