Ron. L. A. wood3
State Superintendent
Department bf Education
Austin, Texas
,,.,
Dear Sir: Opinion No, O-6945
Re: Disposition t6 be made of sample
textbooks which were submlttea by
various publishing comp&iies but
which were not adopted by the
State Board of Education
Your request for opinion has been received land careful-
ly considered,by thLLsdepartment. We quote from your request
as follows:
'Article 2846 of the Revised Civil Statutes
provides, in substance, that at least thirty days
prior to the date of the meeting of the State
Board of Education every person, firm, or'corpor-
ation desiring to submit bLds shall file with
the State Superintendent of Public~~Instruction
nine copi~esof each book on which a bid will be
submltted.
"Article 2856 of the Revised Civil Statutes
provides, in part, that the State SuperMtendent
shall carefully label and file away the samples
adopted as furnished for exam1natlon to the Board
as descrlbed in the statute mentioned above.
"I would like for you to advlse me what dis-
positLon should be made of the remaining samples
of books that were submitted to me by the various
publishing companies which books were not adopted,"
Articles 2846, 2855, 2856 and 2876e, Vernon's Annotated
Texas Civil Statutes, read as follows:
Art 0 2846.
II0 0 0 D .
"Deposits of Samples, At least thirty days
Hon. L. A. w00as - page 2 o-6945
prior to the date of the meeting of the saM Com-
mission, every person, firm or corporation desiring
to submit bids shall file with the State Super-
intendent of Public Instruction nine copies of each
book on which a bid will be submitted, in each of
which copies there shall be printed or stamped a
statement of the price at which such book and special
editions thereof are sold-in other places under
State or county adoptions, and the minimum quantltles
of which it will be sold at such prices, and there
shall be also printed or stamped Ln such books a
statement of the publisher's catalogue price of the
same and special editions thereof, together wfth
trade discounts and the condltlons under which,
and the-purchasers to whom, such discounts are
allowed, and the place of delivery. There shall
also be printed or stamped in each book the price
at which it is offered to-Texas, f.o.b, the Pub-
llsher's Texas depository, with and without ex-
change. There shall also be printed or stamped in
each book; the mlnimum wholesale price at which
such book, and special editions thereof, are sold
f;o.b. the shipping point of the publisher ana the
name of the shipping
. point shall also be stated.
"BFds and Cash~Deposits. Bids/when filed ~by
the publishers, shall state spec~flcally at what
priceeach book will be ~furnlshea,and such bid shall
be accompanied by specimen copies of each book
offered, and it shall be required that each bi~dder
deposit with the Treasurer of the State of.Texas'such
sum of money as the Commission,may require, to begnot
less than five hundred ($500:00) dollars, nor more
than twenty-five hundred ($2,5OO.OO) dollars, accorcl-
ing to the valne of the books each bidder may propose
to supply; * 0 D Such deposits shall be returned to
the unsuccessful bidders on certificate of the State
Superintendent that no contract has been awarded
on the bid for which the sum was deposited. Acts
1927, 40th Leg,, pa 308, ch, 213 1 4.”
Art, 2855 - Deposit to be returned
"When any person has been awarded a contract
and he has filed his bond and contract with the
commlsslon and the same has been approved, the
commission shall make an ora.+ on the Treasurer
of the State reciting such fact, and thereupon the
Treasurer shall return the deposit of such bidder
to him; but if any successful bidder shall fail to
Hon. L. A. Woods - page 3 o-6945
make and execute the contract and bond as hereln-
before provided, the Treasurer shall place the
deposit of such bidder In the State Treasury to
the credit of the available'school fund, and the
commission shall readvertlse for other bids to
supply such books which said bidder mag~~havefalled
to supply. All unsuccessful bLaaers shall have
their deposit returned to them by the state trea-
surer as soon as the commission has decided not
to accept their bids."
Art. 2856. Commission to issue proclamation
"As soon as the State shall have entered
into the contract for the furnishing of books
for the public schools of this State under the
provision of this Act, it shall be the duty of the
Commission to issue Its proclamation of such fec~ts
to the people of the State; and the State Super-
intendent of Public InstructLon shall carefully
label and file away the copies of the books adopted
as furnished for examination to the board; and such
copies of such books shall be securely kept and
the standard of quality and mechanical excellence
of~~thebook or books so furnfshed under this Act
shall be maintained in said books so furnished under
contract authorized by this Act during the contln-
uance of the contract,"
Art. 2876e. Dlsposltlon of textbooks
"The State Superintendent of Public Instruction,
with the approval of the State Board of Education,
may provide for the disposition of such textbooks as
are no longer In a fit condition to be used for
purposes of instruction, or for discarded books re-
maining the property of the State. In case of the
disuse of books in fair condition, inspectors of
the State Department of Education may require the
continuance of the use of said books,"
In Opinion No. O-5443 of this Department the following
inquiry was propounded by the Department of Education, towit:
"The State Board of Educatlon~at its July
6th meeting directed that'your advice be sought
in regard to the following.matter.
"There are on hand ln the State depository
at Austin many textbooks on various subjects
Hon. L. A. Woods - page 4 o-6945
which have accumulated because of the expiration
of the contract for the particular books and
replacement by adoption of other books in the
subject field. The Board desires to know what
authorities are empowered to dispose of such of
these books as are neither under current adoption
nor USed as supplementary source material In the
public free schools. Your attention 13'directed
toTArticle 2876e of the Revised Statutes of
1925 0 The Board has beenapproached wlth a pro-
posal for sale of the usuable texts which have
been discarded because of the expiration of the
adoption period, and desires to be advised con-
cerning its authorltg in the matter of the sale
of these books, and of free textbooks which, be-
cause of condition, are no longer usable in the
public free schools."
Our answer to the above quoted inquiry in'Opinion No.
O-5443, after quoting Article 2%76e, V.A.C.S. was as follows:
"This statute appears to deal speciflcally
with the very essence of your Inquiry, and supplies
the answer thereto, While the books mentioned are
not in an unfit 'condition to be used', they never-
theless are 'discarded books remaining the property
of the State.' Therefore they may be disposed of.
by the State Superintendent of Public Instruction;
with the approval of the State Board of Education.
"The effect of this statute requires the joint
action -- that is, by initiative and approval--
of the State Superintendent and of the State Board
to effect a sale."
However, Opinion No. O-5443 is not applicable to your
question because the sample books you inquire about have never
been adopted as textbooks and therefore would not come under
the provisions of Article 2%76e,
Analyzing the above quoted StatUteSit would seem that
the unsuccessful bidders ,wouldbe entitled to have their sample
copies of textbook8 returned to 'themif they desired them re-
turned. It also appears that if they did not want them returned
but chose to abandon them to the State OP make a gift of them
to the State they could do 80,
However, It is OUT opinion that any such samples which
become State property by gift OP abandonment s,houldbe disposed
of in the manner provided by Article 666, Vernon's Annotated
Hon. L. A, Woods - Page 5 o-6945
Texas Civil Statutes, which article reads as follows:
'All property belongrng to the state, regard-
less of where it is located, under the control of
any department, commlssion, board, or other state
agency, with the exception of state eleemosynary
Institutions, colleges, and institutions of higher
learning, when it shall become unfit for use, or
shall be no longer needed, shall be placed under
the jurisdiction of the Board of Control, and the
Board of Control shall sell such pro erty after
advertising it not less than four (4P days in a
newspaper in the county wherein the property is
situated, ProvIdea, however, that if no newspaper
is published In the county whereln the property is
situated, notice of said sale setting out the time
and place of sale and the property to be sold shell
be posted in three (3) public places, one being in
the court house In the county wherein the property
13 situated, Provided, however, that if the value
of such ersonal property is less than One Hundred
($100.00P Dollars and not sufficient to justify
the cost of advertisement in newspapers as out-
lined above, the Board of Control may sell such
property in any manner that It deems for the best
interest of the State. The money from the sale
of such property, less the expense of advertising
the sale, shall be deposited in the State'Treasury
to the credit of thenGeneral Revenue Fund. And
provided further, that any property placed in then
hands of the Board of Control, as outlined herein,
may be transferred by the Board of Control to any
department, commission, board or state agency In
need of same, and the debit and credit shall be
made on the basis that such property can be pur-
chased in tbmarket at the time of the transfer,
If a market exists, and if not, at its actual or
intrinsic value as set by the Board of Control.
The Board of Control shall make a written report
to the Comptroller after each sale. The report
shall include the following items:
"1 * Name of the newpeper and the dates of
advertisement of notice of sale; or If posted, the
date and place of pO8ting.
"2 . Each Article received.
“3 * The price for which each article was sold.
Hon. L. A. Woods - page 6 o-6945
“4 0 The name and address of the person to whom
each article was sold,.
"This~report shall be signed by the Bbard of
Control and a member of the department, commis-
sion, board or state agency having control of
the property before sale." As amended Acts 1943,
48th Leg. p. 272, ch. 171, xl0
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/Wm. J. Fanning
Wm. J.'Fannlng
Assistant
WJF:BT:wc
APPROVED DEC 6, 1945
s/Carlo8 C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opfnion Committee By s/BWB Chairman