October 20, 1988
Mr. Stephen F. Austin, C.P.A. opinion No. JM-967
Hidalgo County Auditor
Hidalgo County Courthouse Re: Competitive bidding
Edinburg, Texas 78539 requirements on items
purchased with funds
under article 53.08, now
section 102.007, of the
Texas Code of Criminal
Procedure (RQ-1504)
Dear Mr. Austin:
You ask whether expenditures from the so-called "hot
check fund" provided for by article 102.007 of the Code of
Criminal Procedure are subject to the competitive bidding
and competitive proposal requirements generally applicable
to county purchases pursuant to sections 262.021 et sea. of
the Local Government Code.
Article 102.007 provides for the collection by a county
attorney, district attorney, or criminal district attorney
of a fee in connection with the collection or processing by
his office of a check or similar sight order if the check
had been issued or passed in a manner constituting one of
the offenses enumerated in that article. Subdivision (e) of
article 102.007 provides with respect to the disposition of
such fees as follows:
Fees collected under this article shall be
deposited in the county treasury in a special
fund to .be administered by the county
attorney, district attorney, or criminal
district attorney. YCpenditures from th's
fund shall be at the sole discretion of tke
attorney and may be used only to defray the
salaries and expenses of the prosecutor's
office, but in no event may the county
attorney, district attorney, or criminal
district attorney supplement his own salary
from this fund. (Emphasis added.)
p. 4922
Mr. Stephen F. Austin - Page 2 (JM-967)
-.
Attorney General Opinion MW-439 (1982), dealt with the
same question and concluded that since the competitive
bidding provisions (then articles 2368a and 1659a) require
the commissioners court to administer the procedure and to
reject bids or award contracts to the lowest responsible
bidders, those provisions could not apply to purchases from
the "hot check" fund which are made "tafthe sole discretion
of the attorney."
you point to the statement in a later opinion, Attorney
General Opinion JM-313 (1985), that the "attorney must
administer the fund within the confines of laws applicable
to the use of county funds," and suggest that that opinion
may have implicitly overruled the conclusion of MW-439 with
respect to the applicability of the competitive bidding and
proposal requirements to purchases from the "hot check"
fund.
We disagree. Attorney General Opinion JM-313 simply
pointed out that although expenditures from the "hot ch: :k"
fund were not subject to commissioners court approval, ~:he
fund was generally subject to statutes regulating 'the
handling of county moneys, citing Attorney General Opin: -?ns
MW-188 (1980) ("hot check I1 fund subject to county auditt ~-'s
power to prescribe accounting and control procedures -or
making deposits and disbursements), and MW-584 (1982) (' ot
check" fund subject to .various reporting reguiremr 7ts
applicable to county funds).
We find no conflict between JM-313 and MW-439. We
adhere to the rationale of WW-439 that to subject "hot
check" fund expenditures to the competitive bidding reguire-
ments would place ultimate control of these expenditures in
the commissioners court which qqcould, for example, refuse to
accept any or all bids in a particular instance and thus
interfere with the exclusive right of the designated
individuals to administer the fund and to determine when,
for what purposes, and under what circumstances expenditures
will be made from it." Attorney General Opinion MW-439
(1982), ,at 6. Such a result would be contrary to the
express provision of section 102.007 of the Local Government
Code that "[elxpenditures from this fund shall be at the
sole discretion of the attorney."
Though they have undergone subsequent amendment and
codification we find nothing in the current provisions of
state law regulating these matters which changes the
conclusion we reached in MW-439.
P. 4923
Mr. Stephen F. Austin - Page 3 (JM-967)
We therefore reaffirm the conclusion of MW-439 that
expenditures from the "hot check" fund are not subject to
the competitive bidding requirements.
SUMMARY
Attorney General Opinion JM-y3i3 (1985) did
not overrule Attorney General Opinion MW-439
(1982). Expenditures from the "hot check" Code of Criminal Procedure
fund created under Local Government Code
section 102.007 are not subject to the
competitive bidding requirements generally
applicable to county purchases.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUM;E ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
up. 4924