                     THE        ATTORNEY                      GENERAL
                                       OF     TEXAS


                                       September        8.    1987




Honorable   Richard G. Morales,             Sr.               Opinion   No.   .JM-783
Webb County Attorney
1104 Victoria                                                 Re:   Authority   of a sheriff     to
Laredo,   Texas    78040                                      make certain    purchases  for   the
                                                              operation   of the jail

Dear Mr.'Morales:

       You question      whether     article     2368a.5.     V.T.C.S.,       the  County
Purchasing    Act,   is applicable      to the sheriff      in making purchases         for
the operation      of the county      jail.    You   suggested     that   since   article
5116(a),   V.T.C.S.,    vests   the sheriff     with responsibility         for the safe
keeping of the prisoners       and designates      him "keeper of the jail         in his
county,"   he should be the person with exclusive               authority     to purchase
groceries    and other      necessities      needed    for    the prisoners       in the
operation   of the jail.

      Article       5116 provides      in part:

                 (a)    Each sheriff   is the keeper of the jail        of
             his   county.     He shall     safely   keep therein     all
             prisoners     committed  thereto     by lawful  authority,
             subject     to the order     of the proper     court,    and
             shall   be responsible    for the safe keeping of such
             prisoners.

      Article       2368a.5   states    in relevant           part:

                     sec. 3.      (a)    Before a county may purchase           one
                or more items under a contract                that will    require
                an expenditure        exceeding    $5,000,     the commissioners
                court of the county must co~~ply with the competi-
                tive     bidding     or competitive        proposal    procedures
                prescribed       by this      Act.    All    bids   or proposals
                must be sealed.

                    (b)  The competitive      bidding  and competitive
                proposal   requirements    established   by Subsection
                (a) of this    section   apply only to contracts     for
                which payment ~$11 be made from current       funds or
                bond funds    or through     time warrants.   However,



                                                  p.   3692
Honorable   Richard      G. Morales,     Sr.    - Page 2 (JM-783)




            contracts     for which payments will     be made through
            certificates      of obligation    are governed    by The
            Certificate      of Obligation    Act of     1971 (Article
            2368a.1,     Vernon’s Texas Civil   Statutes).

                 (c)    In applying       the competitive           bidding    and
            competitive       proposal     requirements        established       by
            Subsection       (a)   of    this     section,      all    separate,
            sequential,       and/or    component       purchases       of items
            ordered     or purchased,       with the intent          of avoiding
            the competitive        bidding     and competitive           proposal
            requirements       of this Act,        from the ssme supplier
            by     the    same    county      officer,       department,         or
            institution      are treated       as if they are part of a
            single     purchase and of a single           contract.

                                       Exemptions

                Sec.   4.   (a)   A contract   for   the purchase                   of
            any of     the following     items  is exempt from                     the
            requirement    established    by Section    3 of this                  Act
            if   the commissioners     court   by order     grants                 the
            exemption:

                 (1)  an item that’must      be purchased     in a case
            of public   calamity   if it is necessary      to make the
            purchase   promptly   to relieve    the necessity     of the
            citizens    or   to  preserve     the   property     of  the
            county;

               (2)   an item necessary   to              preserve  or protect
            the public   health or safety                of the residents    of
            the county;

               (3)  an  item   made necessary                      by    unforeseen
            damage to public property;

                   (4)   a personal     or professional        service;

                   (5)   any work performed            and   paid       for   by   the
            day,      as the work progresses;

                   (6)   any land     or right-of-way;        or

                 (7)   an item that can be obtained      from only one
            source,    including:      items for which competition       is
            precluded      because    of   the existence   of patents,
            copyrights,       secret    processes,   or natural     mono-
            polies;     films,     manuscripts,    or books;    electric




                                           p.   3693
Honorable   Richard         G. Morales,     Sr.      - Page 3    (JM-783)




            power,      gas, water,        and other utility services;   and
            captive      replacement        parts or component.9 for equip-
            ment .

                 (b)    If an item exempted under Subdivision              (7)
            of Subsection        (a) of this       section     is purchased,
            the commissioners         court,   after    accepting   a signed
            statement       from    the    county    official     who makes
            purchases      for the county       as to the existence         of
            only     one source.       must enter       in its    minutes     a
            statement to that effect.

                .   .   .    .

                                  Awarding      of    Contract

                Sec. 7.     (a)    The officer     in charge of opening
            the bids shall       present    them to the commissioners
            court    in   session.       The court     shall award the
            contract    to the responsible       bidder who submits the
            lowest and best bid, or the court shall reject           all
            bids and publish       a new notice.

                (b) In            cases    where   two responsible   bidders
            submit the           lowest and best bid,     the commissioners
            court shall           decide between the two by drawing lots
            in a manner           prescribed    by the county judge.

                (c)     A contract    may not be awarded to a bidder
            who is       not   the    lowest    dollar     bidder     meeting
            specifications        unless,    before      the    award,    each
            lower bidder is given notice           of the proposed       award
            and is given an opportunity             to appear before       the
            commissioners          court     and       present       evidence
            concerning      the lower bidder’s       responsibility.

                .   .   .    .

                                          Injunction

                Sec.         13.   Performance    under a contract   made by
            a county          without   complying    with this   Act may be
            enjoined         by any property    tax paying citizen    of the
            county.

                                     Criminal        Penalty

               Sec. 14.   (a)  A county                 officer  or employee who
            knowingly   or intentionally                    makes or authorizes



                                                p.    3694
Honorable   Richard     G. Morales,      Sr.    - Page 4       (m-783)




            separate,     sequential,       and/or     component      purchases
            in     order    to     avoid     the      competitive        bidding
            requirements      of Section      3 of this Act comits             an
            offense.     The offense       is a Class B misdemeanor and
            shall,     upon     final     conviction,       result      in    the
            immediate      removal       of    the     county     officer       or
            employee from office.

                 (b) A county officer      or employee who knowingly
            or intentionally      violates     this   Act  commits   an
            offense.     The offense     is a Class C misdemeanor,
            except that a violation       of the competitive   bidding
            requirements    under Subsection      (a) of this section
            is a Class B misdemeanor.

      In a recent        Attorney      General      Opinion,      JM-725     (1987),       it   was
concluded that

            [a] county officer,          department        or institution        may
            purchase     its own supplies            subject     to the limita-
            tions     imposed by section             3 of article          2368a.5,
            V.T.C.S.,       and     subject       to     commissioners         court
            approval.        Before    a county         may purchase         one or
            more items under a contract                 that will      require     an
            expenditure       exceeding        $5,000.       the commissioners
            court     must comply       with      the competitive           bidding
            requirements       of this       act.      The $5.000       limitation
            applies     to purchases        by the county          from the same
            supplier.        Section      3 prohibits          the intentional
            circumvention         of      the       $5.000      limitation         by
            separate,      sequential      and/or component purchases              by
            the same county officers,              departments,       or institu-
            tions.

       We do not      believe    Attorney     General  Opinion H-1190 (1978)      is in
conflict    with      this    construction      of article    2368a.5.     In Attorney
General Opinion       H-1190 article       5116 was construed    as follows:

            Authority        to   supervise.      direct   or control     the
            actual     daily    operation     of a county jail    is vested
            in     the    office      of     the   sheriff   although     the
            commissioners         court   does have general       responsi-
            bilities      in connection        with the operation     of the
            jail.

With respect      to the responsibility        of the commissioners                     court   the
opinion    noted that the county,        for which the commissioners                      court  is
the    governing    body,   is    liable   for   the expense of   the                    jail   and
safekeeping     of the prisoners.




                                           p.    3695
.

    Honorable        Richard   G. Morales,     Sr.        - Page 5        (JM-783)




              It    is our opinion    that  article    2368a.5                is     applicable        to   the
    sheriff        in making purchases   for the jail.

           In your brief    you call  attention   to the fact that the sheriff        is
    aware of the medical        necessities     of the prisoners   and knows what
    doctors   are available    at all times for that purpose.      Section    4(a)(4)
    of article    2368a.5    exempts "personal     or professional  services"     from
    the requirements     imposed for other expenditures.

           There are instances          where a county officer          may make expenditures
    at the sole        discretion       of the official.         For example,        within    the
    limits     set out in article          53.08    of the Code of Criminal           Procedure,
    fines    derived    from the collection        of hot checks,       are expendable     at the
    sole discretion         of county attorneys,        criminal     district   attorneys,     and
    district      attorneys.        Attorney     General    Opinion      Nos.  JM-313     (1985);
    Mw-439 (1982).            Expenditures     from funds      generated      by forefeitures
    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.

           Whether a given amount of purchases          in a stated                     time frame will
    constitute    an intentional    avoidance  of the competitive                        bidding process
    prohibited    by article     2368a.5   is a factual    question                     which cannot be
    resolved   by the opinion     process.

                                              SUMMARY

                        Article    2368a.5, V.T.C.S..              is   applicable   to the
                     sheriff    in making purchases               for    the operation   of
                     the county jail.

                                                           ,   Very/ttr



                                                                  JIM      MATTOX
                                                                  Attorney  General       of   Texas

    MARY KELLER
    Executive Assistant          Attorney     General

    JDDGE ZOLLIE STEAFLFY
    Special Assistant Attorney              General

    RICK GILPIN
    Chairman, Opinion          Committee

    Prepared        by Tom G. Davis
    Assistant        Attorney General




                                                     p.    3696
