May 7, 1968 

.I , Honorable Richard E. Rudeloff 

County Attorney 

Bee County Courthouse 

Beeville, Texas 

Bear Mr. Rudeloff: 

Opinion No. M-233 

Re: In the purchase of electronic voting systems 

costing more than $2,000.00, 

is it necessary for Bee 

County,to submit to competitive bids 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 electronic voting systems. Such systems to be used in Texas must first be approved by the Secretary 

of State in accordance with the terms and provisions of Subdivision 

3 of said Article. 

Subdivision 5 of Article 7.15 provides that the commissioners court may adopt one or more kinds of electronic 

voting systems, approved by 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 shall be furnished 

electronic voting systems and that any other authorized method 

of voting may be used in the remaining precincts in the county. 

No time is specified in this statute as to when the court may 

adopt the system, but presumably, in its discretion, the relative 

cost to the county would be a factor which the court would consider, and the system may well be adopted after the taking of 

bids from the interested parties. 

- 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 issue bonds, 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 

such bonds and other obligations in the same manner and with 

the same authority as provided for the issuance of such bonds 

and other obligations by the general laws of this State. The 

necessary tax is directed to be set aside at the time of create ,~ 

ing such obligations so as to meet'the debt prwisions as r,e-' 

quired by the Texas Constitution. 

The proposed contract covering the particular voting 

system concerned is not before us. However, the company presenting the proposal has furnished alcopy of its standard propbsal’ 

which was presumably used in the instant situation. In this 

system the voter records his vote on a punch card, using equip 

ment called the @vote recorder." The vote is recorded by 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 station by standard electronic computers. The equipment and technical services are each an inseparable part of the system and the cost is lumped into one 

price, there being no cost figure shown for the equipment as 

such. The technical assistance or services are to be“furnished 

in "all phases of planning and implementing" the project, but 

the bid proposal specifically recites in this connection that 

%aturally, there is no charge for these services." 

Section 2 of Article 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 

Commissioners Court, and no city in this State 

shall hereafter~ make any,contract calling 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. 

. . . 

,I . . . 

"Any and all such contracts or agreements hereafter made by any county or city in 

this State, without complying with the terms 

of this section, shall be void and shall not 

be enforceable in any court of this State. 

Id . . . 

Contracts for personal or professional services are 

expressly exempt from.the bidding requirements of the statute. 

We are familiar with the Texas cases holding that Article 2368a 

does not apply to contracts for personal or professional services. The contracts involved in those cases are clearly distinguishable from the proposed contract.~, 

. ,,, ,, ,,~~ .,.,, ,,.,,,.,.,, ., 

Under the proposed arrangement the parties may not 

be said to have made merely a contract for personal or professional services, with the cost of equipment requiring a certain 

payment, to wit, less than $2,000.00, so as to escape the statutory 

requirements for competitive bidding. We are concerned here with 

an indivisible contract 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 to be furnished to train personnel 

to operate that equipment. This assistance is being furnished 

gratuitously and the contractual arrangement as presented cannot 

be held to be 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 presented by 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 the bid requirements of Article 2368a. 

We answer your question in the affirmative. 

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

SUMMARY 

In the purchase of electronic voting systems 

costing more than $2,000.00, it is necessary for 

Bee County to submit to competitive bids, as required by Article 2368a, Vernon's Civil Statutes. 

truly yours, 

Prepared by Jack Sparks 

Assistant Attorney General 

APPRWED: .,,.'! 

OPINION CCMMITTEE 

Hawthorne Phillips, Chairman 

Kerns Taylor, Co-Chairman 

W. 0. Shultz 

Bill Craig 

Ralph Rash 

John Fainter 

A. J. CARUBBI, JR. 

Executive Assistant