THE AITCBRNEB GENE&&
OF-XAS
AURTIN. T*rxlas 78711
August 3, 1973
The Honorable Dr. J. W. Edgar Opinion No. H- 79
Commissioner of Education
Texas Education Agency Re: May the State Textbook
201 E. Eleventh Street Committee recommend and
Austin, Texas 78701 the State Board of Education
adopt textbooks containing
materials cooperatively
developed by an independent
laboratory but financed in
part by the State, on which I
Dear Dr. Edgar: the State will realize royalties7
Information submitted in connection with your opinion request reflects
that a contract was executed between the Texas Education Agency and South-
west Education Development Laboratory, a non-profit organization, for
the development~of certain educational programs. Funds were made avail-
able under 20 U. S. C. A. 241e, which authorizes grants to State educational
agencies for educational programs and projects reaching migratory children.
All funds utilized were originally Federal grant funds, though a portion was
channeled through the State Treasury.
The research was satisfactorily conducted and the materials were devel-
oped to the satisfaction of the Texas Education Agency, the State thereby
receiving the principal things it had bargained for. The contract also.con-
templated, but did not require, that the materials developed would be sub-
sequently published and marketed commercially. Under Federal Copyright
Guidelines, U. S. 0. E. , 35 F. R. 7317, royalties on materials published in *’
connection with a project financed by such Federal grants are to be distributed
to the co-sponsors in proportion to the co-sponsors’ financial contribution
to the: project. A co-sponsor can reject the royalty payments. The pub-
lisher under the Guidelines may obtain a copyright on the published material
for a five year period. During that time, the publisher’ alone can utilize
the materials.
p. 357
. .
The Honorable Dr. J. W. Edgar, page 2 (H-79)
The laboratory which developed the materials under the TEA contract
solicited bids from over 100 publishers for the publication of these text-
book materials; however, only one bid was received, and it came from a
wholly-owned, non-profit subsidiary of the laboratory, The bid contained
a proposal that any royalties paid be divided on a pro-rata basis among the
entities involved in the transaction, including the.‘Texas Education Agency,
The laboratory contracted with the bidder to publish the mater ial.
The Texas Education Agency did not join in the contract with the pub-
: lisher, nor has it yet either agreed or refused to participate in royalties
which might be,realieed from the sale of the published materials in this
: 1 or other state:s. Since the publisher is the only one under the copyright
” that may utiliie the materials developed, unless the publisher is allowed
to compete for a textbook contract, the State of Texas will have no opport-
unity.to utilize the materials it was instrumental in developing.
Your questions are:
‘“(1) Legally,., may the State Textbook ,Committee
,. recommend for adoption and the State Board of Edu-
cation, of this state adopt ,(for multiple textbook list
purposes) textbooks submitted on bid by a publisher,
which contain materials cooperstively.developed with
an indepe~ndent laboratory, financed in part,from
Central Education Agency funds and the State (agency)
to realize pro-rata royalties on,all sales thereof.
‘I
“(2) Would foregoing royalties, provided per-
missible, alter the answer ,to question (l)? ‘I’
-.
Your questions can beg answered only in the context of “public policy. ‘I
There is no statute which speaks specifically to ,the problem, but several
sections of the Texas,Education Code bear on it.,
Subchapter B, Chapter 12, Title 2, Texas Education Code, V. T. C. S.,
$12.11(e) places a duty on the State Textbook Committee to recommend to
the Commissioner of Education a: complete.list of: textbooks which it approves
for .adoption. Textbook contracts are to be competitively’bid,except those
concerning textbooks for the blind and visually handicapped and for kinder-
garten purposes, which may be let without bidding (5 $12.03 and 12.04).
Section 12.20 requires contractor affidavits negating improper interests on
the part of Textbook Committee members or Board members.
p. 358
The Honorable J. WI Edgar, Page 3 (H-79)
The actions and contracts of the State Board of Education, a State agency,
should not only be in harmony with the laws and Constitution of the State of
Texas, but should also-be consistent with the “public policy” of the State;
Contracts that interfere with or deetroy the freedom of discretion that
is required of public officers in the discharge of their,official,duties are
impediments to the proper adminietration of government. Contracts in
their nature calculated to influenc,e the, action of.,public officers and the effect
of which is to influence them one way or another, are against public policy.
Meyers v. Walker,’ 276 S. W.. 305 (Tex. Civ. App., East., 1925, no writ);
13 Tex. Jur. 2d, Contra&s, § 183.
Meyers v, Walkeri supra, involved anticipated bids for city paving
contracts. Severai of the bidders, prior to the contract award, agreed
among themselves and with the Mayor and City Commissioners that the
successful bidder would bear the cost of several trips todistant cities made
by the officials to inspect different types of paving. Such ,trips were made
and then successful bidder paid the expense. A taxpayer brought suit to
enjoin the sale of the paving bonds on grounds that the re.sulting contract
was illegal, The Court held the contract void, saying (at p. 307):
“This trip of inspection was made, no doubt, with
sincerest purpose and no intention of wrong, but the
precedent is dangerous . . . . The greatest danger in
approving such practice is that one favor would lead
to another, and loans, presents and like innocent gifts
might lead to a rivalry in offers which would destroy.
competition in such matters and finally bring a season
of corruption.. ”
We are of the’opinion that this case, too, could establish a dangerous
precedent Ihe object of our textbook laws is to secure for the children of
Texas the finest materials that can be obtained at reasonable cost to the app-
ropriate school fund.. Decisions in that area ought not to be influenced by
considerations of possible loss of profit to the State generally, or to some
other fund because of the selection made. Were it otherwise, prospectiv.e
‘bidders might concentrate upon supplying such “fringe benefits” rather than
.upon producing the best and most economical textbooks possible.
p. 359
The Honorable Dr. J. W. Edgar, page 4 (H-79)
In our opinion, in order that it might retain freedom to select the best
materials for the use of Texas school children, the Texas Board of Education
must decline to participate with private interests in the continuing royalties
possibly to be realized from the sale of the materials developed. There is
really no other choice, because if it retained an interest in such royalties,
then it could not legitimately permit the publisher to bid for a: c~ontract. If
it did not permit the publisher to bid, it would (possibly) prevent the selection
of the best materials available. Thus, any contractual provision purportedly
to allow the Texas Education Agency to participate with private interests
in the royalties realized from publication of the materials would be void.
See Waterbury v. City of Laredo, 5 S. W; 81 (Tex. 1887).
What we have said ~&es not restrict the ability of the.State Board of
Education to utilize text materials prepared, developed and published by
State agencies which do not occupy the pdsition of ~private contractors.
Nor would lump-sum settlement of accounts with private contractor8
prior to soliciting bids necessarily be prohibited. Public policy does not
discourage economy or thrift, or the prudent use of available resources,
but it does condemn arrangements which tend to subvert the meritorious
selection of textbooks.
To your questions, then, we reply that in our opinion the State Textbook
Committee may not recommend for adoption, nor may the State Board of, ‘I,~~
Education adopt, textbooks upon which the State is to realize pro-rata
royalties from the private publishers thereof, but when the State is not
participating with private interests in the royalties from a textbook, the
textbook may be properly recommended and adopted though it contains
materials cooperatively developed with an independent laboratory, financed
in part from Central Educational Agency funds.
In addition to the authorities cited above, see Grayson County v. Harrell,
202 S. W. 160 (Tex. Civ.App., Ama., 1918, writ ref’d. ); Uvalde Construction
Co. v. Shannon, 165 S. W. 2d 512 (Tex. Civ.App., East., 1942, no writ);
Bryan v. Texas State Board of Education, 163 S. W. 2d 837 (Tex. Civ. App.,
El Paso, 1942, no writ); 13 Texi Jur. 2d, Contracts, $190; 17 Am. Jur. 2d,
Contracts, 174 et seq. ; Goodier v. Hamilton, 19 P. 2d~ 392 (Wash. 1933);
Dodson v. McCurnin. 160 N.~W. 927 (Iowa 1917).
p. 360
The Honorable Dr. J. W. Edgar, page 5 (H-79)
SUMMARY
The State Textbook Committee may not recommend
for adoption, nor may the State Board of Education adopt,
textbooks upon which the State is to realize pro-rata
royalties from the private publishers thereof, but when
the State is not participating with private interests in the
royalties from a textbook, the textbook may be properly
recommended and adopted though it contains materials
cooperatively developed with an independent laboratory,
financed in part from Central Educational Agency funds.
Very truly yours,
DAVID M. KENDALL, Chairman
Opinion Committee
p. 361