Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
February 3, 1982
MARK WHITE
Attorney General
Supreme Court Building
P. 0. Box 12543 Honorable Henry Wade Opinion No.MW-439
Austin, TX. 73711 Criminal District Attorney
51’2/475.2591 Condemnation Section Re: Competitive bidding
Telex 9101874-1387
6th Floor, Records Building requirements
Telecopier 5121475-0256
Dallas, Texas 75202
1807 Main st., suite 14w Dear Mr. Wade:
Dallas, TX. 75201
21417428944
You ask whether article 1659a. V.T.C.S., or article 2368a.
V.T.C.S.. require four categories of items to be obtained through the
4824 Alberta Ave.. Suite 160 competitive bidding process. The first category consists of:
El Paso. TX. 79905
9151533-3434 Certain materials and supplies, other than voting
machines, and the printing of those materials and
1220 Dallas Ave., Suite 202
supplies which are required in the conduct of an
Houston, TX. 77002 election whether or not procured by the 'election
713/6500888 board' or 'the authority holding the election.'
i.e., the county via the commissioners court.
SW Broadway, Suite 312
Lubbock, TX. 79401
Article 1659a provides in pertinent part as follows:
8081147-5233
In all counties having a population of...
(800,000) or more... supplies of every kind. road
4309 N. Tenth. Suite B
and bridge material, or any other material, for
McAllen, TX. 78501
51218824547 the use of said county, or any of its officers,
departments, or institutions, must be purchased on
competitive bids, the contract to be awarded to
2M) Main Plaza. Suite 400 the party who. in the judgment of the
San Antonio, TX. 78205
512/22541Bl
Commissioners Court, has submitted the lowest and
best bid....
An Equal OppOrtUnityI Although Attorney General Opinion R-1262 (1978) incorrectly
Affirmative Action Employer states that this statute applies only where the amount of purchase
exceeds $2000 (merely the "advertising" provisions so provide). it
furnishes support for our conclusion that the items you describe
constitute "supplies" or "materials" within the meaning of article
1659a.
p. 1508
Honorable Henry Wade - Page 2 (Mw-439)
Y
.
Article 7.07 of the Election Code provides that:
In general and special elections for election
of officers who are regularly elected at the
general election provided for in Section 9 of this
code, the county judge, county clerk. sheriff, and
county chairman of each political party which is
required to nominate candidates by primary
election shall constitute a board, a majority of
whom shall act to provide the supplies necessary
to hold and conduct the election. In all other
elections held by the county, the board shall be
composed of the county judge, county clerk and
sheriff. As used herein, the words 'supplies'
means all supplies and equipment needed for the
election, including, without limitation, ballot
boxes, voting booths, guard rails, voting
machines,. and other voting equipment.... The
board shall file with the commissioners court a
written report of their action as to supplies
furnished by the county, giving a detailed
statement of the expenses incurred in procuring
such supplies. (Emphasis added).
Cf. Patten v. Concho County, 196 S.W.2d 833 (Tex. Civ. App. - Austin
1946, no writ) (road machinery not "supplies"); Attorney General
Opinion H-977 (auditor's duties). Article 7.12 of the Election Code
requires counties to pay for these election supplies, except in
municipal and school elections.
Article 2359, V.T.C.S., provides:
The commissioners court shall advertise, at least
once in every two years, for sealed proposals to
furnish blank books, legal blanks, stationery and
such other printing as may be required for the
county for the term of such contract, and shall
receive separate bids for the different classes
hereinafter designated.... (Emphasis added).
Article 2362, V.T.C.S.. designates these "different classes":
The stationery shall be divided into four classes:
...Class 'D' poll tax receipts and all election
supplies of whatever nature and description. not
furnished by the State.... (Emphasis added).
See also V.T.C.S. art. 2368a (county contracts of $3,000 or more).
p. 1509
Honorable Henry Wade - Page 3 (MW-439)
Statutes dealing with the same subject matter are to be read
together and harmonized, if possible, so that effect may be given to
each one. Calvert v. Fort Worth National Bank. 356 S.W.2d 918 ITax.
1962): Texas State Board of Pharmacy v. Kittman. 550 S.W.2d 104 (Tex.
Civ:App. - Tyler 1977, no writ). When articles 1659a and 2368a and
the other statutes cited above are considered together, it becomes
apparent that: (1) competitive bids must be taken on the election
supplies you inquire about as per the terms of these statutes; and (2)
the commissioners court is responsible for taking these bids and
determining which one is most satisfactory.
It is true that article 7.07 directs the county election board to
"provide the supplies necessary to hold and conduct the election"' but
we find nothing in this provision or in the remainder of the statute
which warrants the conclusion that the other statutes cited above,
which place the responsibility for taking bids on election supplies in
the hands of the commissioners court, have been impliedly repealed.
On the contrary, we believe article 7.07 is readily reconciled with
those statutes. The county election board is to "provide" needed
election supplies, but in so doing, it is to deal with the suppliers
selected by the commissioners court through the bidding process. -See
Attorney General Opinions M-302, M-233 (1968).
Your second inquiry concerns:
Items purchased from the 'profits' of the
commissary operation in the county jail.
It is our understanding that neither the county nor the sheriff
actually operates the jail commissary in Dallas county. A private
vendor does so pursuant to a negotiated arrangement whereby the vendor
pays a fixed sum (based upon prisoner population) and a percentage of
the receipts for the concession. The purchase of items for sale, the
prices to be charged for them, and other similar management decisions
are left to the concessionaire. The amounts realized from the vendor
are not "profits," strictly speaking, but "income" in the nature of
rental income. & Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. App.
- Waco 1938, writ dism'd).
However it might be characterized. we think money realized by the
county or sheriff from the establishment of a jail commissary is
public money subject to public accountability and statutory safeguards
respecting its expenditure. cf. Code Crim. Proc. art. 1040 (sheriff
accountable for "net profits" realized from support and maintenance of
prisoners).
In the course of concluding that a jail commissary could be
operated on a 'profit-making' basis by a county sheriff, Attorney
General Opinion MW-143 (1980) used the term "profits" to signify the
p. 1510
Honorable Henry Wade - Page 4 (IN-439)
net proceeds of sales made to prisoners from a sheriff-operated
commissary. The opinion indicated that immediate commissary income
might properly exceed immediate costs, so long as the "profits" were
reinvested in the commissary operation so as to be devoted to the
benefit. education and welfare of la11 inmates (bv exoandinn the
amenities available to them). See Attorney General Opinions k-639
(1975); C-67 (1963). Cf. Cityof Bryan v. A. h M. Consolidated
Independent School District, 179 S.W.2d 987 (Tex. Civ. App. - Waco
1944), aff'd, 184 S.W.2d 914 (Tex. 1945). The opinion did not suggest
that uurchases made with such "nrofits" were bevond the reach of
competitive bidding statutes.
Without passing on the propriety of the vendor-operated jail
commissary now extant in Dallas County, we are of the opinion that
purchases made with money realized from the establishment of a jail
commissary are subject to the provisions of.article 1659a. V.T.C.S.
See also V.T.C.S. art. 2368a.
As noted above. article 1659a requires that "supplies of every
kind... for the use of said county or any of its officers, departments
or institutions, must be purchased on competitive bids." The contract
is to be awarded to "the party who, in the judgment of the
commissioners court, has submitted the lowest and best bid."
(Emphasis added).
You suggest that article 1659a is inapplicable because article
5116, V.T.C.S., makes the sheriff -- not the commissioners court --
statutorily responsible for the operation of the jail. A similar
argument was made to the Texas Supreme Court in Anderson v. Wood, 152
S.W.2d 152 (Tex. 1941). There it was claimed on behalf of the sheriff
that the commissioners court had no power to control contracts
respecting the operation of the courthouse because article 6872,
V.T.C.S., provided that "[sjheriffs shall have charge and control of
the courthouses..." subject to regulations prescribed by the
commissioners court. Citinn two cases which concerned the nurcbase of
disinfectant for jails, Ge&o Manufacturing Company v. Cole& County,
184 S.W. 1063 (Tex. Civ. App. - Austin 1916, no writ) and American
Disinfectant Company v. Freestone County, 193 S.W. 440 (Tex. Civ. App.
- Dallas 1917, no writ), the court held the statute gave the sheriff
"0 authority to contract for the county independent of-the contracting
authority of the commissioners court. Cf. Attorney General Opinion
H-1190 (1978). We do not believe articlel16, V.T.C.S., divests the
commissioners court of authority in the matter.
Early court cases and opinions of the attorney general dealing
with the purchase and supply of food for prisoners are inapposite for
two reasons. g. article 5115, V.T.C.S.. was later amended, in
1957, to make the commissioners court responsible for assuring "that
food is prepared and served in a palatable and sanitary manner and
p. 1511
Honorable Henry Wade - Page 5 (MW-439)
according to good dietary practices and of a quality to maintain good
health," and article 5115.1, V.T.C.S., creating the commission on jail
standards and (under section 11) making the commissioners court as
well as the sheriff responsible for compliance with the rules and
regulations of the commission, was enacted in 1975. The establishment
of a jail commissary is the subject of such a rule. See Attorney
General Opinion MW-143 (1980). Second, although statutoryauthority
has long existed for sheriffs to provide food for prisoners from an
allowance made by the commissioners court, there is no statute now
that allows the sheriff to spend at his discretion any "profits"
realized from the jail operation. See V.T.C.S. art. 1040; Attorney
General, Opinion M-1220 (1972). Cf.ichita County v. Vance, 217
S.W.2d 702 (Tex. Civ. App. - Fort Worth 1949, writ ref'd n.r.e.) (jail
kitchen); McKinney v. Collingsworth County, 159 8.W.2d 234 (Tex. Civ.
APP. - Amarillo 1942. no writ) (allowances and "profits"); Attorney
General Opinions C-567 (1965) (furnishing meals); V-1232 (1951)
(contracts for meals); O-1228 (1939) (feeding prisoners); O-329 (1939)
(purchase of food).
In our opinion, purchases made from proceeds realized by the
county from the jail commissary operation in Dallas County are subject
to the competitive bidding statutes. -See V.T.C.S. art..1659a. -Cf.
V.T.C.S. art. 2368a.
You also ask about:
Supplies and/or equipment purchased by the
criminal district attorney from the 'hot check
fund' established by article 53.08 of the Code of
Criminal Procedure.
Article 53.08 of the Code of Criminal Procedure authorizes a
county attorney, district attorney, or criminal district attorney to
collect a fee if his office processes a hot check under certain
circumstances. It further provides that:
(e) 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.
Expenditures from this fund shall be at the sole
discretion of the attorney, and may be used only
to defray the salaries and expenses of the
prosecutor's office.... (Emphasis added).
This statute creates a special fund which is in the county
treasury, but which is segregated from other county funds and
earmarked for a specific purpose. More importantly, the statute
states that the fund is to be administered by county attorneys,
p. 1512
Honorable Henry Wade - Page 6 (MW-439)
district attorneys. and criminal district attorneys, and that, within
the limits set out therein, expenditures from the fund are to be made
at their sole discretion. The express enumeration of particular
persons or things in a statute is tantamount to an express exclusion
of all others. Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. App.
1979). Thus, by virtue of the express language of the statute, the
hot check fund is explicitly placed beyond the reach of the
commissioners court.
By its terms, article 2368a applies only where a county acts
"through its Commissioners Court." It follows, in our opinion, that
the statute is not triggered unless, in making a specific purchase, a
county acts through its commissioners court. Article 1659a does not
contain this precise language, but it does state that contracts for
the purchase of supplies and materials are to be awarded to the party
who "in the judgment of the Commissioners Court" submits the lowest
and best bid. This is sufficient to convince us that, like article
2368a. article 1659a does not come into play where a commissioners
court is not involved with the purchase in question.
We have noted that article 53.08 gives the exclusive right to
administer the hot check fund, and to make purchases from it, to
county attorneys, district attorneys, and criminal district attorneys.
, Because commissioners courts are without any right to administer the
fund or to be involved in making expenditures from it, we conclude,
for the reasons set forth above, that articles 2368a and 1659a are
inapplicable in this purchasing context. In this respect, it should
be noted that to conclude that these statutes are applicable is to
give commissioners courts an indirect means of controlling the fund, a
result contrary to the express terms of article 53.08 and, therefore,
to the legislature's intent. A commissioners court could, 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.
Your final category of concern is:
[The] purchase of law books and law book service,
i.e., pocket parts and/or new volumes, where these
items are available from only one publishing
house.
You suggest that such items are exempt from competitive bidding
statutes because they are "professional services" rather than
"supplies" or "materials." We disagree. See V.T.C.S. art. 1702h;
Attorney General Opinion MW-399 (1981). Compare Attorney General
Opinion MW-344 (1981) with Attorney General Opinion MW-342 (1981).
You also suggest that the fact that certain books and book services
p. 1513
.
* Honorable Henry Wade - Page 7 (Mu-b39)
.
are obtainable only from the source that has a copyright on them is
sufficient to render the competitive bidding statutes inapplicable.
Support for the latter argument is found in cases from other
jurisdictions which hold that bidding statutes are to be read in light
of the reason for their enactment, and that they have no application
where the nature of the item to be bought is such that competitive
bidding is impractical or where the contract to be made would not
naturally be - competitive. See, e.g., Layne-Western Company
Buchannan County, 85 F.2d 343 (8th Cir. 1936); Whelan v. New .Jers&
Power 6 Light Company, 212 A.2d 136 (N.J. 1965); Schwartz v. Nagel
Tires, Inc. v. Board of Chosen Freeholders, 69 A.2d 885 (NJ. Super.
Ct. App. Div. 1949).
The only Texas case we have found that deals with a patented
product, however, is Limestone County v. Knox, 234 S.W. 131 (Tex. Civ.
APP. - Dallas 1921, no writ), which involved a contract for patented
machinery. The argument was there made that the subject matter of the
contract wss such that:
competitive proposals would work in incongruity,
would be unavailing as affecting the final result,
and would not produce any advantage....
-Id. at 132. Nevertheless, the court concluded that:
The language of [article 2368a, V.T.C.S.] is
clear, unambiguous, and emphatic. The legislative
intent and purpose is manifest, and the law should
be observed and given full effect by the
commissioners' courts of the state... The
consequences of the failure on the part of the
commissioners' court to comply with... article
2368a... cannot be escaped 'on the theory... that
the subject-matter of the contract of purchase was
a 'patented product in the nature of a
monopoly...' The fact that the 'subject-matter of
the contract is a patented product' does not
excuse a failure to comply with the terms of the
statute. It is not so provided in the statute,
and we may not look elsewhere for such an excuse.
The only exceptions to the competitive bidding requirements are
those contained in the statutes themselves. We are not in a position
to declare the Limestone case obsolete, and we must therefore conclude
that under current Texas law, the competitive bidding requirements of
articles 1659a and 2368a cannot be avoided on the theory that only one
supplier of a desired product exists.
I). 1514
Honorable Henry Wade - Page 8 (Mu-439)
For these reasons, we conclude that a county must invite bids on
the books and services you describe.
SUMMARY
Dallas County is required to take competitive
bids on materials, supplies, and printing used in
the conduct of an election. The competitive
bidding statutes also apply to purchases made with
profits from the commissary operation in the
county jail and to purchases of the indicated law
books and law book services. Competitive bids
need not be obtained on items purchased with funds
available under article 53.08 of the Code of
Criminal Procedure.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General'
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Robert Gauss
Rick Gilpin
D. 1515