Texas Attorney General Opinion: JM-982 Page: 3 of 5
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Honorable Roy Blake - Page 3 (JM-982)
No corporation, company or person men-
tioned in [article 4005 -- railway companies,
chartered transportation companies, telephone
and telegraph companies, and their officers,
agents, and employees] shall directly or
indirectly, by any special rate, rebate,
drawback, or other device, demand, exchange,
collect or receive from any person . . . a
greater or less or different compensation for
any service rendered or to be rendered, in
the transportation of passengers, properties
or messages, than it or he charges, demands,
collects or receives from any other . . .
person . . . doing business in this State for
a like service under substantially similar
circumstances and conditions except as is
provided in this title, nor shall grant any
free transportation or franking privilege to
any corporation or person except as provided
in this title.
See also V.T.C.S. arts. 4013a; 6559i-4 (providing substan-
tially the same with respect to railroad companies). The Cox
Feedlots case is thus consistent with the holding in Conti-
nental Fire & Casualty that article XVI, section 25, alone
does not prohibit rebates, but must be implemented by
legislation.
With this in mind, it should be noted that no statute
expressly prohibits the state from accepting rebates on the
purchase price of goods and equipment. In your letter to
this office, however, you suggest that article XVI, section
25, is implemented by the Texas Free Enterprise and Anti-
trust Act of 1983, sections 15.01 through 15.40 of the
Business and Commerce Code. Two provisions in particular
draw your concern. Section 15.05(c) of the code makes it
unlawful for any person to give discounts or rebates on the
purchase price of any goods on the condition that the
purchaser not use or deal in the goods of a competitor where
the effect may be to substantially lessen competition in any
line of trade or commerce. Section 15.03(c) provides that
the term "person" "does not include the State of Texas, its
departments, and its administrative agencies." You
therefore ask whether the legislature may statutorily exempt
a state agency from compliance with a constitutional
provision, presumably article XVI, section 25.
Based upon our review of the legislative history of the
Texas Free Enterprise and Antitrust Act, we do not believep. 5015
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-982, text, November 18, 1988; (https://texashistory.unt.edu/ark:/67531/metapth273420/m1/3/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.