The Attorney General of Texas 

December 22, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

*ustin, TX. 76711-2548 

51214752501 

Telex 9101674.1367 

Telecopier 5121475.0266 

1607 Main St.. Suite 1400 

Dallas. TX. 75201.4709 

2341742.6944 

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El Paso. TX. 798052793 

91515353464 

1220 Dallas Ave.. Suite M2 

Houston, TX, 77002-6966 

713165w666 

606 Broadway, Suite 312 

Lubbock. TX. 79401.3479 

8061747.5236 

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McAllen. TX. 76501-1665 

5121682.4547 

200 Main Plaza. Suite 400 

San Antonio. TX. 762052787 

512l2254191 

An Equd OpportunitYI 

Allirmstive Action Employed 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

Honorable Bill H. White 

Criminal District Attorney 

Bexar County Courthouse 

San Antonio, Texas 78205 

Gentlemen: 

Opinion No. MW-535 

Re: Bid procedures 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 

upon all counties. 

- You essentially ask: If a county which intends to 

make a purchase or enter into a contract determines that both statutes 

are applicable, to which statute should it adhere? Since you do not 

inquire about a particular product. we will answer your question in 

general terms. We point out that other statutes may apply to certain 

purchases. See Attorney General Opinion KW-439 (1982). 

Article 1659a provides that counties with a population in excess 

of 900.000 must, unless an emergency exists, take bids on: 

supplies of every kind, road and bridge material, 

or any other material, for the use of said county, 

or any of its officers, departments, or 

Institutions. 

See also V.T.C.S. arts. 1659; 1659b. Article 236ga provides In part: 

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. 

p. 1933 
Honorable Mike Driscoll 

Honorable Bill PI. White 

Page 2 0Dl-535) 

Both statutes then set forth bidding procedures which differ in some 

respects. 

Two briefs 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 236Sa will prevent any conflict with article 1659a. because 

neither statute will apply to any item covered by the other. We will 

consider each of these arguments. 

Patten v. Concho County, 196 S.W.2d 833 (Tex. Civ. App. - Austin 

1946, no writ), is offered as authority for narrow construction of 

article 2368s proposed above. This case does construe the statute in 

this manner. When Patten was decided. however, article 236Sa provided 

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 upon which the Patten court relied to reach its conclusion is 

no longer present, we believe the court’s construction of the former 

statute is no longer apposite. We also 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 

now applicable only to contracts “for public works and the machinery 

used theref or .‘I 

As to the relationship between articles 1659a and 2368a. it is 

argued in one brief that article 236ga now constitutes the entire body 

of law governing counties in the area of competitive bidding, and that 

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. must be interpreted as ev?nce of the legislature’s intent 

to make article 236Sa represent all of the competitive bidding law to 

which counties would be subject when entering into contracts. 

In response, we first note that our courts do not favor repeals 

of statutes by implication. Hines v. State, 515 S.W.2d 670 (Tex. 

Grim. App. 1974); Wintermann v. McDonald, 102 S.W.2d 167 (Tex. 1937). 

In Motor Investment Company v. City of Hamlin. 179 S.W.Zd 278. 281 

p. 1934 
Honorable Mike Driscoll 

Honorable Bill M. White 

Page 3 (MW-535) 

(Tex. 1944). the Texas Supreme Court quoted from Texas Jurisprudence 

as follows: 

‘Where it is apparent that a statute is intended 

to embrace all the law upon the subject with which 

it deals, it repeals all former laws relating to 

the same subject. Under this 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 and its 

field freshly covered.... If the later act is 

clearly intended to prescribe the only rules which 

should govern, it repeals the prior statute, 

although the two are not repugnant in their 

provisions. ’ (Emphasis added). 

The difficulty with the argument advanced above is that in 1981. 

the legislature amended article 1659a by 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 236Sa was 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. We therefore reject the notion that when the legislature 

amended article 236Sa in 1979. it impliedly repealed article 1659a. 

The other argument advanced in the briefs is that articles 1659a 

and 236Ba are repugnant, that they cannot be reconciled, and that one 

therefore controls the other. We also reject this argument. 

In Brown v. 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 come into 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 

p. 1935 
Honorable Hike Driscoll 

Honorable Bill M. White 

Page 4 NW-535) 

and their provisions harmonized to the extent 

possible. (Emphasis added) (Citations omitted). 

We do not believe articles 1659a and 236Sa are so repugnant that 

one or the other can be regarded as having been repealed by 

implication. At worst, they are in some instances 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 a daily newspaper published and circulated in the 

county,” whereas article 236Sa requires “[nlotice of the time and 

place when and where such contracts shall be let” to be “published in 

such county... once a week for 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 must be publicly opened on the appointed day 

and time, and that bids may be secured by check or bond. 

When a county of over 900,000 population intends to enter into a 

particular contract, its first task will be to determine whether, 

given all provisions and exceptions, articles 1659a and 2368a are both 

applicable. If they are, and either 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 and given 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 must be made 

on competitive bids. There is no express exception in the statute for 

lease contracts. 

Section 2(b) of article 236Sa does, however, provide that: 

p. 1936 
. * 

Honorable Mike Driscoll 

Honorable Bill Ii. White 

Page 5 (NW-535) 

Provided... as to contracts for... the purchase of 

land and right-of-way for authorized needs and 

purposes, the provisions hereof requiring 

competitive bids shall not apply and in 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. We do not believe the legislature intended to draw 

a distinction between contracts for the purchase 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 many purposes 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 

Where articles 16598 and 2368a. V.T.C.S.. are 

both applicable, a county should follow the 

requirements of both statutes. Where a 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. GRAY III 

Executive Assistant Attorney General 

p. 1937 
. 

Honorable Mike Driscoll 

Honorable Bill !!. White 

Page 6 (Mw-535) 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

p. 1938