Untitled Texas Attorney General Opinion

THE ATTOWNEY GENERAL
0~ TEXAS
AUSTIN. TEXAS
September 8.1940
Hon. Theophilus S. Painter, President
The University of Texas
University Station
Austin, Texas Opinion No, V-677.
Re: Reconsideration of Opinion
No. V-482 relating to the
authority of The University
of Texas to purchase glass.
Dear Dr. Painter:
Your request for a reconsideration of our opinion
No. V-482 is as follows:
“Reference is made to your opinion No.
V-482, dated January 24, 1948. and addressed
to Honorable George H. Sheppard, Comptroller
of Public Accountp. One of the accounts pre-
sented by Mr. Sheppard and ruled on in the
opinion as being within the province of the
Board of Control had to do with the ‘installa-
tion of a plate glass top for the serving court-
ter in the cafeteria.’ Apparently, the informa-
tion before your office with regard to this claim
did not present the true facts and circumstances
regarding the claim, which facts and circum-
stances we respectfully submit would have re-
sulted in a ruling that the transaction was the
responsibility of the Board of Regents of The
University of Texas and not of the Board of
Control, May I respectfully request your con-
sideration of these facts and circumstances as
set out below:
“The claim involved was in favor of Bins-
wangu and Company. P. 0. Box 911, Austin,
Texas, in the amount of $85.68. The invoice
described the items furnished as follows:
Hon. Theophilus S. Painter, Page 2 (V-677)
“‘8 pc. 10 x 34 Plate Glass - PE
8 pc. 7t x 34 Plate Glass - l
4 pc. 12 x 12 - Cut on job
Installed on serving counter-(Cafeteria)
With felt 81 cement $85.68’
“The installation of the plate glass involved
was in fact a part of a major permanent improve-
ment project under an Educational Facilities Con-
tract with the Federal Works Agency of the United
States Government.~Project ,No. Tex. 41-V-12. Un-
der this contract. FWA furnished surplus Govern-
ment buildings and erected them on the University
campus so as to provide thirteen separate struc-
tures with an aggregate floor space of 112,693
square feet. One of the thirteen b&dings was
specifically designated in the contract for use as
a cafeteria, this building alone involving 11,231
square feet of floor space. The University was
required to furnish all costs of site preparation,
bringing up the utility lines to the building, and in-
stalling furniture and equipment in the building.
The majority of the furniture and equipment in-
volved was furnished by the Government out of
surplus Government stocks; but much of the equip-
ment, especially that required for the operation of
the cafeteria, was damaged and required repair
and renovation in addition to being put in place.
Some of the work required to be done by the Uni-
versity was accomplished by contracts and some
of it was done with our regular maintenance staff.
The procurement of the plate glass involved in
the claim described above was for glass to be in-
stalled in brackets attached to the serving coun-
ter designed in such a way to serve as a dessert
compartment above the counter itself, and the
glass and bracket supports constituted an integral
part of the serving counter.
“Our procedure in contracting for the pur-
chase of the glass and its installation was to call
for bids to be opened at lo:30 A. M. October 1,
Hon. Theophilus S. Painter, Page 3 (V-677)
1947. on the basis of a specification in form at:
tached hereto.
“Requests for bids were sent to the follow-
ing firms:
“Calcasieu Lumber Company, Austin, Texas
Binswanger and Company, Austin. Texas
Austin Glass Corporation, Austin, Texas
Becker Lumber Company, Austin, Texas
Pittsburgh Plate Glass Company, San An-
tonio, Texas.
MOzly one proposal was received. namely,
that of Binswanger and Company: and since their
quotation involved a price which was considered
fair and reasonable and since the work was needed
in order to complete the installation of the equip-
ment necessary to opzriing of the cafeteria, the bid
was accepted and the contract awarded notwith-
standing the fact that only one bid was actually re-
ceived. Because of the small size of the transac-
tion, a formal contract agreement was not prepared
and executed: but instead, a purchase order was
issued as evidence of our acceptance of the propos-
al and authorization to proceed with the installation.
“The actual installation of the plate glass in-
volved was accomplished during the early part of
October, 1947. The cafete,ria was first opened for
business on December 6, 1947.
“It is respectfully submitted that the above-
stated facts and circumstances clearly show that
the purchase of these materials was for and in
connection with ‘a major permanent improvement,’
inasmuch as the materials installed became a part
of the structure itself, and, therefore, exclusively
under the jurisdiction of the Board of Regents of
The University of Texas under the ruling in Opin-
ion No. V-482; but in any event, the purchase was
for the initial equipping and furnishing of the build-
ing, coming under the exclusive jurisdiction of the
Hon. Theophilus S. Painter - Page 4 (v-677)
Board of Regents, and not under the State Board
of Control o . . .
‘As a matter of fact. we think our interpre-
tations in this respect are, consistent with the rul-
ing of your Opinion No. V-482, or. at any rate, that
they should be so considered.
“May I respectfully request that on the basis
of the facts given you with respect to the plate glass
purchase referred to earlier in this letter that you
modify that portion of Opinion No. V-482 so as to
hold that such purchase was in the responsibility of
the Board of Regents of The University of Texas.”
We thank you for the very full statement of the basic
facts upon which you seek such reconsideration.
The answer to your question is controlled by a consid-
eration of the two statutes having to do with the expenditure of
moneys of the State on behalf of The University of Texas. They
are Articles 634 and 2592 of the Revised Civil Statutes as the same
have been amended.
Article 2592, insofar as it is pertinent, is as follows:
“The Board of Regents of the University of
Texas . . ., shall, with the approval of the Legis-
lature, expend the available University fund for
the construction of buildings on the campuses . . .
and for the extension and improvement of their
campuses and for the equipment of buildings
thereon in the proportions and amounts herein-
after indicated . . .-
Article 634 is as follows:
“The Board of Control shall purchase all the
supplies used by each Department of the State Gov-
ernment, including the State Prison System, and
each eleemosynary institution, Normal school, Ag-
ricultural and Mechanical College, University of
Texas, and each and all other State Schools or De-
Hon. Theophilus S. Painter - Page 5 (V-677)
partments of the State Government heretofore or
hereafter created, Such supplies to include fur-
niture and fixtures, technical instruments and
books, and all other things required by the differ-
ent departments or institutions, except strictly
perishable goods.’
The latter Article is a part of Chapter 3 of Title 20
creating the Board of Control. making that body the general pur-
chasing agency for the State departments and institutions.
The various Lcgfslatures from the enactment of Ar-
ticle 2592 down to and including the 50th have made appropria-
tions for the maintenance of the University of Texas of all the
Available University Fund except that portion of the fund appro-
priated to the Agricultural and Mechanical College of Texas. The
rider to the Appropriation Bill for the University of Texas (Acts
1947. 50th Legislature, H. B. 246, Sec. 5). provides in part as
follows:
“Sec. 5. o . , The residue of said Available
Fund, if any, may be expended for permanent im-
provements, equipment, instructional and other
educational services, repairs and physical plant
operation and maintenance.”
Both Article 2592 and the appropriation for this bien-
nium authorize the Board of Regents of the University to expend
its Available Fund for the purposes mentioned. If there were no
other statutes to control the expenditure of this money. then the
implication would be strong that the intention of the Legislature
was to delegate to the governing body of the University the exclu-
sive authority to make any and all purchases required. However,
the strength of this implicatioa is materially weakened when we
consider that at the time of the passage of Article 2592 there was
in effect a statute which evidenced a policy that purchase of cer-
tain supplies should be made through a central purchasing agency.
While it is true that if there is any conflict between the provisions
of Article 2592 and Article 634, the provisions of Article 2592 (a
later Act) would necessarily control. we are required by the prin-
ciples of statutory construction to reconcile as far as possible
these two expressions of the Legislature.
Hon. Theophilus S. Painter - Page 6 (V-677)
This brings us to a consideration of what expendi-
tures authorized by Article 2592 and the Appropriation Bill are
covered by Article 634; and, specifically, whether Article 634
covers an item such as the glass top which we now learn from
your request was a part of a construction project which was tied
to and became a part of the realty. Article 634 speaks in terms
of supplies which are principally items of personal property.
There is nothing in this statute which attempts to give the Board
of Control authority to make contracts for construction projects
on the campuses of educational institutions, or to make purchases
of those supplies which go into such construction projects. At-
torney General’s Opinion No. V-482 and O-3768. On the contrary,
this responsibilfty is expressly vested in the Board of Regents of
the University by Articles 2592 and 2593.
In Attorney General’s Opinion No. O-5698 this Depart-
ment advised the University that the phrase “contracts for the
construction of permanent improvements” as used in Article 2593
embraces contracts for the alteration and major repair of exist-
ing buildings, and construction of improvements and additions to
existing buildings, as well as for the erectfon of new structures.
The holding of that opinion indicates that with regard to items of
construction, improvements and repairs, the Board of Regents is
the ultimate authority. It would be an extremely anomalous situa-
tion if the governing body of the school was empowered to make
contracts for the construction, repair, and improvements of the
buildings under its control, and yet the purchase of supplies to
carry out those contracts rest&l with the Board of Control. Even
in the absence of a contract for the work, we believe that the Leg-
islature intended to make the Board of Regents the sole authority
with respect to the purchases of supplies as were needed to re-
pair, construct, and erect buildings on the campus.
Therefore, based upon the new and additional facts
presented in your request, you are advised that the contract for
the plate glass purchased by the University, being a part of a
construction project, did not have to be approved by the Board
of Control, This is in accord with ,our Opinion No. V-482 which
was written on an entirely different set of facts relating to the
same glass. There it was treated’as personalty without knowl-
edge that it was used as part of a construction project.
Hon. Theophilus S. Painter - Page 7 (V-677)
.SUMMARY
The University of Texas does not have to
secure the approval of the Board of Control on
a contract for the purchase of plate glass used
for and in a construction project. Art. 2592, V.
c. s.
Yours very truly,
ATTORNEYGENERALOFTEXAS
Assistant
ATTORNEYGENERAL
MH:erc