Case Information

*1 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 county 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 operation of the jail.

Article 5116 provides in part:

(a) Each sheriff is the keeper of the jail his county. He shall safely keep therein prisoners committed thereto lawful authority, subject the order the proper court, 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,

court of the county must co~~ply with the competi- tive bidding or competitive proposal procedures prescribed this Act. All bids or proposals must be sealed.

(b) The competitive and competitive proposal established by Subsection (a) of section apply only to contracts which payment ~$11 be made from current funds or bond funds through time warrants. However, *2 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 competitive proposal requirements established Subsection (a) of section, separate, sequential, and/or component purchases of items ordered or purchased, with the intent of avoiding the competitive and competitive proposal of this Act, from the ssme supplier same 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 the purchase of any of following items is exempt requirement established by Section 3 of this Act if court by order grants exemption: an item that’must be purchased in a case (1)

of public calamity if it is necessary to make the purchase promptly to relieve the necessity citizens or to preserve the property of county; an item necessary to preserve or protect

(2) the public health or safety the residents the county; item made necessary by unforeseen

(3) an damage to public property; a personal or professional service;

(4) any work performed and paid for by the (5) day, as the work progresses; (6) any land or right-of-way; an item that can be obtained from only one source, including: items for which competition precluded because the existence of patents, secret processes, or natural mono- copyrights, polies; films, manuscripts, or books; electric *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 of Subsection (a) of section is purchased, the commissioners court, after accepting a signed statement official who makes purchases the county as to the existence only one source. must enter in its minutes a statement to that effect.

. . . .

Awarding of Contract (a) The officer in charge of opening Sec. 7. the bids shall present them to the commissioners The court shall award court session.

contract to the responsible bidder who submits lowest and best bid, or the court shall reject bids and publish a new notice. In cases where two responsible bidders (b)

submit the lowest and best bid, 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 lowest dollar bidder meeting unless, before the award, each specifications lower bidder is given notice of the proposed award and is given an opportunity to appear before court present evidence commissioners 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 county.

Criminal Penalty (a) A county officer or employee who Sec. 14. knowingly intentionally makes or authorizes *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 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, and commissioners court V.T.C.S., subject to Before a county may purchase one or approval.

more items under a contract that will require an expenditure exceeding $5,000. the commissioners court must comply with the competitive The $5.000 limitation of this act. applies to purchases by the county from the same Section 3 prohibits the intentional supplier. circumvention of the $5.000 limitation separate, sequential and/or component purchases by the same county officers, departments, or institu- tions.

We do not believe Attorney General Opinion H-1190 is in In Attorney conflict with construction of article 2368a.5. General Opinion H-1190 article 5116 was construed as follows:

Authority to supervise. direct control the actual daily operation of a county jail is vested office sheriff although commissioners court does have general responsi- bilities in connection with

With respect the responsibility the commissioners court opinion noted that the county, for which court is liable the expense jail the governing body, safekeeping of the prisoners.

. (JM-783)

It is our opinion that article 2368a.5 is applicable sheriff in making purchases for the jail.

In your brief you call attention to the fact that the sheriff aware of the medical necessities the prisoners and knows what doctors are available at all times for that purpose. Section 4(a)(4) "personal or professional services" from of article 2368a.5 exempts the requirements imposed for other expenditures.

There are instances where a county officer may make expenditures at the sole discretion the official. For example, within 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 criminal district attorneys, sole discretion of county attorneys, district attorneys. Attorney General Opinion Nos. JM-313 (1985); Expenditures funds generated forefeitures Mw-439 (1982). under section 5.08 of article 4476-15. V.T.C.S.. are administered 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

the county

, 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