Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General
Honorable Mike Driscoll Opinion No. MW-535
Supreme Court Building Harris County Attorney
1001 Preston, Suite 634 Re: Bid procedures
P. 0. BOX 12546
*ustin, TX. 76711-2548
for county
51214752501 Houston, Texas 77002 contracts
Telex 9101674.1367
Telecopier 5121475.0266 Honorable Bill H. White
Criminal District Attorney
1607 Main St.. Suite 1400
Bexar County Courthouse
Dallas. TX. 75201.4709 San Antonio, Texas 78205
2341742.6944
Gentlemen:
4624 Alberta Ave.. Suite 160
El Paso. TX. 798052793
Both of you have asked questions concerning articles 1659a and
91515353464 236&t, V.T.C.S. Article 1659a imposes certain competitive bidding
requirements upon counties with a population in excess of 900,000.
Both Bexar and Harris County have populations in excess of this
1220 Dallas Ave.. Suite M2
Houston, TX, 77002-6966
figure. Article 2368s imposes another set of bidding requirements
713165w666
upon -all counties. You essentially ask: If a county which intends to
make a purchase or enter into a contract determines that both statutes
are applicable, to which statute should it adhere? Since you do not
606 Broadway, Suite 312 inquire about a particular product. we will answer your question in
Lubbock. TX. 79401.3479
general terms. We point out that other statutes may apply to certain
8061747.5236
purchases. See Attorney General Opinion KW-439 (1982).
4309 N. Tenth. Suite B Article 1659a provides that counties with a population in excess
McAllen. TX. 76501-1665 of 900.000 must, unless an emergency exists, take bids on:
5121682.4547
supplies of every kind, road and bridge material,
200 Main Plaza. Suite 400 or any other material, for the use of said county,
San Antonio. TX. 762052787 or any of its officers, departments, or
512l2254191 Institutions.
An Equd OpportunitYI See also V.T.C.S. arts. 1659; 1659b. Article 236ga provides In part:
Allirmstive Action Employed
Sec. 2. (a) No county, acting through its
Commissioners Court... shall [unless one of the
specified exceptions applies] hereafter make any
contract calling for or requiring an expenditure
or payment in an amount exceeding... ($5.000.00)
out of any fund, . . without first submitting such
proposed contract to competitive bids.
p. 1933
Honorable Mike Driscoll
Honorable Bill PI. White
Page 2 0Dl-535)
Both statutes then set forth bidding procedures which differ in some
respects.
Two briefs were submitted to this office in connection with these
opinion requests. Both conclude that articles 1659a and 2368a
conflict and that one statute must therefore control the other,
although they disagree as to which one controls. One brief also
suggests that article 236Sa should be construed narrowly, as applying
only to “contracts for public works and the machinery used therefor.”
The thrust of this argument appears to be that a narrow construction
of article 236Sa will prevent any conflict with article 1659a. because
neither statute will apply to any item covered by the other. We will
consider each of these arguments.
Patten v. Concho County, 196 S.W.2d 833 (Tex. Civ. App. - Austin
1946, no writ), is offered as authority for narrow construction of
article 2368s proposed above. This case does construe the statute in
this manner. When Patten was decided. however, article 236Sa provided
that no county could enter into a contract “for the construction of
any public building, or the prosecution and completion of any public
works” without taking bids. Now, the statute applies, with certain
exceptions, to “any” contract in excess of $5.000.00. Since the
language upon which the Patten court relied to reach its conclusion is
no longer present, we believe the court’s construction of the former
statute is no longer apposite. We also note that other language in
the statute, &, the statement in section 2(b) that “if the contract
is for the construction of public works, then. ..‘I (emphasis added),
and the reference in section 2a to “materials, equipment and
supplies,” clearly points to the conclusion that the statute is not
now applicable only to contracts “for public works and the machinery
used theref or .‘I
As to the relationship between articles 1659a and 2368a. it is
argued in one brief that article 236ga now constitutes the entire body
of law governing counties in the area of competitive bidding, and that
it impliedly repeals article 1659a. This argument runs as follows:
Prior to 1979, article 236Sa applied only to counties with a
.population of 350,000 or less. In 1979, however. the legislature
removed the population limit, Acts 1979, Sixty-sixth Legislature,
chapter 770. at 1901; see Attorney General Opinion MW-139 (19gO). thus
making the statute applicable to all counties. This action, it is
asserted. must be interpreted as ev?nce of the legislature’s intent
to make article 236Sa represent all of the competitive bidding law to
which counties would be subject when entering into contracts.
In response, we first note that our courts do not favor repeals
of statutes by implication. Hines v. State, 515 S.W.2d 670 (Tex.
Grim. App. 1974); Wintermann v. McDonald, 102 S.W.2d 167 (Tex. 1937).
In Motor Investment Company v. City of Hamlin. 179 S.W.Zd 278. 281
p. 1934
Honorable Mike Driscoll
Honorable Bill M. White
Page 3 (MW-535)
(Tex. 1944). the Texas Supreme Court quoted from Texas Jurisprudence
as follows:
‘Where it is apparent that a statute is intended
to embrace all the law upon the subject with which
it deals, it repeals all former laws relating to
the same subject. Under this rule, a statute that
covers the subject matter of a former law and is
evidently intended as a substitute for it,
although containing no express words to that
effect, operates as a repeal of the former law to
the extent that its provisions are revised and its
field freshly covered.... If the later act is
clearly intended to prescribe the only rules which
should govern, it repeals the prior statute,
although the two are not repugnant in their
provisions. ’ (Emphasis added).
The difficulty with the argument advanced above is that in 1981.
the legislature amended article 1659a by raising its population limit
to 900,000. Acts 1981. 67th leg., ch. 237, at 564. In our opinion,
this action undermines the contention that article 236Sa was intended
to “embrace all the law on the subject with which it deals” and that
it was “evidently intended as a substitute for” article 1659a. The
legislature would not have concerned itself with article 1659a in 1981
if it did not think the statute was, and intend for it to be,
effective. We therefore reject the notion that when the legislature
amended article 236Sa in 1979. it impliedly repealed article 1659a.
The other argument advanced in the briefs is that articles 1659a
and 236Ba are repugnant, that they cannot be reconciled, and that one
therefore controls the other. We also reject this argument.
In Brown v. Patterson, 609 S.W.2d 287, 289-90 (Tex. Civ. App. -
Dallas 1980. no writ), the court summarized the rules that are
applicable here:
When two statutes are alleged to be in conflict,
additional principles come into play. If there is
a clear conflict, the later expression of
legislative intent controls, and to that extent
the later statute will be held to have repealed
the earlier statute.... Repeals by implication,
however, are not favored. and, if there is no
positive repugnance between the two [statutesr
they will be harmonized so as to give effect to
both.. . . ‘Iwo statutes dealinn with the same
subject matter, though enacted at different
legislative sessions will be construed together
p. 1935
Honorable Hike Driscoll
Honorable Bill M. White
Page 4 NW-535)
and their provisions harmonized to the extent
possible. (Emphasis added) (Citations omitted).
We do not believe articles 1659a and 236Sa are so repugnant that
one or the other can be regarded as having been repealed by
implication. At worst, they are in some instances duplicative. In
our opinion, the two statutes can be reconciled. and effect can be
given to both.
For the most part, articles 1659a and 236Sa are complementary.
In some instances. however, they set forth different requirements
relating to the same subject. For example, article 16598 requires
advertisements for bids to be published “once each week for two (2)
successive weeks in a daily newspaper published and circulated in the
county,” whereas article 236Sa requires “[nlotice of the time and
place when and where such contracts shall be let” to be “published in
such county... once a week for two (2) consecutive weeks prior to the
time set for letting such contract, the date of the first publication
to be at least fourteen (14) days prior to the date set for letting
said contract.” V.T.C.S. art. 236th. 12(b). Article 1659a also
contains some requirements that are more detailed than those in
article 236Sa, a, the requirement that advertisements must indicate
where specifications are to be found, and the time and place for
receiving bids, that bids must be publicly opened on the appointed day
and time, and that bids may be secured by check or bond.
When a county of over 900,000 population intends to enter into a
particular contract, its first task will be to determine whether,
given all provisions and exceptions, articles 1659a and 2368a are both
applicable. If they are, and either statute imposes a requirement in
an area which is not dealt with by the other, the county must comply
with that requirement, regardless of which statute imposes it. Where
both statutes impose requirements relating to the same subject,
however, &, advertising for bids, we believe the provisions of
article 1659a would control. Statutes in pari materia must be
“harmonized and given effect with the special governing the general in
the event of any conflict.” Hines v. State, supra at 675. In our
opinion. as between articles 1659a and 236Ba. the former is clearly
the “special” statute.
Mr. Driscoll also asks whether article 236Ba applies where the
county intends to lease either real or personal property. Article
2368a provides that “any” contract in excess of $5.000.00 must be made
on competitive bids. There is no express exception in the statute for
lease contracts.
Section 2(b) of article 236Sa does, however, provide that:
p. 1936
. *
Honorable Mike Driscoll
Honorable Bill Ii. White
Page 5 (NW-535)
Provided... as to contracts for... the purchase of
land and right-of-way for authorized needs and
purposes, the provisions hereof requiring
competitive bids shall not apply and in such cases
the notice herein provided shall be given but only
with respect to an intention to issue time
warrants with right of referendum as contemplated
in Sections 3 and 4 hereof respectively.
(Emphasis added).
This exception, which makes the article 2368a bidding
requirements inapplicable to contracts for the “purchase of land,”
should in our opinion be construed to include acquisitions of real
property by lease. We do not believe the legislature intended to draw
a distinction between contracts for the purchase of land and contracts
for the lease of land. In particular, where a long term lease is
involved, a lease of real property is for many purposes equivalent to
a purchase of real property. See, e.g., Attorney General Opinion
H-655 (1975); H-403 (1974).
We therefore conclude that contracts for the lease of real
property are not subject to the article 2368a bidding requirements.
but that contracts in excess of $5.000.00 for the lease of personal
property are subject to those requirements.
SUMMARY
Where articles 16598 and 2368a. V.T.C.S.. are
both applicable, a county should follow the
requirements of both statutes. Where a conflict
between the two exists, article 1659a controls.
Contracts for leases of personal property, but not
real property, are within the ambit of article
2368a.
MARK WHITE
Attorney General of Texas
JOHNW. FAINTER, JR.
First Assistant Attorney General
RICHARDE. GRAYIII
Executive Assistant Attorney General
p. 1937
.
Honorable Mike Driscoll
Honorable Bill !!. White
Page 6 (Mw-535)
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
p. 1938