                       October 20, 1988




Mr. Stephen F. Austin, C.P.A.               opinion No.   JM-967
Hidalgo County Auditor
Hidalgo County Courthouse                   Re: Competitive bidding
Edinburg, Texas 78539                       requirements   on   items
                                            purchased    with   funds
                                            under article 53.08, now
                                            section 102.007, of the
                                            Texas Code of Criminal
                                            Procedure   (RQ-1504)

Dear Mr. Austin:

     You ask whether  expenditures from the so-called   "hot
check fund" provided for by article 102.007 of the Code of
Criminal Procedure are subject to the competitive    bidding
and competitive proposal   requirements generally applicable
to county purchases pursuant to sections 262.021 et sea. of
the Local Government Code.

     Article 102.007 provides for the collection by a county
attorney, district attorney,  or criminal district  attorney
of a fee in connection with the collection or processing  by
his office of a check or similar sight order if the check
had been issued or passed in a manner constituting one of
the offenses enumerated in that article. Subdivision (e) of
article 102.007 provides with respect to the disposition  of
such fees as follows:

           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.    YCpenditures   from th's
        fund shall be at the sole discretion of tke
        attorney and may be used only to defray the
        salaries and expenses of the prosecutor's
        office, but in no event may the county
        attorney,  district attorney,     or   criminal
        district attorney supplement his own salary
        from this fund.   (Emphasis added.)




                                p.   4922
Mr. Stephen F. Austin - Page 2   (JM-967)

                                                                   -.


     Attorney General Opinion MW-439 (1982), dealt with the
same question   and concluded  that since the competitive
bidding provisions (then articles  2368a and 1659a) require
the commissioners court to administer the procedure and to
reject bids or award contracts to the lowest responsible
bidders, those provisions could not apply to purchases  from
the "hot check" fund which are made "tafthe sole discretion
of the attorney."

      you point to the statement in a later opinion, Attorney
General Opinion JM-313    (1985), that the "attorney must
administer the fund within the confines of laws applicable
to the use of county   funds," and suggest that that opinion
may have implicitly overruled the conclusion of MW-439 with
respect to the applicability of the competitive bidding   and
proposal requirements   to purchases from the "hot check"
fund.

     We disagree.   Attorney General Opinion JM-313     simply
pointed out that although expenditures from the "hot ch: :k"
fund were not subject to commissioners court approval,      ~:he
fund was generally    subject to statutes regulating        'the
handling of county moneys, citing Attorney General    Opin: -?ns
MW-188 (1980) ("hot check I1 fund subject to county auditt ~-'s
power to prescribe accounting     and control procedures    -or
making deposits and disbursements), and MW-584 (1982) (' ot
check"  fund subject to .various reporting        reguiremr 7ts
applicable to county funds).

     We find no conflict between JM-313 and MW-439.        We
adhere to the rationale of WW-439 that to subject        "hot
check" fund expenditures to the competitive bidding reguire-
ments would place ultimate control of these expenditures    in
the commissioners court which qqcould, 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."     Attorney General Opinion MW-439
(1982), ,at 6.   Such a result would be contrary      to the
express provision of section 102.007 of the Local Government
Code that "[elxpenditures  from this fund shall be at the
sole discretion of the attorney."

     Though they have undergone subsequent  amendment  and
codification we find nothing in the current provisions  of
state law regulating    these matters which changes    the
conclusion we reached in MW-439.




                               P. 4923
Mr. Stephen F. Austin - Page 3      (JM-967)




     We therefore  reaffirm the conclusion of MW-439  that
expenditures from the "hot check" fund are not subject to
the competitive bidding requirements.

                         SUMMARY

           Attorney General Opinion JM-y3i3 (1985) did
        not overrule Attorney General Opinion MW-439
        (1982). Expenditures     from the "hot check" Code of Criminal Procedure
        fund created under Local Government       Code
        section   102.007    are not subject to    the
        competitive     bidding requirements generally
        applicable to county purchases.




                                       JIM        MATTOX
                                       Attorney    General of Texas

MARY KELLER
First Assistant Attorney General

Lou MCCREARY
Executive Assistant Attorney General

JUM;E ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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