December 20, 1989
Honorable Tom O'Connell Opinion No. JM-1121
Collin County Criminal
District Attorney Re: Authority of a sheriff to
Collin County Courthouse contract regarding the jail
l&Kinney, Texas 75069 commissary without consulting
the county purchasing agent
(RQ-1846)
Dear Mr. O'Connell:
You ask whether the sheriff may enter into a contract
regarding the county jail commissary without consulting the.
county purchasing agent. In analyzing your question, a
brief review of statutes and attorney general opinions
concerning the authority of county officers to contract and
make expenditures is necessary.
Attorney General Opinion JM-974 (1988) concluded that
in counties with county purchasing agents,1 the county
purchasing agent must make all purchases that are not
subject to the competitive bidding requirements of section
262.023 of the Local Government Code.
Attorney General Opinion MW-439 (1982) concluded that
items purchased with profits from the jail commissary were
subject to the competitive bid requirements the same as
other purchases made for county officers. The opinion found
that the fact that article 5116, V.T.C.S. (now section
351.041 of the Local Government Code), makes the sheriff
responsible for operation of the jail does not constitute an
exception to the requirement that the commissioners court
must make purchases subject to the competitive bidding
procedure. (The matter of a county purchasing agent was not
in issue.) See Attorney General Opinion JM-783 (1987).
1. Section 262.011 of the Local Government Code
provides that in a county with a population of 74,000 or
more persons, a county purchasing agent may be appointed.
P. 5891
Honorable Tom O'Connell - Page 2 (JM-1121)
Certain statutes vest county officers with authority to
make expenditures without regard to the county purchasing
agent or the competitive bidding process. Within the limits
set out in article 53.08 of the Code of Criminal Procedure
(now Code of Criminal Procedure article 102.007), fees
derived from the collection of hot checks are expendable at
the sole discretion of county attorneys, criminal district
attorneys, and district attorneys. Expenditures from funds
generated by forfeitures under section 5.08 of article
4476-15, V.T.C.S., are administered by the seizing agencies
or the office to which they are forfeited. See Attorney
General Opinion JW-313 (1985).
The 71st Legislature amended subchapter C of chapter
351 of the Local Government Code by adding section 351.0415
providing that a sheriff may operate a commissary for use of
the prisoners in a county jail. The bill enacting section
351.0415 provides:
(a) The sheriff of a county with a popul
lation of under 200,000 according to the last
federal census mav ooerate. or contract with
another oerson to ooerate. a commissary for
the use of the prisoners committed to the
county jail. The commissary must be operated
in accordance with rules adopted by the
Commission on Jail Standards.
(b) The sheriff:
(1) a
h s
0
cqfunds;
(2) shall maintain commissary ac-
counts showing the amount of proceeds from
the commissary operation and the amount
and purpose of disbursements made from the
proceeds; and
(3) shall accent new bids to renew
c ontrac t s of commissarv suooliers everv
five years.
(c) The sheriff mav use commissarv oro-
ceeds onlv to:
(1) fund, staff, and equip a program
addressing the social needs of the county
prisoners, including an educational or
Pa 5892
Honorable Tom O'Connell - Page 3 (JM-1121)
recreational program and religious or
rehabilitative counseling:
(2) supply county prisoners with
clothing, writing materials, and hygiene
supplies;
(3) establish. staff. and eouin the
commissarv ooerat tin: or
(4) f und 'b
for the educational use of countv
prisoners.
(d) At least once each quarter of a
county's fiscal year, or more often if the
county auditor desires, the auditor shall,
without advance notice, fully examine the
jail commissary accounts. The auditor shall
verify the correctness of the accounts and
report the findings of the examination to the
commissioners court of the county at its next
term beginning after the date the audit is
completed.
SECTION 2. This Act takes effect
September 1, 1989, and on that date, the
oneration and unexnended oroceeds of anv
existina countv iail cozunissarv shall be
delivered to the sheriff of the county in
which the commissary is located. (Emphasis
added.)
H.B. 669, Acts 1989, 71st Leg., ch. 980, at 4056 (effective
Sept. 1, 1989).
Section 351.0415 gives the sheriff exclusive control of
the commissary funds, requires the sheriff to accept new
bids to renew contracts of suppliers every five years, vests
the sheriff with authority to equip the commissary, and fund
and staff a library for the prisoners. The sheriff is not
only empowered to operate the commissary, but is also
authorized to execute a contract for another person to
operate the commissary.
The express enumeration of particular persons or things
in a statute is tantamount to an express exclusion of all
others. Ex carte McIver, 586 S.W.2d 851 (Tex. Crim. App.
1979).
p. 5893
.Honorable Tom O'Connell - Page 4 (JM-1121)
We conclude that by virtue of the express language of
section 351.0415, the sheriff may enter into a contract
regarding the county jail commissary without consulting the
county purchasing agent or being subject to action taken by
the commissioners court in a competitive bidding process
under section 262.023.
We do note that certain limitations are imposed on
expenditures by the statute and that the commissary must be
operated in accordance with rules adopted by the Commission
on Jail Standards.
SUMMARY
Section 351.0415 of the Local Government
Code authorizes the Collin County Sheriff to
enter into a contract regarding the county
jail commissary without consulting the county
purchasing agent.
J I M' MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 5894