~~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 and by-products 

from companies engaged in 

the importation of crude 

oil into the United States, 

Dear Mr. Burke: and related questions. 

Your request for an opinion.reads In part as follows: 

“I am attaching a copy of House Concurrent Resolution No. 17, introduced by Representatives Latimer, 

Lee and Kennard. 

“The Resolution 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 and make every effort to terminate said contracts 

with oil Importers if it Is legally possible to do 80. 

%l%e Board of Control purchases refined products 

for the use of the State and State-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 some of the ‘major’ 

011 and refining companies have limited and/or no dlitrlbutlon of refined products In some portions of the 

State. Some of the problems involved In purchasing from 

Independent producers are refinery location and dlstributlon facilities for refined products, a satisfactory 

method for handling multiple lndeperdent contracts and 

credit arrangements between the various contract areas 

of the State, refined products of uniform quality and 
Honorable William J. Burke, Page 2 (WW-345, 

dependability. There are differences to be found In 

petroleum products refined by various producers because of the method of processing and compounding and 

the chemicals used therefor. This is particularly 

true of lubricating oil and grease. 

‘Our questions are as follows: 

“(1) In order to be assured of adequate service 

for the State's fuel and refined produ::ts needs, under 

the Resolution, can we legally obtain and/or force 

compliance leading to the Issuance of a certificate 

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 a certificate such as described In 1) above, 

would the Board of Control be In violation of terms 

of the Resolution to continue to purchase from refiners 

with whom we now have contracts? 

“(3) In the event our Investigation reveals that 

the firms with whom we have State contracts are Importers, 

and that they are unwilling to execute a certificate stating the products sold to the State are refined from Texas 

crude oil; If we attempted to terminate the contracts as 

directed by the 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 

and new bids are called for refined products, and upon 

call for said bids we find thaL distribution of nonImporting refiners f products 5.s ‘spotty’ ar,d/or limited 

and that State-owned vehicles operating throughout the 

State cannot be adequately served b:? the same and/or 

other refiner contracts, what course of action Is open 
Honorable William J. Burke, Page 3 (W-345) 

to us to obtain supplies of fuel and oil products In 

those areas where non-importing refiners are not 

operating or do not have adequate distribution of their 

refined products? 

“(6) What form of statement by bidders should 

be used?' Is such a statement form now available? 

"(7) What authority and/or power of enforcement 

does H.C.R. #17 bestow on the Board of Control with 

which to effectuate the provisions of the Resolution? 

House Concurrent Resolution No. 17 resolves as 

follows: 

"RESOLVED, By the 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; and be it further 

"RESOLVED, That the Board of Control be directed to 

study all contracts now In efPect with any Individual, 

firm, partnership, company or corporation which Imports 

or Is affiliated with any importer of foreign 011, as 

defined herein, and make every effort to terminate 

forthwlth such contract or contracts If It is legally 

possible to do so; and be it further 

"RESOLVED, That bidders on oil, gasoline and/or 

lubricant needs of the state be required to file with 

the Board of Control a sworn 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 
. 

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

contracts to the bidder submitting the lowest and best bid. 

Subdivision (f) of Section 8 provides: 

“(f) Award of Contract. The Board shall award 

contracts to.the bidder submitting the lowest and 

beast bid. In determining who,ls the lowest ,and best 

bidder, In addition to price, the Board shall consider: 

“(1) The ability, 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) The character, responsibility, integrity, 

reputation, and experience of the bidder; 

“(4) The quality 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 and ability of the bidder to perform the 

contract or provide the service; 

“(7) The quality, availability and~adaptability of the supplies, or contractual services, 

to the particular use required; 

futurl:(%nLance 

e ability of the bidder to provide 

, repair parts, and service for 

the use of the subject of the contract; 

tachei(zA t: bid ” 

e number and scope of conditions at- 

. . 

Section 30 of Article III of the Constitution of 

Texas provides : 

“Sec. 30. ND law 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. 
. . 

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

In view of the provisions of Section 30 of Article 

III of the Constitution above quoted, a statute can not be 

amended by a resolution. Humble 011 & Ref. C_o. _vs ~&ate. 

104 S,W. 2d 174 (Tex. CivT A 36). T 

ming Pool vs Rodriguez, 182 S%:?d 

errell W 

823 ( 

ells SwikTex. Civ. A . 

1944) Moshelm va Rolilns, 79 S.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 an attempt to amend the provisions of SubditSsion 

(f) of Section 8 of Chapter 304, Acts 55th Legislature, Regular Session, 1957 in violation of Section 30 of Article III 

of the Constitution of Texas. Therefore, in answer to your 

questions, you are advised: 

1. The State Board of tiantrol is not authorized 

to require the "Issuing of a certificate from refiners 

certifying that the refined products purchased <or consumption by the State are refined from Texas crude. 

2. The Board of Control is required to continue 

the purchase from refiners with whom the State now has 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 and conditions of the State Purchasing Act 

of 1957 In awarding contracts for the purchase of.the State's 

fuel and refined product needs. 

SUMMARY 

The purchase of feul and refined 

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. 17 of 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 

30 of AFtlcle III of the Conetltutlon 

of, Texas. 

Very truly yours,, 

WILL WILSON 

Attorney General of Texas 

JR:tllg 

APPROVED: 

OPINION COMMITTEE 

Geo. Pi. Blackburn, Chairman 

John H. Mlnton, Jr. 

Marietta Payne 

B. H. Tlmmlns, Jr. 

Fred Werkinthin 

REVIEWED FOR THE ATTORNEY GENERAL 

By: W. V. Geppert 

. .