Honorable Marion ,McGee
County Auditor
Hays county
San Marcos, Texas,
Dear Sir: Opinion No. O-1753
Re: Should the,Hays County
Purchasing Agent buy all
supplies and not allow
officers to buy any part
of same and deduct such
items of expense; or
shou3.dthe county not buy
any.supplies except as re-
quircd by Section 1 of Ar-
ticle 3899b, and force all
other officers to buy the
supplies and deduct as
items~of expense? And rc-
lated questions.
Your letter, requesting the opinion of this De-
partment, pertaining to the questions as are herein stated
hasbeen recetved.
Yourletter reads in part as follows:
"Article 3891, Vernonrs Civil Statutes of
Texas, provides that countyrand precinat offi-
cials shall outof their fees of office pay~,au-
thorized expenses under Article 3898, the maxl-
mum fees allowed by law for their servicesand
the balance to the'countg Treasurer.- Article
3899b,~Seatioti1,;provLdes that there shall be
allowed to certain named county officials such
books, stationery, including blank bail bonds
and blank oomplaints, and office furniture as
may be'necessary fortheir offices, to be paid
for on the order of ~the Commissioner's Court out
of the County Treasury; and Section 2 of that
Article provides that in the discretion of the
Commissioner's Court such items of expense may be
paid for on order of the Commissionerts Court Out
of the County Treasury.
Honorable Marion McGee, Page 2 (Opinion No. o-1753)
"There appears to be a conflict in the above
provisions of our statutes when it comes to de-
ciding whether such expenses should be paid by
the county, or whether the officers should pay
for such expenses out of the fees of office and
be allowed to deduct for such expenses in their
annual fee report. Hays County Is a county of
less than 20,000 population and is on a fee basis.
The aountg buys certain supplies for the use of
certain offiaers and other officers buy certain
supplies themselves and deduct such items of ex-
pense when making their fee reports and settling
for excess fees, if any. It appears that it is
mandatory for the county to purchase supplies,
etc.for certain officers with the same being
discretionary as to other officers, while at the
same time the law also says that fee officers may
deduct these items of expense. Should the county
purchasing agent buy all supplies and not allow
officers to buy any part of same and deduct such
items of expense; or should the county not buy
any supplies except as required by Seation 1 of
Article 38ggb, and force all other offioers to
buy the supplies and deduct as items of expense?
Would the rule be the same as to those officers
who earn the maximum and those who often earn
only a fraotion of the maximum?“
Artiole 3891, Vernon's Civil Statutes, reads in
part as follows:
"Each officer named in this Chapter shall
first out of the current fees of his office pay
or be paid the amount allowed him under the pro-
visions of Article 3883, together with the sal-
aries of his assistants and deputies, and author-
ized expenses under Article 3899, and the amount
necessary to cover oosts of premium on whatever
surety bond may be required by law. If the cur-
rent fees of such office collected in any year
be more than the amount needed to pay the amounts
above specified, same shall be deemed excess fees,
and shall be disposed of in the manner hereinafter
provided.
"In counties containing twenty-five thousand
($25,000) or less inhabitants, District and County
offiaers named herein shall retain one-third of
such excess fees until such one-third, together
. .
Honorable .Marion McGee, page 3~ (Opinion No. O-1753)
with the amounts specified in Article 388 ,
amounts to Three Thousand'Dollars ($3,000 .
Precinct officers shall retain one-third un-
til such one-third, to ether with the amount
spec~ifiedin Article 3883, amounts to Fourteen
Hundred Dollars ($1400)."
Section.(a) of Article 3899, Vernon's Civil Stat-
utes, reads as follows:
"At the close of each month of his tenure
of office each officer named herein who is com-
pensated on a fee basis shall make as part of
the report now required by law, an itemized and
sworn statement of 811 the actual and necessary
expenses incurred by him in the conduct of his
office, such as stationery, stamps, telephone,
premiums on officials' bonds, including the
cost of surety bonds for his Deputies, premium
on fire, burglary, theft, robbery, insurance
protecting public funds, traveling expenses and
other necessary expenses. The Commissioners'
Court of the,County of the Sheriff's residence
may, upon the written and sworn application of
the Sheriff stating the necessity therefor, pur-
chase equipment for a bureau of criminal identi-
fication such as oameras, finger print cards,
inks, chemicals, microscopes, radio and labora-
tory equipment, filing cards, filing cabinets,
tear gas and other equipment in keeping with
the system in use by the Department of Public
Safety of this State or the United States Depart-
ment of JusUce and/or Bureau of Criminal Iden-
tification. If such.expensesbe incurred in
connection with any particular case, such state-
ment shall name such case . Such expense account
shall be subject to.the audit of the County Auditor,
if any; otherwise by the Commissicners Court; and
if it appears that any,item of such expense was
notincurred by~such officer or such~item was not
a necessary expense of office, such item shall be
by such auditor or court rejected, in which case
,the collections of such item may be adjudicated
in any court of competent jurisdiction. The amount
of salaries paid-to ~Assistants.andDeputies shall
also be clearly shown by such officer, giving the
name, position and amount paid 'each;,and in no
event shall any officer show any greater amount
than actually paid any such Assistant or Deputy.
Honorable Marion McGee, Page 4 (Opinion No. O-1753)
The amount of such expenses, together with the
amount of salaries paid to Assistants, Deputies
and Clerks shall be paid out of ,the fees earned
by such officer. The Commissioners' Court of
the county of the Sheriff's residence may, upon
the written and sworn application of the Sheriff
stating the necessity thenfor, allow one or more
automobiles to be used by the Sheriff in the dis-
charge of his official duties, which, if pur-
chased by the County, shall be bought in the man-
ner prescribed by law for the purchase of supplies
and paid for out of the Qeneral Fund of the Coun-
ty and they shall be and remain the property of
the county. The expense of maintenance, depre-
ciation and operation of such automobiles as may
be allowed, whether purchased by the county or
owned by the Sheriff or his Deputies personally,
shall be paid for by the Sheriff and the amount
thereof shall be reported by-the Sheriff, on the
report above mentioned, in the same manner as
herein provided for other expenses."
We will review the general statutes relative to the
question at hand.
Article 1638, Revised Civil Statutes of Texas, was
originally enacted by the Twenty-ninth Legislature, in 1905,
under the title "County Auditors" and reads:
"Bids shall be asked for all supplies for
stationery, books, blanks, records, and other
supplies for the various officers for which the
county is required to pay, and the purahase made
from the lowest bidder, after filing said bid
with the Auditor for record."
It will be observed that this statute is a legis-
lative declaration requiring aompetitive bids on all purchases
by the county of the items described. The statute, however,
does not particularize as to the manner or means of effecting
such.
Artiale 16~59,Revised Civil Statutes of Texas,
was also originally enacted by the same legislature, under
the same title, containing the emergenay provision allowing
the purchases by the county, without advertising for com-
petitive bids, when not in excess of fifty dollars.
Honorable Marion &cGee,,Page.5 (Opinion No. O-1753)
Article 1659, supra, was amended by the Thirty-
seventh Legislature in 1921, whereby the emergency provision
now allows purchases by the county not in excess of one
hundred and.fifty dollars,~in cases of an emergency, without
advertising for competitive bids.
Article 1659,~supra, now reads:
"Bids for material. Supplies of every kind,
road and bridge material; or any other material,
for ,the~useof said county, or any of its officers,
departments,,or institutions must be, purchased on
competitive bids, the contract to be awarded to
the party who, in the judg,mentof tie commissioners
court, has submitted the lowest and best bid. The
county auditor shall advertise for a period of two
weeks in at least one daily,newspaper, published
and circulated in the county, for such supplies ,and
material according to specifications, giving in de-
tail what is needed. Such advertisements shall
state where the specifications are to be found, and
shall give the time and place for receiving such
bids. All such competitive bids shall be kept on
file by the county auditor asa part of the'records
of his office,.and,shall be subject to inspection
by any one desiring to see them. Copies of all bids
received shall be furnished by the county auditor
to the county ~judgeand to the commissloners court;
and when the bids received are not satisfactory to
the said judge or county c,ommissioners,the auditor
shall reject said bids and re-advertise for new bids.
In cases of emergency, purchases not in excess of
one hundred and ,fifty dollars may be made upon requL-
sition to be approved.by the commissioners court,
without advertising for competitive bids."
It .villbe noticed that Article 1659, supra.,is a qen-
era1 statute, and applying to supplies of every kind,~purcnased
by the county, and providing for the manner of purchases tiiere-
of by competitive bids, and providing for an emergency. There-
fore, in the absence of specific statutes applying,to legal
blanks, stationery and,similar supplies, and providing for the
manner of purchase thereof by competitive bids, this general
statute w,ouldcontrol the matter.. The correct rule ,of statutory
construction, in such oases, is stated in the opinion ,of Ex
Parte Townsend, 144 ~~7.628, 641, as follows:
"It is also well established that, where one
statute deals with the subject :J.ncomprehensive
Honorable Marion McGee, Page 6 (OPinion No* o-1753)
terms and anotherstatute deals with a portion
of the same subject in .a more definite way, the
two should be read together, if possible, with
the view to giving effect to a consistent legis-
lative policy. However, if there is any neces-
sary conflict between two such laws, the special
will prevail over the general statute. Where the
special statute is plainer, it will be regarded
as exception to, or qualification of, the prior
general one, and, when the general act is later,
the special will be construed as remaining an
exception to Its terms, unless It is repealed in
express words or by implication. ego. 36, 1151;
Rodgers v. United States, 185 U. S. 83, 22 Sup.
Ct. 582, 46 L. Ed. 816; Rosentrans v. U. S.,
165 U. S. 257, 17 Sup. Ct. 302, 41 L. Ed. 708;
Lazondy v. Smlthey, 151 MO. App. 285, 131 S.W.
708. ”
There are, however, specific statutes relating to
this subject, providing both for the purchase of such supplies
by the commissloners( court itself, and also for the purchase
of such supplies by the various officers of the county with
the requirement that suoh must be approved by the commissioners’
court.
The statutes pertaining to purchases of such supplies
by the commissioners' court itself are articles 2358-2367,
Vernon's Civil Statutes. Artiales 2358 and 2359, thereof,
read as follows:
"Article 2358. The commissioners court by
an order entered of record, may oontract as
hereinafter prescribed, with some suitable per-
son or persons to supply the county with blank
books, all legal blanks and stationery as may
be required by law to be furnished the county
officials."
"Article 2359. The commissioner,scourt
shall advertise, at least once in every two
gears, for sealed proposals to furnish blank books,
legal ,blinks,stationlrgand &uch other printing as
may be required for the county for the term of
such contraof, and shall receive separate bids
for the different classes hereinafter desig-
nated. Such advertisement shall be made by
the oounty clerk, who shall notify by registered
letter, each newspaper and job printing house
Honorable Ma~rionMcGee, Page 7 (Opinion No. o-1753)
in the county,~and at least three stationery
and printing houses in the State,of the time
said contract Is to be awarded, and of the prob-
able amount of supplies needed."
These statutes being spec~lfiaenactments relating
to blank books, all legal blanks, and stationery, the.pro-
visions thereof which control the method of purqhase~bg
the commissioners' oourtof such supplies, together with
the method of seauring competitive bids therefor.
Articles 2358-2367, inclusive, supra, do not
however contain emergency provisions as are found in Ar-
ticle i&&J, supra.' Then we have the question as to whether
or not the emergency provision of Article 1659 would apply
to purchases of such supplies by the commissioners' court
of the county~. It is manifest, that It was the legislative
intention that'Artiole 1659 was to apply to purbhases of
supplies of every kind by the county, in the,absence of
specific ~statutes, dealing with portions of the same sub-
ject. As we'have above.stated, Articles 2358-2367, In-
clusive, supra, deal with a portion of.such subjects as to
the.manner of purohase and of securing competitive bids.
Such statutes, however, do not deal.with such portion of
the subject as to an emergency. Therefore, as.to such,
the general statute, Article.1659, supra would apply,
and the emergency provision of Article 1659 would be appll-
cable to purchases by the commlssloners~ court of the
county offstationery, legal blanks, and like~supplles.
Section (a) of Article ~3899,Vernon's Civil Statutes,
srnra, authorizes expenditures for expenses incurred by coun-
ty officials who are compensated on the fee basis in the con-
duct of their offices, such as stationery, stamps, telephone,
premiums,on officials' bonds, lncludlng the cost of,surety
bonds for his deputies, premiums on.fire, burglary, theft,
robbery insurance protect,ingpublic funds, traveling expenses
and other necessary expenses subject to thenorders of the
county auditor, if any, otherwise by the commissioners( court
and if it appears that any item of such expense was not in-
curred,by~such,officer or such item.was not a neaessary ex-
pense of office, such item shall be by such auditor or Court
rejected, in which case the collections of ~such item may be
adjudicated in any court of competent jurisdiction. The
amount of such expenses shall be paid out of the fees earned
by such officer.'
Section 1 of Article 3899b, Vernon's CivilStatutes,
is to be construed with Section b'of Article 38% which
Honorable Marion McGee, Page 8 ,,(OPinion
No. o-1753)
relates to county officials who are compensated on a
salary basis and Is not applicable to counties where
the county officials are kompensated on a fee basis,
and buy such items as provided for by Sections (a) of
Article 3899, supra, Section 1 of Article 3899b applies
to purohase of those items mentioned therein when made
by the commissioners, and not to those items enumerated
in Section (a) of Article 3899, when purchased by the
county officials who are compensated on a fee basis.
Section (a) of Artiale 3899, supra, contemplates
the purchase of the items enumerated therein by the officers
of the oounty as is shown by the requirement that all of
such purchases or expenditures must be approved by the county
auditor, If any, or otherwise by the commissioners' court.
In view of the foregoing statutes you are advised
that it is the opinion of this'Department that the purchase
of legal blanks, stationery and similar supplies by the
commissioners~ court of the count itself, is controlled
by the provisions of Articles 235 i!'
-2367, inclusive, supra,
and Section 1, Article 38ggb, as to the manner of such pur-
chases and the manner of effecting aompetitlve bids there-
under; and further that the emergency provisions of Article
1659 are applicable to purchases by the commissioners' oourt
of such supplies.
You are further advised that the purchase of suah
supplies by the county offiaers who are compensated on a
fee basis is controlled by Section (a) of Artiole 3899,
supra, requiring such purchases to be subject to the audit
of the aounty auditor, if any, otherwise by the commissioners'
court.
In answer to your last question you are advised
that as far as the purchases of such supplies by the county
officers as authorized by Section (a) of Article 3899, supra,
it is immaterial whether those orficers earn the maximum or
only a fraction of the maximum.
Trusting that the foregoing fully answers your
inquiry, we remain
Yotis very truly
ATTORNEX GENERAL OF TEXAS
AWrLM/rt By /a/ Ardell Williams
~Assistant
APPROVED DEC 13, 1939 APPROVED
/a/ Gerald C. Mann Opinion Comlttet
Attorney General of Texas By: BWB, Chairman