The Attorney General of Texas 

February 3, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12543 

Austin, TX. 73711 

51’2/475.2591 

Telex 9101874-1387 

Telecopier 5121475-0256 

1807 Main st., suite 14w 

Dallas, TX. 75201 

21417428944 

4824 Alberta Ave.. Suite 160 

El Paso. TX. 79905 

9151533-3434 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002 

713/6500888 

SW Broadway, Suite 312 

Lubbock, TX. 79401 

8081147-5233 

4309 N. Tenth. Suite B 

McAllen, TX. 78501 

51218824547 

2M) Main Plaza. Suite 400 

San Antonio, TX. 78205 

512/22541Bl 

An Equal OppOrtUnityI 

Affirmative Action Employer 

Honorable Henry Wade 

Criminal District Attorney 

Condemnation Section 

6th Floor, Records Building 

Dallas, Texas 75202 

Dear Mr. Wade: 

Opinion No.MW-439 

Re: Competitive bidding 

requirements 

You ask whether article 1659a. V.T.C.S., or article 2368a. 

V.T.C.S.. require four categories of items to be obtained through the 

competitive bidding process. The first category consists of: 

Certain materials and supplies, other than voting 

machines, and the printing of those materials and 

supplies which are required in the conduct of an 

election whether or not procured by the 'election 

board' or 'the authority holding the election.' 

i.e., the county via the commissioners court. 

Article 1659a provides in pertinent part as follows: 

In all counties having a population of... 

(800,000) or more... supplies of every kind. road 

and bridge material, or any other material, for 

the use of 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 judgment of the 

Commissioners Court, has submitted the lowest and 

best bid.... 

Although Attorney General Opinion R-1262 (1978) incorrectly 

states that this statute applies only where the amount of purchase 

exceeds $2000 (merely the "advertising" provisions so provide). it 

furnishes support for our conclusion that the items you describe 

constitute "supplies" or "materials" within the meaning of article 

1659a. 

p. 1508 
Honorable Henry Wade - Page 2 (Mw-439) Y 

. 

Article 7.07 of the Election Code provides that: 

In general and special elections for election 

of officers who are regularly elected at the 

general election provided for in Section 9 of this 

code, the county judge, county clerk. sheriff, and 

county chairman of each political party which is 

required to nominate candidates by primary 

election shall constitute a board, a majority of 

whom shall act to provide the supplies necessary 

to hold and conduct the election. In all other 

elections held by the county, the board shall be 

composed of the county judge, county clerk and 

sheriff. As used herein, the words 'supplies' 

means all supplies and equipment needed for the 

election, including, without limitation, ballot 

boxes, voting booths, guard rails, voting 

machines,. and other voting equipment.... The 

board shall file with the commissioners court a 

written report of their action as to supplies 

furnished by the county, giving a detailed 

statement of the expenses incurred in procuring 

such supplies. (Emphasis added). 

Cf. Patten v. Concho County, 196 S.W.2d 833 (Tex. Civ. App. - Austin 

1946, no writ) (road machinery not "supplies"); Attorney General 

Opinion H-977 (auditor's duties). Article 7.12 of the Election Code 

requires counties to pay for these election supplies, except in 

municipal and school elections. 

Article 2359, V.T.C.S., provides: 

The commissioners court shall advertise, at least 

once in every two years, for sealed proposals to 

furnish blank books, legal blanks, stationery and 

such other printing as may be required for the 

county for the term of such contract, and shall 

receive separate bids for the different classes 

hereinafter designated.... (Emphasis added). 

Article 2362, V.T.C.S.. designates these "different classes": 

The stationery shall be divided into four classes: 

. ..Class 'D' poll tax receipts and all election 

supplies of whatever nature and description. not 

furnished by the State.... (Emphasis added). 

See also V.T.C.S. art. 2368a (county contracts of $3,000 or more). 

p. 1509 
Honorable Henry Wade - Page 3 (MW-439) 

Statutes dealing with the same subject matter are to be read 

together and harmonized, if possible, so that effect may be given to 

each one. Calvert v. Fort Worth National Bank. 356 S.W.2d 918 ITax. 

Civ:App. - Ty 

1962): Texas State Board of Pharmacy v. Kittman. 550 S.W.2d 104 (Tex. 

ler 1977, no writ). When articles 1659a and 2368a and 

the other statutes cited above are considered together, it becomes 

apparent that: (1) competitive bids must be taken on the election 

supplies you inquire about as per the terms of these statutes; and (2) 

the commissioners court is responsible for taking these bids and 

determining which one is most satisfactory. 

It is true that article 7.07 directs the county election board to 

"provide the supplies necessary to hold and conduct the election"' but 

we find nothing in this provision or in the remainder of the statute 

which warrants the conclusion that the other statutes cited above, 

which place the responsibility for taking bids on election supplies in 

the hands of the commissioners court, have been impliedly repealed. 

On the contrary, we believe article 7.07 is readily reconciled with 

those statutes. The county election board is to "provide" needed 

election supplies, but in so doing, it is to deal with the suppliers 

selected by the commissioners court through the bidding process. See 

Attorney General Opinions M-302, M-233 (1968). 

- 

Your second inquiry concerns: 

Items purchased from the 'profits' of the 

commissary operation in the county jail. 

It is our understanding that neither the county nor the sheriff 

actually operates the jail commissary in Dallas county. A private 

vendor does so pursuant to a negotiated arrangement whereby the vendor 

pays a fixed sum (based upon prisoner population) and a percentage of 

the receipts for the concession. The purchase of items for sale, the 

prices to be charged for them, and other similar management decisions 

are left to the concessionaire. The amounts realized from the vendor 

are not "profits," strictly speaking, but "income" in the nature of 

rental income. & Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. App. 

- Waco 1938, writ dism'd). 

However it might be characterized. we think money realized by the 

county or sheriff from the establishment of a jail commissary is 

public money subject to public accountability and statutory safeguards 

respecting its expenditure. 

accountable for "net profits" 

cf. Code Crim. Proc. art. 1040 (sheriff 

realized from support and maintenance of 

prisoners). 

In the course of concluding that a jail commissary could be 

operated on a 'profit-making' basis by a county sheriff, Attorney 

General Opinion MW-143 (1980) used the term "profits" to signify the 

p. 1510 
Honorable Henry Wade - Page 4 (IN-439) 

net proceeds of sales made to prisoners from a sheriff-operated 

commissary. The opinion indicated that immediate commissary income 

might properly exceed immediate costs, so long as the "profits" were 

reinvested in the commissary operation so as to be devoted to the 

benefit. education and welfare of la11 inmates (bv exoandinn the 

amenities available to them). See Attorney General Opinions k-639 

(1975); C-67 (1963). Cf. Cityof Bryan v. A. h M. Consolidated 

Independent School District, 179 S.W.2d 987 (Tex. Civ. App. - Waco 

1944), aff'd, 184 S.W.2d 914 (Tex. 1945). The opinion did not suggest 

that uurchases made with such "nrofits" were bevond the reach of 

competitive bidding statutes. 

Without passing on the propriety of the vendor-operated jail 

commissary now extant in Dallas County, we are of the opinion that 

purchases made with money realized from the establishment of a jail 

commissary are subject to the provisions of. article 1659a. V.T.C.S. 

See also V.T.C.S. art. 2368a. 

As noted above. article 1659a requires that "supplies of every 

kind... for the use of said county or any of its officers, departments 

or institutions, must be purchased on competitive bids." The contract 

is to be awarded to "the party who, in the judgment of the 

commissioners court, has submitted the lowest and best bid." 

(Emphasis added). 

You suggest that article 1659a is inapplicable because article 

5116, V.T.C.S., makes the sheriff -- not the commissioners court -- 

statutorily responsible for the operation of the jail. A similar 

argument was made to the Texas Supreme Court in Anderson v. Wood, 152 

S.W.2d 152 (Tex. 1941). There it was claimed on behalf of the sheriff 

that the commissioners court had no power to control contracts 

respecting the operation of the courthouse because article 6872, 

V.T.C.S., provided that "[sjheriffs shall have charge and control of 

the courthouses..." subject to regulations prescribed by the 

commissioners court. Citinn two cases which concerned the nurcbase of 

disinfectant for jails, Ge&o Manufacturing Company v. Cole& County, 

184 S.W. 1063 (Tex. Civ. App. - Austin 1916, no writ) and American 

Disinfectant Company v. Freestone County, 193 S.W. 440 (Tex. Civ. App. 

- Dallas 1917, no writ), the court held the statute gave the sheriff 

"0 authority to contract for the county independent of-the contracting 

authority of the commissioners court. Cf. Attorney General Opinion 

H-1190 (1978). We do not believe articlel16, V.T.C.S., divests the 

commissioners court of authority in the matter. 

Early court cases and opinions of the attorney general dealing 

with the purchase and supply of food for prisoners are inapposite for 

two reasons. g. article 5115, V.T.C.S.. was later amended, in 

1957, to make the commissioners court responsible for assuring "that 

food is prepared and served in a palatable and sanitary manner and 

p. 1511 
Honorable Henry Wade - Page 5 (MW-439) 

according to good dietary practices and of a quality to maintain good 

health," and article 5115.1, V.T.C.S., creating the commission on jail 

standards and (under section 11) making the commissioners court as 

well as the sheriff responsible for compliance with the rules and 

regulations of the commission, was enacted in 1975. The establishment 

of a jail commissary is the subject of such a rule. See Attorney 

General Opinion MW-143 (1980). Second, although statutoryauthority 

has long existed for sheriffs to provide food for prisoners from an 

allowance made by the commissioners court, there is no statute now 

that allows the sheriff to spend at his discretion any "profits" 

realized from the jail operation. See V.T.C.S. art. 1040; Attorney 

General, Opinion M-1220 (1972). Cf.ichita County v. Vance, 217 

S.W.2d 702 (Tex. Civ. App. - Fort Worth 1949, writ ref'd n.r.e.) (jail 

kitchen); McKinney v. Collingsworth County, 159 8.W.2d 234 (Tex. Civ. 

APP. - Amarillo 1942. no writ) (allowances and "profits"); Attorney 

General Opinions C-567 (1965) (furnishing meals); V-1232 (1951) 

(contracts for meals); O-1228 (1939) (feeding prisoners); O-329 (1939) 

(purchase of food). 

In our opinion, purchases made from proceeds realized by the 

county from the jail commissary operation in Dallas County are subject 

to the competitive bidding statutes. See V.T.C.S. art..1659a. - 

V.T.C.S. art. 2368a. 

-Cf. 

You also ask about: 

Supplies and/or equipment purchased by the 

criminal district attorney from the 'hot check 

fund' established by article 53.08 of the Code of 

Criminal Procedure. 

Article 53.08 of the Code of Criminal Procedure authorizes a 

county attorney, district attorney, or criminal district attorney to 

collect a fee if his office processes a hot check under certain 

circumstances. It further provides that: 

(e) Fees collected under this article shall be 

deposited in the county treasury in a special fund 

to be administered by the county attorney, 

district attorney, or criminal district attorney. 

Expenditures from this fund shall be at the sole 

discretion of the attorney, and may be used only 

to defray the salaries and expenses of the 

prosecutor's office.... (Emphasis added). 

This statute creates a special fund which is in the county 

treasury, but which is segregated from other county funds and 

earmarked for a specific purpose. More importantly, the statute 

states that the fund is to be administered by county attorneys, 

p. 1512 
Honorable Henry Wade - Page 6 (MW-439) 

district attorneys. and criminal district attorneys, and that, within 

the limits set out therein, expenditures from the fund are to be made 

at their sole discretion. The express enumeration of particular 

persons or things in a statute is tantamount to an express exclusion 

of all others. Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. App. 

1979). Thus, by virtue of the express language of the statute, the 

hot check fund is explicitly placed beyond the reach of the 

commissioners court. 

By its terms, article 2368a applies only where a county acts 

"through its Commissioners Court." It follows, in our opinion, that 

the statute is not triggered unless, in making a specific purchase, a 

county acts through its commissioners court. Article 1659a does not 

contain this precise language, but it does state that contracts for 

the purchase of supplies and materials are to be awarded to the party 

who "in the judgment of the Commissioners Court" submits the lowest 

and best bid. This is sufficient to convince us that, like article 

2368a. article 1659a does not come into play where a commissioners 

court is not involved with the purchase in question. 

We have noted that article 53.08 gives the exclusive right to 

administer the hot check fund, and to make purchases from it, to 

county attorneys, district attorneys , and criminal district attorneys. 

, Because commissioners courts are without any right to administer the 

fund or to be involved in making expenditures from it, we conclude, 

for the reasons set forth above, that articles 2368a and 1659a are 

inapplicable in this purchasing context. In this respect, it should 

be noted that to conclude that these statutes are applicable is to 

give commissioners courts an indirect means of controlling the fund, a 

result contrary to the express terms of article 53.08 and, therefore, 

to the legislature's intent. A commissioners court could, for 

example, refuse to accept any or all bids in a particular instance and 

thus interfere with the exclusive right of the designated individuals 

to administer the fund and to determine when, for what purposes' and 

under what circumstances expenditures will be made from it. 

Your final category of concern is: 

[The] purchase of law books and law book service, 

i.e., pocket parts and/or new volumes, where these 

items are available from only one publishing 

house. 

You suggest that such items are exempt from competitive bidding 

statutes because they are "professional services" rather than 

"supplies" or "materials." We disagree. See V.T.C.S. art. 1702h; 

Attorney General Opinion MW-399 (1981). Compare Attorney General 

Opinion MW-344 (1981) with Attorney General Opinion MW-342 (1981). 

You also suggest that the fact that certain books and book services 

p. 1513 
. 

* Honorable Henry Wade - Page 7 (Mu-b39) 

. 

are obtainable only from the source that has a copyright on them is 

sufficient to render the competitive bidding statutes inapplicable. 

Support for the latter argument is found in cases from other 

jurisdictions which hold that bidding statutes are to be read in light 

of the reason for their enactment, and that they have no application 

where the nature of the item to be bought is such that competitive 

bidding is impractical or where the contract to be made would not 

naturally be - competitive. See, e.g., Layne-Western Company 

Buchannan County, 85 F.2d 343 (8th Cir. 1936); Whelan v. New .Jers& 

Power 6 Light Company, 212 A.2d 136 (N.J. 1965); Schwartz v. Nagel 

Tires, Inc. v. Board of Chosen Freeholders, 69 A.2d 885 (NJ. Super. 

Ct. App. Div. 1949). 

The only Texas case we have found that deals with a patented 

product, however, is Limestone County v. Knox, 234 S.W. 131 (Tex. Civ. 

APP. - Dallas 1921, no writ), which involved a contract for patented 

machinery. The argument was there made that the subject matter of the 

contract wss such that: 

competitive proposals would work in incongruity, 

would be unavailing as affecting the final result, 

and would not produce any advantage.... 

- Id. at 132. Nevertheless, the court concluded that: 

The language of [article 2368a, V.T.C.S.] is 

clear, unambiguous, and emphatic. The legislative 

intent and purpose is manifest, and the law should 

be observed and given full effect by the 

commissioners' courts of the state... The 

consequences of the failure on the part of the 

commissioners' court to comply with... article 

2368a... cannot be escaped 'on the theory... that 

the subject-matter of the contract of purchase was 

a 'patented product in the nature of a 

monopoly...' The fact that the 'subject-matter of 

the contract is a patented product' does not 

excuse a failure to comply with the terms of the 

statute. It is not so provided in the statute, 

and we may not look elsewhere for such an excuse. 

The only exceptions to the competitive bidding requirements are 

those contained in the statutes themselves. We are not in a position 

to declare the Limestone case obsolete , and we must therefore conclude 

that under current Texas law, the competitive bidding requirements of 

articles 1659a and 2368a cannot be avoided on the theory that only one 

supplier of a desired product exists. 

I). 1514 
Honorable Henry Wade - Page 8 (Mu-439) 

For these reasons, we conclude that a county must invite bids on 

the books and services you describe. 

SUMMARY 

Dallas County is required to take competitive 

bids on materials, supplies, and printing used in 

the conduct of an election. The competitive 

bidding statutes also apply to purchases made with 

profits from the commissary operation in the 

county jail and to purchases of the indicated law 

books and law book services. Competitive bids 

need not be obtained on items purchased with funds 

available under article 53.08 of the Code of 

Criminal Procedure. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General' 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Robert Gauss 

Rick Gilpin 

D. 1515