                                  May 7, 1968


.I   ,
         Honorable Richard E. Rudeloff          Opinion No. M-233
         County Attorney
         Bee County Courthouse                  Re:   In the purchase of elec-
         Beeville, Texas                              tronic voting systems
                                                      costing more than $2,000.00,
                                                      is it necessary for Bee
                                                      County,to submit to com-
                                                      petitive bids as required
                                                      by Article 2368a, Vernon's
         Bear Mr. Rudeloff:                           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 sys-
         tems 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 com-
         missioners 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~ionprecincts 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 con-
         sider, 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
conunissionerscourt shall provide for payment for such voting.
equipment and the court is authorized to issue bonds, certifi-
cates 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 present-
ing 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 com-
puters. The equipment and technical services are each an in-
separable 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 Thou-
     sand 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 agree-
     ments 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 serv-
ices. The contracts involved in those cases are clearly dis-
tinguishable from the proposed contract.~,
                                  . ,,, ,, ,,~~
                                             .,.,,,,.,,,.,.,,
                                                          .,
          Under the proposed arrangement the parties may not
be said to have made merely a contract for personal or profes-
sional 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 re-
     quired 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
