Untitled Texas Attorney General Opinion
KP-0093
| Tex. Att'y Gen. | Jul 2, 2016Background
- In 2015 the Texas Legislature enacted SB 20, adding subchapter F to Gov't Code ch. 2261, including §2261.252 which bars a "state agency" from contracting for certain goods or services with private vendors in which certain agency officials (including governing-board members) have a financial interest.
- The new subchapter was expressly applied to institutions of higher education acquiring goods or services under specified Education Code authorities.
- Texas Education Code §51.923(d) (enacted earlier) separately allows an institution of higher education to contract with a business in which a governing-board member has an interest, provided the interest is not substantial or is disclosed and the member abstains and the board approves.
- Because §2261.252 (Government Code) would prohibit some contracts that §51.923(d) (Education Code) would permit, the two statutes overlap and appear to conflict.
- The Attorney General applied Texas statutory-construction rules (harmonization, Code Construction Act §§311.025–.026) to determine which provision controls.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an institution of higher education may enter into a contract with a business in which a board member has an interest despite §2261.252 | §51.923 (Education Code) is a specific authorization that should operate as an exception to the Government Code prohibition | §2261.252 (later enactment) expressly includes institutions of higher education and governing-board members and therefore the general later statute should prevail | §2261.252 controls for contracts covered by its prohibition: institutions may not enter into covered purchases from vendors in which a governing-board member (or specified family) has the prohibited financial interest; §51.923 remains effective only to the extent it does not conflict |
Key Cases Cited
- Texas Indus. Energy Consumers v. CenterPoint Energy Haus. Elec., 324 S.W.3d 95 (Tex. 2010) (courts attempt to harmonize conflicting statutes when possible)
- Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) (specific statute controls over general when both address same subject)
- Acker v. Texas Water Comm'n, 790 S.W.2d 299 (Tex. 1990) (statutory repeals by implication are not favored)
- NXCESS Motor Cars, Inc. v. JP Morgan Chase Bank, N.A., 317 S.W.3d 462 (Tex. App.-Houston [1st Dist.] 2010) (statutes conflict when same facts can yield different results under different statutes)