Can a Texas school district join with cities and counties in a political subdivision corporation to buy electricity in bulk?

Plain-English summary

The Commissioner of Education asked the Attorney General whether a school district could band together with other local governments in a "political subdivision corporation" to negotiate and buy electricity, when the resulting contract would be worth $25,000 or more over a twelve-month period. These corporations are authorized by chapter 304 of the Local Government Code; they let political subdivisions aggregate their buying power and shop for electricity as a single unit once retail electric competition is available.

The Attorney General concluded that a school district may not participate in such a corporation for a contract at that value. The reasoning ran through several steps. Education Code section 44.031 sets out an exclusive list of nine methods a school district must choose from for any contract valued at $25,000 or more in the aggregate for a twelve-month period, picking the one that gives the district the best value. Joining a political subdivision corporation is not on that list. The opinion considered whether it might fit the one arguable category, an "interlocal contract," and concluded it does not: under chapter 791 of the Government Code an interlocal contract covers only a function each party could perform individually, and a school district cannot individually do what a political subdivision corporation does.

The opinion then explained that a school district cannot reach for a purchasing method that lives in some statute outside the Education Code unless that statute expressly lets school districts use it. Chapter 304 defines "political subdivision" as a county, municipality, hospital district, or other political subdivision receiving electric service under customer choice, and it never names school districts. By contrast, the cooperative-purchasing statute in chapter 271 of the Local Government Code does expressly list school districts, which is why a prior opinion allowed districts to use that program. The argument that chapter 304, as the more specific and more recent law, should override section 44.031 failed because section 44.031(e) says it prevails over any other purchasing law, so any exception has to be spelled out, and chapter 304 does not spell one out. Finally, because the district has no authority to participate, it has nothing to delegate to the corporation under section 44.0312. The opinion did not reach the Commissioner's follow-up question about how such a corporation would have to contract as the district's agent, because that question only mattered if districts could participate.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Education Code purchasing rules and the Utilities Code electric-restructuring provisions cited here have been amended since 2002.

What the opinion meant for those who asked

The Texas Education Agency and the Commissioner (what the opinion held for them): The opinion answered that a school district could not participate in a chapter 304 political subdivision corporation for a contract valued at $25,000 or more in the aggregate for a twelve-month period, and it declined the second question about how such a corporation would have to contract, treating it as unnecessary once participation was foreclosed.

School districts and their boards of trustees (what the opinion held for them): The opinion held that for contracts at the $25,000 threshold a district was confined to the nine purchasing methods in Education Code section 44.031, that aggregating electricity purchases through a political subdivision corporation was not one of them, and that the board could not delegate authority it did not have.

Cities, counties, and political subdivision corporations buying power together (what the opinion held for them): The opinion held that chapter 304's definition of "political subdivision" did not include school districts, so a corporation formed under that chapter could not lawfully count a school district among its participating members for a contract at that value.

Common questions

Can a Texas school district buy electricity through a joint purchasing group with cities and counties?
The opinion concluded it could not, at least for a contract worth $25,000 or more over a twelve-month period, because joining a political subdivision corporation under chapter 304 is not one of the nine purchasing methods Education Code section 44.031 allows.

Why doesn't the "interlocal contract" purchasing method cover it?
The opinion explained that an interlocal contract under chapter 791 of the Government Code covers only a function each party could perform on its own, and a school district cannot individually perform what a political subdivision corporation does, so forming or joining one is not an interlocal contract.

Could a school district use a different statute's purchasing route?
The opinion said a district may use a purchasing method from outside the Education Code only when that statute expressly allows school districts to use it. Chapter 304 never names school districts, unlike the cooperative-purchasing statute in chapter 271, which does.

Does the threshold matter?
Yes. The opinion addressed only contracts valued at $25,000 or more in the aggregate for a twelve-month period, the range governed by section 44.031.

Background and statutory framework

Section 44.031 of the Education Code requires a school district to make each contract valued at $25,000 or more in the aggregate for a twelve-month period using the listed method that provides the best value for the district, choosing among competitive bidding, competitive sealed proposals, a request for proposals for non-construction services, a catalogue purchase, an interlocal contract, a design/build contract, a construction-manager contract, a job order contract, or the reverse auction procedure. Tex. Educ. Code Ann. § 44.031(a) (Vernon Supp. 2002). Subchapter B, of which section 44.031 is a part, "prevails over any other law relating to the purchasing of goods and services" except for the historically-underutilized-business law. Id. § 44.031(e). A board may delegate only authority a district is authorized or required to exercise. Id. § 44.0312(a). Prior opinions had described section 44.031 as an exclusive list of permissible purchasing methods. Tex. Att'y Gen. Op. No. JC-0205 (2000); see also Tex. Att'y Gen. Op. No. JC-0037 (1999) (cooperative purchasing under chapter 271, subchapter F is a kind of interlocal contract because chapter 271 expressly lists school districts); Tex. Att'y Gen. Op. No. DM-14 (1991); Tex. Att'y Gen. Op. No. DM-347 (1995); Tex. Att'y Gen. Op. No. DM-418 (1996).

Chapter 304 of the Local Government Code lets a political subdivision join with others to form a political subdivision corporation that acts as an agent to negotiate the purchase of, or to purchase, electricity for the participants' public facilities. Tex. Loc. Gov't Code Ann. § 304.001(b), (d) (Vernon Supp. 2002). The corporation may recover its costs through dues, an aggregation fee per kilowatt hour, or both. Id. § 304.001(e). Chapter 304 defines "political subdivision" to mean "a county, municipality, hospital district, or any other political subdivision receiving electric service from an entity that has implemented customer choice," as that term is defined in section 31.002 of the Utilities Code. Id. § 304.001(a); see Tex. Util. Code Ann. § 31.002(4) (Vernon Supp. 2002). A political subdivision corporation is a "political subdivision aggregator" that must register with the Public Utility Commission of Texas under section 39.3545 of the Utilities Code before providing aggregation services. Tex. Util. Code Ann. § 39.3545(a), (b) (Vernon Supp. 2002); see id. § 11.003(4); Tex. Loc. Gov't Code Ann. § 304.002(a) (Vernon Supp. 2002).

The opinion applied the rule that a specific provision prevails over a conflicting general one unless the general provision is later and is meant to prevail. Tex. Gov't Code Ann. § 311.026 (Vernon 1998). It concluded that rule did not help here because section 44.031(e) makes the Education Code's purchasing scheme controlling, so any exception must be express. It distinguished the cooperative-purchasing program in chapter 271, which expressly includes school districts. Tex. Loc. Gov't Code Ann. §§ 271.101(2), 271.102(a), (c) (Vernon 1999). An interlocal contract under section 44.031(a)(5) means one formed under chapter 791 of the Government Code, which permits a contract only for a function each party is authorized to perform individually. Tex. Gov't Code Ann. §§ 791.003(2), 791.011(a), (c)(2) (Vernon Supp. 2002). Section 44.031 was first adopted in 1995. Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, 1995 Tex. Gen. Laws 2207, 2425-26.

Citations

Statutory provisions:

• Tex. Educ. Code Ann. § 44.031(a) (Vernon Supp. 2002)
• Tex. Educ. Code Ann. § 44.031(e) (Vernon Supp. 2002)
• Tex. Educ. Code Ann. § 44.0312(a) (Vernon Supp. 2002)
• Tex. Educ. Code Ann. § 44.033(a) (Vernon Supp. 2002)
• Tex. Loc. Gov't Code Ann. § 304.001(a), (b), (d), (e) (Vernon Supp. 2002)
• Tex. Loc. Gov't Code Ann. § 304.002(a) (Vernon Supp. 2002)
• Tex. Loc. Gov't Code Ann. § 271.101(2) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 271.102(a), (c) (Vernon 1999)
• Tex. Util. Code Ann. § 39.3545(a), (b) (Vernon Supp. 2002)
• Tex. Util. Code Ann. § 31.002(4) (Vernon Supp. 2002)
• Tex. Util. Code Ann. § 11.003(4) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 791.003(2) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 791.011(a), (c)(2) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 311.026 (Vernon 1998)
• Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, 1995 Tex. Gen. Laws 2207, 2425-26

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. DM-14 (1991)
• Tex. Att'y Gen. Op. No. DM-347 (1995)
• Tex. Att'y Gen. Op. No. DM-418 (1996)
• Tex. Att'y Gen. Op. No. JC-0037 (1999)
• Tex. Att'y Gen. Op. No. JC-0205 (2000)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0492
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0492.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

April 22, 2002

Mr. Felipe Alanis Opinion No. JC-0492
Commissioner of Education
Texas Education Agency Re: Whether, with respect to a contract valued at
1701 North Congress Avenue $25,000 or more in the aggregate for a twelve-month
Austin, Texas 78701-1494 period, a school district may participate in a
registered political subdivision corporation created
under section 304.001 of the Local Government
Code, and related questions (RQ-0453-JC)

Dear Mr. Alanis:

Section 44.031 of the Education Code provides an exclusive list of methods by which a school district may enter a contract valued at $25,000 or more in the aggregate for a twelve-month period. See TEX. EDUC. CODE ANN. § 44.031(a) (Vernon Supp. 2002). Section 304.001 of the Local Government Code authorizes political subdivisions generally to aggregate to "form a political subdivision corporation . . . to act as an agent to negotiate the purchase of" or to purchase electricity. TEX. LOC. GOV'T CODE ANN. § 304.001(b), (d) (Vernon Supp. 2002). With respect to a contract valued at $25,000 or more in the aggregate for a twelve-month period, your predecessor asked whether a school district may authorize a registered political subdivision corporation, on behalf of the school district, to "negotiate . . . and enter into a contract for electricity or other utility services."[1] Chapter 304 of the Local Government Code does not expressly include school districts in its definition of "political subdivision." See id. § 304.001(a). Moreover, section 44.031 of the Education Code does not list a method that would encompass the negotiation or purchase of electricity using a political subdivision corporation formed under section 304.001 of the Local Government Code. See TEX. EDUC. CODE ANN. § 44.031(a) (Vernon Supp. 2002). We accordingly conclude that with respect to a contract valued at $25,000 or more in the aggregate for a twelve-month period, a school district may not participate in a political subdivision corporation.

Your predecessor also asked, as we understand it and again with respect to contracts valued at $25,000 or more in the aggregate for a twelve-month period, whether a political subdivision corporation in which a school district is participating must comply with the contracting methods set forth in section 44.031 of the Education Code when it acts as the school district's agent. See id.; Request Letter, supra note 1, at 1. We do not address this question, having concluded that a school district may not participate in a political subdivision corporation.

Your predecessor specifically asked two questions:

            1. May the board of trustees of a school district authorize a registered political subdivision aggregator under Section 39.3545, Texas Utility Code, to negotiate on its behalf and enter into a contract for electricity or other utility services? Please comment on the applicability, if any, of Attorney General Opinions DM-14 (1991) and JC-205 (2000).

            2. If your answer to question 1 is "yes," must the registered political subdivision aggregator acting on behalf of the school district comply with the minimum purchasing requirements under Subchapter B, Chapter 44, Texas Education Code?

Request Letter, supra note 1, at 1.

Because the first question explicitly cites two of this office's previous opinions that pertain to the delegation of a school district's purchasing authority, we assume that the inquiry is whether a school district may delegate authority to negotiate or purchase electricity to a political subdivision corporation. Attorney General Opinion DM-14 concludes that a public school board is not statutorily authorized to delegate to a food service management company the purchase of food products and supplies because the purchase necessitates the exercise of "significant discretion . . . in all phases of the competitive bidding process." Tex. Att'y Gen. Op. No. DM-14 (1991) at 4. Attorney General Opinion JC-0205 concludes that under section 44.031 of the Education Code a junior college district has no authority to delegate the purchase of insurance to a designated broker of record. See Tex. Att'y Gen. Op. No. JC-0205 (2000) at 1. "[U]se of a designated broker of record is not authorized by section[] 44.031." Id. at 6. Before we focus on the delegation issue we presume has been raised, we will summarize pertinent portions of chapter 44 of the Education Code, which governs certain school district contracts, and chapter 304 of the Local Government Code, which governs political subdivision corporations.

Section 44.031 of the Education Code generally requires a school district to make each contract "valued at $25,000 or more in the aggregate for" a twelve-month period using the method "that provides the best value for the district." TEX. EDUC. CODE ANN. § 44.031(a) (Vernon Supp. 2002). A school district may select from nine listed methods:

            Except as provided by this subchapter, all school district contracts, except contracts for the purchase of produce or vehicle fuel, valued at $25,000 or more in the aggregate for each 12-month period shall be made by the method, of the following methods, that provides the best value for the district:

                (1) competitive bidding;

                (2) competitive sealed proposals;

                (3) a request for proposals, for services other than construction services;

                (4) a catalogue purchase . . . ;

                (5) an interlocal contract;

                (6) a design/build contract;

                (7) a contract to construct, rehabilitate, alter, or repair facilities that involves using a construction manager;

                (8) a job order contract for the minor construction, repair, rehabilitation, or alteration of a facility; or

                (9) the reverse auction procedure . . . .

Id.; see Tex. Att'y Gen. Op. No. JC-0037 (1999) at 3 (stating that under section 44.031, school district "first must evaluate which of the . . . listed purchasing methods will provide the best value" and then "adhere to the procedures applicable to that purchasing method."). "To the extent of any conflict," chapter 44, subchapter B of the Education Code, of which section 44.031 is a part, "prevails over any other law relating to the purchasing of goods and services except a law relating to contracting with historically underutilized businesses." TEX. EDUC. CODE ANN. § 44.031(e) (Vernon Supp. 2002). A school district board of trustees may delegate its authority "under this subchapter regarding an action authorized or required by this subchapter to be taken by a school district to a designated person, representative, or committee," but the board may not delegate authority to take an action that "this subchapter" authorizes or requires the board of trustees to take. Id. § 44.0312.

We consider here only school district contracts valued at $25,000 or more in the aggregate for a twelve-month period. Chapter 44, subchapter B of the Education Code pertains only to school district contracts valued at more than $10,000. See id. §§ 44.031, .033. Section 44.031 applies to contracts "valued at $25,000 or more in the aggregate for [a twelve]-month period." Id. § 44.031(a). Section 44.033 applies to the purchase of "personal property . . . if the value of the items is at least $10,000 but less than $25,000, in the aggregate, for a [twelve]-month period." Id. § 44.033(a). Because the purchase of electricity is not personal property, we do not consider section 44.033 of the Education Code. See id. § 44.033(a); see also Tex. Att'y Gen. Op. No. DM-347 (1995) at 5 (discussing meaning of "personal property").

Section 304.001(b) of the Local Government Code permits political subdivisions to aggregate to negotiate the purchase of or to purchase electricity:

            A political subdivision may join with another political subdivision or subdivisions to form a political subdivision corporation or corporations to act as an agent to negotiate the purchase of electricity, or likewise aid or act on behalf of the political subdivisions for which the corporation is created, with respect to their own electricity use for their respective public facilities.

TEX. LOC. GOV'T CODE ANN. § 304.001(b) (Vernon Supp. 2002). Section 304.001(d) authorizes a political subdivision corporation to "negotiate on behalf of its incorporating political subdivisions for the purchase of electricity, make contracts for the purchase of electricity, purchase electricity, and take any other action necessary to purchase electricity for use in the public facilities of the political subdivision or subdivisions represented by the political subdivision corporation." Id. § 304.001(d). For the purposes of subsection (d), "'electricity' means electric energy, capacity, energy services, ancillary services, or other electric services for retail or wholesale consumption by the political subdivisions." Id. Section 304.001 specifically defines the term "political subdivision" to mean "a county, municipality, hospital district, or any other political subdivision receiving electric service from an entity that has implemented customer choice, as defined in Section 31.002, Utilities Code." Id. § 304.001(a); see also TEX. UTIL. CODE ANN. § 31.002(4) (Vernon Supp. 2002) (defining "customer choice" as retail customer's freedom to purchase electric services, "either individually or through voluntary aggregation with other retail customers, from the provider or providers of the customer's choice and to choose among various fuel types, energy efficiency programs, and renewable power suppliers."). Finally, section 304.001 permits a political subdivision corporation to recover expenses by charging the incorporating political subdivisions dues or "an aggregation fee charged per kilowatt hour, or a combination of" dues and an aggregation fee. TEX. LOC. GOV'T CODE ANN. § 304.001(e) (Vernon Supp. 2002).

A political subdivision corporation formed under section 304.001 of the Local Government Code is a "political subdivision aggregator" that must register with the Public Utility Commission of Texas under section 39.3545 of the Utilities Code before it may provide "aggregation services in the state." TEX. UTIL. CODE ANN. § 39.3545(a) (Vernon Supp. 2002); see also id. § 11.003(4) (defining "Commission"). The section defines the term "political subdivision aggregator":

            In this section, "political subdivision aggregator" means a person or political subdivision corporation authorized by two or more political subdivision governing bodies to join the bodies into a single purchasing unit or multiple purchasing units to negotiate the purchase of electricity from retail electric providers for the facilities of the aggregated political subdivisions or aggregation by a person or political subdivision under Chapter 304, Local Government Code.

Id. § 39.3545(b); see also TEX. LOC. GOV'T CODE ANN. § 304.002(a) (Vernon Supp. 2002) (relating to powers of "political subdivision aggregator").

The first question explicitly cites section 39.3545 of the Texas Utility Code, but chapter 304 of the Local Government Code appears more relevant to this issue. See Request Letter, supra note 1, at 1; see also TEX. UTIL. CODE ANN. § 39.3545 (Vernon Supp. 2002). While section 39.3545 of the Utility Code only requires a political subdivision aggregator to register with the Public Utility Commission of Texas before it attempts to provide aggregation services, see TEX. UTIL. CODE ANN. § 39.3545(a) (Vernon Supp. 2002), the formation of a political subdivision aggregator, or "political subdivision corporation," as it is also called, is governed by chapter 304 of the Local Government Code, see TEX. LOC. GOV'T CODE ANN. §§ 304.001-.002 (Vernon Supp. 2002).

We conclude, for several reasons, that a school district may not participate in a political subdivision corporation created under section 304.001 of the Local Government Code if the value of the electricity to be purchased is estimated to be $25,000 or more in the aggregate for a twelve-month period.

First, section 44.031 of the Education Code does not expressly include participation by a school district in a political subdivision corporation as an available purchasing method. In previous opinions, this office has explained that section 44.031 of the Education Code, which was first adopted in 1995, establishes an exclusive "list of permissible purchasing methods for contracts over a certain aggregate yearly value." Tex. Att'y Gen. Op. No. JC-0205 (2000) at 6; see Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, 1995 Tex. Gen. Laws 2207, 2425-26. Attorney General Opinion JC-0205 opines that a school district may not procure insurance using a designated broker of record because it is not a purchasing method that section 44.031 lists. See Tex. Att'y Gen. Op. No. JC-0205 (2000) at 6.

Second, a school district's participation in a political subdivision corporation does not fit within any of the nine types of contracts expressly listed in section 44.031. Attorney General Opinion JC-0037 concludes that a school district may purchase goods using a cooperative purchasing program under chapter 271, subchapter F of the Local Government Code, if purchases made thereby represent the best value, despite the fact that a cooperative purchasing program is not included in section 44.031's list of permissible purchasing methods. See Tex. Att'y Gen. Op. No. JC-0037 (1999) at 8. According to the opinion, an agreement to participate in a local cooperative purchasing program under chapter 271, subchapter F of the Local Government Code is a kind of interlocal contract, which is explicitly listed as a permissible purchasing method in section 44.031(a)(5). See Tex. Att'y Gen. Op. No. JC-0037 (1999) at 9. Moreover, as we explain infra, the statute providing for cooperative purchasing programs expressly includes school districts in its list of local governments that may participate. See TEX. LOC. GOV'T CODE ANN. § 271.101(2) (Vernon 1999).

Participating in a political subdivision corporation organized under section 304.001 of the Local Government Code, by contrast, does not involve an interlocal contract as permitted by section 44.031(a)(5) of the Education Code. Of the nine permissible purchasing methods listed in section 44.031, the only possible option we see is the interlocal contract listed in subsection (a)(5). See TEX. EDUC. CODE ANN. § 44.031(a)(5) (Vernon Supp. 2002). We presume for the purpose of this opinion that forming a political subdivision corporation involves the use of contracts between the participating political subdivisions to, for example, establish dues or fees assessed for the purchase of electricity. See TEX. LOC. GOV'T CODE ANN. § 304.001(e) (Vernon Supp. 2002) (permitting political subdivision corporation to assess dues, aggregation fees, or both). Nevertheless, section 44.031(a)(5) refers only to interlocal cooperation contracts entered under chapter 791 of the Government Code. See Tex. Att'y Gen. Op. No. DM-418 (1996) at 2-3 n.2 (defining "interlocal contract" in section 44.031 of the Education Code as one formed consistently with chapter 791 of the Government Code); see also TEX. GOV'T CODE ANN. § 791.003(2) (Vernon Supp. 2002) (defining "interlocal contract" as "contract or agreement made under this chapter"). Under chapter 791, an interlocal cooperation contract may be only a contract between local governments to perform a governmental function or service that "each party to the contract is authorized to perform individually." Id. § 791.011(c)(2); see also id. § 791.011(a). Because a school district is not individually authorized to perform the services of a political subdivision corporation, it does not appear that a contract entered in the formation of a political subdivision corporation under section 304.001 of the Local Government Code is an interlocal contract permitted by chapter 791 of the Government Code.

Third, in our opinion, a school district may not use a purchasing method provided by a statute outside of the Education Code that is not expressly listed or included within those methods listed in section 44.031 unless the statute explicitly permits school districts to do so. Section 44.031 provides an exclusive list of "permissible purchasing methods for contracts over a certain aggregate yearly value." Tex. Att'y Gen. Op. No. JC-0205 (2000) at 6. Section 44.031(e) further directs that chapter 44, subchapter B of that code "prevails over any other law relating to the purchasing of goods and services" to the extent of any conflict. TEX. EDUC. CODE ANN. § 44.031(e) (Vernon Supp. 2002). For example, although a cooperative purchasing program created under chapter 271, subchapter F of the Local Government Code is not expressly included in section 44.031's list of permissible purchasing methods, see Tex. Att'y Gen. Op. No. JC-0037 (1999) at 8, section 271.101 specifically lists a school district as a type of local government that may participate. See TEX. LOC. GOV'T CODE ANN. § 271.101(2) (Vernon 1999). Section 271.102 of the Local Government Code authorizes a "local government [to] participate in a cooperative purchasing program with another local government or a local cooperative organization." Id. § 271.102(a). Section 271.101(2) specifically defines the term "local government" to include a "school district." Id. § 271.101(2). In addition, the cooperative-purchasing-program statute expressly provides that "[a] local government that purchases goods or services" through a cooperative purchasing program "satisfies any state law requiring the local government to seek competitive bids for the purchase of the goods or services." Id. § 271.102(c). Thus, as Attorney General Opinion JC-0037 concludes, a school district may participate in a cooperative purchasing program. See Tex. Att'y Gen. Op. No. JC-0037 (1999) at 9; see also TEX. EDUC. CODE ANN. § 44.031(a)(5) (Vernon Supp. 2002).

Chapter 304 of the Local Government Code, on the other hand, does not expressly include a school district in the definition of "political subdivisions" that are authorized to participate in a political subdivision corporation, as we believe it must do to overcome section 44.031 of the Education Code: "In this chapter, 'political subdivision' means a county, municipality, hospital district, or any other political subdivision receiving electric service from an entity that has implemented customer choice . . . ." See TEX. LOC. GOV'T CODE ANN. § 304.001(a) (Vernon Supp. 2002). Thus, with respect to a contract valued at $25,000 or more in the aggregate for a twelve-month period, a school district must comply with section 44.031 of the Education Code in the absence of express inclusion within the definition of "political subdivision."

It has been suggested that section 304.001 of the Local Government Code, as a more specific, recent enactment, prevails as an exception to section 44.031.[2] Where a general provision and specific provision conflict irreconcilably, the specific provision "prevails as an exception to the general provision, unless the general provision" was enacted later "and the manifest intent is that the general provision prevail." TEX. GOV'T CODE ANN. § 311.026 (Vernon 1998). Initially, we do not necessarily agree that section 304.001 is more specific than section 44.031. Certainly, section 304.001 relates more specifically to the purchase of electricity, but it relates generally to all political subdivisions. See TEX. LOC. GOV'T CODE ANN. § 304.001(b) (Vernon Supp. 2002). By contrast, section 44.031 relates more specifically to the contracts of school districts, although it applies generally to all of a school district's contracts that meet the value prerequisite. See TEX. EDUC. CODE ANN. § 44.031(a) (Vernon Supp. 2002). More importantly, given that section 44.031(e) expressly provides that section 44.031 prevails over any other law relating to contracts valued at more than $25,000 in the aggregate for a twelve-month period, we believe that any exception to section 44.031 must be express. As we have shown, section 304.001 of the Local Government Code does not expressly provide an exception to section 44.031 of the Education Code.

Finally, because a school district lacks express authority to participate in a political subdivision corporation with respect to a contract valued at $25,000 or more in the aggregate for a twelve-month period, it may not delegate any authority to such a corporation under section 44.0312 of the Education Code. See TEX. EDUC. CODE ANN. § 44.0312(a) (Vernon Supp. 2002). A school district's board of trustees may delegate only that authority that a school district is required or authorized to exercise. See id.

Given our conclusion that section 44.031 of the Education Code does not permit a school district to participate in a political subdivision corporation formed under section 304.001 of the Local Government Code, we do not consider the second question: whether the political subdivision corporation must comply with "the minimum purchasing requirements" under chapter 44, subchapter B of the Education Code. See Request Letter, supra note 1, at 1.

                                  SUMMARY

            With respect to a contract valued at $25,000 or more in the aggregate for a twelve-month period, a school district may not participate in a political subdivision corporation established under section 304.001 of the Local Government Code. See TEX. EDUC. CODE ANN. § 44.031(a) (Vernon Supp. 2002); TEX. LOC. GOV'T CODE ANN. § 304.001(b), (d) (Vernon Supp. 2002).

                                       JOHN CORNYN
                                       Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

[1] Letter from Mr. Jim Nelson, Commissioner, Texas Education Agency, to Honorable John Cornyn, Texas Attorney General, at 1 (Oct. 9, 2001) (on file with Opinion Committee) [hereinafter Request Letter].

[2] See Memorandum from Ray Martinez, Cantey & Hanger, Roan & Autrey, L.L.P., representing Texas CUC Aggregation Project, Inc., to Don Lee, at 4 (July 24, 2001) (on file with Opinion Committee).