c.
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,-
June 24, 1987
Honorable Mark W. Stiles Opinion No. JM-725
Chairman
County Affairs Committee Re: Whether a county department
Texas House of Representatives is authorized to purchase its own
P. 0. Box 2910 supplies
Austin, Texas 78769
Dear Representative Stiles:
You ask whether it is permissible for a county department to
purchase its own office supplies under subsection 3(c) of article
2368a.5, V.T.C.S., County Purchasing Act, which provides:
In applying the competitive bidding and com-
petitive proposal requirements established by
Subsection (a) of this section, all separate,
sequential, and/or component purchases of items
ordered or purchased, with the intent of avoiding
the competi :ive bidding and c(xapetitive proposal
requirements of this Act, from the same supplier by
the same county officer, department, or institu-
tion are treated as if they are part of a single
purchase and of a single contract. (Emphasis
supplied).
The competitive bidding requirements of section 3(a) are:
Before a county may purchase one or more items
under a contract that will require an expenditure
exceeding $5,000, the commissioners court of the
county must comply with the competitive bidding
or competitive proposal procedures prescribed by
this Act. All bids or proposals must be sealed.
(Emphasis supplied).
Section 14 of article 2368a.5 provides for a criminal penalty for
a violation of the County Purchasing Act, as follows:
(a) A county officer or employee who knowingly
or intentionally makes or authorizes separate,
sequential, and/or component purchases in order to
p. 3372
Honorable Mark W. Stiles - Page 2 (J-M-725)
avoid the competitive bidding requirements of
Section 3 of this Act commits an offense. The
offense is a Class B misdemeanor and shall, upon
final conviction, result in the immediate removal
of the county officer or employee from office.
(b) A county officer or employee who knowingly
or intentionally violates this Act commits an
offense. The offense is a Class C misdemeanor,
except that a violation of the competitive bidding
requirements under Subsection (a) of this section
is a Class B misdemeanor. (Emphasis supplied).
The background information contained in the Bill Analysis to
Senate Bill No. 807. Acts 1986, 69th Leg., ch. 641, at 2377, eff.
Sept. 1, 1985 (now article 2368a.5) reflects an intention on the part
of the Legislature to enact a uniform purchasing law for counties
regardless of population. The background information reflects:
Traditionally, laws governing county purchasing
have been written each time counties have been
given authority to make a purchase for a public
purpose. The result of this process has been the
proliferation of statutes governing county
purchasing that are contradictory and without
"niformity. Because of bracketed county
purchasing laws, counties can have a purchasing
law that they have followed for decades, and then.
because of growth, find the county under an
entirely different purchasing statute with
different requirements. S.B. 807 repeals many of
these old purchasing laws and amends others and
creates a new, uniform purchasing law for counties
regardless of population. . . . In effect, S.B.
807 gives all counties the same requirements
relating to purchasing and removes the dis-
advantage imposed by earlier methods of regulating
the purchasing activity of county officials. . . .
Bill Analysis to S.B. No. 807, prepared for House Committee on County
Affairs, filed in Bill File to S.B. No. 807, Legislative Reference
Library.
You state that the question you pose has arisen as a result of
individual departments of Waller County purchasing their own office
supplies. Your concern appears to be whether the $5,000 limitation
imposed by section 3 of article 2368a.5 apply to purchases by a single
county department or to the sum total of all purchases by variuus
county departments from the same supplier. We note that article
1
p. 3373
Honorable Mark W. Stiles - Page 3 (JM-725)
2368a.5, V.T.C.S., does not in and of itself authorize a county
department to make purchases absent approval of its commissiouers
court. V.T.C.S. art. 2351, $9.
In Attorney General Opinion .JM-670 (1987). we quoted with
approval, a well known rule of construction set forth in Attorney
General Opinion M-650 (1970). There it was stated:
Another fundamental rule requires that a
statute be construed as a whole and that all of
its parts be harmonized if possible, so as to give
effect to the entire act according to the evident
intention of the legislature.
. . . .
[T]he Court will endeavor to reconcile the various
provisions of the act, insofar as they may appear
to be conflicting or inconsistent, to the end that
the enactment and every word, phrase, clause, and
sentence may have its proper effect.
Each part of the statute is co be considered in
connection with every other part and with the
entire enactment, in order to produce a harmonious
whole and to reach the true legislative intent.
Thus, in case of doubt as to the meaning of a
particular word, clause, provision, or section, it
is to be viewed in the light of all the language
employed. It follows that a provision will not be
given a meaning out of harmony with other
provisions and inconsistent with the purpose of
the act, although it would be susceptible of such
construction standing alone. 53 Tex. Jur. 2d
229-32, Statutes, Sec. 160.
If we isolate that language in subsection 3(c) relative to
purchases "by the same county officer, department, or institution," a
logical construction of the act might be to place the $5,000
contractual limitation solely upon the officer or department rather
than the county. However, subsection 3(c) refers to subsection 3(a)
in applyi*g the competitive bidding and competitive proposal
requirements of the act. Subsection 3(a) places a $5,000 limitation
upon the county rather than a county officer, department or institu-
tion. Aside from subsection 3(c), purchases by county officers,
departments or institutions are not mentioned in any other portion of
the act except section 14 which provides a criminal penalty for a
county officer or employee who intentionally violates the requirements
of section 3.
p. 3374
Honorable Mark W. Stiles - Page 4 (JM-725)
Section 3 is explicit in requiring in instances where a county's
contract for purchases exceeding $5,000 that "the commissioners court
of the county must comply with the competitive bidding or competitive
proposal procedures prescribed by this act." As pointed out in a
memorandum furnished by the Wailer County Attorney, it is axiomatic
that the county is the purchaser without regard to whether the
purchase is made by the department or through the commissioners court.
A county officer. department or institution may purchase its own
office supplies subject to the limitations imposed by section 3 of
article 236Sa.5, and subject to commissioners court approval. If is
our opinion that the $5,000 limitation imposed by subsection 3(a)
applies to the total purchases of all the county officers, departments
or institutions from the same supplier. Subsection 3(c) prohibits the
intentional avoidance of the bid requirements of subsection 3(a) by
"separate, sequential, and/or component purchase of items" from the
same supplier by county officers, departments or institutions.
SUMMARY
A county officer, department or institution
may purchase its own supplies subject to the
limitations imposed by section 3 of article
2368a.5. V.T.C.S., and subject to commissioners
court approval. Before a county may purchase one
or more items under a contract that will require
an expenditure exceeding $5,000, the commissioners
court must comply with the competitive bidding
requirements of this act. The $5,000 limitation
applies to purchases by the w from the same
supplier. Section 3 prohibits the intentional
circumvention of the $5,000 limitation by
separate, sequential and/or component purchases by
the same county officers, departments, or
institutions.
Very truly your
L-l A /Lib
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
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i
L Honorable Mark W. Stiles - Page 5 (JM-725)
P
JUDGE ZOLLIE STEAKLET
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3376