                                   The Attorney General of Texas
                                                          December 22,     1982
MARK WHITE
Attorney General

                                  Honorable Mike Driscoll                            Opinion No.    MW-535
Supreme   Court Building          Harris County Attorney
                                  1001 Preston, Suite 634                            Re: Bid procedures
P. 0. BOX 12546
*ustin, TX. 76711-2548
                                                                                                               for county
51214752501                       Houston, Texas    77002                            contracts
Telex 9101674.1367
Telecopier  5121475.0266          Honorable Bill H. White
                                  Criminal District  Attorney
1607 Main St.. Suite 1400
                                  Bexar County Courthouse
Dallas. TX. 75201.4709            San Antonio, Texas     78205
2341742.6944
                                  Gentlemen:
4624 Alberta    Ave.. Suite 160
El Paso. TX. 798052793
                                        Both of you have asked questions         concerning articles     1659a and
91515353464                       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
1220 Dallas Ave.. Suite M2
Houston, TX, 77002-6966
                                  figure.    Article    2368s imposes another set of bidding          requirements
713165w666
                                  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
 606 Broadway, Suite 312          inquire about a particular       product. we will answer your question          in
 Lubbock. TX. 79401.3479
                                  general terms.      We point out that other statutes may apply to certain
 8061747.5236
                                  purchases.    See Attorney General Opinion KW-439 (1982).

 4309 N. Tenth. Suite B                Article 1659a provides  that counties with a population                  in excess
 McAllen. TX. 76501-1665          of 900.000 must, unless an emergency exists,  take bids on:
 5121682.4547

                                                supplies of every kind, road and bridge material,
 200 Main Plaza. Suite 400                      or any other material,   for the use of said county,
 San Antonio. TX. 762052787                     or    any     of its   officers,   departments,    or
 512l2254191                                    Institutions.

 An Equd OpportunitYI             See also     V.T.C.S.    arts.   1659;   1659b.   Article   236ga provides    In part:
 Allirmstive Action Employed
                                                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




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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

        JOHNW. FAINTER, JR.
        First Assistant Attorney      General

        RICHARDE. GRAYIII
        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
