Untitled Texas Attorney General Opinion ( 1971 )

Hon. Preston Smith Opinion No. M- 910
Governor of Texas
State Capitol Building Re: Authority of the Governor
Austin, Texas 78711 of Texas to enter Into
certain open-end contracts
of a stated term for com-
puter services on behalf
Dear Governor Smith: of various State agencies.
Your recent letter requesting the opinion of this office
concerning the referenced matter states, In part, as follows:
“This requests your opinion as to the legality
of my entering Into open-end services contracts of
a stated term, on the part of the State of Texas,
as the need for this type of contract may arise
. . .
“Two specific c’asesare now pending, and the
proposed contracts are enclosed for your examlna-
tlon. These cases Involve the purchase of computer
operational program packages (‘software’ packages)
by various State agencies. . . .
“An individual agency now has the authority
to negotiate Its own contract for such services;
however, as Illustrated In the third enclosure to
this letter, the pricing advantages of negotiating
a single State contract for quantity ordering by
all interested agencies are Immediately apparent
. . .
Section 10 of Article IV of the Constitution of Texas
provides as follows:
‘He (the Governor) shall cause the laws to
be faithfully executed and shall conduct, In person,
or in such manner as shall be prescribed by law, all
Intercourse and business .of the State with other
States and with the United States.”
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Honorable Preston Smith, page 2 (M-9 10)
The Interpretive commentary In Vernon's Civil Statutes,
In commenting on the foregoing constitutional provision, states,
In part, that:
'The obligation placed by this section upon
the governor to cause the laws to be faithfully
executed Is, obviously, executive In nature. But
this obligation, and the fact that the governor Is
made the chief executive officer of the state, do
not confer upon him any specific power. In construing
state constitutions, the state courts have not derived,
as has the Supreme Court of the United States with re-
spect to the Federal Executive, any very large powers
from such a general power or duty as to the duty to
see that the laws be faithfully executed. The rule
of delegated powers has been construed strictly as
to the governor, so that he has no particular power
unless granted to him, expressly or lmplledly.'
(Emphasis added.)
A recent Texas case has held that the governor has no
prerogative powers, and that he possesses only such powers and
duties as are vested In him by constitutional or statutory grant.
In Calvert v. Ad,ms, 388 S.W.2d 742 Tex.Clv.App.), rev'd on other
grounds, 39b S.W.26 948 (Tex.Sup. 19i5), the court sald:
"In 81 c.J.S. States Sec. 60, p. 982, It Is
stated that 'The Governor has no prerogative powers,
but possesses only such powers and duties as are
vested In him by constitutional or statutory grant.'
"In Constantln v..Smith, 57 F.2d 227, D.C.,
E.D. Tex., appeal dlsmlssed Sterling v. Constantln,
287 U.S. 378, 53 S. Ct. 190, 77 L. Ed. 375, the Court
quoted with approval the following statement from
Herllgy v. Donohue, 52 Mont. 601, 161 P. 164, L.R.A.
1917B, 702 Ann.Cas. 1917C, 29: '(t)he Governor Is
at all times amenable to the Constltutlon and laws
of the state. They are the charters of his powers,
and In them he must find the authority for his of-
ficial acts."' 388 S.W.2d at p. 747.
Neither our Constitution nor statutes provide, either
expressly or by necessary Implication, for you to enter into con-
tracts, such as those submitted with your letter, on behalf of
various State agencies.
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Honorable Preston Smith, page 3 (M-910)
Your question, accordingly, Is answered In the negative.
SUMMARY
There exists no authorization, either in the
Constitution or the statutes of the State of Texas,
for the Governor to enter Into, on behalf of various
State agencies, certain open-end contracts of a stated
term for the furnishing of services of computer
operational program packages.
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Rex White
Jim Swearlngen
Bob Lattlmore
Sally Phillips
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant
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