Untitled Texas Attorney General Opinion
KP-0077
Tex. Att'y Gen.Jul 2, 2016Background
- Request from Rep. Joseph C. Pickett asking whether the Texas Department of Transportation (TxDOT) may enter into design‑build contracts during the 2016–2017 biennium given a possible conflict between Tex. Transp. Code § 223.242 and Rider 47 of the General Appropriations Act.
- Tex. Transp. Code § 223.242(d) authorizes design‑build contracts for highway projects with estimated construction cost of $150 million or more.
- Section 223.242(d‑1) limits TxDOT to no more than three design‑build contracts per fiscal year.
- Rider 47 authorizes TxDOT to expend funds to enter into no more than ten design‑build contracts in the 2016–2017 biennium for projects with estimated costs of $250 million or more, and states that if general law imposes a stricter limit, general law prevails.
- Question framed as whether Rider 47 is valid and how it affects TxDOT’s authority to enter into design‑build contracts during the biennium.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rider 47’s higher numerical limit for design‑build contracts overrides § 223.242’s per‑fiscal‑year limit | Rider 47 authorizes up to ten design‑build contracts in the biennium for projects ≥ $250M, effectively permitting more contracts per fiscal year | § 223.242(d‑1) caps TxDOT at three design‑build contracts per fiscal year; general law controls | § 223.242’s per‑fiscal‑year limit (three contracts) prevails; Rider 47 cannot increase that limit |
| Whether Rider 47 establishes a new minimum project cost ($250M) that displaces § 223.242’s $150M threshold | Rider 47’s reference to $250M projects could be read to set a $250M minimum for use of appropriated funds | § 223.242 authorizes design‑build for projects ≥ $150M; a rider cannot change substantive statutory authority | Rider 47 does not alter the $150M statutory threshold; it only restricts appropriated funds for projects ≥ $250M and does not bar design‑build for $150–$250M projects |
Key Cases Cited
- Strake v. Ct. App. for First Sup. Jud. Dist. of Tex., 704 S.W.2d 746 (Tex. 1986) (a legislative rider may not alter existing substantive law)
Summary conclusion: TxDOT may enter into design‑build contracts for projects with estimated construction costs of $150 million or more, but may not enter into more than three such contracts in any fiscal year; Rider 47 cannot increase the statutory per‑year contract limit and does not replace the $150 million statutory threshold.