Untitled Texas Attorney General Opinion ( 1948 )

PlRiOE DANIEL A-YN- OENRIRAx. .renwry 24, 1948 Hon. Qeo. H. Shepperd Comptroller of Public Accounts Austin, Texas opinion No. v-482 Rer The necessity for stete owned educe- tiona 1 ina titutionr to wke wrtaia .pur- chaw thrciugh the Bosrd of Control Deer Nr. Sheppepd~: York, opin$on request dot& J?oiremb& 20, i.94'7, is aa Pollowsr "I hive been pSesented Vitlj seyeral~ rc-~ counts for .the,~pUFCheee of lumber, sheet-rook, g1ms axid $$C. “me purihaees ‘bare osde for tbe purport’ .of making needed repeLra at l State ownad edu~ oationel Institution., Such repairs were made by .peraona employed by the sohools, come Fe- oeiring a m?nthly w8ge, others so much per hour or day. These supplies vere purahaeed dl- mot by the schools and not by the State Board OS ,Control. *?leaae advise ii I bati ~legrlly pear t& payment the rttrched aocounts in the’ form %a vhloh they are preuented to me, or should I for- ward them to the Stete Board of Control for their rpproval. ‘It would be greatly rppreclated if in en- mrerlng this request you would dmw the line of demarcation aa to the authority of the Board of Directore of the 8ohoola and the State Borrd of Control, in the expendltwe ot etate funds for building materiela rud equipment. . - Hon. Oeoi Ii. Shepperd - Page 2 (V-482) “In connection with this request please refer to your Opinion No. O-3768 and Article 634 of the Revised Civil Statutes*” The authority end method of the Boerd of Control to make purchases for ‘State institutions is set out in Ar- ticles 631 to 664, V.C.S. Particularly pertinent to your inquiry me Articles 634, 634a and 660, which respectively provide t ‘Art. 6342 ‘The B,oerd of Control shall purcti,ee all the supplies used by each De- parhtent of the Jtate Qovernment, including the St&e Prison System, end eech eleemoeg- nery Utstitution,‘~Ro,rmal school, AgHculturel 6133Mechanioel College, University of Texas, and. e$& und eW!.other Stete Schools or De- p.srtmWts of the Stete ffovernment heretofore or hereafter created. Such suppILes to in- elude furni.ture and flxturee, technical in- struments and books. and all other thlnns r&u&red by the different departments’ 05 in- et1tutions, except etrtctlg perishable goods *” @w-Q’ ad+4 ~\ “ThenB’osrd of Control shall In Ella pub- lic contra~ote to be let or awarded by it in- vite bide end furnish proposals t-o those de- alrow of’ bidd:lng ‘on’such forms es it may deem-proper,. .Ssrld Boerd msy’place any person, firm or eorporetlon ‘so’ desiring oh:8 State melling 1istUhloh seid list aMel entitle said holder' to e copy of the propose1 on any contreat that ‘$a, to’be lets. ; . en, “, ‘, *Art. 660. In csse of emergency, and whelk ertioles ere necessary end needed by any i.nstitution’~~end if ‘ia impraatlceble to In- clude them inthe annual contract, the super- inten&nt shell ‘melhe a requiaitio’n for same to:.tke Board of Control; and the Board msy forthwith purchaee such article in the open market.” One of the dccounts which acaompanled your re- quest was submitted by the. University of Texas and cov- ered the lnstalletlon of’8 plate glass top for the serving counter in their ,cafeterla . Undbubtedly, this item should have been purchased through the Board of Control In eccord- ante with the provisions of the above quoted statutes, Hon. Geo. H. Sheppard - Page 3 IV-482) However, since the supplies “were purchased direct by the schools end not by the State Board of Control,” the question IS whether they may now be approved and paid. In this connection we wish t3 call your attention to Attorney Generel 1s Opinion No. O-2612. The question raised was wheth- er the Board of Control could ratify a contract for the pur- chase of supplies made by the State Board of Vocational Bdu- cation. The conclusion, 8s expressed in a quotation from the opinion wa8 2 “If the items of purchase in the present . case were suoh sS that the purchase should have been made upon competitive bids, then the Board of Control would have no authority to approve the audit for payment. If, on the oth- er hand, the items were of such nsture aa that the Board could have purchased them without com- petitive bide, then the Board in its discretion would ,have the euthority to approve the o&aim the effect of which approval would in our opin- ion be a substantial compllence with the stat-~ utes of purcI&aBe and would entitle the o~leimto be passed for 8 warrant of payment.” Foll’&ing~ ,t4e principles expressed in that oplnloo, we hold that if’ the purchase made ,bg the Unlveralty was suah aa should have been submitted to the Board of Control for competitive bids, then the contract made for tihe glass ~a-: unauthorieed, and oannot be approved. But if the facts were such that then purchase might have been considered an ‘,etaer- genoy” purcQaee under Article 660, then no compktltive bids were required; end the Board of Control may now adopt then Unlversl.ty~s oontract as its own. Ae to how this particular purchase should be clss- slfied we expr:e~aa:no. opinion since that depends upon the actual fecta aurroundlng the transaction, to be determi.ned by the Board of Cotitrol. It might be entirely poaelb1.e to aon- slder a ~,rep.siti to a aervlng counter, which Is needed every day, as an “emergency” pur&aae. Turning now to the eccounte submltted by Sam Houa- ton State Teachers College, we wish to call your attention to Artiole 2647, Section 1, which reeds 1~ part: “1. The Board of ‘Regents of the State Teachers’ College is charged with the re- aponalbility of the general control and man- agement of all State Teachers I Colleges for _ Roll. Geo. H. Sheppard - Page 4 (v-482) white persons and may erect, equip and repair bulldings; e L os’ In former Attorney General Is Opinion No. O-3768, to which you refer, this Department held that the State Board of Control was not required to approve the plans and designs or let contracts for the construction of the bulld- lngs or other major improvements at the State’s higher edu- cational institutions. We adhere to that holding. Since the purchases at Sam Houston State Teachers College were for the purpose of constructing additional classroom apace, we belleve that they fall within the cate- gory of a “major permanent Improvement” and as such need not be, approved by the Board of Control. 1. Purc*aes of supplies,, furniture, and fixtures for the University of Texas should be made through the :Board -of Control. .However, the Boati, meg ratify a contract made by the Uni- vezraitg for the purchase of glass, if the Board finds that It was an emergency purchase. Art. 634,.:634a .a& 660, V.C.S. Opinion O-2612. 2. The Ba,rd of Control need not approve the purchase of building materials used for a major permanent Improvement at Sam Houston State Teachers College. Art. 26,47 V.C.S., Opln- i.011 No., G-2647. Yours very truly ATTORNEXGENRRAL OFTRXAS BY Assistant APPROVEDa -EXECUTIVE ASSISTANT