R-449
Hon. L. A. Uoods
State Sup rintendent of Public Instruction
Departmentf! of Education
Austin, 'Texas
Op;inion No,, V-213
Re: Maximum pric~e the State
may pay for school te,xt-
books, and related fact
questions.
Dear Sir:
We refer to your le,tter of May 1, 1947, from
which we quote in part?
"A~rtic~e~~2&2,,~ R~,.C. AS.,, provfdes
Lnpart as, fol?&ws: 1;. . . 'Th83maximum
price at mch.the Texas State Text Ekaek
Commiss,ion ,shall ,eontract to pay f.o.b.
the Texas~ depos&tory of the publisher,
for any books to be used ,in the public
schools of thXs Stateshall not exceed
the mininnun pr5ce at whic:h the publisher
sells such b:ooks &wholesale quantities,,
f.o.b. the publisher's publish$,ng house,
after all discounts, have been, deducted. . .I
"Sectian 4 of the Official Texas
Textbook Contract Form prepared by the
Attorney Beneralt~s office provides as
folloua: *It is hereby expressly stip-
uEated that the pr*ic:es, hereby c,ontracted
to be paid the pubUsher f.o.b. its Texas
depository for the books herein described
and to be use% in the public ,schools of
this State shall never exceed the minimum '
price at which the pubUsher sells such
books in whol~e%ale quantities f.o.b. the
publisher*s publishing house, after all
discounts have ,been deduc.ted. The said
Hon. L. A. wOoas - Page 2-4-213
publisher covenants and agrees to
file in the offloe of the State Super-
Intendent of Public InsOructlon be-
tween June 1 and June 15 of each year,
a sworn statement listing the lowest
net wholesale price and terms of sale
of all books herein contracted for
when sold to other states, counties,
dealers, depositories, schools, Indivi-
dual purchasers, or otherpurchagers-,
And the said publisher further cove-
nants and agrees that if at, any tine
during the period of this cemtruct any
book or books herein named or any edi-
tions thereof substantially slmllar to
the official samples @n file in the
office of the State Superintendent shs2.P
be sold at a lower net wholesale price,
f.o,b, publisher@s shipplng point tc any
state, county, dealer, depsn%toriea,
school, individual, pr others than the
price agreed upon in this contract,
then such lowers price shall immediately
become the contract price between the
publisher and the State, of Texas pro-
vlded the State desires to accept such
books in the revised or changed editlon,~
“Two books were adopted in another
State in day, 1946 at a price of 9 84
EODT for eaoh of the books. TAe con-
‘tract-% effective as of July- 1, 1946.
In November, 1946 these same booka as
far as content is concerned were offered
to the Texas State Board of Education
and a contract nas awarded at 8.90 per
oopg for each of the two books* The only
differences we have been ab&s to find in
the books offered in both states relates
to the design on the Covers. The pagiaa-
tlon Is identical and the content the same.
The contract which was awarded by the Texas
State Board of Education is effective as
of September 1, 1947. We have only re-
cently discovered that the books were be-
ing supplied to another state at the present
time at the lower price. ,e .
“In view of the foregoing statutory
Hon. L. A. WOoda- ‘Page 3
provisions and tam of the contractural
agreement, we deialre to submit for your
consideration and request your opinion on
the following quentionr:
“1) Is the State of Texas entitled
to urchase these books at the price of
s.at Per copy which Is the pnice at which
they are being supplied to public schools
in a neighboring state, or must the State
of Texas pay the price of $*90 stipulated
in Its contract?
“2) If a textbook is under contract
in another state for a five-year period
at a stipulated price, may the State of
Texas contract to purchase this book or
substantially similar editlcas. thereof at
a higher price at any time during the period
In which the book Is under contract in the
other State?”
There being no statement in the submitted facts
to the contrary, we assume for the purposes of this opin-
ion that requirements cOnditions.and revisions of Artl-
cles 2842 as amended’by Acts 1945 28t6 2847 2848
2849, 2a5i, 2853, 2854 and 2856, v: C, St, ha& been’met
and that there exists b reason thereof a contract ef-
fective September 1, 19%7,,as approved by the Board of
Education and the publisher of the two textbooks In ques-
tion executed Ain accordance with Article 2675b-5 and 2854,
v, c. s.
The pricer whih the Ward .of Education &F con-
tract to pay for textbooks adoptbd for use In Vie public
school% of Texas Is governed by Artiole 2852, V, C. S.
It provides that the maxiarm price fro,bu the Texas de-
pository of the publisher shall, not exceed the lninimum
price at which the publisher ,selXs such book in whole-
sale quantitiee frolbr the publisher’s publishing house,
after all discounts have been deducted, Furthermore,
It provides that any contract nad~e for such book at a
higher price than the maxlnmmherein fixed shall be void.
Se&ion 4 of the Official Texas Contract Form,
heieinabove quoted, incorporates in substance the ftied
maximumprice provision of Artlcls 2852, Under said
contract foon, the publisher further agrees that if at
any tiae during the period of the contract any books
named therein or gubstantially similar to thee official
samples
. on file in the office of State Superintendent
i,
Hon. L, A, Woods - Page 4 - V-213
shall be sold at a lower net wholesale price
f.o,b, publlsherle sn;lpping point to any State,
etc+, than the price n&reed upon in the con-
tract, then such lower pr8,ce ahall
become the oentraat price between t ii==%%&P
‘e pu
and the State of Texas,, {x&uphasis oure)
It is our opinion that the phrase,
“minimum price at which the publisher sells such
book in wholesale quantit1ee8, f#o#b,, the pub-
lisherls publi@hin$ place, after all dlscowz$ts
have been deduoted a8 employe,d in Artiole 2852,
should be construed to mean that mlnimum price,
whatever it may be, as evidenced on the sample
copies of the books offered for sale and submitted
to the Board of Education pursuant to the pro-
visions of Article 2846, and on the.basis of Whioh
said offer the State Board of Educatgon and the
publisher execute their contract,*
If, in fact, on the date the contract
was consummated between the Board of Education
and the publisher, the publisherfs mlnlmum price
for the textbook in question, or books substan-
tially similar, ia the lowest net price at whhich
they are Bold or offered for saY.e in whOle8ale
quantities f,o,b. the publisherla publishing
house to other States, counties or other purchas-
ers, then, in our opinion, the price contracted
for is in conformity with the provisions of Arti-
cle 2852. If, however, subsequent to the con-
summation of the contract, the publisher offers
and sells said textbook, or substantially similar
books, at a lower net price than provided for in
the contract, then the terms Bf the contract epe-
cifically provide that such lower price shall
immediately become the contract price between the
publlsher and the State of Texas.
Stated in another manner, we do not
believe that the minimum rioe C1aUs.e in Article
2852 can properly be cons e rued to mean that lowest
net price at which like textbooks were offered
and contracted for in wholesale quantities, f.o,b,
the publisherr publishing house, at a time prior
to that date when the like textbeoks were offered
for sale to the State of TaXas and en the basis
of which said offer a contract has been consummated,
_ .’
Hon. L. A, Woods - Page 5 A-V-213
based
net
aale price for the textbook@ ,M qu ,+lon, or books sub-
stantially eimi$ar thereto, II@@ 9otz: per copy for e&h
of the books at ,$he daMa the ~c%W@@ct .w&e consvrumat,ed
between the Boar&l of Pduca.t:ion @MI the publisher, the
State muat pay the price g,tSpt@*Wd in ,the contract
for book8 furnished thereumder, unWtes, and until the
publisher reduoe.a its price when> ,under the terms of
the conWWt, the $oWm price wlXl Wiediately and
automatically becow the contract pr%ce between the
State and the publieher,
AccordIn&?, our answer ta your second ques-,
tion is in the, afMrmative asium&ng the contract made
in the other State for a five-year period was consumma-
ted at a time prfor to the Texas contract and assuming
the lower mlnlmum sal,es price offer of the publisher
made to the other State was made at a time prior to the
time it submitted its samples and bid to the State of
Texas.
~Bztted.on i2he :eavbag%t;ed
factie~, the
State of Texas mu@ pay .qO# per copy per
textbook or .boGka .~&~Wta&ia&ly s&eilar
during the term ,of thC coritnoct.
!l%e erSwteao* 0f a Iong term con-
tract betweem a, p&M~ber and &other
State prorL~ for the ,eaXe of textbooks
at a c:erta&n f&,x+$ prl;c,e would not pre-
clude Ohi? Texaie State Aboard of Education
from contractlag *#$%I a$d publisher for
sb&%ar textboolar at a higheir price, when
.. .
non, L, A, Woode - Page CL-V-213
the higher pMce at the time the
Board cmmmmate8 the controct~
does not exceed the minimum price
at which the publisher sells such
books In wholesale qimntltles, f.o.b,
the publisher~s PUbiiShing house,
after all discounts have been de-
ducted.
Very truly yours
ATTOFtNEY
QW OF TEXAS
Ghester E. Ollison
Assistant
cEo:ajm
.