KP-0535

OCR transcription; preserved printed pages are authoritative

CORNEY

EN

A)

TEXAS

KEN PAXTON ATTORNEY GENERAL OF TEXAS

September 30, 2026

The Honorable Rodolfo Gutierrez Jim Hogg County Attorney Post Office Box 847 Hebbronville, Texas 78361

Opinion No. KP-0535

Re: Scope of Tex. Educ. Code § 11.067 (RQ-0606-KP)

Dear Mr. Gutierrez:

You inquire about the proper interpretation of newly enacted section 11.067 of the Texas Education Code.1 This provision, as you note, renders unlawful certain transactions involving a "vendor that bids on or receives a contract' from a school district" when an enumerated conflict of interest is present. Request Letter at 1 (quoting TEX. EDUC. CODE § 11.067(b)). You highlight that the provision "raises a key question" regarding what it means "for a vendor to 'receive a contract."" Id. Accordingly, you seek clarification of this language, particularly with respect to whether the phrase covers both "traditional procurement methods" and "informal or low-dollar transactions memorialized through less-formal mechanisms." Id. at 1-2.

Subsection 11.067(b) of the Education Code creates a criminal offense for a "vendor" who "bids on or receives a contract from a school district" under certain circumstances.

Section 11.067 focuses on certain activity between a "vendor" and "a school district"2 in the procurement context. TEX. EDUC. CODE § 11.067(b). Specifically, this provision imposes criminal liability on "[a] vendor" who "bids on or receives a contract from a school district" if at least one of three circumstances involving a conflict of interest is present. Id. Two of these circumstances occur when "any individual serving on the board of trustees or governing body of the district" either "has a substantial interest in the vendor or a subcontractor hired by a vendor," id. § 11.067(b)(1), or "is related in the second degree by consanguinity or affinity"-as set forth in Chapter 573 of the Government Code-"to an individual who has a substantial interest in the

1 See Letter from Hon. Rodolfo Gutierrez, Jim Hogg Cnty. Att'y, to Hon. Ken Paxton, Tex. Att'y Gen. at 1 (June 30, 2025), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2025/RQ0606KP.pdf ("Request Letter").

2 While your inquiry focuses on school districts, we note that section 11.067 also applies to vendor transactions with open-enrollment charter schools. See TEX. EDUC. CODE § 11.067(b).

The Honorable Rodolfo Gutierrez - Page 2

vendor," id. § 11.067(b)(2). "[A] substantial interest in a vendor" exists when the individual "owns more than [ten] percent of the voting interest in the vendor[] or ... has a direct or indirect participating interest ... in more than [ten] percent of" the vendor's "profits, proceeds, or capital gains." Id. § 11.067(c)(1)-(2). The last circumstance is triggered if the individual serving on the board or governing body "has received or has been promised a gift or in-kind services with a value of more than $250." Id. § 11.067(b)(3). A violation under this provision is a misdemeanor with some exceptions.3 See id. § 11.067(d).

It is against this backdrop that you ask what it means for "a vendor to 'receive a contract' under this provision." Request Letter at 1. Your query hinges on the meaning of three terms: "vendor," "receive," and "contract." TEX. EDUC. CODE § 11.067(b). We strive to "give effect to the Legislature's intent" when determining the meaning of these terms, "which requires us to first look to the statute's plain language." Lippincott v. Whisenhunt, 462 S. W.3d 507, 509 (Tex. 2015). After all, "the words [the Legislature] chooses should be the surest guide to legislative intent." Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999). Principles of statutory construction also require us to consider the statute's language "within the context of the statute as a whole, endeavoring to give effect to every word, clause, and sentence." El Paso Healthcare Sys., Ltd. v. Murphy, 518 S.W.3d 412, 418 (Tex. 2017) (quoting Ritchie v. Rupe, 443 S.W.3d 856, 867 (Tex. 2014)). Whenever "a statute uses a term with a particular meaning or assigns a particular meaning to a term, we are bound by the statutory usage." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). But when a term is undefined, we apply the term's "common, ordinary meaning," gathered first from dictionaries, "unless a contrary meaning is apparent from the statute's language." Tex. State Bd. of Exam'rs of Marriage & Fam. Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 34-35 (Tex. 2017). Put simply, the text of section 11.067 serves as the lodestar in our analysis. See Fitzgerald, 996 S.W.2d at 866.

Subsection 11.067(a) broadly defines "vendor" to encompass individuals or entities who enter into a variety of different arrangements for goods or services with a school district.

Turning to the meaning of the first term, "vendor," we begin with the definition supplied by the statute itself. A "vendor" is defined as "a company, individual, contractor, subcontractor, or professional services provider with whom a school district ... enters into an agreement, contract, memorandum of understanding, interlocal agreement, fee schedule, retainer, or similar instrument for goods or services." TEX. EDUC. CODE § 11.067(a). This definition is broad, encompassing a variety of business arrangements in which an agreement for the provision of goods or services is memorialized between an individual or entity and a school district. See id. The source of your concern with this definition, however, is the scope of the language "similar instrument for goods or services." Request Letter at 2-3; see TEX. EDUC. CODE § 11.067(a).

3 If it is the vendor's fourth or subsequent offense or if "the vendor directly or indirectly through a third party compensated the" trustee or governing body member "with money, gifts, or in-kind services as consideration for the district ... entering into a contract with the vendor," the vendor commits a state jail felony. TEX. EDUC. CODE § 11.067(d)-(e).

The Honorable Rodolfo Gutierrez - Page 3

The focal point of this phrase is, of course, the word "instrument." While not defined in the statute, "instrument" is commonly understood to be "[a] written legal document that defines rights, duties, entitlements, or liabilities, such as a statute, contract, will, promissory note, or share certificate." BLACK'S LAW DICTIONARY 948 (12th ed. 2024); accord THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 910 (5th ed. 2016) (referring to "[a] legal document, especially one that represents a right of payment or conveys an interest, such as a check, promissory note, deed, or will"). It is well settled, however, that "words' meanings cannot be determined in isolation but must be drawn from the context in which they are used." Willacy Cnty. Appraisal Dist. v. Sebastian Cotton & Grain, Ltd., 555 S.W.3d 29, 39 (Tex. 2018). Here, subsection (a) indicates that an "instrument" for purposes of section 11.067 must be "for goods or services." TEX. EDUC. CODE § 11.067(a). Subsection (a) further provides that an "instrument" is "similar" to the terms that precede it: agreement, contract, memorandum of understanding, interlocal agreement, fee schedule, and retainer. Id. Each of these terms, though differing with respect to their overall purpose, is nonetheless a specific arrangement reflecting an agreement between parties-i.e., "[a] mutual understanding between two or more persons about their relative rights and duties regarding past or future performances." BLACK'S LAW DICTIONARY 84 (12th ed. 2024) (defining "agreement"); see also TEX. EDUC. CODE § 11.067(a). 4

To be sure, there is a degree of overlap between the arrangements in subsection (a). A "contract," for example, is "a binding agreement between two or more persons or parties," MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 271 (11th ed. 2020), yet "agreement" is also listed among the enumerated terms, see TEX. EDUC. CODE § 11.067(a). Similarly, an "interlocal agreement" includes "a contract or agreement made" under Chapter 791 of the Government Code. See TEX. GOV'T CODE § 791.003(2); see also id. § 791.001 (authorizing local governments to contract "with one another and with agencies of the state"). Though we typically avoid interpreting a statute in a manner that would render its language superfluous, see City of Marshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006), we need not do so where the Legislature clearly included "technically unnecessary" examples out of "an abundance of caution," Fort Stewart Schs. v. FLRA, 495 U.S. 641, 646 (1990); see also Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226-27 (2008) (declining to apply the rule against superfluities where statutory language indicated that Congress "intended to remove any doubt" that the examples "any officer of customs or excise" fall under the general phrase "law enforcement officer" in the statute). Indeed, "when faced with legal language that appears repetitive or otherwise unnecessary," the Texas Supreme Court has "repeatedly recognized" that "drafters often include redundant language to illustrate or emphasize their intent." Whole Woman's Health v. Jackson, 642 S.W.3d 569, 582 (Tex. 2022). The broad list of arrangements in subsection (a), coupled with the catchall language, "similar instrument for goods or services," shows that such is the case here: The Legislature intended for "vendor" under subsection (a) to encompass those who enter into any type of agreement for the procurement of goods and services.

4 The fact that an "instrument" is a formal legal document raises the question of whether the other arrangements listed in subsection (a) must also be written documents. See TEX. EDUC. CODE § 11.067(a). We decline to speak to this issue, however, as you do not raise it, and it is ancillary to your ultimate question regarding the meaning of "receives a contract." Request Letter at 1.

The Honorable Rodolfo Gutierrez - Page 4

You specifically inquire as to whether "informal or low-dollar transactions memorialized through less formal mechanisms, such as purchase orders, invoices, or checks" constitute "similar instrument[s] for goods or services" that fall within the scope of the statute. Request Letter at 2. Courts have found all three of the examples you list to be contracts. See, e.g., Man Indus. (India), Ltd. v. Midcontinent Exp. Pipeline, LLC, 407 S.W.3d 342, 356 (Tex. App .- Houston [14th Dist.] 2013, pet. denied) (noting "the [p]urchase [o]rder is a contract for the sale of goods"); Oro-Castillo v. Nat'l Specialty Servs., No. 05-01-01319-CV, 2002 WL 971913, at *4 (Tex. App .- Dallas May 13, 2002, no pet.) (not designated for publication) (finding that "the invoices constitute a contract for the sale of itemized goods"); Barham v. Sugar Creek Nat'l Bank, 612 S.W.2d 78, 80 (Tex. App .- Houston [14th Dist.] 1981, no writ) (concluding that an endorsed and deposited check "constitutes a written contract"). Contracts are, of course, instruments. See BLACK'S LAW DICTIONARY 948 (12th ed. 2024) (listing "contract" as an example of an instrument). Thus, depending on the facts surrounding the underlying transaction, the term "vendor" under subsection (a) may include an individual or entity who uses these "less formal mechanisms" to contract for goods or services.5 But an individual or entity's status as a "vendor" under subsection (a) does not itself subject them to liability under subsection (b). Rather, as explained below, liability depends on the existence of a conflict of interest and whether a contractual relationship exists between a vendor and a school district. See TEX. EDUC. CODE § 11.067(b).

Section 11.067 applies only to contracting relationships between a vendor and a school district.

Subsection (a) defines a "vendor" as someone who enters into an agreement for goods or services with a "school district"-not, for example, someone who merely transacts with school district employees.6 Id. § 11.067(a) (emphasis added). Likewise, subsection (b) limits liability to agreements between a vendor and a "school district." Id. § 11.067(b). As such, the statute is concerned only with agreements that are authorized by the district itself. And generally, a school district's board of trustees carries the district's purchasing authority, see id. § 44.031(d), though a school district's board of trustees may also delegate its purchasing authority "to a designated person, representative, or committee," subject to certain limitations,7 id. § 44.0312(a). Thus, the "informal or low-dollar transactions" you describe must take place between a vendor and school district or its designees-i.e., a school district's board of trustees or the person, representative, or committee to whom the board has delegated purchasing authority-for the transaction to potentially run afoul of the statute. Id. §§ 11.067(a) (b), 44.031(d), 44.0312(a). For example, you

in However, whether a specific "informal or low-dollar transaction" that you reference makes someone a "vendor" under subsection (a) requires consideration of the transaction's facts, which is beyond the purview of the opinion process. Request Letter at 2; see Tex. Att'y Gen. Op. No. KP-0338 (2020) at 2.

6 A vendor may also enter into an agreement with an open-enrollment charter school. TEX. EDUC. CODE § 11.067(a); see also supra note 2.

7 A board of trustees generally "may not delegate the authority to act regarding an action authorized or required ... to be taken by the board of trustees of a school district," TEX. EDUC. CODE § 44.0312(b), except "in the event of a catastrophe, emergency, or natural disaster affecting a school district," in which case the board "may delegate to the superintendent or designated person the authority to contract for the replacement, construction, or repair of school equipment or facilities under this subchapter if ... necessary for the health and safety of district students and staff," id. § 44.0312(c).

The Honorable Rodolfo Gutierrez - Page 5

describe situations in which school "district staff routinely purchase supplies from a hardware store owned by a trustee," and in which "campus staff might order custom T-shirts from a trustee-owned print shop." Request Letter at 3. Though we do not comment on any particular transaction or sets of facts, see Tex. Att'y Gen. Op. No. KP-0499 (2025), informal, low-dollar transactions with school district personnel may not trigger liability under subsection 11.067(b) if those individuals have not been properly delegated purchasing or contractual authority to make agreements on behalf of the district.

A vendor may "receive" a contract under subsection 11.067(b) outside the context of the formal bidding process, but the vendor must have sought the contract award.

We next consider the language in subsection (b) at the center of your inquiry-"bids on or receives a contract." See Request Letter at 1 (quoting TEX. EDUC. CODE § 11.067(b)). You suggest that the phrase "receives a contract" could be read "narrowly in the context of the preceding clause 'bids on," to allow the statute to "apply only to contracts awarded through ... formalized [bidding] processes." Id. at 3. We disagree. While, as explained below, the clause "receives a contract" must be informed by the preceding clause, "bids on," and by the broader statutory context, see El Paso Healthcare Sys., 518 S.W.3d at 418, "receiving a contract" is not limited to the formal bidding process, see TEX. EDUC. CODE § 11.067(b).

Subsection (b) imposes liability on a vendor who "bids on or receives a contract." TEX. EDUC. CODE § 11.067(b). The term "bid" means "[t]o offer to do work or provide services for a specific price, in competition with other offers."8 BLACK'S LAW DICTIONARY 198 (12th ed. 2024). Formal bidding is not a prerequisite for a contract to be "receive[d]" under subsection 11.067(b). See TEX. EDUC. CODE § 11.067(b). To the contrary, "bids on" and "receives" are joined by the disjunctive conjunction "or"-signifying that these terms are distinct, alternative actions. See Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex. 2000); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 116 (2012) (noting that "or creates alternatives"). And a school district could contract without triggering the competitive bidding requirements in a variety of circumstances. See, e.g., TEX. EDUC. CODE § 44.031(a) (listing competitive bidding as one of several methods through which a school district may make certain purchasing contracts for goods and services). Thus, it is possible for a vendor to violate subsection (b) by receiving a contract without engaging in the formal, competitive bidding process. See id. § 11.067(b). But that is not to say that the clause "bids on" has no bearing on what it means to "receive" a contract.

The term "receive" commonly means to "be given, presented with, or paid (something)." NEW OXFORD AMERICAN DICTIONARY 1456 (3d ed. 2010). This word often implies receipt of a physical object, but the term can also imply that the recipient has been given something more conceptual. For instance, the definition of "receive" above lists "businesses ... receiv[ing] a tax cut" as an example, even though a tax cut is plainly not a physical object. Id. at 1456. Likewise, to "receive a contract" can mean that a vendor is "awarded," "given," or has "won" a contract, all of

8 The Education Code, for example, permits "competitive bidding for services other than construction services" as a method that school districts may use when selecting the vendor to whom it will award a contract. TEX. EDUC. CODE § 44.031(a)(1); see generally id. § 44.0351 (governing "competitive bidding").

The Honorable Rodolfo Gutierrez - Page 6

which may occur prior to receipt of a physical contractual document. See, e.g., City of Houston v. Petroleum Traders, Corp., 261 S.W.3d 350, 357 (Tex. App .- Houston [14th Dist.] 2008, no pet.) (discussing a scenario wherein a business "won" a contract with the City of Houston, after which the City Council "voted to approve the contract award" and sent an "award letter ... confirming the award," even though City officials never signed "the contract documents"); Baker v. Mo. Pac. Truck Lines, Inc., 616 S.W.2d 389, 390 (Tex. App .- Houston [1st Dist.] 1981, no writ) (describing a scenario in which an individual was "given a contract" to perform work following business discussions before ultimately signing the contract).

Here, the statutory context indicates that the Legislature intended this more conceptual meaning, such that "receives a contract" is synonymous with being given or awarded a contract. See TEX. EDUC. CODE § 11.067(b). The term "contract" is the direct object of both "bids on" and "receives." Id. And these two terms must be read together. A vendor that "bids on" a contract is plainly not bidding on the physical document itself, but rather on the opportunity to provide the goods or services to the school district, which is later memorialized in the contractual document. Moreover, the statutory definition of vendor in subsection (a) reflects the context of a business relationship between a vendor and school district. Id. § 11.067(a) (defining a "vendor" as an entity that "enters into" various types of agreements with a school district for goods and services); see supra pp. 2-4. And it is in the context of that business relationship-whether through bidding or negotiations-that the vendor "receives" the contract. See TEX. EDUC. CODE § 11.067(b). Thus, within the framework of subsection (b), the phrase "bids on or receives a contract" reflects that its applicability is limited to circumstances in which the individual or entity is actively seeking to become a "vendor" through the receipt of a contract award.9 See id. Accordingly, the statute does not penalize the mere passive receipt of any physical document that may constitute a "contract" if the vendor does not take affirmative steps to procure the unlawful contract with the school district. 10

9 Consider, for example, a scenario you suggested-a school district employee who purchases supplies from a trustee-owned hardware store using a district-issued credit card. See Request Letter at 3. In that scenario, it is possible that the trustee who owns the store is entirely unaware of the transaction and thus has not attempted to become a "vendor," see TEX. EDUC. CODE § 11.067(a), or sought any particular contract that would run afoul of subsection (b), see id. § 11.067(b).

10 The doctrine of constitutional avoidance lends further support to this interpretation. See Borgelt v. Austin Firefighters Ass'n, IAFF Loc. 975, 692 S.W.3d 288, 303 (Tex. 2024) (explaining that the doctrine of constitutional avoidance requires courts to construe text in a way "that steers clear of ... constitutional difficulties unless the text foreclose[s] that construction"). If the statute imposed criminal liability for merely receiving a contract with no knowledge or voluntary conduct, this would raise due process concerns. See United States v. Layne, 43 F.3d 127, 133 (5th Cir. 1995) ("Prosecution of a citizen who is unaware of any wrongdoing, for 'wholly passive conduct' violates the Due Process Clause." (citing Lambert v. California, 355 U.S. 225, 228-30 (1957))). But that is not the case here. Texas law provides that "[a] person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession." TEX. PENAL CODE § 6.01(a) (emphases added). And possession-such as possession of a contract-is only a voluntary act if "the possessor knowingly obtains or receives the thing or is aware of his control of the thing for a sufficient time to terminate his control." Id. § 6.01(b). Moreover, where, as here, a defining statute does not set forth a culpable mental state for the offense, and the definition does not demonstrate a "manifest intent to dispense with the requirement of a culpable mental state," Aguirre v. State, 22 S.W.3d 463, 472 (Tex. Crim. App. (continued ... )

The Honorable Rodolfo Gutierrez - Page 7

At bottom, a vendor who bids on or receives a contract for the provision of goods or services from a board of trustees-or other individual or committee authorized to act on behalf of the school district-would be subject to criminal liability under the statute if an enumerated conflict of interest is present under subsection 11.067(b).11 But whether a particular transaction would subject a vendor to criminal liability under subsection 11.067(b) requires the resolution of fact questions that are beyond the scope of an Attorney General opinion. See Tex. Att'y Gen. Op. No. KP-0499 (2025) at 4.

1999); TEX. PENAL CODE § 6.02(b), the Penal Code provides that "intent, knowledge, or recklessness suffices to establish criminal responsibility," TEX. PENAL CODE § 6.02(c). Thus, a vendor must "receive a contract" under subsection 11.067(b) voluntarily and with a culpable mental state for criminal liability to attach. See TEX. EDUC. CODE § 11.067(b); TEX. PENAL CODE §§ 6.01(a) (b), .02(c).

11 This is true even if the vendor does not ultimately enter into the contract. Indeed, "receiving" a contract merely entails being awarded the business agreement, whereas "enter[ing] into" a contract means "[t]o become party to" the agreement. See THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 594 (5th ed. 2016). Thus, "bid[ding] on or receiv[ing]" the contract is a necessary precursor to "entering into" that contract, and liability may attach at that preliminary stage. See Tex. Att'y Gen. Op. No. KP-0246 (2019) at 1 (discussing questions related to county's receipt of a "contract offer" and whether accepting the "proposed contract" offer would violate competitive bidding requirements).

The Honorable Rodolfo Gutierrez - Page 8

SUMMARY

A "vendor" under Texas Education Code subsection 11.067(a) is an individual or entity who enters into any agreement for the provision of goods or services with a school district. A vendor "receives a contract" under subsection 11.067(b) if it is awarded the opportunity to provide goods or services for a school district. The vendor must have sought the contract award, and a conflict of interest must be present for criminal liability to attach. But a vendor need not enter into a contract or participate in a formal bidding process to "receive" the contract under subsection 11.067(b). Whether a particular transaction would subject a vendor to criminal liability under subsection 11.067(b) requires the resolution of fact questions that are beyond the scope of an Attorney General opinion.

Very truly yours, Ken Paxton

KEN PAXTON Attorney General of Texas

BRENT WEBSTER First Assistant Attorney General

RALPH MOLINA Deputy First Assistant Attorney General

D. FORREST BRUMBAUGH Deputy Attorney General for Legal Counsel

MICHAEL C. COTTON Chair, Opinion Committee