Opinion

Untitled Texas Attorney General Opinion

Court
Texas Attorney General Reports
Filed
Jul 2, 1992
Status
Published
On the bench
Dan Morales
Cited by
0 cases
Authority
More cited than 3.5%

The opinion

Office of tfy Bttornep Qhmeral

&date of ?Itexae

DAN MORALES February 19,1992

ATTORNN

GENELAL

Mr. Lionel R Meno Opinion No. DM-93

Commissioner of Education

Texas Bducation Agency Re: Constitutionality of Rider 30

1701 North Congress Avenue to the Genera) Appropriations Bill

Austin, Texas 78704-1494 for the 1991-1992biennium

(W-184)

Dear Commissioner Meno:

You have requested our opinion regarding the constitutionality of Rider 30

to the appropriation to the Central Education Agency contained in the General

Appropriations Bill for the 1991-1992 biennium. H.B. 1. Acts 1991, 72d Leg., 1st

C.S., ch. 19, at 785-86. Rider 30 ostensibly establishes procurement guidelines for

school districts making certain purchases with appropriated funds. You have

concluded, and are so advising school districts, that Rider. 30 violates article LB,

section 35, of the Texas Constitution. We agree.

Article BI, section 35, of the constitution provides the following in pertinent

part:

(a) No bill, (except gene& appropriationsbilk, which may

embrace the vwious subjects and accounts, for wzd on account of

which moneys are oppropkzted) shall contain more than one

subject. (Emphasis added.)

The appropriation of funds from the state treasury is considered a single subject for

purposes of this provision. Jawen Rrroc, Inc. v. Bullock. 531 S.W.2d 593,600 (Tex.

1975) (and cases cited therein).

Attorney General opinion JM-1151 (1990) summarized the application of

section 35(a) to appropriations act riders as foknvs:

A valid rider may limit, detail, or restrict the use of

appropriated funds. Attorney General Opinion V-1254 (1951).

p. 466

Mr. Lionel R. Meno - Page 2 (DM-93)

A rider that qualifies or directs the use of appropriated funds or

that is merely incidental to an appropriation is valid. m

Assoc.., u at 599. So, too, is a rider that merely imple-

ments or is declarative of existing general law. & Attorney

General Opinions JM-786 (1987); JM-343 (1985).

A rider may not, however, embody matters of general

legislation. Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946); s

& Attorney General Opinions MW-585 (1982); MW-51

(1979). A rider that attempts to alter existing substantive law is

a matter of general legislation that may not be included in a

general appropriations act. &t&e v. Court of Appe&, 704

S.W.2d 746 (Tex. 1986). Thus, a rider that amends, modifies,

repeals, or contlicts with existing general law or that attempts to

nullify a constitutional provision other than article III, section

35, is invalid. ss;?; &d; Linden v. Finley, 49 S.W. 578 (Tex. 1899);

&X &Q Attorney General Opinions JM-885 (1988); H-1158

(1978); M-1199 (1972); V-1254 (1951).

Attorney General Opinion JM-115 1 at 5-6.

Under these standards, Rider 30 is clearly invalid. Section 21.901 of the

Education Code states that except as otherwise provided therein, all contracts

valued at $10,000 or more for (1) the purchase of personal property, (2) the

construction, maintenance, repair or renovation of buildings, or (3) for materials

used in those efforts must be submitted to competitive bidding. Educ. Code

3 21.901(a), (b). Maintenance is defined to include supervision of custodial, plant

operations, maintenance, and ground services personnel. Id. subset. (b).

Section 21.901 provides limited exceptions to its competitive bidding

requirement. Contracts for professional services are not subject to competitive

bidding. See id. 5 21.901(c); Attorney General Opinion JM-940 (1988). Neither are

contracts for the replacement of buildings or equipment destroyed or severely

damaged if the time delay caused by the bidding process would prevent or

substantially impair the conduct of classes or other’essential school functions. Educ.

Code 0 21.901(e). A school’ board may purchase specifically enumerated items

without resort to competitive bidding when the items are available from only one

source, id subset. (g), and it may purchase computers and related equipment

through the state General Services Commission (formerly the State Purchasing and

p. 467

Mr. Lionel R. Meno - Page 3 (DM-93)

General Services Commission), id subset. (f). In addition, contracts for energy con-

servation services or equipment may be awarded pursuant to competitive proposal

procedures rather than competitive bidding. Id. 3 21.9012(g). Violations of the

competitive bidding requirement of section 21.901(a) and (b) are punishable as a

Class B misdemeanor. Id. 5 21.9011(c).

Rider 30 does not merely limit, detail, or restrict the use of funds

appropriated by the General Appropriations Bill. Rather, it professes to require

school districts receiving appropriated funds to take certain affirmative steps in the

procurement of specified items. It is thus an attempt to amend section 21.901 and

enact general law in contravention of article III, section 35(a), of the constitution.

Rider 30 provides the following in part:

Purchases made by a school district with funds appropriated by

this Act shall be made according to the following conditions:

a. Except as provided by statute, all contracts.. . for the

purchase of any personal property, except produce or vehicle

fuel, shall be submitted to competitive bidding for each of the

six-month periods beginning September 1 and March 1 when

said property is valued at $25,000 or more.

b. Except as provided by statute, ^ all. contracts.. . . for the.

construction, maintenance, repair or renovation of any building

or for materials used in [such endeavors] shall be submitted to

competitive bidding when said contracts are valued at $25,000 or

more. In this section, maintenance includes supervision of

custodial, plant operations, maintenance, and ground services

personnel. However, this section does not apply to the construc-

tion, maintenance, repair, or renovation of any building ~per-

formed by a professional custodial and/or maintenance manage-

ment company [that is selected on a competitive basis].

c. A school district shall purchase personal property for each of

the six month periods beginning September 1 and March 1 as

provided in sections (d) and (e) below if the value of the

property is at least $10,000 but less than $25,000, unless the

p. 468

Mr. Lionel R. Meno - Page 4 (DM-93)

district elects to submit a contract for the purchase to

competitive bidding.

Acts 1991,72d Leg., 1st C.S., ch. 19, at 785-86.

These provisions may be construed to enact exceptions to competitive

bidding that are not expressly recognized under section 21.901. Paragraph (a)

provides apparent exceptions for produce and vehicle fuel contracts valued at

$25,000 or more. Produce and vehicle fuel constitute personal property, contracts

for the purchase of which are subject to the competitive bidding requirement of

section 21.901(a) when valued at $10,080 or more. See Attorney General Opinion

DM-14 (1991) (section 21.901 applies to contracts for the purchase of consumable

items such as food). Both provisions also require personal property purchase

contracts to be made for six-month periods, a requirement not found in section

21.901 or elsewhere in the Education Code.1

Paragraph (b), meanwhile, offers a comparable exception for construction,

maintenance, repair and renovation contracts valued at between $10,000 and

$25,000. In addition, it excepts “professional” custodial and maintenance manage-

ment contracts from competitive bidding altogether, services which arguably would

otherwise be subject to competitive bidding under section 21.901(b). See Educ.

Code $?21.901(b) (“maintenance” includes supervision of custodial, maintenance,

and ground services personnel). Because paragraphs (a) and (b) of Rider 30

attempt to alter the strict statutory competitive bidding requirement of section

21.901, they are invalid.

Paragraphs (c). (d), and (e) of Rider 30 ostensibly authorize a school district

to purchase personal property valued at between $10,000 and $25,000 by contacting

vendors placed on a list compiled by the district of prospective suppliers of the

category of personal property to be purchased. The district is required to make such

contracts for six month periods beginning September 1 and March 1. Prior to

‘It may be argued that paragraph (a) merely excepts fuel and produce purchases from the six-

month supply requirement. Because the paragraph is prefaced with the disclaimer “except as provided

by statute” it may then be asserted that fuel and produce purchases remain subject to competitive

bidding under section 21.901. However, the remainder of paragraph (a) would still only require com-

petitive bidding for fuel and produce purchases of SU,OtXl or more, and paragraph (c) would make

bidding optional for contracts of between SlO,COOand S25,ooO. Both of these requirements are

inconsistent with section 21.901.

P. 469

Mr. Lionel R. Meno - Page 5 (DM-93)

entering into such a contract, the district need only contact at least three vendors

(presumably for the purpose of soliciting offers). The district is not required to

submit the purchase contract to competitive bidding, but may do so at its discretion.

This portion of Rider 30 attempts to enact a discretionary exception to

competitive bidding required by section 21.901 of the Education Code. It also

attempts to codify the practices of compiling vendors’ lists and making cumulative

six-month personal property purchase contracts, matters not expressly required by

the Education Code. For these reasons, paragraphs (o), (d),-and (e) of Rider 30 are

invalid.

Finally, Rider 30 professedly establishes procurement guidelines for a school

district that has contracted with a food services management company. Paragraph

(f) authorizes the board of trustees of such a district to

delegate to a professional food services management company

the authority to purchase the food and supplies required in the

performance of a food service management contract. . . .

Acts 1991, 72d Leg., 1st C.S., ch. 19, at 786. The food services management com-

pany must have been selected on a competitive basis, and the procurements must be

made in accordance with the contract between the district and the company. Id.

Paragraph (f) is an effort to overturn Attorney General Opinion DM-14

(1991), which held in part that the purchasing function could not be delegated to a

food services management company by contract or otherwise. This conclusion was

based on the discretionary character of the procurement process and the ultimate

responsibility of a school board to make purchases under section 21.901. The

opinion cited authority for the proposition that the power to make purchases for a

public body was not delegable. Home Zoological Arena Co. v. City of Dallas, 45

S.W.2d 714 (Tex. Civ. App.--Waco 1931, no writ). The opinion implicitly determin-

ed that the concept of nondelegability was fully incorporated into section 21.901.

Thus, because paragraph (f) attempts to modify this rule, it, too, runs afoul of article

III, section 35(a), of the constitution.

SUMMARY

The separate provisions of Rider 30 to the appropriation of

the Central Education Agency contained in the General

P- 470

Mr. Lionel R. Meno - Page 6 (DM-93)

Appropriations Act for the 1991-1992 fiscal biennium attempt to

amend or enact general law and are therefore invalid under

article III, section 35(a), of the Texas Constitution.

DAN MORALES

Attorney General of Texas

WILL PRYOR

First Assistant Attorney General

MARY KELLER

Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)

Special Assistant Attorney General

RENEA HICKS

Special Assistant Attorney General

MADELEINE B. JOHNSON

Chair, Opinion Committee

Prepared by Steve Aragon

Assistant Attorney General

P. 471

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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