THE ATTORNEY GENERAL
OF TEXAS
September 8. 1987
Honorable Richard G. Morales, Sr. Opinion No. .JM-783
Webb County Attorney
1104 Victoria Re: Authority of a sheriff to
Laredo, Texas 78040 make certain purchases for the
operation of the jail
Dear Mr.'Morales:
You question whether article 2368a.5. V.T.C.S., the County
Purchasing Act, is applicable to the sheriff in making purchases for
the operation of the county jail. You suggested that since article
5116(a), V.T.C.S., vests the sheriff with responsibility for the safe
keeping of the prisoners and designates him "keeper of the jail in his
county," he should be the person with exclusive authority to purchase
groceries and other necessities needed for the prisoners in the
operation of the jail.
Article 5116 provides in part:
(a) Each sheriff is the keeper of the jail of
his county. He shall safely keep therein all
prisoners committed thereto by lawful authority,
subject to the order of the proper court, and
shall be responsible for the safe keeping of such
prisoners.
Article 2368a.5 states in relevant part:
sec. 3. (a) 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 co~~ply with the competi-
tive bidding or competitive proposal procedures
prescribed by this Act. All bids or proposals
must be sealed.
(b) The competitive bidding and competitive
proposal requirements established by Subsection
(a) of this section apply only to contracts for
which payment ~$11 be made from current funds or
bond funds or through time warrants. However,
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Honorable Richard G. Morales, Sr. - Page 2 (JM-783)
contracts for which payments will be made through
certificates of obligation are governed by The
Certificate of Obligation Act of 1971 (Article
2368a.1, Vernon’s Texas Civil Statutes).
(c) In applying the competitive bidding and
competitive 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 competitive bidding and competitive proposal
requirements of this Act, from the ssme supplier
by the same county officer, department, or
institution are treated as if they are part of a
single purchase and of a single contract.
Exemptions
Sec. 4. (a) A contract for the purchase of
any of the following items is exempt from the
requirement established by Section 3 of this Act
if the commissioners court by order grants the
exemption:
(1) an item that’must be purchased in a case
of public calamity if it is necessary to make the
purchase promptly to relieve the necessity of the
citizens or to preserve the property of the
county;
(2) an item necessary to preserve or protect
the public health or safety of the residents of
the county;
(3) an item made necessary by unforeseen
damage to public property;
(4) a personal or professional service;
(5) any work performed and paid for by the
day, as the work progresses;
(6) any land or right-of-way; or
(7) an item that can be obtained from only one
source, including: items for which competition is
precluded because of the existence of patents,
copyrights, secret processes, or natural mono-
polies; films, manuscripts, or books; electric
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Honorable Richard G. Morales, Sr. - Page 3 (JM-783)
power, gas, water, and other utility services; and
captive replacement parts or component.9 for equip-
ment .
(b) If an item exempted under Subdivision (7)
of Subsection (a) of this section is purchased,
the commissioners court, after accepting a signed
statement from the county official who makes
purchases for the county as to the existence of
only one source. must enter in its minutes a
statement to that effect.
. . . .
Awarding of Contract
Sec. 7. (a) The officer in charge of opening
the bids shall present them to the commissioners
court in session. The court shall award the
contract to the responsible bidder who submits the
lowest and best bid, or the court shall reject all
bids and publish a new notice.
(b) In cases where two responsible bidders
submit the lowest and best bid, the commissioners
court shall decide between the two by drawing lots
in a manner prescribed by the county judge.
(c) A contract may not be awarded to a bidder
who is not the lowest dollar bidder meeting
specifications unless, before the award, each
lower bidder is given notice of the proposed award
and is given an opportunity to appear before the
commissioners court and present evidence
concerning the lower bidder’s responsibility.
. . . .
Injunction
Sec. 13. Performance under a contract made by
a county without complying with this Act may be
enjoined by any property tax paying citizen of the
county.
Criminal Penalty
Sec. 14. (a) A county officer or employee who
knowingly or intentionally makes or authorizes
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Honorable Richard G. Morales, Sr. - Page 4 (m-783)
separate, sequential, and/or component purchases
in order to avoid the competitive bidding
requirements of Section 3 of this Act comits 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.
In a recent Attorney General Opinion, JM-725 (1987), it was
concluded that
[a] county officer, department or institution may
purchase its own supplies subject to the limita-
tions 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 county 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 institu-
tions.
We do not believe Attorney General Opinion H-1190 (1978) is in
conflict with this construction of article 2368a.5. In Attorney
General Opinion H-1190 article 5116 was construed as follows:
Authority to supervise. direct or control the
actual daily operation of a county jail is vested
in the office of the sheriff although the
commissioners court does have general responsi-
bilities in connection with the operation of the
jail.
With respect to the responsibility of the commissioners court the
opinion noted that the county, for which the commissioners court is
the governing body, is liable for the expense of the jail and
safekeeping of the prisoners.
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Honorable Richard G. Morales, Sr. - Page 5 (JM-783)
It is our opinion that article 2368a.5 is applicable to the
sheriff in making purchases for the jail.
In your brief you call attention to the fact that the sheriff is
aware of the medical necessities of the prisoners and knows what
doctors are available at all times for that purpose. Section 4(a)(4)
of article 2368a.5 exempts "personal or professional services" from
the requirements imposed for other expenditures.
There are instances where a county officer may make expenditures
at the sole discretion of the official. For example, within the
limits set out in article 53.08 of the Code of Criminal Procedure,
fines derived from the collection of hot checks, are expendable at the
sole discretion of county attorneys, criminal district attorneys, and
district attorneys. Attorney General Opinion Nos. JM-313 (1985);
Mw-439 (1982). Expenditures from funds generated by forefeitures
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.
Whether a given amount of purchases in a stated time frame will
constitute an intentional avoidance of the competitive bidding process
prohibited by article 2368a.5 is a factual question which cannot be
resolved by the opinion process.
SUMMARY
Article 2368a.5, V.T.C.S.. is applicable to the
sheriff in making purchases for the operation of
the county jail.
, Very/ttr
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JDDGE ZOLLIE STEAFLFY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3696
Untitled Texas Attorney General Opinion
Combined Opinion