Texas Attorney General Opinion: JC-492 Page: 5 of 9
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Mr. Felipe Alanis - Page 5
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(JC-0492)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-492, text, April 22, 2002; (https://texashistory.unt.edu/ark:/67531/metapth274802/m1/5/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.