Could a Texas sheriff buy food and other county-jail supplies without following the County Purchasing Act?

Texas AG Opinion JM-783: County Purchasing Rules for Sheriff and Jail

Plain-English summary

Webb County asked whether the sheriff's responsibility as keeper of the county jail gave the sheriff exclusive authority to buy groceries and other necessities for prisoners, free from the County Purchasing Act.

The Attorney General concluded that it did not. Article 5116 made the sheriff responsible for safely keeping prisoners and supervising daily jail operations, but the county, governed by the commissioners court, remained responsible for jail expenses.

Article 2368a.5 applied to purchases made for jail operations. At the time, a covered contract exceeding $5,000 required competitive bidding or competitive proposals, and the law prohibited separating related purchases to avoid that threshold. The commissioners court awarded covered contracts and could grant listed exemptions.

The opinion noted that personal or professional services were among the statutory exemptions, which could matter for medical care. It declined to decide whether any particular purchase pattern intentionally avoided bidding because that depended on facts outside the opinion process.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the sheriff control daily jail operations?

Yes. The opinion repeated prior guidance that the sheriff supervised and controlled the jail's actual daily operation.

Did that control give the sheriff exclusive purchasing authority?

No. Purchases for jail operations remained subject to article 2368a.5.

Who awarded a contract covered by the competitive process?

The statute required bids to be presented to the commissioners court, which awarded the contract to the responsible bidder submitting the lowest and best bid or rejected all bids.

Were doctors and other professional services treated like ordinary supply purchases?

The statute listed personal or professional services among the purchases the commissioners court could exempt from the competitive requirements.

Could the Attorney General decide whether several purchases were split to avoid bidding?

No. JM-783 said intent to avoid the competitive process was a factual question that could not be resolved through the opinion process.

Background and statutory framework

Article 5116(a) made each sheriff the keeper of the county jail and responsible for the safe keeping of lawfully committed prisoners. The request argued that this operational authority should include exclusive control over purchases for prisoner needs.

The County Purchasing Act, article 2368a.5, required competitive bidding or competitive proposals before a county entered a covered contract requiring an expenditure above $5,000. It combined separate, sequential, and component purchases from the same supplier when they were made with intent to avoid the competitive rules.

The act allowed the commissioners court to exempt specified categories, including urgent public-health or safety items, personal or professional services, land, and sole-source items. It also supplied injunction and criminal-penalty provisions for noncompliance.

The Attorney General reconciled the two statutes by preserving the sheriff's authority over daily jail operations while applying the countywide purchasing rules to jail expenditures.

Citations and references

Statutes:

• V.T.C.S. article 5116(a), sheriff as keeper of the county jail
• V.T.C.S. article 2368a.5, County Purchasing Act
• Code of Criminal Procedure article 53.08
• V.T.C.S. article 4476-15, section 5.08

Prior opinions:

• Attorney General Opinion JM-725 (1987)
• Attorney General Opinion H-1190 (1978)
• Attorney General Opinion JM-313 (1985)
• Attorney General Opinion MW-439 (1982)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-783
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0783.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

September 8, 1987

Honorable Richard G. Morales, Sr.
Webb County Attorney
1104 Victoria
Laredo, Texas 78040

Opinion No. JM-783

Re: Authority of a sheriff to 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 comply with the competitive 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 will be made from current funds or bond funds or through time warrants. However, 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 same 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 monopolies; films, manuscripts, or books; electric power, gas, water, and other utility services; and captive replacement parts or components for equipment.

(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 separate, sequential, and/or component purchases in order to avoid the competitive bidding requirements of Section 3 of this Act commits 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 limitations 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 institutions.

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 responsibilities 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.

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 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.

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 truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General