Untitled Texas Attorney General Opinion ( 1952 )

Chairman
State Board of Control' Re: Several questions relating
Austin. Texas
I
to the administration of
the school bus purchasing
law by the State Board of
Dear Sir: Control.
We refer tQ your request for an opinion of
this office whlah, lti.&ubstance,s$atesthe following:
Certain questions have arisen concern-
ing the admlnlstratlon of the school bue
purchasing program created.by Section 3 of
Article V;Senate Bill 116, Acts 51st Leg.,
R.S., 1949 ch. 334, at p. 638 (Art. 634
and Senate BllS,'gO,Acts 52nd
&'I*;:;*'
. 1951,~ch. 198, p. 325, Sec. 1,
creating t%e School Bus Revolving Fund,
(Art:2922-15, Sec. 2, V.C.S.).
As presently operated, all school buses
being purchased are bought F.O.B. School Bus
Inspection Station, N&w Boston, Texas. This
inspect,lonstation Is In reality the Bowle
County~Educatlon Agency Garage. The County
Superintendent and County Board of School
Trustees of Bow$e County have made the lnspec-
tlon and storage facilities of theiragency
available to the State Board of Control on a
no-charge basis.
You ask the following questions:
1. Under the statutes, may the State
Board of Control designate as its agent with-
out remuneration an employee of the,Bowie
County Education Agency with WthQrlty to
receive new butiesfrom'vendors and sign for
them iro,thatthe State Board of,Control may.
legally pay the vendbr -.the proposed agent
being wllllng to serve In .auch capacity
without pay?
:
Hon. R. C. Lannlng, page 2 (V-1511)
2. Should a bus become damaged while at
the Inspection station and title thereto then
being in the State Board of Control, Is the
State Comptroller authorized to approve an
Invoice for the repair of this unit from the
same``fund(Item 71 of the general appropria-
tions to the State Board of Control, H. B.
426, Acts 52nd Leg., R.S. 1951, ch. 499, at
p* 1327) from which regular Board of Control
vehicles are repaired?
3. If, after the State Board of Control
has received a valid requisition for a school
bus from a school district, and a purchase
order has been executed following the receipt
of competitive bids, may the school district
refuse to accept the bus purchased providing
It meets all specifications?
Article 634 (B),Vernon's Civil Statutes lnso-
far as same are pertinent to this opinion provides as
follows:
"All motor vehicles used for trans-
porting school children, Including buses,
bus chaesls, and bus bodies, ."D . pur-
chased for or by any school,dlstrlct partl-
cipating in the Foundation School Program,
shall be purchased by and through the Board
of Control s . . and no school district nor
Its officers or employees nor the'County
School Board shall have the power to pur-
chase for such school district any of such
Items except In those Instances wherein an
emergency requires an Immediate purchase
thereof, to be reported to and approved by
the Board of Control.
"Such motOr??ehlcles D . . shall be
purchased on competitive bids under such
rules and regulations as may be made by the
Board of Control. Such purchases shall be
made on requisition of a County School Board
or a school district. Requisitions, If for
the purchase of motor vehicles, buses, bus
bodies, orbas chaksls, must be preeented to
and receive the.approval of the CoufitySchool
Board and the State Commissioners of Educa-
tion . . . If, due to climatic and/or road
Hon. R. C. Lannlng, page 3 (V-1511)
conditions, special equipment is required
to guarantee adequate safety and comfort of
school children, the school district shall
state 'and'descrlbesuch requirements In Its
requisition and the Board'of Control shall
be required to purchase such equipmentthat
said Board determines is adapted or designed
for such conditions or requirements.
II . . i
"Compliance With this Section shall be
a condition precedent to particlpatlen In
the Foundation School Fund, and any school
district falling or refusing to comply with
the terms and conditions of this Section
shall be ,lnellgibleto share in the Founda-
tion School Fund for one year from thendate
of such failure or refusal or such violation
of the terms hereof.
"This Section shall not require the
purchase of buses, bodies, chassis, . . .
through the Board of Control, where the
funds therefore are provided by gifts, pro-
fits from athletic contests or other such
school enterprises In no sway supported by
tax funds or grants or appropriations from
any government agency, either State or
Federal.
'Any such school district making re-
quisitions for purchase of any of the above
named articles shall, when sending in the
requisition therefor, include therewith a
general description of the article desired
and shall certify the funds that will be
available to pay therefor.
1,
. .
"The Board of Control shall have the
power to make rules or adopt regular;ionsto
effectuate the purpose of this Act.
Section 2 of Article 2922-15, V.C.S., as amended
by Senate Bill 90, Acts 52nd Leg., supra, provides in part
as follows:
.
Hon. R; C. Lanning, page 4 (V-1511)
"Motor vehicles used for the purpose
of transporting school children, IncJudlng
school buses, chassis and/or bodies of scho,ol
buses purchased through the State Board of
Control as provided for'ln Section 3 of this
Act fiodlfied as Art. 634 (B) In Vernon's
Civil Statutes7 shall be paid for,by the
State Board 07 Control and there is hereby
appropriated out of any money in the State
Treasury not otherwise appropriated, a sum
Of e . . ($250,000.00) '. . . or so much there-
Of as necessary, to the State Board of Control
to be used for such purchases.
"The . . . ($250,000.00) . . . hereby
appropriated shall be known as the School
,Bus Revolving Fund and when the schobl buses
provided for In thls.Act are delivered to
the various schools coming within the pro-
visions of this Act, the governing bodies
of such schools shall reimburse,the State
Board of Control for the money expended for
such school,buses, motor vehicles, chassis
and/or busbodies provided for herein and
such money shall be deposited by the State
W3dlsof Control to the School Bus Revolving
.
Under the discretionary authority set out in
Article 634 (B), if the Board, deems,lt necessary to have
an agent to inspect and receive at a given location the
new buses purchased'~lnaccordanoe with the act, It could
designate any person as its agent to effectuate those
necessary purposes, where the designationwould, not be In
contravention of exist,ingstatutory or constltut,lonal
provisions.
According to 'the submitted facts, the person
contemplated as such,agentis a paid employee of the Bowle
'County School Board, In charge of the garages and school
buses operated In the Bowle County school transportation
system, He is.wllllng to act as agentsfor the State
Board of Control wlthout compensation. Section 40 of
Article XVI, ConstltQtWn of Texas, prohlbftlng the hold-
ing by one personat the same time of two civil offices
of emolument would have no application herei for the
poaltlons of garage superintendent and 'agentof the State
to Inspect and receive new school buses for the State
Board of Control are nbt civil offices, Section 33 of
Article XVI, supra, would have no application here because
Hon. R. C. Lannlng, page 5 (V-1511)
no compensation is contemplated for services as agent.
Nor can we conceive of a sound basis upon which it may
be said that the respective duties of the two positions
would be incompatible.,
,, Att'y Gen. Op. v-63 (1947).
Accordingly, It Isour opinion that the State
Board of Control acting under its ,discretlonarypowers
granted In Article 634 (B), may designate an employee of
the Bowle County SchoolHQad as Its agent, without re-
muneration, to Inspect and receipt for the State Board
such school buses as it purchases under the statute.
Concerning yoursecond questlon,you have
further advised that under the Board's admlnistratlon of
the bus purchasing statute @rt. 634 (Bly title to the
bus is placed In the State of Texas when the vendor 1s
paid with School Bus Revolving Funds, approprlated in
Section 2 of Article 2922-15, Vernon's Clvll~Statutes.
That revolving fund was created, of course, 'to facilitate
payments for duly re ulsltloned buses purchased by the
Board under Article 934'(B). School buses purchased by
the Board under the law are purchased for particular
school districts, and not for the State or any of Its
departments. Though title to such a purchased bus
temporarily Is In the State of Texas, the ,Stateholds
such titlteIn trust for the partibular school dl~strict
which requislt&oned it, until such time'as the'dlstrlct
reimburses the3und for the purchase cost expended. II-i.
no sense may the bus be regarded 'as having bgen purchased
for the State of Texas or its Board of Control, because'
the School Bus Revolving Fundsis not available for such
purposes.
The departmental appropriation In House Bill
426, supra, which may'be available for maintenance and
repair of the automotive equipment of the State Board
of Control, having been specifically appropriated for
that purpose, clearly 'maynot be,used for a purchase
foreign to its intendment, such'as; the maintenance and
repair of school busespurchased by the State Board of
Control as statutory bus purchasing agent for school
districts. It is observed thatyln'the law first estab-
llsh&ig.the~State Board of Control as agent for the
purchase of school busies (Ii.8. 295, 50th&eg., ,R.S.
1949, ch..228, p. 401) that legislative appropriation
was made to the Board to provide for maintenance, equip-
ment and contingent expenses 'as'maybe needed to effec-
tuate the purpose of the law. See Sec. 2 of Art. XIII
and Art. XIV of H. B. 295, supra, at pp. 414 and ,416.
We find no appropriation made by the 52nd Legislature
Hon. R. C, Lanning, page 6 (V-1511)
to the Board for the repair or maintenance of school
buses damaged while in its care.
.,.
Therefore, it is our opinion that the State
Comptroller would be without authority to approve an
invoice for the repair of a school bus purchased by the
State Board of Control under the provisions of Article
634 (B), damaged~while in the care of the Board or its
agent, for the reason that no appropriation has been
made available for such purposes.
With respect to your third question, you have
further adpised that school buses have been purchased
by the State Board o,fControl which meet all of the
specifications or general description expressed~in the
requisition of the school district, except that the bus
is not the product of a particular motor company named
In the requisition. Further, that some school dfstricts
are refusing to accept school buses purchased ontheir
requisition merely because the bus is not an X-Company
constructed bus for which they made request. Your ques-
tion is whether the school districts can rightfully re-
fuse,to accept,busea which meet ail other spe+if,ications.
Article 63,4(R) expressly provides that new
school buses purchased by the State Board of Control
upon proper requision from school districts of this State
"shall be purchased on competitive bids." The statute,
also specifically authorizes school districts to describe
in their requisition "special equipment required to ~uar-
antee adequate safety and comfort of school children.
where needed to'meet certain climatic and road conditions,
and provides that the requisition"shal2 incl;deT{;;zeln
a peneral description of the particle desired.
express provisions authorize only a "general description"'
of the bus specifications desired by the school distric,t.
School districts are not empowered thereunder to insist
that the bus be a product of a particular manufacturer.
The act requires that the State Board purchase requisi-
ttoned buses on "competitive bids", and therefore requires
that the Board invite bids generally on buses that ~meet
the general description of the bus desired. As stated in
Attorney General's Opinion v-938 (1949), the spirit and
purpose of Article 634 (B) as a whole Is to require that
school districts purchase its buses through the one agency,
the State Board of Control on a competitive bid basis to
the end that such districts shall realize full value for
the money they acquire through Foundation School Fund
participation. The Legislature's primary concern was that
costs of such school bus transportation be minimized by
purchase of necessary bus equipment at the lowest cost.
Hoh, R. C. Lanning, page 7 (V-1511)
Accordingly, it is our opinion that a school
district is not authorized to list In its requisition
for the purchase of a school bus a binding specifiCation
that the bus be the product of a particular manufacturer.
Further, a school district may not legally refuse to
accept the bus purchased by the State Board of Control
for It on requisition, providing It meets all other speci-
fications.
SUMMARY
Under the administrative powers granted
in ArticPe 634 (B),
_. V.C.S., the State Board
_-
of Control'may aesignate an employee of BOwle
County School Board a8 it8 agent, without
remuneration, to inspect and receipt for school
buses purchased under that law.
The State Comptroller of Public Accounts
may not approve for payment out of funds ap-
propriated to the State Board of Control for
repair of its vehicles, an invoice for the
repair of a school bus purchased by the Board
of Control under Article 634 (B).
Article’634 (8) does not authorize a
school district to list as a binding speai-
fication in its requisition to the Board of
Control.for the purchase of a school bus that
the bus be the product of a particular manu-
facturer. A school district may not refuse
to accept for that reason a bus which meets
all other specifications than one disignating
that the bus be the product of a particular
manufacturer..
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
'3. C. Davis, Jr,
County Affairs Division
E. Jacobson
Reviewing Assistant Chester E. Ollison
Assistant
Charles D. Mathews
First Assistant
CEOzam