# TheAttorney General ofTexas

December 22, 1982 MARKWHITE AttorneyGeneral

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An Equd OpportunitYI Allirmstive Action Employed Honorable MikeDriscoll Harris CountyAttorney 1001Preston, Suite 634 Houston, Texas 77002 Honorable Bill H.White Criminal District Attorney Bexar CountyCourthouse SanAntonio, Texas 78205 Gentlemen: Opinion No. MW-535 Re: Bidprocedures for county contracts

Both of you have asked questions concerning articles 1659a and 236&t, V.T.C.S. Article 1659a imposes certain competitive bidding requirements upon counties with a population in excess of 900,000. Both Bexar and Harris County have populations in excess of this figure. Article 2368s imposes another set of bidding requirements uponall counties. - Youessentially ask: If acounty which intends to makeapurchase or enter into acontract determines that both statutes are applicable, to which statute should it adhere? Since you donot inquire about a particular product. wewill answer your question in general terms. Wepoint out that other statutes mayapply to certain purchases. See Attorney General Opinion KW-439(1982). Article 1659a provides that counties with apopulation in excess of 900.000 must, unless an emergency exists, take bids on:

supplies of every kind, road andbridge material, or anyother material, for the use of said county, or any of its officers, departments, or Institutions. Seealso V.T.C.S. arts. 1659; 1659b. Article 236ga provides Inpart:

Sec. 2. (a) No county, acting through its Commissioners Court... shall [unless one of the specified exceptions applies] hereafter make any contract calling for or requiring an expenditure or payment in an amount exceeding... ($5.000.00) out of any fund,

.. without first submitting such proposed contract to competitive bids.

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Both statutes then set forth bidding procedures which differ in some respects. Twobriefs were submitted to this office in connection with these opinion requests. Both conclude that articles 1659a and 2368a conflict and that one statute must therefore control the other, although they disagree as to which one controls. One brief also suggests that article 236Sa should be construed narrowly, as applying only to “contracts for public works and the machinery used therefor.” The thrust of this argument appears to be that a narrow construction of article 236Sawill prevent anyconflict with article 1659a. because neither statute will apply to any item covered bythe other. Wewill consider each of these arguments. Patten v. ConchoCounty, 196S.W.2d 833 (Tex. Civ. App. - Austin 1946, nowrit), is offered as authority for narrow construction of article 2368s proposed above. This case does construe the statute in this manner. WhenPatten wasdecided. however, article 236Saprovided that no county could enter into a contract “for the construction of any public building, or the prosecution and completion of any public works” without taking bids. Now, the statute applies, with certain exceptions, to “any” contract in excess of $5.000.00. Since the language uponwhich the Patten court relied to reach its conclusion is no longer present, webelieve the court’s construction of the former statute is no longer apposite. Wealso note that other language in the statute, &, the statement in section 2(b) that “if the contract is for the construction of public works, then.

..‘I (emphasis added), and the reference in section 2a to “materials, equipment and supplies,” clearly points to the conclusion that the statute is not nowapplicable only to contracts “for public works andthe machinery used therefor.‘I As to the relationship between articles 1659a and 2368a. it is argued in onebrief that article 236ga nowconstitutes the entire body of lawgoverning counties in the area of competitive bidding, andthat it impliedly repeals article 1659a. This argument runs as follows: Prior to 1979, article 236Sa applied only to counties with a .population of 350,000 or less. In 1979, however. the legislature removed the population limit, Acts 1979, Sixty-sixth Legislature, chapter 770. at 1901; see Attorney General Opinion MW-139(19gO). thus making the statute applicable to all counties. This action, it is asserted. mustbe interpreted as ev?nce of the legislature’s intent to makearticle 236Sa represent all of the competitive bidding lawto which counties would be subject whenentering into contracts. In response, we first note that our courts donot favor repeals of statutes by implication. Hines v. State, 515 S.W.2d 670 (Tex. Grim. App. 1974); Wintermannv. McDonald, 102S.W.2d 167 (Tex. 1937). In Motor Investment Companyv. City of Hamlin. 179 S.W.Zd 278. 281

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Honorable Bill M.White Page 3 (MW-535)

(Tex. 1944). the Texas SupremeCourt quoted from Texas Jurisprudence as follows:

‘Where it is apparent that a statute is intended

to embrace all the lawuponthe subject with which it deals, it repeals all former laws relating to the samesubject. Underthis rule, a statute that covers the subject matter of a former law and is evidently intended as a substitute for it, although containing no express words to that effect, operates as a repeal of the former law to the extent that its provisions are revised andits field freshly covered.... If the later act is clearly intended to prescribe theonly rules which should govern, it repeals the prior statute, although the two are not repugnant in their provisions. ’ (Emphasis added). Thedifficulty with the argument advanced above is that in 1981. the legislature amendedarticle 1659aby raising its population limit to 900,000. Acts 1981. 67th leg., ch. 237, at 564. In our opinion, this action undermines the contention that article 236Sawas intended to “embrace all the law on the subject with which it deals” and that it was “evidently intended as a substitute for” article 1659a. The legislature would not have concerned itself with article 1659a in 1981 if it did not think the statute was, and intend for it to be, effective. Wetherefore reject the notion that whenthe legislature amendedarticle 236Sain 1979. it impliedly repealed article 1659a. Theother argument advanced in the briefs is that articles 1659a and 236Baare repugnant, that they cannot be reconciled, and that one therefore controls the other. Wealso reject this argument. In Brownv. Patterson, 609 S.W.2d 287, 289-90 (Tex. Civ. App. - Dallas 1980. no writ), the court summarized the rules that are applicable here:

When two statutes are alleged to be in conflict, additional principles comeinto play. If there is a clear conflict, the later expression of legislative intent controls, and to that extent the later statute will be held to have repealed the earlier statute.... Repeals by implication, however, are not favored. and, if there is no positive repugnance between the two [statutesr they will be harmonized so as to give effect to both..

.. ‘Iwo statutes dealinn with the same subject matter, though enacted at different legislative sessions will be construed together

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and their provisions harmonized to the **extent** possible. (Emphasis added) (Citations omitted). Wedonot believe articles 1659a and236Sa are so repugnant that one or the other can be regarded as having been repealed by implication. At worst, they are in someinstances duplicative. In our opinion, the two statutes can be reconciled. and effect can be given to both. For the most part, articles 1659a and 236Sa are complementary. In some instances. however, they set forth different requirements relating to the same subject. For example, article 16598 requires advertisements for bids to be published “once each week for two (2) successive weeks in adaily newspaper published andcirculated in the county,” whereas article 236Sa requires “[nlotice of the time and place whenandwhere such contracts shall be let” **to** be “published in such county... once aweekfor two (2) consecutive weeks prior to the time set for letting such contract, the date of the first publication to be at least fourteen (14) days prior to the date set for letting said contract.” V.T.C.S. art. 236th. 12(b). Article 1659a also contains some requirements that are more detailed than those in article 236Sa, a, the requirement that advertisements must indicate where specifications are to be found, and the time and place for receiving bids, that bids mustbe publicly opened onthe appointed day andtime, andthat bids maybe secured bycheck or bond. Whenacounty of over 900,000 population intends to enter into a particular contract, its first task will be to determine whether, given all provisions andexceptions, articles 1659aand2368a are both applicable. If they are, andeither statute imposes a requirement in an area which is not dealt with by the other, the county must comply with that requirement, regardless of which statute imposes it. Where both statutes impose requirements relating to the same subject, however, &, advertising for bids, we believe the provisions of article 1659a would control. Statutes in pari materia must be

“harmonized andgiven effect with the special governing the general in the event of any conflict.” Hines v. State, supra at 675. In our opinion. as between articles 1659a and 236Ba. the former is clearly the “special” statute. Mr. Driscoll also asks whether article 236Ba applies where the county intends to lease either real or personal property. Article 2368a provides that “any” contract in excess of $5.000.00 mustbe made oncompetitive bids. There is noexpress exception in the statute for lease contracts. Section 2(b) of article 236Sadoes, however, provide that:

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Provided... as to contracts for... thepurchase of land and right-of-way for authorized needs and purposes, the provisions hereof requiring competitive bids shall not apply andin such cases the notice herein provided shall be given but only with respect to an intention to issue time warrants with right of referendum as contemplated in Sections 3 and 4 hereof respectively. (Emphasis added). This exception, which makes the article 2368a bidding requirements inapplicable to contracts for the “purchase of land,” should in our opinion be construed to include acquisitions of real property by lease. Wedonot believe the legislature intended to draw adistinction between contracts for thepurchase of land and contracts for the lease of land. In particular, where a long term lease is involved, a lease of real property is for manypurposes equivalent to a purchase of real property. See, e.g., Attorney General Opinion H-655 (1975); H-403 (1974). We therefore conclude that contracts for the lease of real property are not subject to the article 2368a bidding requirements. but that contracts in excess of $5.000.00 for the lease of personal property are subject to those requirements. SUMMARY Wherearticles 16598 and 2368a. V.T.C.S.. are both applicable, a county should follow the requirements of both statutes. Wherea conflict between the two exists, article 1659a controls. Contracts for leases of personal property, but not real property, are within the ambit of article 2368a.

MARK WHITE Attorney General of Texas JOHN W.FAINTER,JR. First Assistant Attorney General RICHARD

E. GRAYIII Executive Assistant Attorney General

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Prepared byJon Bible Assistant Attorney General APPROVED: OPINIONCOMMITTEE SusanL. Garrison, Chairman Jon Bible Rick Gilpin Patricia Hinojosa JimMoellinger

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