                           December 20, 1989


Honorable Tom O'Connell         Opinion No.    JM-1121
Collin County Criminal
  District Attorney             Re: Authority of a sheriff to
Collin County Courthouse        contract regarding  the jail
l&Kinney, Texas 75069           commissary without consulting
                                the county purchasing   agent
                                (RQ-1846)

Dear Mr. O'Connell:

     You ask whether the sheriff may enter into a contract
regarding the county jail commissary without consulting the.
county purchasing  agent.   In analyzing your question,   a
brief review of statutes and attorney general opinions
concerning the authority of county officers to contract and
make expenditures is necessary.

     Attorney General Opinion JM-974 (1988) concluded   that
in counties with county purchasing     agents,1 the county
purchasing agent must make all purchases       that are not
subject to the competitive  bidding requirements of section
262.023 of the Local Government Code.

     Attorney General Opinion MW-439 (1982) concluded    that
items purchased with profits   from the jail commissary  were
subject to the competitive    bid requirements the same as
other purchases made for county officers. The opinion found
that the fact that article 5116, V.T.C.S.       (now section
351.041 of the Local Government Code), makes the sheriff
responsible for operation of the jail does not constitute an
exception to the requirement that the commissioners     court
must make purchases    subject to the competitive     bidding
procedure.   (The matter of a county purchasing agent was not
in issue.) See Attorney General Opinion JM-783 (1987).



     1. Section   262.011 of the Local Government       Code
provides that in a county with a population    of 74,000 or
more persons, a county purchasing agent may be appointed.




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Honorable Tom O'Connell - Page 2          (JM-1121)




     Certain statutes vest county officers with authority to
make expenditures without   regard to the county purchasing
agent or the competitive bidding process. Within the limits
set out in article 53.08 of the Code of Criminal     Procedure
(now Code of Criminal     Procedure  article   102.007),  fees
derived from the collection of hot checks are expendable    at
the sole discretion of county attorneys, criminal     district
attorneys, and district attorneys.   Expenditures from funds
generated by forfeitures under section 5.08 of article
4476-15, V.T.C.S., are administered by the seizing    agencies
or the office to which they are forfeited. See Attorney
General Opinion JW-313 (1985).

     The 71st Legislature  amended subchapter  C of chapter
351 of the Local Government Code by adding section  351.0415
providing that a sheriff may operate a commissary for use of
the prisoners in a county jail. The bill enacting    section
351.0415 provides:

           (a) The sheriff of a county with a popul
        lation of under 200,000 according to the last
        federal census mav ooerate. or contract with
        another oerson to ooerate. a commissary   for
        the use of the prisoners committed    to the
        county jail. The commissary must be operated
        in accordance   with rules adopted by the
        Commission on Jail Standards.

           (b)        The sheriff:

                      (1)   a
                            h s
             0
           cqfunds;


                 (2) shall maintain    commissary ac-
           counts showing the amount of proceeds from
           the commissary  operation and the amount
           and purpose of disbursements made from the
           proceeds; and

                 (3) shall accent new bids to             renew
           c ontrac t s of commissarv suooliers           everv
           five years.

           (c) The sheriff mav           use commissarv   oro-
        ceeds onlv to:

                 (1) fund, staff, and equip a program
           addressing the social needs of the county
           prisoners,  including an educational    or




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Honorable Tom O'Connell - Page 3     (JM-1121)




           recreational  program and         religious    or
           rehabilitative counseling:

                 (2) supply county prisoners   with
           clothing, writing materials, and hygiene
           supplies;

                 (3) establish. staff. and eouin         the
           commissarv ooerat tin: or

                 (4) f und                           'b
           for the     educational     use      of   countv
           prisoners.

            (d) At least once each quarter of a
        county's fiscal year, or more often if the
        county auditor desires, the auditor shall,
        without advance notice,   fully examine the
        jail commissary accounts. The auditor shall
        verify the correctness of the accounts and
        report the findings of the examination to the
        commissioners court of the county at its next
        term beginning after the date the audit is
        completed.

           SECTION 2. This     Act    takes     effect
        September 1, 1989, and on that date, the
        oneration  and unexnended   oroceeds   of anv
        existina  countv iail   cozunissarv shall be
        delivered to the sheriff of the county      in
        which the commissary  is located.    (Emphasis
        added.)

H.B. 669, Acts 1989, 71st Leg., ch. 980, at 4056         (effective
Sept. 1, 1989).

     Section 351.0415 gives the sheriff exclusive control of
the commissary  funds, requires the sheriff to accept new
bids to renew contracts of suppliers every five years, vests
the sheriff with authority to equip the commissary, and fund
and staff a library for the prisoners.   The sheriff is not
only empowered  to operate the commissary,     but is also
authorized to execute a contract for another person to
operate the commissary.

     The express enumeration of particular persons or things
in a statute is tantamount to an express exclusion of all
others. Ex carte McIver, 586 S.W.2d 851    (Tex. Crim. App.
1979).




                              p. 5893
.Honorable Tom O'Connell - Page 4    (JM-1121)




     We conclude that by virtue of the express language   of
section 351.0415,  the sheriff may enter into a contract
regarding the county jail commissary without consulting  the
county purchasing agent or being subject to action taken by
the commissioners  court in a competitive   bidding process
under section 262.023.

     We do note that certain    limitations are imposed on
expenditures by the statute and that the commissary must be
operated in accordance with rules adopted by the Commission
on Jail Standards.

                       SUMMARY

           Section 351.0415 of the Local Government
        Code authorizes the Collin County Sheriff to
        enter into a contract regarding the county
        jail commissary without consulting the county
        purchasing agent.




                                    J I M' MATTOX
                                    Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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