October 28, 1988 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

Opinion No. JR-974 

Re: Competitive bidding in 

counties with a county purchasing agent (RQ-1484) 

Dear Mr. Driscoll: 

You ask: 

(1) In counties with county purchasing 

agents, must the county purchasing agent make 

all purchases which are not made by competitive bid or can individual officers and 

departments purchase their own supplies? 

(2) Is the county Purchasing Agent 

subject to the $5,000 limitation imposed by 

MC. GDV'T CODE 5262.023 in making purchases 

of maintenance and repair items the need for 

which is not foreseeable[?] 

In your first question you ask whether the county 

purchasing agent in Harris County must make all purchases 

which are not subject to the competitive bid requirements of 

section 262.023 of the Local Government Code. 

You advise that Harris County has a duly appointed 

purchasing agent subject to' the provisions of section 

262.011 of the Local Government Code. Section 262.011 

provides in pertinent part: 

(a) In a county with a population of 

74,000 or more, a board composed of the 

judges of the district courts in the county 

and the county judge, by majority vote, may 

appoint a suitable person to act as the 

county purchasing agent. The term of office 

of the county purchasing agent is two years. 

. . . . 

p. 4955 
Honorable Mike Driscoll - Page 2 (JM-974) 

(d) The county purchasing agent shall 

purchase all supplies, materials, and eguipment required or used, and contract for all 

repairs to property used, by the county or a 

subdivision, officer, or employee of the 

county, extent nurchases and -tracts 

-red bv law to be made on comvetitive 

bid. A nerson other than the countv nurina aaent mav not w the nurwse of 

ent or make 

. . . . 

(f) A purchase made by the county purchasing agent shall be paid for by a warrant 

drawn by the county auditor on funds in the 

county treasury in the manner provided by 

law. me countv auairpr may not draw ad the 

Qzantv treasurer &zv not honor a warrant fey 

a wurchase unlaas the nurGL%se is made bv thg 

countv nuruina aaent or on comnetitive bid 

as vrovided bv lax . 

. . . . 

(n) This section applies to all purchases 

of supplies, materials, and equipment for the 

use of the county and its officers, including 

purchases made by officers paid out of fees 

of office or otherwise, regardless of whether 

the purchase contract is made by the commissioners court or any other officer authorized 

to bind the county by contract. An officer 

making a purchase out of fees of office in 

violation of this section may not deduct the 

amount of the purchase from the amount of any 

fees of office due the county. (Emphasis 

added.) 

you state that your question was prompted by Attorney 

General Opinion JM-725 (1987). In Attorney General Opinion 

JM-725 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. (now section 262.023 of the Local Government Code). 

The request in Attorney General Opinion JM-725 was from a 

county that did not have a purchasing agent. Hence, the 

provisions of section 262.011 were not applicable. 

p. 4956 
Honorable Mike Driscoll - Page 3 (JM-974) 

In Attorney General Opinion H-1237 (1978), the question 

arose as to whether the commissioners court of El Paso 

County had authority to order payment for a purchase made by 

the sheriff when the county had a purchasing agent duly 

appointed under then article 1580, V.T.C.S. (now section 

262.011). In concluding that the commissioners court did 

not have authority to direct payment of a claim under a 

contract which contravened the statute, the opinion stated: 

Article 1580 [now section 262.0111 establishes the county purchasing agent, an 

officer not under the supervision of the commissioners cou*, as the proper party to 

contract for all county supplies and services 

except those required to be let on competitive bid. The statute prohibits any other 

person from entering into such contracts and 

directs the county auditor not to draw 

warrants 'for any purchases except by such 

agent and those made by competitive bid.' 

Attorney General Opinion H-1237 (1978), at 1. The county 

purchasing agent must make all purchases that are not 

subject to the competitive bid requirements. 

In your second question you ask whether the county 

purchasing agent is subject to the $5,000 limitation imposed 

by section 262.023(a), which provides: 

Before a county may purchase one or more 

items under a contract that will require an 

expenditure exceeding 85,000, the 

commissioners court of the county must comply 

with the competitive bidding or competitive 

proposal procedures prescribed by this 

subchapter. All bids or proposals must be 

sealed. 

You state that in counties the size of Harris, compliance with the 85,000 limitation is difficult because of the 

maintenance of a large inventory of heavy equipment. The 

statute does not contain an exception based on population. 

The background information contained in the Bill Analysis to 

Senate Bill 807, Acts 1985, 69th Leg., ch. 641, at 2377, 

effective September 1, 1985, (now section 262.023) reflects: 

S.B. 807 repeals many of these old purchasing 

laws and amends others and creates a new, 

uniform purchasing law for counties 

P. 4957 
Honorable Mike Driscoll - Page 4 (JM-974) 

regardless of population. . . . In effect, 

S.B. 807 gives all counties the same 

requirements relating to purchasing and 

removes the disadvantage imposed by earlier 

methods of regulating the purchasing activity 

of county officials. . . . 

Bill Analysis, Tex. S.B. 807, 69th Leg. (1985). Subsection 

(d) of section 262.011 expressly excludes 

purchasing 

from the county 

agent's authority "purchases and contracts 

required by law to be made on competitive bid." 

You suggest that the purchase of maintenance and repair 

items may come within the exceptions to the competitive 

bidding process under the "captive replacement parts or 

components for equipment" exception in subsection 

of section 262.024. Section 

(a)(7) tD) 

262.024 provides in pertinent 

pa*: 

(a) A contract for the purchase of any of 

the following items is exempt from the 

requirement established by Section 262.023 if 

the commissioners court, by order grants the 

exemption: 

. . . . 

(7) an item that can be obtained from only 

one source, including: 

. . . . 

(D) captive replacement parts or 

components for equipment. 

Since the county purchasing agent is subject to the 

competitive bidding requirements of section 262.023, it 

follows that the exceptions thereto are applicable. Before 

there may be an exception to the bidding requirement the 

parts or components must be items "that can be obtained from 

only one source.H 

items" must be 

In addition the "maintenance and repair 

"captive replacement parts or 

Of necessity 

components.l* 

the factual determination of whether 

"maintenance and repair items" constitute %aptive 

replacement parts or components@q must be made on a 

case basis. 

case-by- 

--. 

p. 4958 
Honorable Mike Driscoll - Page 5 (JM-974) 

P 

SUMMARY 

In counties with county purchasing 

agents, the county purchasing agent must make 

all purchases that are not subject ;~,,~~; 

competitive bid requirements of 

262.023 of the Local Government Code. The 

county purchasing agent is subject to the 

$5,000.00 limitation imposed by section 

262.023 in making purchases of maintenance 

and repair items unless such purchases fall 

within the exceptions set forth in section 

262.024 of the Local Government Code. 

Very truly you I An 

JIM MATTOX 

Attorney General of Texas 

MARYKELLRR 

First Assistant Attorney General 

mu l4ccREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STRARLRY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 4959