Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
January 17, 1978
The Honorable Robert J. Winn Opinion No. H- 1115
Executive Director of the Governor’s
Coordinating Office for the Visually Re: Implementation of the
Handicapped statutory program for purchases
P. 0. Box 13047, Capitol Station of blind-made products by the
Austin, Texas 78711 state.
The Honorable Homer A. Foerster
State Board of Control
L.B. J. Building
Austin, Texas 787ll
Gentlemen:
You have requested our opinion regarding the implementation of the
statutory program for purchases of blind-made products by the state.
The 64th Legislature enacted two separate statutes which require state
agencies to procure “all suitable products or services,” where available, from
“nonprofit agencies for the blind.” House Bill 1673, a broad statute providing
educational services to the blind, was enacted on May 31, 1975. Section 16 of
the act, now codified as article 664-5, V.T.C.S., establishes a Texas
Commission on Purchases of Blind-Made Products and Services, whose duty it
is
to determine the fair market price of all suitable
products and services manufactured by the blind and
offered for sale to the various agencies and depart-
ments of the government of the State of Texas and of
the political subdivisions of the state by any nonprofit
agency for the blind organized under the laws of the
State of Texas and recognized by the State Commis-
sion for the Blind as capable of contributing to the
purposes of this article, to revise such prices from
time to time in accordance with changing market
conditions, and to make such rules and regulations
regarding specifications, time of delivery, authoriza-
tion of a central nonprofit agency to facilitate the
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, .
The Honorable Robert J. Winn
The Honorable Homer A. Foerster - Page 2 (R-1115)
distribution of orders among agencies for the blind, and
other relevant matters of procedure as shall be necessary to
carry out the purposes of this article. The needs of various
state agencies shall be processed by requisition through the
State Board of Control and in accordance with those rules
and regulations to be established by the State Board of
Control.
Sec. 3. Article 664-5 requires that
IalU suitable products or services hereinafter procured in
accordance with applicable state specifications by or for any
state department or agency, including agencies and depart-
ments of political subdivisions, shall be procured from such
nonprofit agencies for the blind in all cases where such
products or services are available within the period specified
at the price determined by the committee to be the fair
market price for the products or services so procured, unless
otherwise specifically provided by the Constitution of the
State of Texas.
Sec. 4.
House Bill 2016, now codified as article 664-6, V.T.C.S., is similar in most
respects to article 664-5. It creates a Texas Committee on Purchases of Blind-
Made Products and Services and authorizes the Committee to determine the fair
market price of all products and services manufactured by the blind for sale to
state agencies. Section 4, however, imposes a caveat not present in article 664-5:
All suitable products or services procured by or for a state
department or agency shall be procured from nonprofit
agencies for the blind if the products or services are
available within the period specified and at the price
determined by the committee to be the fair market price for
the products or services unless otherwise specifically provid-
ed by the Constitution of the State of Texas. However, in
no event, shall the price paid be in excess of the cost 3
comparable products or servmes avarlable from other
sources.
Sec. 4 (Emphasis added). House Bill 2016 was enacted on the same date as, but
prior to, House Bill 1673. Since the Senate amended House Bill 1673, it was not
finally approved until the House concurred in the amendments. See Ca les v.
Cole, 102 S.W.2d 173 (Tex. 1937). The vote to concur took placexter +i-&iaz
Fge of House Bill 2016. Texas Senate Journal, 64th Leg., 2068-70 (1975); Texas
House Journal, 64th Leg., 4436, 4492 (1975).
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,, .
The Honorable Robert J. Winn
The Honorable Homer A. Foerster - Page 3 (H-1115)
It is well established that statutes relating to the same subject matter and
having the same general purpose are to be construed with reference to one another.
Whittenburg v. Craven, 258 S.W. 152, 153 (Tex. Comm’n App. 1924, jdgmt adopted).
This rule of construction is particularly applicable to statutes enacted at the same
session of the Legislature. Wright v. Broeter, 196 S.W.2d 82, 85 (Tex. 1946). Such
statutes must be harmonized. and effect given to each, unless there is an
irreconcilable conflict between them. McGrady v. Terrell, 84 S.W. 641, 642 (Tex.
1905).
In our opinion, an irreconcilable conflict exists between the language of the
two statutes. Both require that the state purchase available products and services
from nonprofit agencies for the blind at a price previously determined by the
Committee. Article 664-6, however, would permit the Board of Control, as
purchasing agent for the state, to override this requirement whenever it determines
that the price fixed by the Committee is “in excess of the cost of comparable
products or services available from other sources. I’ We believe that this provision
of article 664-6, not present in article 664-5, must be deemed largely to render
nugatory the price-fixing duties of the Committee.
In Ex parte de Jesus de la 0, 227 S.W.2d 212 (Tex. Crim. 19501, the court held
that
[wl~here two acts passed at the same session of the
legislature cannot be reconciled by any known rule of
construction, the first ln time or position must give way to
the last, and the latter act will stand as the final expression
of the legislative will.
Id. at 213. Since the two statutes are in irreconcilable conflict, and since article
F64-6 was enacted prior to article 664-5, it is our opinion that the latter, being the
latest expression of legislative intent, must prevail.
SUMMARY
Article 664-5, V.T.C.S., being a later expression of legisla-
tive intent, prevails over conflicting provisions of article
664-6, V.T.C.S. As a result, the state is required to
purchase available products and services from nonprofit
agencies for the blind at the fair market price set by the
Texas Committee on Purchases of Blind-Made Products and
Services.
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The Honorable Robert J. Winn
The Honorable Homer A. Foerster - Page 4 (H-1115)
orney General of Texas
Opinion Committee
jst
p. 4564