Untitled Texas Attorney General Opinion ( 1953 )

March 12, 1953
Hon. R. C. Lannlng CipinlonNo. S-18
Chairman
State Board of Control Re: !Pwoqueetions relating to
Austin, Texas the admlniatratlonof the
school~bue purchasing law
;zoihe State Board of Con-
Dear Sir: .
We refer to your request for an opinion of
this office which, in eubstance,states the following:
Certain questionshave arisen concern-
ing the administrationof the school bus
purchasing program created by Section 3 of
Article V, Senate Bill 116, Act@ 51st Deg.,
R.S. 1949, ch. 334, p. 638 (Art. 634(b):V.
C.S.) and Section 1 of Senate Bill 90, Act8
52nd Leg., R.S., 19% ch. 198, p. 325,
creating the School Bus Revolving Fund, (Art.
2922-15, Sec. 2, V.C.S.)
Under present practiceswithin the
Board of Control, requisitionsfrom local
school districts for school buses are sent
to the Board of Control, and then the Board
of Control purchases from the lowest of com-
petitive bidders the buses desired. 'The
local school must certify that it has encum-
bered sufficient otherwise unencumberedfunds
to pay for the buses as It requisitions
them. The Board of Control always has out-
standing purchase requests for school buties
in excess of the $25O,OOO.OOdeposit known
as the School Bus Revolving Fund. As the
statements from the bus manufacturerscome
due with the Board of Control they are al-
ways paid by the collectionsreceived by the
Board of Control from the local school dls-
trick? when It delivers the buses to them.
At no time has the School Bus Revolving Rund
shown a balance lower than $200,000.00.
Hon. R. C. tinting, page 2 (s-18)
You ask the following questions:
1. May the State Board of Control
legally write purchase orders for school
buses totalllng more than $25O,OOO.O0at
any one time?
2. May the Board of Control legally
award an annual oresemiannualcontract for
bua bodies and bus ohasais showing an
estimatednumber of units only and guaran-
teeing no mlnlmum number?
Public officers may make only such contracts
as they'are authorized by law to make.' Fort Worth
Calvary Club v. Sheppard, 125 Tex. 339, b3 S.W.2d 660
. 1935)
~--. . Seotion 44 of Article III of the Constitution
of Texas prohibits the Legislatureappropriatingstate
money to any Individual unless at the very time the ap-
propriationIs made there Is already in force some pre-
existing valid law constitutingthe claim appropriation
Is made to pay a legal and valid obligationagainst the
State. By legal obligation la meant such an obligation
as would form a basis for a judgment against the State
in a court of competent jurisdictionIn the event the
Legislatureshould permit It to be sued. Fort Worth
Calvary Club v. Sheppard, supra. Public officersare
limited In theirrlaht to contract to the amount of
available appropriation. Nichols v. State, 32 S.W. 452
(Tex.Clv.App.,1895:,error ref.); State v. Haldeman,
163 S.W. 1020 (Tex.Clv.App.1913, error ref.); ForE
Worth Calvary Club v. Sheppard, supra.
Section 2 of Article 2922*15, Vernon's Civil
Statutes, as amended by Chapter 198, Acts of the 52nd
Legislature,Regular Session, 1951, page 325, provides
that school buses purchased through the State Board of
Control shall be paid for by the State Board of Control
out of the School Bus Revolving Fund. Therefore,con-
tracts for the purchase of school buses through the
Board of Control create an obligation against the State
to be paid for out of the School Bus RevolvingFund.
Fort Worth Calvary Club v. Sheppard;Nichols v. State;
State v. Haldeman, supra. It Is our opinion that a
contract creating an obligation in excess of the amount
of money available In the School Bus RevolvingFund at
the time the contract is made would constitutea debt
In violation of Section 49 of Article III of the Constl-
tution of Texas. You are therefore advised that the
Hon. R. C. Lanning, page ,3 (s-18)
State Board of Control,doesnot have authority to write
purchase orders for school buses totaling more than Is
available In the School BusRevolvIng 'Fundat the time
the purchase order Is made.
Concerning your sec'ond~queatlon,you further
ask if the Board of Control may legally award an annual
or semiannual contract for bus bodies and bus chassis
showing an estimated number of units only and guaran-
teeing no minimum number. Unless there Is a legal
reason for doing so a contractwill not be held invalid.
Charles Scrlbner's Sons v. Marrs, 114 Tex. 11, 262 S.W.
722 (1924) In the case just cited our Supreme Court
passed on the validity of a contract similar to the con-
tract involved in your question. The contract In that
case was made between the Texas State Textbook Commis-
sion and a publisher. The contract obligated the State
to purchase all the text books on a particularsubject
from the publisher as the local school boards should
requisition them.
Th,eConstitutionis silent as to the length
of term for wh.icha contract may be made by the State.
The only provisions of the Constitutionthat might af-
fect the term are those which provide that no debt may
be created by or on behalf of the State, and that no
appropriationof money may be made for a longer term
than two yea~rs. However, obligationsthat run current
with revenues z,renot debts within the contemplation
of th@ Constitution. Charles Scribner'sSons v. Marrs,
* McNeal 'v,City of Waco, 89 Tex. 83, 33 S.W. 322
'I';& D
Payment for the bus bodies and for the bus
chassis is to be made out of the School Bus Revolving
Fund as they are purchased. The obligationof the con-
tract is not to buy a fixed number or amount of bus
bodies or bus chassis, but only so many as are requlsl-
tioned by the schools of the State. Liability is fixed
only for such amounts as are requisitionedby the
schools, The number of buses, chassis and bodies pur-
chased for any period is wholly within the control of
the local authoritiesand of the Board offControl.
It is therefore the opinion of this office
that the Board of Control may legally award an annual
or semiannual contract for bus bodies and bus chassis
showing an estimated number of units only and guaran-
teeing no mirLimumnumber.
Hon. R. C. Lannlng, page 4 (s-18)
SUMMARY
The State Board of Control does not
have authority to write purchase orders
for school buses totaling more than Is
avallable'lnthe School Bus Revolving Fund
at the time the purchase order Is made.
The State Board of,Controlmay legally
award an annual or semiannual contract for
bus bodies and bus chassis showing an estl-
mated number of unite only and guaranteeing
no minimum number.
Yours very truly,
APPROVED: JOHN BE3 SHEPPERD
Attorney General
J. C. Davis, Jr.
County Affairs Division
WI1118 E. Greaham BY
Reviewer John Reeves
P---
Assistant
Robert S.~Trottl
First Assistant
John Ben Shepperd
Attorney General
JR:am