September 7,200O 

The Honorable Tony Goolsby 

Chair, House Administration Committee 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768 

Opinion No. JC-028 1 

Re: Whether a municipality must competitively 

bid a contract with a temporary day labor agency 

(RQ-0217-K) 

Dear Representative Goolsby: 

You ask whether a city’s annual contract with a temporary day labor agency to provide 

qualified day laborers, particularly garbage collection workers, is exempt from the competitive 

bidding procedure required by Local Government Code section 252.021 as a procurement necessary 

to preserve or protect the public health or safety.’ The city’s contract with the temporary day labor 

agency, if limited to the employment of laborers necessary to preserve or protect the public health, 

would be excepted from competitive bidding pursuant to section 252.022(a)(2) of the Local 

Government Code. See TEX. Lot. GOV’T CODE ANN. 5 252.022(a)(Z) (Vernon Supp. 2000). You 

also ask whether the purchase of equipment and materials used exclusively for solid waste collection 

would be exempt from competitive bidding as necessary to preserve the public health or safety. See 

Request Letter, note 1, at 1,3. Section 252.022(a)(2) ofthe Local Government Code would exempt 

a contract to purchase these items from the competitive bidding requirements of section 252.021. 

See TEX. Lot. GOV’T CODE ANN. $5 252.021, .022(a)(2) (Vernon Supp. 2000). 

You write that many Texas cities find workers for their city-operated solid waste collection 

services through temporary day labor agencies. See Request Letter, note 1, at 1. To be sure of 

having a reliable source of qualified day laborers, municipalities will often contract with a temporary 

day labor agency. See id. If a municipality anticipates spending more than $15,000 in one year with 

a temporary day laborer provider, you ask whether the contract must be put out for competitive bids. 

See id. at 2. You also ask whether the purchase of equipment and materials used exclusively for 

solid waste collection, such as garbage trucks and residential trash containers, would be excepted 

from competitive bidding as necessary to preserve or protect the public health or safety of the city. 

See id. at 1, 3. 

Under section 252.021 ofthe Local Government Code, amunicipality must submit acontract 

that requires an expenditure of more than $15,000 to competitive bidding or competitive proposals. 

‘See Letter from Honorable Tony Go&by, Texas State Representative, District 102, Chair, House 

Administration Committee, to Honorable John Comyn, Texas Attorney General, at 1 (Mar. 31, 2000) (on tile with 

opinion Committee) [hereinafter “Request Letter”]. 
The Honorable Tony Goolsby - Page 2 (JC-0281) 

See TEX. Lot. GOV’T CODE ANN. 4 252.021 (Vernon Supp. 2000); see also id. 5 252.021(c) 

(competitive sealed proposal procedure may be used only for high technology procurements or, in 

cities of population of 75,000 or more, to purchase insurance). Several kinds of purchases are 

excepted by section 252.022 of the Local Government Code from the requirement of competitive 

bidding, including expenditures for: 

(1) a procurement made because of a public calamity that 

requires the immediate appropriation of money to relieve the 

necessity of the municipality’s residents or to preserve the property 

of the municipality; [or] 

(2) a procurement necessary to preserve or protect the public 

health or safety of the municipality’s residents. 

Id. 5 252.022(a)(l), (2). 

The Texas Supreme Court has construed the exemption for purchases necessary “to preserve 

or protect the public health or safety” as independent from the exemption for purchases made 

necessary by a public calamity. See Hoffman v. City of Mt. Pleasant, 89 S.W.2d 193, 194 (Tex. 

1936) (expenditures to repair and improve city sewer system). Thus, the competitive bidding 

provision does not apply to an expenditure to protect or preserve the public health, regardless of 

whether a public calamity made the purchase necessary. 

A city’s contract for garbage collection with a private corporation is within the exception for 

expenditures to protect or preserve the public health and may be awarded without competitive 

bidding. See Browning-Ferris, Inc. Y. City of Leon Valley, 590 S.W.2d 729, 733-34 (Tex. Civ. 

App.-San Antonio 1979, writ ref d n.r.e.); Tex. Att’y Gen. Op. No. JM-908 (1988) at 18. See also 

Tex. Att’y Gen. Op. Nos. JC-0136 (1999) at 3 (contract with private company for ambulance service 

was excepted from competitive bidding statute as necessary to protect or preserve the public health); 

M-806 (1971) at 5-6 (same). Your questions relate to the city’s expenditures to provide solid waste 

collection itself, rather than through contracting with a private entity. 

A city council could reasonably determine on the authority of Browning-Ferris, Inc. v. City 

ofLeon Valley that a contract with a temporary day labor agency for garbage collection workers was 

necessary to preserve or protect the public health, thereby bringing the contract within the “public 

health or safety” exception found in Local Government Code section 252.022(a)(2). In our opinion, 

the city’s contract with the temporary day labor agency would also be within this exception if it were 

limited to day laborers necessary to preserve the public health or safety, such as laborers to staff city 

solid waste collection services. 
The Honorable Tony Goolsby - Page 3 (JC-0281) 

You also ask whether the purchase of equipment and materials used exclusively for solid 

waste collection, such as garbage trucks and residential trash containers, would be exempt from 

competitive bidding as necessary to preserve the public health or safety. See Request Letter, supra 

note 1, at 1, 3. In Hoffman Y. City of Mt. Pleasant, the exception from the competitive bidding 

requirement for a procurement that is necessary to protect or preserve the public health or safety of 

the municipality’s residents was held applicable for an expenditure “for the construction of a new 

septic tank, filter bed, mains, and other replacements and improvements” to the city’s sewer system. 

Hoffman, 89 S.W.2d at 193. This construction project required the city to purchase materials as well 

as services. See id. See also Tex. Att’y Gen. Op. No. DM-4 (1991) at 4 (if dump truck is necessary 

to preserve public health or safety, county may purchase it without competitive bidding under 

section 262.024(a)(2) of the Local Government Code, a provision virtually identical to Local 

Government Code section 252,022(a)(2)). The city council could reasonably determine that 

equipment and materials used exclusively for solid waste collection, such as garbage trucks and 

residential trash containers, are necessary to preserve the public health or safety, and could then 

purchase these items without complying with the competitive bidding provisions in section 252.021 

of the Local Government Code. 
The Honorable Tony Goolsby - Page 4 (X-0281) 

SUMMARY 

A city’s contract with a temporary day labor agency for day 

laborers, if limited to the employment of laborers necessary to 

preserve or protect the public health, such as garbage collection 

workers, would be excepted from the competitive bidding 

requirements of Local Government Code section 252.021 by section 

252,022(a)(2) of the Local Government Code. The purchase of 

equipment and materials used exclusively for solid waste collection 

would also be exempt from competitive bidding as items necessary 

to preserve or protect the public health or safety. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General - Opinion Committee