Honorable Wa1ter.L. Bell Opinions Ho. S.-l70 Executive Director " .~ : ,-. State Board of Control Re: Construction of Section. Austin, Texas 21 of Article XVI.of the ~~ Constitution of Texas a,s

Dear Mr.-Bell: to the purchase offuel 

### for State departments. i

~Youropinion request reads as follows:

"Section 21 ~ofArticle .XVIof the Constitui tion of Texas provides in substance,with,,other provisions not material to this request, that all :fuelused inthe legislative~,and other de-,. .~~ partments of the government shallbe furnished

.. under contract to be given to the lowest responsible bidder and under such regulations as'-shall '. be prescribed by law and all such contracts shall ,.1,: be subject to the approval of the Governor, Secretary of State and Comptroller.,

"Under Article .634,of ~theRevised Civil Stat- ~: utes, the Board of Control is made the purchasing agent for all supplies,except perishable goods, which are used by the departments and inst.itutions : of the State. The Board also handles utility contracts for the state~buildings whichare in its custody. In carrying out .theseduties it is necessary for us to determinewhatcontracts made by the Board~come withinthis constitutionalprovision. We request.your opinion on the following questions:
"(1) Does the term 'fuel'as used in Section 21 of Article XVI of the Constitutioninclude gasoline and other motor fuels which,are purchased and used exclusively for operating automobiles, trucks, airplanes, boats or other types of vehicles?
"(2) Do contracts for the purchase of gasoline, diesel fuel, propane, butane, and similar typesof fuel for stationarypower or heating purposes come within this provision?r -.

Hon. Walter L. Bell, page 2 (S-170)

“(3) DO contracts for the purchase of gas which is furnishedby connectionwith a public utility system come within this provision?"

Webster's InternationalDictionarydefines fuel as "any matter used to produce heat or power by burning, as wood, coal, peat, petroleum, gas." Another definition is "any matter used to produceheat or power by combustion." This definition includes all the substanceslisted in your inquiry, but we can not conclude that Section 21 applies to all~purchasesof fuel, regardless of the use to which it is put. We must examine the full wording of the sectionand determine the intended scope of the language "fuel used in the departments of the government."

The primary rule of interpretingand construing a constitutionalprovision is to ascertain the intention of the people in adopting it; and to give effect to that intention. Cox v. Robison,
v. Castleman, 105 Tex. 426, 150 S.W. 1149

112 Tex. 193, 247 S.W. 263 (1 12);Williams (1922 3.*The language of constitutionalprovisions shouldbe construedas the voters at the time of its adoptionwould reasonablyhave understood it to be. Orndorff v. State, 'Civ.App.1937, error ref.). 108~ S.W.2d 206 (Tex. In arriving at the intended -meaningof the language, the history of the time and the con: ditions prevailing at the time of its adoptionmay be considered. Grass.0v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482 (1935). The fact that new conditions not known to the framers of the Constitutionhave arisen since its adoption does not prevent the applicationof the terms used as then intended to new and changed conditionsif such
new and changed conditions comewithin the purpose,meaning and intent of the framers. Western Co. v. Sheppard, 181 S.W.2d 850 (Tex.Civ.App.~l944 errorref.). But where conditions have changed since thi time of adoption, "it is a proper inquiry, in ascertainingwhether a certain lnterpretation shouldbe given to the language of the Constitution, to considerwhether its framers and the voters by~whom it
was adopted intended the consequenceswhich must follow such interpretation." Kay v. Schneider, 110 Tex. 369, 378, 218 S.W. 479, 221 S.W. 880 (1920).

To answer your first two questions,we must determine the scope of the words "fuel used in the departments of the government"~in the light of the conditionswhich existed at the time this provisionwas adopted in 1876. At that time the use of fuel by the departmentsof the state government was confined to heating and lighting the buildings in which the departmentswere housed. This is the general nature~ofthe use which the language of Section 21 suggests.Hon.Walter L. Bell, page 3 (S-170), ::

and which was within the contemplation of ,itsadopters. It would be unreasonable to assume thatthey envisioned the time when the departmen~tswouldbe using-fuel for operating vehiclesor thatthey would have intended Section 21 to encompass such a use. The problems connected~ with refueling vehicles are so different from those involved in the refueling ~ofequipment,used for.providing light,. heat, and similar~servicesat f~ixed,locationsthat the adopters could not reasonably have Mtended the consequenceawhich would follow from an interpretationwhich would place.fuel ,for operation of vehicles within the,terms of Section 21. It should-benoted, further, that Section 2lwas not framed to include all supplies required by the departments of the government.-It ~selectedonly a limited number of items..:: Our research into the extent of governmental activities at, tha~tperioddoes not reveal whetherany departments of the governmentmaintained their own transportation.facil,itie,s~‘as anincident.to carrying out their duties. Whether..they ,did or.not; it is ~evidentthat if the framers of the Constitu- .tion-had~intendedto regulate the purchase of the commodity necessary.formaintaining these facilities theywould have .includedfeed in the list of items regulated ..:.furnished

the motive power for the usualmea:8as the horse

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It is our opinion that Section 21 shouldbe given
no broader scope than was within the contemplationof its framers and the voters who adopted it--the purchase' of f.uel for providing services at the buildings and groundswhere the departmentswere located. We thereforehold that it does not apply to the purchase of fuel for operatingvehicles.

Prefacing our answer to your second question, it is not the nature of the substanceswhich are now used as fuel, but the nature of the conditions and purpose of use which take fuels used for operating vehicles out of the scope of Section 21. The development of gasoline, diesel fuel, liqu+ fled gases SUC!~

as propane and butane, and similar types of fuel has taken place largely since the adoption of Section 21 in 1876, but they- nevertheless comewithin its provisions when they are used for furnishing stationarypower,heat, light, and similar services at the premiseswhich the departments occu.py.

In your third question you ask whether contracts for the purchase of gas from a public utilitp system come within the provisions of Section 21. This sectionprovides that contracts to which it applies shallbe given to the lowest responsiblebidder and shall be subject to the approval Of the Governor, Secretary of State and Comptroller. InRon. Walter L. Bell, page 4 (S-170)

passin V-941 on a related question, Attorney General's Opinion

1949) states:

"A public utility is usually a monopoly operating under a franchise with the tgpe'of service defined and rates controlled. These factorsmake purchase of public utility services on the basis of competitivebids impracticable. The courts have. recognized these conditionsand have held that purchases of utility servicesdo not come within the statuteswhich require 'supplies'to be purchasedby competitivebidding."

The same reasoning is applicable to the present question. Section 21 embraces only those contractswhich are the proper subject of competitivebidding and on which the requirement for approvalwould serve as a check against excessive contractprices. It is our opinion that the purchase of gas from a public utilityby connectionwith a community system at a price which is within the established rates chargedby the utility does not comewithin the provisions of this section.

SUMMARY

Section 21 of ArticleXVI of the Texas Constitution,which regulates the purchase of fuel used by the departments of the government,does not apply to the purchase of gasoline and other motor fuels used for operatingvehicles. It applies to the purchase of fuel, includinggasoline,diesel fuel, propane,butane, and other fuels, which is used for furnishing stationary power,heat, light, and similar servicesat the premiseswhich the departments occupy. It does not apply to the purchase of gas from a public utility system at a price which is within the establishedrate chargedby the utility.

APPROVED: Yours very truly, Davis Grant Reviewer JOHN BEN SRRPPRRD Attorney General
J. A. Amis, Jr. Reviewer
Will Davis SpecialReviewer
Robert S. Trotti First Assistant
JohnBen Shepperd AttorneyGeneral Assistant