Could the Texas Surplus Property Agency buy supplies and services from its trust fund without using state purchasing procedures?

Texas AG Opinion JM-445: Surplus Property Agency Purchases

Plain-English summary

The Texas Surplus Property Agency asked whether purchases paid from its Service Charge Trust Fund had to follow the State Purchasing and General Services Commission's procedures. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0445.pdf

JM-445 concluded that the agency fell within article 601b's definition of a state agency and was therefore subject to the act's purchasing provisions unless the legislature had created an exception. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0445.pdf

The agency's enabling law exempted it from specified property-accounting and surplus-property provisions, but not from purchasing rules for supplies, materials, services, and equipment. Payment from the trust fund did not create an implied exemption. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0445.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG 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.

Common questions

Was the Surplus Property Agency a state agency for procurement purposes?

Yes. JM-445 said it was an executive-branch agency created by statute and fit article 601b's definition. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0445.pdf

Did article 6252-6b exempt every agency activity from article 601b?

No. It expressly exempted only certain sections governing state-property accounting and surplus or salvage property. The opinion would not imply a broader exception. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0445.pdf

Did using a trust fund change the purchasing requirement?

No. JM-445 found no legislative indication that purchases paid from the Service Charge Trust Fund were outside the generally applicable procurement provisions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0445.pdf

Background and statutory framework

Article 601b directed the State Purchasing and General Services Commission to acquire supplies, materials, services, and equipment for state agencies, subject to listed exceptions. Section 3.02 excluded specified categories such as resale purchases, auxiliary enterprises, certain organized activities, and purchases from nonfederal gifts or grants. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0445.pdf

JM-445 applied the rule that statutory exceptions are not ordinarily implied when the legislature has written none. It contrasted the Surplus Property Agency law with another statute that expressly exempted nursing-home trust-fund payments from article 601b. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0445.pdf

Citations and references

• article 601b, V.T.C.S., sections 1.02, 3.01, 3.02, 8.01 through 8.10, and 9.01 through 9.15
• article 6252-6b, V.T.C.S., section 4(g)
• article 4442c, V.T.C.S., section 6C(j)
• Spears v. City of San Antonio, 223 S.W. 166, 169 (Tex. 1920)
• Stubbs v. Lowrey's Heirs, 253 S.W.2d 312, 313 (Tex. Civ. App. - Eastland 1952, writ ref'd n.r.e.)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0445.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0445
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0445.pdf

Original opinion text

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

The Attorney General of Texas

JIM MATTOX
Attorney General

February 21, 1986

Mr. Marvin J. Titzman
Executive Director
Texas Surplus Property Agency
P.O. Box 8120
San Antonio, Texas 78208

Opinion No. JM-445

Re: Whether the Texas Surplus Property Board may make purchases from the trust fund created by article 6252-6b, V.T.C.S., without approval by the State Purchasing and General Services Commission

Dear Mr. Titzman:

You ask whether purchases by the Texas Surplus Property Agency which are paid for from its Service Charge Trust Fund are subject to purchasing and approval procedures of the State Purchasing and General Services Commission under article 601b, V.T.C.S.

Section 3.01 of the State Purchasing and General Services Act, codified as article 601b, V.T.C.S., provides in pertinent part, that

(a) The [State Purchasing and General Services Commission] shall purchase, lease, rent, or otherwise acquire all supplies, materials, services, and equipment for all state agencies, except for serial and journal subscriptions for libraries operated as a part of university system or institutions of higher education. . . . (Emphasis added).

Section 1.02(2) of article 601b defines a "state agency" to include any department, commission, board, office, or other agency in the executive branch of state government created by the constitution or a statute of this state. In our opinion, the Texas Surplus Property Agency, created by article 6252-6b, V.T.C.S., is a state agency within that definition. As such, the Texas Surplus Property Agency is subject to the applicable provisions of article 601b relating to the purchase of supplies, materials, services, and equipment unless an exception has been made by the legislature. Cf. Attorney General Opinion MW-177 (1980) (Higher Education Authority is not an agency in executive branch of state government and, therefore, not subject to article 601b).

Where the legislature makes no exception to the provisions of a statute, the presumption is that it intended no exceptions. It is well settled that exceptions in statutes are not ordinarily implied. See Spears v. City of San Antonio, 223 S.W. 166, 169 (Tex. 1920); Stubbs v. Lowrey's Heirs, 253 S.W.2d 312, 313 (Tex. Civ. App. - Eastland 1952, writ ref'd n.r.e.).

Section 3.02 of article 601b expressly limits the State Purchasing and General Services Commission's purchasing authority. Such authority does not extend to purchases

(1) for resale;

(2) for auxiliary enterprises;

(3) for organized activities relating to instructional departments of institutions of higher learning and similar activities of other state agencies; or

(4) from gifts or grants other than federal grants.

Section 4(g) of article 6252-6b expressly grants an exemption to the Texas Surplus Property Agency from the provisions of sections 8.01-8.10 and 9.01-9.15 of article 601b, which provisions relate, respectively, to accounting for state property and to surplus and salvage property of the state. Article 6252-6b contains no exemption for the Surplus Property Agency from the provisions of article 601b that relate to the purchasing of supplies, materials, services, and equipment for all state agencies.

Neither of the acts in question contains a specific exemption applicable to purchases made by the Surplus Property Agency or to purchases that are paid from the agency's trust fund. Cf. Attorney General Opinion JM-417 (1985). Certain provisions of article 601b relating to the approval and payment of invoices and purchase vouchers may not be applicable to purchases made from the agency's trust fund, but we find no indication of a legislative intent to exempt the Surplus Property Agency from the applicable purchasing provisions of article 601b. See Attorney General Opinion H-138 (1973) (Board of Control to make purchases paid from Architects Registration Fund No. 109); M-1067 (1972) (no provision in statute that would exempt Legislative Property Tax Committee from requirement that purchases be made by Board of Control under prior purchasing act, i.e., art. 664-3, V.T.C.S.). Cf. V.T.C.S. art. 4442c, § 6C(j) (where legislature expressly provides that State Purchasing and General Services Act (article 601b) does not apply to payments made from the nursing home trust fund by a trustee operating a nursing home).

SUMMARY

Purchases of supplies, materials, services and equipment by the Texas Surplus Property Agency are not exempt from applicable purchasing provisions of the State Purchasing and General Services Act.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General