## THE ATTORNEY GENERAL OF TEXAS September 8. 1987

Honorable Richard G.Morales, Sr. WebbCounty Attorney 1104Victoria Laredo, Texas 78040 Opinion No. .JM-783 Re: Authority of asheriff to makecertain purchases for the operation of thejail DearMr.'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 anddesignates him"keeper of thejail inhis county," heshould be the person with exclusive authority to purchase groceries and other necessities needed for the prisoners in the operation of thejail. Article 5116provides inpart:

(a) Each sheriff is the keeper of thejail 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 inrelevant part:

sec. 3. (a) Before acounty maypurchase one or more items under acontract that will require anexpenditure exceeding $5,000, the commissioners court of the county must co~~plywith the competitive bidding or competitive proposal procedures prescribed by this Act. All bids or proposals mustbesealed. (b) The competitive bidding and competitive proposal requirements established by Subsection (a) of this section apply only to contracts for which payment ~$11 be madefrom current funds or bond funds or through time warrants. However,

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contracts for which payments will bemadethrough 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 andof asingle contract. Exemptions Sec. 4. (a) A contract for the purchase of any of the following items is exempt from the requirement established by Section 3of this Act if the commissioners court by order grants the exemption: (1) an item that’must be purchased in acase of public calamity if it is necessary tomakethe 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 damagetopublic property; (4) apersonal or professional service; (5) any work performed and paid for by the day, as theworkprogresses; (6) anyland or right-of-way; or (7) anitem that canbeobtained from only one source, including: items for which competition is precluded because of the existence of patents, copyrights, secret processes, or natural monopolies; films, manuscripts, or books; electric

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power, gas, water, andother utility services; and captive replacement parts **or component.9** for equipment

. (b) If anitem exempted under Subdivision (7) of Subsection (a) of this section is purchased, the commissioners court, after accepting asigned 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 themto the commissioners court in session. The court shall award the contract tothe responsible bidder whosubmits the lowest andbest bid, or the court shall reject all bids andpublish anewnotice. (b) In cases where two responsible bidders submit the lowest andbest bid, the commissioners court shall decide between the twobydrawing lots in amannerprescribed bythe county judge. (c) Acontract maynot be awarded to abidder 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 anopportunity to appear before the commissioners court and present evidence concerning the lower bidder’s responsibility.

. . . . Injunction Sec. 13. Performance under acontract madeby a county without complying with this Act maybe enjoined byanyproperty tax paying citizen of the county. Criminal Penalty Sec. 14. (a) Acounty officer or employee who knowingly or intentionally makes or authorizes

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separate, sequential, and/or component purchases in order to avoid the competitive bidding requirements of Section 3of this Act comits an offense. Theoffense is aClass Bmisdemeanor and shall, upon final conviction, result in the immediate removal of the county officer or employee from office. (b) Acounty officer or employee whoknowingly or intentionally violates this Act commits an offense. The offense is a Class Cmisdemeanor, except that aviolation of the competitive bidding requirements under Subsection (a) of this section is aClass Bmisdemeanor.
In a recent Attorney General Opinion, JM-725 (1987), it was concluded that

[a] county officer, department or institution may purchase its ownsupplies subject to the limitations 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 acontract 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 samecounty officers, departments, or institutions. Wedonot believe Attorney General Opinion H-1190 (1978) is in conflict with this construction of article 2368a.5. In Attorney General Opinion H-1190 article 5116wasconstrued as follows:

Authority to supervise. direct or control the actual daily operation of acounty jail is vested in the office of the sheriff although the commissioners court does have general responsibilities 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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It is our opinion that article 2368a.5 is applicable to the sheriff inmaking purchases for thejail. Inyour 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 acounty officer maymakeexpenditures 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 towhich they are forfeited. Whether agiven amount of purchases in astated time frame will constitute anintentional avoidance of the competitive bidding process prohibited by article 2368a.5 is afactual question which cannot be resolved bythe opinion process. SUMMARY Article 2368a.5, V.T.C.S.. is applicable tothe sheriff in making purchases for the operation of the county jail.

, Very/ttr

JIM MATTOX Attorney General of Texas
MARYKELLER Executive Assistant Attorney General JDDGEZOLLIESTEAFLFY Special Assistant Attorney General RICKGILPIN Chairman, Opinion Committee Prepared byTomG.Davis Assistant Attorney General

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