May 7, 1968

.I , Honorable Richard E. Rudeloff CountyAttorney Bee County Courthouse Beeville, Texas

Bear Mr. Rudeloff: Opinion No. M-233

Re: In the purchase of electronicvoting systems costingmore than $2,000.00, is it necessary for Bee County,to submit to competitivebids as required by Article 2368a,Vernon's Civil Statutes?
You request our opinion concerning the captioned question.
Article 7.15 of the Election Code of Texas is the statutory provision for electronicvoting systems. Such systems tobe used in Texas must firstbe approvedby the Secretary of State in accordancewith the terms and provisionsof Subdivision 3 of saidArticle.

Subdivision 5 ofArticle 7.15 provides that the commissioners court may adopt one or more kinds of electronic voting systems, approvedby the Secretary of State, for use in elections in part or in all of the elect~ion precincts in the county- This subdivision expressly states that if such system is adopted, not less than three precincts shallbe furnished electronicvoting systems and that any other authorizedmethod of voting may be used in the remaining precincts in the county. No time is specified in this statute as towhen the court may adopt the system,but presumably, in its discretion, the relative cost to the countywould be a factorwhich the courtwould consider, and the system may well be adopted after the taking of bids from the interestedparties.

- 1135 -Hon. Richard E. Rudeloff, page 2 (M-233)

Subdivision 8(a) of said statute directs that the conunissioners

court shall provide for payment for such voting. equipment and the court is authorized to issuebonds, certificates of indebtedness,warrants orother obligations,which shall be a charge against the general revenue fund of the county. This subdivision further requires the commissioners court to issue suchbonds and other obligations in the same manner andwith the same authority as provided for the issuance of suchbonds and other obligationsby the general laws of this State. The necessary tax is directed to be set aside at the time of create ,~ ing such obligationsso as to meet'the debt prwisions as r,e-' quired by the Texas Constitution.

The proposedcontract covering the particularvoting system concerned is not before us. However, the company presenting the proposal has furnishedalcopy of its standard propbsal’ which was presumablyused in the instant situation. In this system thevoter recordshis vote on a punch card, using equip ment called the @vote recorder." The vote is recordedby push-, ing a pen-like stylus through a hole next to the party, candidate or issue of the voter's choice. The votes are later tabulated at the central counting stationby standard electronic computers. The equipment and technical services are each an inseparable part of the system and the cost is lumped into one price, therebeing no cost figure shown for the equipment as such. The technicalassistance or services are tobe“furnished in "all phases of planningand implementing" the project,but the bid proposal specifically recites in this connection that %aturally, there is no charge for these services."

Section 2 ofArticle 2368a,Vernon's Civil Statutes, known as the Bond and Warrant Law of Texas, provides, in part, as follows;

"Sec. 2. No county, acting through its CommissionersCourt, and no city in this State shallhereafter~

make any,contractcalling for or, requiring the expenditure of payment of Two Thousand Dollars ($2,000.00)or more out of any fund **or** funds of any city or county or subdivision of any county creating **or** imposing an obligation or

-1136-Ron. Richard E. Rudeloff, Page 3 (M-233)

liability of any nature or character upon such county or any subdivision of such county~, or upon such city, without first submitting such proposed contract to competitive bids.

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. . . "Any and all such contracts or agreements hereafter made by any county or city in this State,without complyingwith the terms of this section, shallbe void and shall not be enforceable in any court of this State. Id

. . . Contracts for personal or professional services are expressly exempt from.thebidding requirements of the statute. We are familiarwith the Texas cases holding thatArticle 2368a does not apply to contracts for personal or professional services. The contracts involved in those cases are clearly distinguishable from the proposed contract.~,

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., Under the proposed arrangement the partiesmay not be said to have made merely a contract for personal or professional services,with the cost of equipment requiring a certain payment, towit, less than $2,000.00, so as to escape the statutory requirements for competitivebidding. We are concernedhere with an indivisiblecontract including a system calling for the use of certain equipment costing in excess of $2,000.00,with no charge being made for the assistance tobe furnished to train personnel to operate that equipment. This assistance isbeing furnished gratuitously and the contractual arrangement as presentedcannot be held tobe primarily one for assistance or serpces.

This office is not free to alter the terms of the particular contractual arrangement of the parties and we must take the facts as presentedby the proposal. It is our opinion that the proposed contract in question involves the sale of electronic voting equipment of a value in excess of $2,000.00 and that in entering into such a contract Bee County is required to comply with thebid requirements ofArticle 2368a.

We answeryour question in the affirmative.

- 1137-Hon. Richard E. Rudeloff, page 4 (M-233)

SUMMARY

In the purchase of electronicvoting systems costingmore than $2,000.00, it is necessary for Bee County to submit to competitivebids, as required by Article 2368a,Vernon's Civil Statutes. truly **yours,**

Preparedby Jack Sparks AssistantAttorney General

APPRWED: .,,.'! OPINIONCCMMITTEE
Hawthorne Phillips,Chairman Kerns Taylor,Co-Chairman W. 0. Shultz Bill Craig Ralph Rash John Fainter

A. J. CARUBBI, JR. ExecutiveAssistant