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 

~Your opinion request reads as follows: 

"Section 21 ~of Article .XVI of the Constitui 

tion of Texas provides in substance, with,,other 

provisions not material to this request, that 

all :fuel used inthe legislative~,and other de-,. .~~ 

partments of the government shall be 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 ~the Revised 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 .these duties it is necessary for us to determine whatcontracts made by 

the Board~come withinthis constitutional provision. We request.your opinion on the following 

questions: 

"(1) Does the term 'fuel' as used in Section 

21 of Article XVI of the Constitution include 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 stationary power 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 furnished by connection with a public 

utility system come within this provision?" 

Webster's International Dictionary defines 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 produce heat or power by combustion." 

This definition includes all the substances listed in your 

inquiry, but we can not conclude that Section 21 applies to 

all ~purchases of fuel, regardless of the use to which it is 

put. We must examine the full wording of the section and 

determine the intended scope of the language "fuel used in 

the departments of the government." 

The primary rule of interpreting and construing a 

constitutional provision 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 constitutional provisions should be construed as the 

voters at the time of its adoption would reasonably have 

understood it to be. Orndorff v. State, 

'Civ.App. 1937, error ref.). 

108~ S.W.2d 206 (Tex. 

In arriving at the intended 

-meaning of the language, the history of the time and the con: 

ditions prevailing at the time of its adoption may be considered. Grass.0 v. 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 Constitution have arisen since 

its adoption does not prevent the application of the terms 

used as then intended to new and changed conditions if such 

new and changed conditions come within 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 ascertaining whether a certain lnterpretation should be given to the language of the Constitution, 

to consider whether its framers and the voters by~whom it 

was adopted intended the consequences which 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 conditions which existed 

at the time this provision was adopted in 1876. At that 

time the use of fuel by the departments of the state government was confined to heating and lighting the buildings in 

which the departments were housed. This is the general 

nature ~of the use which the language of Section 21 suggests 
.Hon. Walter L. Bell, page 3 (S-170), :: 

and which was within the contemplation of ,its adopters. It 

would be unreasonable to assume thatthey envisioned the 

time when the departmen~tswould be using-fuel for operating 

vehicles or 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 ~of equipment,used for.providing light,. heat, and 

similar~services at f~ixed ,locationsthat the adopters could 

not reasonably have Mtended the consequencea which would 

follow from an interpretation which would place.fuel ,for 

operation of vehicles within the,terms of Section 21. It 

should -be noted, further, that Section 2lwas not framed to 

include all supplies required by the departments of the 

government. - It ~selected only a limited number of items..:: 

Our research into the extent of governmental activities at, 

tha~tperiod does not reveal whetherany departments of the 

government maintained their own transportation.facil,itie,s~‘as 

anincident.to carrying out their duties. Whether..they ,did 

or.not; it is ~evident that if the framers of the Constitu- 

.tion-had~intended to regulate the purchase of the commodity 

necessary.for maintaining these facilities they would have 

.included feed in the list of items regulated 

..:.furnished the motive power for the usual mea:8 

as the horse 

tation known to that era. 

of.transpor-- 

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It is our opinion that Section 21 should be given 

no broader scope than was within the contemplation of its 

framers and the voters who adopted it--the purchase' of f.uel 

for providing services at the buildings and grounds where 

the departments were located. We therefore hold that it 

does not apply to the purchase of fuel for operating vehicles. 

Prefacing our answer to your second question, it is 

not the nature of the substances which 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 come within its provisions 

when they are used for furnishing stationary power, heat, 

light, and similar services at the premises which 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 section provides 

that contracts to which it applies shall be given to the 

lowest responsible bidder and shall be subject to the approval 

Of the Governor, Secretary of State and Comptroller. In 
Ron. 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 factors make 

purchase of public utility services on the basis 

of competitive bids impracticable. The courts 

have. recognized these conditions and have held 

that purchases of utility services do not come 

within the statutes which require 'supplies' to 

be purchased by competitive bidding." 

The same reasoning is applicable to the present question. 

Section 21 embraces only those contracts which are the 

proper subject of competitive bidding and on which the requirement for approval would serve as a check against excessive contract prices. It is our opinion that the purchase of gas from a public utility by connection with a 

community system at a price which is within the established 

rates charged by the utility does not come within the provisions of this section. 

SUMMARY 

Section 21 of Article XVI 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 operating vehicles. It 

applies to the purchase of fuel, including gasoline, diesel fuel, propane, butane, and other 

fuels, which is used for furnishing stationary 

power, heat, light, and similar services at the 

premises which the departments occupy. It does 

not apply to the purchase of gas from a public 

utility system at a price which is within the 

established rate charged by the utility. 

APPROVED: Yours very truly, 

Davis Grant 

Reviewer 

JOHN BEN SRRPPRRD 

Attorney General 

J. A. Amis, Jr. 

Reviewer 

Will Davis 

Special Reviewer 

Robert S. Trotti 

First Assistant 

John Ben Shepperd 

Attorney General 

Assistant