# 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

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1220 Dallas Ave., Suite 202 Houston, TX. 77002 713/6500888

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An Equal OppOrtUnityI Affirmative Action Employer HonorableHenry Wade CriminalDistrictAttorney CondemnationSection 6th Floor, Records Building Dallas, Texas 75202

Dear Mr. Wade: OpinionNo.MW-439

Re: Competitive bidding requirements

You ask whether article 1659a. V.T.C.S., or article 2368a. V.T.C.S.. require four categoriesof items to be obtained through the competitivebiddingprocess. The first category consistsof:

Certainmaterials and supplies, other than voting machines, and the printing of thosematerials and supplieswhich are required in the conduct of an electionwhether or not procuredby the 'election board' or 'the authority holding the election.' i.e., the countyvia the commissionerscourt.
Article 1659aprovides inpertinentpart 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,mustbe purchasedon 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.

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Article 7.07 of the Election Codeprovides that:

In generaland specialelections for election of officers who are regularly elected at the generalelectionprovided 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. (Emphasisadded).

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'sduties). 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 commissionerscourt shall advertise, at least once in every two years, for sealed proposals to furnishblank books, legalblanks, 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 hereinafterdesignated.... (Emphasisadded).
Article 2362,V.T.C.S..designatesthese "differentclasses":

The stationeryshallbe divided into four classes:

...Class 'D' poll tax receipts and all election supplies of whatever nature and description. not furnishedby the State.... (Emphasisadded).

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

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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 Pharmacyv. 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 suppliesyou inquireabout as per the termsof these statutes;and (2) the commissioners court is responsible for taking these bids and determiningwhich one ismost satisfactory.

It is true that article 7.07 directs the county electionboard to "provide the suppliesnecessary tohold 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 responsibilityfor takingbids on election supplies in the hands of the commissioners court, have been impliedly repealed. On the contrary, we believe article 7.07 is readily reconciledwith those statutes. The county election board is to "provide" needed election supplies, but in so doing, it is to deal with the suppliers selectedby the commissioners court through the bidding process. See Attorney General OpinionsM-302,M-233 (1968). -

Your second inquiry concerns:

Items purchased from the 'profits' of the commissaryoperation 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 arrangementwhereby thevendor pays a fixed sum (basedupon 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 similarmanagement 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. & Dodsonv. Marshall, 118 S.W.2d 621 (Tex.Civ.App.

- Waco 1938,writ dism'd).

However itmight be characterized.we thinkmoney realizedby the county or sheriff from the establishment of a jail commissary is publicmoney subject topublic accountabilityand statutory safeguards respecting its expenditure. accountable for "net profits"cf. Code Crim. Proc. art. 1040 (sheriff realized from supportand maintenanceof 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

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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 Opinionsk-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 opiniondid not suggest that uurchases made with such "nrofits" were bevond the reach of competitivebidding 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 countyor any of its officers,departments
or institutions,must be purchasedon competitivebids." The contract is to be awarded to "the party who, in the judgment of the commissioners court, has submitted the lowest and best bid." (Emphasisadded).

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 argumentwas made to the Texas Supreme Court in Andersonv. Wood, 152 S.W.2d 152 (Tex. 1941). There itwas claimedon 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 commissionerscourt. Citinn two caseswhich concernedthe nurcbaseof disinfectant for jails,Ge&o ManufacturingCompanyv. Cole& County, 184 S.W. 1063 (Tex. Civ. App. - Austin 1916, no writ) and American DisinfectantCompanyv. FreestoneCounty, 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 independentof-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 commissionerscourt of authority in thematter. 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

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according to good dietarypractices and of a quality tomaintain good health,"and article 5115.1,V.T.C.S., creating the commissionon jail standards and (under section 11) making the commissioners court as well as the sheriff responsible for compliance with the rules and regulationsof 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. - FortWorth 1949,writ ref'dn.r.e.) (jail kitchen);McKinney v. CollingsworthCounty, 159 8.W.2d 234 (Tex. Civ. APP. - Amarillo 1942. no writ) (allowancesand "profits");Attorney General Opinions C-567 (1965) (furnishing meals); V-1232 (1951) (contractsformeals); O-1228 (1939) (feedingprisoners);O-329 (1939) (purchaseof food).

In our opinion, purchases made from proceeds realized by the county from the jail commissaryoperation inDallas County are subject to the competitivebidding 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' establishedby article 53.08 of the Code of CriminalProcedure.
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 furtherprovides 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'soffice.... (Emphasisadded).
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,

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district attorneys. and criminal districtattorneys, and that,within the limits set out therein,expenditures from the fund are tobe 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 commissionerscourt.
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 triggeredunless, in making a specificpurchase,a county acts through its commissionerscourt. Article 1659a does not contain this precise language, but it does state that contracts for thepurchase of supplies and materials are tobe 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 involvedwith 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 countyattorneys,district attorneys, and criminaldistrict 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 commissionerscourts an indirectmeans of controllingthe 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 allbids in a particular instanceand thus interferewith the exclusive right of the designated individuals to administer the fund and to determinewhen, for what purposes' and underwhat circumstancesexpenditureswill be made from it.

Your final categoryof concern is:
[The]purchase of law books and law book service, i.e.,pocketparts and/ornew volumes,where these items are available from only one publishing house.

You suggest that such items are exempt from competitivebidding 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

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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 jurisdictionswhich hold thatbidding statutesare tobe 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 Countyv. Knox, 234 S.W. 131 (Tex.Civ. APP. - Dallas 1921, no writ), which involved a contract for patented machinery. The argumentwas theremade that the subjectmatter of the contractwss such that:

competitive proposals would work in incongruity, would be unavailingas affecting the final result, andwould 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 ismanifest, 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-matterof the contractof purchasewas a 'patented product in the nature of a monopoly...' The fact that the 'subject-matterof 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, andwe may not look elsewhere for such an excuse.
The only exceptions to the competitivebidding requirements are those contained in the statutes themselves. We are not in a position to declare the Limestone case obsolete,andwe must therefore conclude that under current Texas law, the competitivebidding requirementsof articles 1659aand 2368a cannotbe avoided on the theory that only one supplierof a desiredproduct exists.

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For these reasons,we conclude that a countymust invitebids on thebooks and servicesyou 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 statutesalso apply topurchasesmadewith 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 obtainedon itemspurchasedwith funds available under article 53.08 of the Code of Criminal Procedure.

MARK WHITE AttorneyGeneral of Texas

JOHNW. FAINTER, JR. FirstAssistantAttorneyGeneral'

RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral
Preparedby Jon Bible AssistantAttorney General

APPROVED: OPINION COMMITTEE

SusanL. Garrison,Chairman Jon Bible RobertGauss Rick Gilpin

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