Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 28,2005
Ms. Sherri Sanders Opinion No. GA-0378
Interim Executive Director
State Board of Dental Examiners Re: Construction and constitutionality of a rider
333 Guadalupe, Tower 3. Suite 800 to the 2006-07 biennial year appropriation to the
Austin, Texas 78701-3942 State Board ofDental Examiners (RQ-035 1-GA)
Dear Ms. Sanders:
You ask through your general counsel about the construction and constitutionality of a rider
to the 2006.07 biennial year appropriation to the State Board of Dental Examiners (“SBDE”).’ That
provision states:
(a) It is the intent of the Legislature that none of the funds
appropriated above may be used for entering into a contract or
agreement or for amendment or extension of a contract or agreement
or for administration or oversight of a contract or agreement of any
kind or for direct payment to a vendor for goods or services including
the administration of examinations unless the vendor is selected
following competitive bidding procedures and openness in
contracting including:
(1) appropriate advertisement by the agency of the
availability of the contract including using the intemet and services
available for the Texas Building and Procurement Commission;
(2) solicitation by the agency of requests for proposals;
(3) selection of a vendor based on the best value for the
state;
(4) multiple bidders;
‘See Letter fromFread Houston, General Counsel, State Board ofDental Examiners, to Kxmrable Gueg Abbott,
Texas Altomcy General (June 20, 2005) (on file w+ti Opiition Committee, &I available at http:/lwcr?voag.state.tx.us)
[hereinafter Request Lelter].
Ms. Slier-ri Sanders Page 2 (GA-0378)
(5) USCof the master bidder list compiled by the Texas
Building and Procurement Commission; and
(6) other good contracting principles,
(b) It is the intent ofthe Legislature that this rider apply to all
contracts and agreements and to all amendments or extensions of a
contract or agreement or for administration or oversight of any
contract or agreement of any kind and for direct payment to a vendor
for goods or services including the administration of examinations
without reguud to utmxmt.
General Appropriations Act ofMay 29,2005,79th Leg., R.S., ch. 1369, S.B. 1, art. VLLI-16, 2005
Tex. Sess. Law Serv. 4327, 5041 (“Rider 3”) (emphasis added). You ask, first, whether “the terms
ofthe rider. conflict with the general law set out in Government Code 5 2155.132 with regard to
delegated purchases and the competitive bidding requirement” or if, on the other hand, the rider
“merely direct[s] the SBDE to follow the contracting principles and requirements of law as set
out in Government Code 5; 2155.132.” See Request Letter, szz~ra note 1, at 2. You ask, more
specifically, whether the rider attempts to “alter or amend the competitive bidding requirement of
Government Code 5 2155.132(e) as it applies to the SBDE.” Id. at 2. Finally, you ask whether the
provisions of the rider violate article III, section 35 of the Texas Constitution. See iti. at 2. Because
the questions are so interrelated, we will answer them together.
Section 2155.132(a) of the Government Code delegates to a state agency “the authority
to purchase goods and services i~fthe purchase does not exceed $15,000.” TEX. GOV’T CODE ANN.
§ 2155.132(a) (Vernon 2000). Subsection (b) permits the Texas Building and Procurement
Commission (“TBPC”) to delegate purchasing to a state agency when the purchase aceeds S 15,000,
but it requires the TBPC to consider particular relevant factors in delegating that authority. See id.
3 2155.132(b). Subsection (c) directs the TBPC to “monitor the purchasing practic~es of state
agencies that are making delegated purchases to ensure that the certification levels of the
agency’s purchasing personnel and the quality of the agency’s purchasing practices continue to
warrant the amount of delegated authority provided by the commission to the agency” and authorizes
the TBPC to revoke its delegated authority. Id. 5 2155.132(c). Subsection (d) requires the TBPC
to prescribe, by rule, procedures by which state agencies may make delegated purchases. See id.
5 2 155.132(d). Subsection(e) declares that “competitive bidding, whether formal or informal, is not
required for a purchase by a state agency ifthe purchase does not exceed $2,000, or a greater amount
prescribed by commission rule.” Id. 5 2155.132(e). We note that the TBPC has by rule set the
current prescribed amount for delegated purchases to state agencies at $5,000. 1 Tex. hMIN CODE
5 113.1 l(c)(l) (2004) (Tex. Bldg. & Procurement Comm’n, Delegated Purchases). Subsection (f)
lists certain items which are excluded from delegated purchasing under section 2155.132. Se@id.
5 2155.132(f). Subsection (g) prohibits the division of related large purchases into small lot
purchases in order to evade the statute. See id. $2 155.132(g). Finally, subsection (h) requires a state
agencymakingpurchases by competitive bidding to (1) “attempt to obtain at least three competitive
bids from sources listed on the master bidders list that normally offer for sale the goods being
Ms. Sherri Sanders Page 3 (G&0378j
purchased” and (2) “lo comply with Subchapter E” of chapter 2 155, which relates to the master
bidders list.” Id $ 2155.132(h).
Article 111;section 35 of the Texas Constitution provides, in relevant par-t:
(a) No bill, (except general apprnpriation bills, which may embrace
the various subjects and accounts, for and on account of which
moneys are appropriated) shall contain more than one subject.
TEX. CONST. art. IIl, 5 35(a). This provision, denominated the “one subject rule,” has long been
construed by the courts and this office to prohibit the enactment of general legislation in an
appropriations bill. SeeMoore v. Sheppard, 192 S.W.2d 559,562 (Tex. 1946) (rider that prescribes
fees charged for unofficial copies and the disposition thereof conflicts with article III, sec,tion 35);
Tex. Att’y Gen. Op. No. V-1254 (1951) at 10 (rider attached to a general appropriation bill cannot
repeal, modify or amend an existing, general law).
In an opinion stating the rules for determining the validity ofriders to appropriations bill, the
attorney general, more than a half-century ago, declared:
In addition to appropriating money and stipulating the amount,
manner, and purpose of the various items of expenditure, a general
appropriation bill may contain any provisions or riders which detail,
limit, or restrict the use of the funds or otherwise insure that the
money is spent for the required activity for which it is therein
appropriated, if the provisions or riders are necessarily connected
with and incidental to the appropriation and use of the funds, and
provided they do not conjlict with general legislation.
Id. at 8 (emphasis added). “The majority of the riders which have been stricken are those which
attempt to modify or amend a general statute.” Id. at 10. Attorney general opinions since the
issuance of Opinion V-1254 have consistently held such riders invalid. See Tex. Att’y Gen. Op.
Nos. JC-0178 (2000) (rider may not impose on distribution of emergency medical services and
trauma care funds a formula inconsistent with general law); DM-93 (1992) (rider may not enact
exceptions to competitive bidding that are not expressly recognized by the competitive bidding
statutes affecting school districts); JM-167 (1984) (rider may not impose on state agency an
affirmative duty to enter into contract with a particular organization where statute places decision
within discretion ofagency); H-32 1(1974) (ridermaynot limit inmate’s choice ofprovider ofdental
plates where statute permits discretion in selection).
Subsection (b) of Rider 3, in attempting to apply competitive bidding procedures to all
purchases by the SBDE,* regardless of amount, attempts to repeal as to the SBDE subsection (e) of
section 2155.132 of the Government Code which, as implemented by the TBPC, permits a state
Ms. Shea-ri Sanders Page 4 (GA-0378)
agency to make any purchase without competitive bidding where the amount of the contract does not
exceed $5,000. SW TEX. GOV’T CODE AXN. 5 2155.132(e) (Vernon 2000). Thus Rider 3, to the
extent it applies to purchases that do not exceed $5,000, conflicts with genwal law and: as a resultl
contravenes article III, section 35 of the Texas Constitution.
To the extent that Rider 3 applies to contracts the amounts of which exceed $S,OOO,a more
subtle analysis is required. Subsection (a) ofRider 3 does not distinguish between contracts on the
basis of amount,’ whereas section 2155.132 distinguishes between contracts the amounts of which
do not exceed $15,000 and those which exceed $15,000. See id. 5 2155.132. Some provisions of
Rider 3, such as the requirement that the SBDE use the master bidder list,” appear merely to
duplicate requirements of section 2155.132. Other portions may run afoul of statutory competitive
bidding provisions or TBPC rules. To the extent that a provision of Rider 3 is merely declarative
of existing law, it is not invalid under article III, section 35 of the Texas Constitution. To the extent,
however, that a provision of Rider 3 conflicts with general law or attempts to supplement the
competitive bidding statutes in a manner not contemplated in those statutes, it contravenes that
constitutional provision. See Att’y Gen. Op. No. DM-93 (1992) (rider may not enact exceptions to
competitive bidding that are not expressly recognized by the competitive bidding statutes affecting
school districts); Tex. Att’y Gen. Op. No. V-1254 (195 1) (rider may not conflict with or improperly
supplement general law).
Ms. Sherri Sanders - Page 5 (GA-0378)
S U Rl R1 A R Y
To the extent thzat a rider to the 2006-07 appropriation to the
State Board of Dental Examinel-s pqorts to require competitive
bidding on the agency’s contracts which are valued at less than
$5,000, the ridev attempts to amend section 2155.132(e) of the
Government Code and thus contravenes article III, section 35 of the
Texas Constitution. To the extent that other provisions of the rider
are merely declarative of the general law regarding competitive
bidding, they are valid. To the extent that they conflict with or
supplement general law, they are invalid.
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee