Director of Dept. of Agriculture and Environment v. Printing Industries Ass'n of Texas

• Decision Date: 04 June 1980
• Docket Number: No. B-8991,B-8991
• Citation: 600 S.W.2d 264
• Parties: DIRECTOR OF the DEPARTMENT OF AGRICULTURE AND ENVIRONMENT et al., Petitioners, v. PRINTING INDUSTRIES ASSOCIATION OF TEXAS et al., Respondents.
• Court: Texas Supreme Court

Page 264

600 S.W.2d 264

DIRECTOR OF the DEPARTMENT OF AGRICULTURE AND ENVIRONMENT et

al., Petitioners, v. PRINTING INDUSTRIES ASSOCIATION OF TEXAS et al., Respondents.

No. B-8991.

Supreme Court of Texas.

June 4, 1980.

Mark White, Atty. Gen., Paul R. Gavia, Asst. Atty. Gen., Austin, for petitioners.

Kammerman, Yeakel & Overstreet, Adrian M. Overstreet, Jr., Austin, for respondents.

DENTON, Justice.

This lawsuit was brought by the Printing Industries Association of Texas and others, (hereinafter referred to as Printers), on behalf of the commercial printers and binders in Texas, to enjoin the Texas Department of Agriculture and Environment and other State agencies from purchasing or using printing equipment. It was alleged that printing performed by State agencies violated Article XVI, Section 21 of the Texas Constitution (hereinafter referred to as Art. XVI, § 21), and art. 4413(32) § 3 Tex.Rev.Civ.Stat.Ann. ¹ The Attorney General specially excepted to the pleadings on the grounds that they failed to state a cause of action and did not plead legislative or statutory permission to sue the State. The plaintiffs did not amend their pleadings, and the trial court ordered the suit dismissed. On appeal, the court of civil appeals reversed and remanded, holding that the suit was maintainable against the State agencies for "acting outside their lawful authority, and that invasion of the rights of plaintiffs, was alleged with sufficiency to maintain the suit." 588 S.W.2d 849, 852. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

The court of civil appeals has correctly stated the rule that a suit brought to control State actions or to subject the State to liability is not maintainable without legislative consent or statutory authorization. Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151 (1960); Oxford v. Hill, 558 S.W.2d 557, 560 (Tex.Civ.App. Austin 1977, writ ref'd); Bullock v. Hardin, 578 S.W.2d 550 (Tex.Civ.App. Austin 1979, writ ref'd n. r. e.); Sheffield v. Briscoe, 550 S.W.2d 160 (Tex.Civ.App. Austin 1977, writ ref'd n. r. e.). It is also a correct statement of the law that an entity or person whose rights have been violated by the unlawful action of a State official, may bring suit to remedy the violation or prevent its occurrence, and such suit is not a suit against the State requiring legislative or statutory authorization. Texas Highway Comm'n v. Texas Assoc. of Steel Importers, Inc., 372 S.W.2d 525 (Tex.1963); Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945); W. D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838 (1958); State v. Epperson, 121 Tex. 80, 42 S.W.2d 228 (1931). Therefore the Printers may maintain this suit for injunctive relief only if the printing activities of State agencies are unauthorized.

At issue is the construction of Art. XVI, § 21 of the Texas Constitution. When adopted in 1876, it provided:

All stationery, and printing, except proclamations and such printing as may be done at the Deaf and Dumb Asylum, paper, and fuel used in the Legislative and other departments 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 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 contracts shall be subject to the approval of the Governor, Secretary of State and Comptroller.

This section remained unchanged until amended in 1978 for the express purpose of deleting the archaic reference to Deaf and Dumb Asylum, and to encourage State agencies to utilize the products manufactured by handicapped individuals at State rehabilitation facilities. S.J.R. 50, Acts 1977, 65th Leg., p. 3369. Art. XVI, § 21 as amended in 1978 now provides:

All stationery, printing, fuel used in the legislature and departments of the government other than the judicial department, printing and binding of the laws, journals, and department reports, and all other printing and binding and the repairing and furnishing of the halls and rooms used during meetings of the legislature and in committees, except proclamations and such products and services as may be done by handicapped individuals employed in nonprofit rehabilitation facilities providing sheltered employment to the handicapped in Texas, shall be performed under contract, to be given to the lowest responsible bidder, below such maximum price and under such regulations as shall be prescribed by law. No member or officer of any department of the government shall in any way have a financial interest in such contracts, and all such contracts or programs involving the state use of the products and services of handicapped individuals shall be subject to such requirements as might be established by the legislature.

The State contends that the court of civil appeals erred by failing to consider the historical background of Art. XVI, § 21 in determining the framers' intent. It is argued that the court of civil appeals' narrow, literal interpretation of the provision is contrary to established rules of constitutional construction. The framers' intention, according to the State, was two-fold: 1) to permit printing by State agencies, and in particular to encourage printing instruction at the State rehabilitation center for the hearing impaired; and 2) to ensure that any printing which was not performed by the State would be provided by contract with private printers on a competitive bid basis. It is argued that the constitutional provision was a reaction to the practice of political patronage in the award of lucrative printing contracts during Reconstruction.

The Printers urge that the meaning of Art. XVI, § 21 is quite plain, and that the court of civil appeals did not fail to consider the intention of the framers. The intent of the framers, they urge, was to encourage printing vocational skills among the hearing impaired, rather than authorize State agencies to perform printing. In addition, it is argued, that the framers intended to assure administrative economy by having all printing, with the exception of printing performed by the handicapped, provided by the private sector via competitive bids.

There are several well recognized principles of constitutional law which are applicable. This Court has stated, "The fundamental rule for the government of courts in the interpretation or construction of a Constitution is to give effect to the intent of the people who adopted it." Cox v. Robison, 105 Tex. 426, 150 S.W. 1149, 1151 (1912). In determining the intent of the framers, "Constitutional provisions, like statutes, are properly to be interpreted in the light of conditions existing at the time of their adoption, the general spirit of the times, and the prevailing sentiments of the people." Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31, 35 (1931). In Markowsky v. Newman, 134 Tex. 440, 136 S.W.2d 808, 813 (1940), this court stated:

. . . in determining the meaning, intent and purpose of a constitutional provision the history of the times out of which it grew and to which it may be rationally supposed to have direct relationship, the evils intended to be remedied, and the good to be accomplished, are proper subjects of inquiry.

Id. Travelers' Ins. Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007 (1934).

The court of civil appeals opinion sets out the procedural history of Art. XVI, § 21, but does not consider the historical background of the provision. A consideration of the historical climate which existed at the time this provision was enacted is necessary to an understanding of the framers' intent.

During the 19th century, the printing needs of our State government were considerably less than today. Most printing was performed by local newspapers which were allied with various political interests. In the post-Civil War Reconstruction period, lucrative printing contracts were awarded on the basis of political patronage. ² At the end of Reconstruction, the position of State Printer was created to perform all the State's printing by an independent contractor. ³ Although "elected" by the Legislature and required to provide a bond, the position of State Printer also went to a political favorite. Additional legislation authorized the appointment of an official State printer in each judicial district as the State Journal. All county and district printing, railroad advertisements, and public notices were required to be printed in the State Journals. Later legislation provided that a State Board on Public Printing could contract for printing with private firms or individuals. ⁴ This system, of awarding printing contracts and licenses, resulted in exorbitant public printing costs and was widely criticized. ⁵

In 1875, prior to the constitutional convention, the Legislature passed "An Act to provide for the Instruction of the Pupils of the Institution for the Deaf and Dumb in the Art of Printing." Tex. Laws, ch. LXXVIII, § 1 at 91, H. Gammel, Laws of Texas (1898). ⁶ This statute authorized the Board of Public Printing to purchase a printing press, hire an instructor to teach printing, and authorized the Board to have any public printing executed by the students at the institution.

Article XVI, § 21 was adopted in 1876, and contained a reference to printing which could be performed by the Deaf and Dumb Asylum, the only State-owned printing press, and excepted that institution from the competitive bid requirement. Viewed against this historical background, it is inconceivable that the framers intended to perpetuate the abuses of the previous customs with minor...