THE ATTORNEY GENERAL 

OF TEXAS 

September 8. 1987 

Honorable Richard G. Morales, Sr. 

Webb County Attorney 

1104 Victoria 

Laredo, Texas 78040 

Opinion No. .JM-783 

Re: Authority of a sheriff to 

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 competitive 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 monopolies; films, manuscripts, or books; electric 

p. 3693 
Honorable Richard G. Morales, Sr. - Page 3 (JM-783) 

power, gas, water, and other utility services; and 

captive replacement parts or component.9 for equipment . 

(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 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 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 institutions. 

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 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. 

p. 3695 
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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 

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