### ~~HEA~ORNEY GENERAL OFTEXAS

Honorable William J. Burke Opinion No. 

### W-345 Executive Director State Board of Control Re: The legal effect of House Austin, Texas Concurrent Resolution No. 

### 17, of the First Called Session of the 55th Leglslature, 1957, purporting to direct the Board of, Control not to accept bids for oil andby-products from companies engaged in the importation of crude oil into the United States, Dear Mr. Burke: andrelated questions.

Your request for anopinion.reads In part as follows:

“I amattaching acopy of House Concurrent Resolution No. 

### 17, introduced byRepresentatives Latimer, Lee andKennard.

“TheResolution directs the Board of Control not to accept any bids for 011, etc., from firms that Import crude oil or products into the United States or those affiliated with such importing firma.

“The Board is also directed to study existing contracts andmakeevery effort to terminate said contracts with oil Importers if it Is legally possible to do80. %l%eBoard of Control purchases refined products for the use of the State andState-owned vehicles. The availability of adequate service and supply facilities throughout the State Is directly related to the refining capacity and distribution organization of the contracting supplier. It has been found that even someof the ‘major’ 011 andrefining companies have limited and/or no dlitrlbutlon of refined products In some portions of the State. Someof the problems involved In purchasing from Independent producers are refinery location anddlstributlon facilities for refined products, asatisfactory method for handling multiple lndeperdent contracts and credit arrangements between the various contract areas of the State, refined products of uniform quality andHonorable William J. Burke, Page 2

### (WW-345,

dependability. There are differences to be found In petroleum products refined byvarious producers because of the method of processing and compounding and the chemicals used therefor. This is particularly true of lubricating oil andgrease.

‘Our questions are as follows:

“(1) In order to be assured of adequate service for the State's fuel andrefined produ::ts needs, under the Resolution, can welegally obtain and/or force compliance leading to the Issuance of acertificate from refiners certifying that the refined products purchased for consumption by the State are refined from Texas crude’? Would sue” certificate satisfy the Intent of the Resolution?

“(2) In the event our examination of existing contracts with refiners indicates that they are 011 importers but that said refiners are willln f to furnish acertificate such as described In 1) above, would the Board of Control be Inviolation of terms of the Resolution to continue to purchase from refiners with whomwenowhave contracts?



### “(3) In the event our Investigation reveals that the firms with whomwehave State contracts are Importers, and that they are unwilling to execute acertificate stating the products sold to the State are refined from Texas crude oil; If weattempted to terminate the contracts as directed bythe Resolution, could they be legally termlnated without affording cause of legal actlun against the State by present contract holders.

“(4) In the event the holders of our present contracts for refined products are affiliated with 011 Importing companies, but refine the products which are sold to the State of Texas from Texas crude oil and so certify to that fact, what ,ls our position with reference to compliance with the Resolution and particularly paragraph 

### 7; paragraph 

### 87

“(5) In the event present contracts are terminated andnewbids are called for refined products, and upon call for said bids wefind thaL distribution of nonImporting refiners fproducts 5.s ‘spotty’ ar,d/or limited and that State-owned vehicles operating throughout the State cannot be adequately served b:?the sameand/or other refiner contracts, what course of action Is openHonorable William J. Burke, Page 

### 3(W-345)

to us to obtain supplies of fuel andoil products In those areas where non-importing refiners are not operating or donot have adequate distribution of their refined products?



### “(6) Whatform of statement bybidders should be used?' Is such astatement form nowavailable? "(7) Whatauthority and/or power of enforcement does H.C.R. 

### #17bestow on the Board of Control with which to effectuate the provisions of the Resolution?

House Concurrent Resolution No. 17resolves as follows: "RESOLVED,Bythe House of Representatives of the State of Texas, the Senate concurring, that the State Board of Control be directed not to accept any bids for 011, gasoline and/or lubricant needs of the State of Texas from any person, firm, oartnershlp, company or corporation which imports any crude 011 or products Into the United States, or bihlch purchases any foreign-produced crude 011 or products, or from any individual, firm, partnership, company or corporation which is owned, controlled, or affiliated by stock ownership, or otherwise, with any importer as defined herein; andbe it further "RESOLVED,That the Board of Control be directed to study all contracts nowIn efPect with any Individual, firm, partnership, company or corporation which Imports or Is affiliated with any importer of foreign 011, as defined herein, andmakeevery effort to terminate forthwlth such contract or contracts If It is legally possible to doso; andbeit further "RESOLVED,That bidders on oil, gasoline and/or lubricant needs of the state be required to file with the Board of Control asworn statement attached to their bids to the effect that they areanot importers of foreign crude 011 or products, as defined herein." or affiliated with such importers,
Under the State Purchasing Act of 1957 (Senate Bill 169, Chapter 304, Acts 55th Legislature, Regular Session, 1957, page 739, codified in Vernon's as Article 

### 664-3, Vernon's Civil Statutes, the Board of Control is required to award. - .

Honorable Wllllam J. Burke, Page 4 (W ’W-345)

contracts to the bidder submitting the lowest andbest bid.

Subdivision (f) of Section 8provides:

“(f) Awardof Contract. TheBoard shall award contracts to.the bidder submitting the lowest and beastbid. In determining who,ls the lowest ,andbest bidder, In addition to price, the Board shall consider:

“(1) Theability, capacity and skill of the bidder to perform.the contract op.provlde the service required;

“(2) Whether the bidder can perform the contract or provide the service promptly, or within the time required, without delay Lr interference;

“(3) Thecharacter, responsibility, integrity, reputation, and experience of the bidder;

“(4) Thequality of performance of previous contracts or servioes;

“(5) The previous and existing compliance by the bidder with laws relating to the contract or service;

“(6) The sufficiency of the financial resources andability of the bidder to perform the contract or provide the service;

“(7) Thequality, availability and~adaptability of the supplies, or contractual services, to the particular use required;
futurl:(%nLanceeability of the bidder to provide

, repair parts, and service for the use of the subject of the contract; tachei(zA t: bid ”

enumber and scope of conditions at-

. . Section 30of Article III of the Constitution of Texas provides :

“Sec. 30. NDlaw shall be passed, except by bill, and’no bill shall be so amended In Its passage through zither House, as to change its original purpose.. .

- -

Honorable William J. Burke, Page 5 (WW-345)

In view of the provisions of Section 30of Article III of the Constitution above quoted, astatute can not be amendedbyaresolution. Humble 011 &Ref. C_o._vs~&ate. 104 S,W. 2d 174 (Tex. CivT A 36). T ming Pool vs Rodriguez, 182S%:?d errell W 823 ( ells SwikTex. Civ. A

. 1944) Moshelm vaRolilns, 79S.W. id 672 (Tex. Civ. &. 1935,'error dismissed).

It is our opinion that House Concurrent Resolution of the First Called Session of the 55th Legislature, 1957, constitutes anattempt to amendthe provisions of SubditSsion (f) of Section 8of Chapter 304, Acts 55th Legislature, Regular Session, 1957 in violation of Section 30of Article III of the Constitution of Texas. Therefore, in answer to your questions, you are advised:

1. TheState Board of tiantrol is not authorized to require the "Issuing of acertificate from refiners certifying that the refined products purchased <or consumption bythe State are refined from Texas crude.

2. TheBoard of Control is required to continue the purchase from refiners with whomthe State nowhas contracts in accordance with the terms and conditions of such contracts and is not authroized to abrogate the obllgatlons of the State under existing contracts.

3. In answer to the remaining questions you are advised that the State Board of Control is required to follow the terms andconditions of the State Purchasing Act of 1957 In awarding contracts for the purchase of.the State's fuel andrefined product needs.

SUMMARY

The purchase of feul andrefined products for the State is governed by the provisions of Chapter 304, Acts 55th Legislature, Regular Session, 1957 (State Purchasing Act of 1957). The provisions of Rouse Concurrent Resolution No. 17of the First Called Session of the 55th Legislature, 1957, can not amend,

## 1,622

Honorable William J. Burke, Page 6 (WW-345)

alter or repeal any of the provisions of the State Purchasing Act of 1957 in view of the provisions of Section 30of AFtlcle III of the Conetltutlon of,Texas. Very truly yours,, WILLWILSON Attorney General of Texas

JR:tllg APPROVED: OPINIONCOMMITTEE Geo. Pi.Blackburn, Chairman John H.Mlnton, Jr. Marietta Payne B. H. Tlmmlns, Jr. Fred Werkinthin REVIEWED

FORTHEATTORNEY GENERAL By: W.V. Geppert . .