State Board of Control
Austin, Texas

Gentlemen:
                               Opinion No. O-1033
                               Re: Authority of State Board of Control
                                   to award contracts for various types
                                   of printing or binding to Texas Prison
                                   System.

             By your letter of June 23, 1939, you advise that the Board of
Control in accordance with the provisions of Section 21, Article 16, of
our Constitution, and of Article 608 et seq. of the Revised Civil Statutes
of 1925, advertised for bids for printing, binding, and stationery supplies;
that among the bids received was one from the Texas Prison System, the
bid being signed “Texas Prison System by 0. JS. Ellingson. General Man-
ager,- and the bid being accompanied by a bond made by the Texas Prison
System, by O.J.S. Ellingson, General Manager. as Principal, with two
sureties certified to be good and sufficient, etc., by the County Clerk of
Walker County.

             You asked the opinion of this Department upon the question
whether, under these circumstances, the State Board of Control can le-
gally award a contract for various types of printing or binding to the Texas
Prison System on its low bid under the provisions of Section 21. Article 16
of the Constitution, and under the laws of the State of Texas.

             Section 21 of Article   16 of the Constitution reads as follows:

             “All stationery, and printing, except proclamations
      and such printing as may be done at the Deaf and Dumb Asy-
      lum, paper, and fuel used in the Legislative and other depart-
      ments of the government, except the Judicial Department,
      shall be furnished and the printing and binding of the laws,
      journals, and department reports, and all other printing and
      binding and the repairing and furnishing the halls and rooms
      used for the meetings of the Legislature and its committees,
      shall be performed under contract, to be given to the lowest
      responsible bidder, below such maximum price, and under such
State Board of Control, page 2




      regulations, as shall be prescribed by law. No member
      or officer of any department of the government shall be
      in any way interested in such contracts; and all such con-
      tracts shall be subject to the approval of the Governor,
      Secretary of State and Comptroller.”

            Article   608, Revised Civil Statutes, 1925, reads in part as
follows:

             “The Board shall contract for a term of not exceed-
      ing two years with responsible persons, firms, corpora-
      tions, or associations of persons, who shall be residents
      of Texas, for supplying to the state all printing . . . ”

              Article 613, R.C.S. 1925, provides that all bids or propo-
s.als shall be accompanied by a bond or certified check; and by the pro-
visions of Article 614 it is required that when any bid shall have been
accepted, the Board shall require of the successful bidder a bond payable
to the State of Texas, conditioned for the faithful performance of the con-
tract.

             The only exception from the constitutional provision requir~ing
competitive bidding on stationery. printing, and binding, is contained in
that portion of Section 21 of Article $6 which reads:

             Y.,. l except proclamations and such printing as
       may be done at the Deaf and Dumb Asylum, . . . *

             By virtue of the provisions of the Constitution and of the laws
of the State of Texas, contracts for all stationery and printing, except
such printing as may be done at the Deaf and Dumb Asylum, must be let
to the lowest responsible bidder after having been submitted to competi-
tive bidding. The same is true of contracts for binding.

            .We find no constitutional or statutory authorization to the
State Prison-System   to bid on contracts for printing and binding to he let
by the State Board of Control for the use and benefit of the State. More es-
pecially do we note the entire absence of authority, express or implied, to
give on behalf of the Texas Prison System the character of bond tendered
in this case and required by the provisions of the Article regarding public
printing above referred to.

             It follows that, since the Texas Prison   System if without authori-
* State Board of Control,   page 3.




 ty. express or implied, to execute such a bond as is required by the stat-
 ute, the Board of Control is without authority under existing laws to award
 a contract for various types of printing or binding to said Prison System on
 its low bid.

               It must be noted in passing that the constitutional provision above
 referred to requires the contract to be let to “the lowest responsible bidder.”
 This, of course, implies and requires competitive bidding; but, more than
 that, it requires that such bidding be by ‘responsible*    bidders.  We take the
 term ‘responsible    bidder” to mean such a bidder as the State might hold re-
 sponsible in damages in event of such bidder’s failure to fulfill his contract
 according to its terms. If a contract should be entered into with the Texas
 Prison System, and the Texas Prison System should fail to comply with the
 terms thereof, causing the State to suffer damages, we would be confronted
 with the peculiar and anomalous situation of the State seeking to recover
 damages of itself for a failure to perform a contract made and entered into
 with itself.

              An opinion * similar in most respects to this one was rendered
 ,on March 24, 1931, by the Honorable James V. Allred. Attorney General of
  Texas, to the Honorable Claude D. Teer, Chairman of the Board of Control,
 Austin, Texas, and a copy of such opinion is attached hereto for your infor-
  mation.

                                                Yours very truly,

                                          ATTORNEYGENERALOF             TEXAS

                                          BY         s/ R. W. Fairchild
                                                         R. W. Fairchild
                                                              Assistant

 R WF:PBP:da

 Enc.   Approved   Jul 5, 1939                  APPROVED      OPINION      COMMITTEE

                                                BY      R. W.F.
        /s/   W. F. Moore                               Chairman

        FIRST ASSISTANT      ATTORNEY    GENERAL


  * V. 319, P. 918