Did a Texas county prosecutor have to use the County Purchasing Act when buying equipment with asset-forfeiture money?

Texas AG Opinion DM-246: Bidding for Forfeiture Purchases

Plain-English summary

DM-246 concluded that the County Purchasing Act applied when a county prosecutor used chapter 59 asset-forfeiture money held in a special county-treasury fund to buy equipment. The fact that article 59.06 gave the prosecutor spending authority did not remove the purchase from county competitive-bidding requirements. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

The opinion divided responsibility between the prosecutor and the commissioners court. The prosecutor or law-enforcement agency generally decided which authorized law-enforcement or prosecutorial purposes to fund. The commissioners court had the ministerial duty to initiate the competitive process and select suppliers under the County Purchasing Act. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

The commissioners court retained the general right to reject all bids, but DM-246 said it could not use that power to prevent or delay a forfeiture-fund purchase. The opinion stated that court relief could be available if commissioners interfered with the prosecutor's lawful spending authority. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

Currency note

This opinion was issued in 1993. 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.

Who this opinion affected in 1993

District and county attorneys: DM-246 said their chapter 59 purchasing choices remained subject to the County Purchasing Act when the money was held in the county treasury. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

Commissioners courts and county purchasing officers: The opinion assigned the county a ministerial role in starting and administering the competitive process, without authority to second-guess the prosecutor's lawful decision to make the purchase. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

Law-enforcement agencies receiving forfeiture proceeds: The same analysis applied to agency purchases made from article 59.06 funds, assuming no statutory purchasing exemption covered the item. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

Common questions

Did putting forfeiture money in a special fund exempt it from county bidding rules?

No. DM-246 held that the County Purchasing Act's broad language covered the purchase even though article 59.06 placed the special fund under the prosecutor's spending authority. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

Who decided what the forfeiture money would buy?

The prosecutor or law-enforcement agency generally chose the authorized prosecutorial or law-enforcement purpose. The commissioners court administered the bidding process used to select the supplier. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

Could commissioners refuse to start the bid process?

No. The opinion described initiation of the process as a ministerial duty once the prosecutor or agency submitted a purchase request. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

Could commissioners reject every bid?

They had a general right to reject all bids, but DM-246 said they could not do so for the purpose of preventing or delaying the forfeiture-fund expenditure. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

Did the opinion decide whether a specific purchasing exemption applied to the phone system?

No. A footnote assumed the proposed telephone system was not exempt under section 262.024 and said the opinion did not address the scope of the exemptions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

Background and statutory framework

The Cameron County Attorney wanted to buy a telephone system costing more than the purchasing threshold using proceeds awarded under chapter 59. The request asked whether the County Purchasing Act applied to that purchase. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

Article 59.06 allowed forfeited proceeds to be placed in a special county-treasury fund for the attorney representing the state and used for the office's official purposes. Subsection (d) required a detailed categorical budget to be submitted to the commissioners court, but the opinion read that provision as oversight rather than general purchase approval. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

The County Purchasing Act required competitive bidding or proposals for covered county purchases above the then-applicable threshold. DM-246 found no clear legislative intent to repeal that requirement for chapter 59 funds and concluded that both laws could operate together. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

The opinion directed readers to disregard Letter Opinions Nos. 88-112 and 89-30 to the extent they suggested the County Purchasing Act did not apply to these purchases. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

Key source language

DM-246 stated:

"We conclude that the act does apply to purchases made out of the special fund in the county treasury for the benefit of the attorney representing the state as provided by article 59.06 of the Code of Criminal Procedure."

"The commissioners court has a ministerial duty to initiate the competitive bidding process upon receipt of a purchase request from the prosecutor or law enforcement agency."

"Although the commissioners court has the right to reject all bids, it may not do so for the purpose of preventing or delaying a forfeiture-fund purchase."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

Citations and references

Statutory provisions:

• Local Government Code sections 262.021 through 262.035, including sections 262.023 and 262.024
• Code of Criminal Procedure articles 59.01, 59.06, and 59.08(a)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0246
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0246.pdf

Original opinion text

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

@ffice of the Attorney General
State of Texas

S)

Honorable Luis V. Saenz Opinion No. DM-246

Cameron County District Attorney

974 East Harrison Street Re: Whether the County Purchasing

Brownsville, Texas 78520 Act, sections 262.021-.035 of the
Local Government Code, applies to
purchases made with finds generated by
forfeitures under chapter $9 of the Code

of Criminal Procedure (RQ-378)

You have requested our opinion regarding the following fact situation:

The Cameron County Attorney's Office regularly has proceeds
awarded to it under Chapter 59 of the Texas Code of Criminal
Procedure, which it uses in accordance with the restrictions of
Article $9.06 of said Code, specifically for “official purposes” of
th{e] office. Occasionally, the County Attorney will purchase items,
for official purposes of the office, which exceed $10,000.00 in price.

In the instant case, the County Attorney's Office desires to purchase

a new phone system for the Office which will exceed $10,000.00 in

by a County Department over $10,000.00 must comply with the

provisions of the County Purchasing Act, Chapter 262 of the Texas

Loca] Government Code. [Emphasis in original.)
You specifically ask whether the County Purchasing Act applies to purchases made with
funds generated by forfeitures under chapter 59 of the Code of Criminal Procedure. We
conclude that it does.?

Tic County Purchasing Act (the “act") was enacted in 1985, Acts 1985, 69th Leg.,
ch. 641, § 1, at 2377 (repealed by Acts 1987, 70th Leg.,.ch. 49, § 49(1)); V.T.C.S. art.
2368a.5 historical and statutory notes, and was codified in 1987 as subchapter C of
chapter 262 of the Local Government Code, Acts 1987, 70th Leg., ch. 149, § 1. The act

1We assume for the purposes of this opinion that the proposed telephone system is a type of
purchase that is not exempt from the requirements of the County Purchasing Act. See Local Gov't Code
§ 262.024 (exemptions). Accordingly, we do not address in this opinion the scope of the exemptions from
the itive biddi :

p- 1263

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competitive proposal requirements “before a county may purchase one or more items
under a contract that will require an expenditure exceeding $10,000." Loca! Gov't Code
§ 262.023(a).2

Chapter 59 of the Code of Criminal Procedure was enacted in 1989. Acts 1989,
Tist Leg., It C.S., ch. 12, § 1. That chapter provides for the seizure and forfeiture, Code _
Crim. Proc. art. 59.02(a), of property that is defined as contraband, see id. art. 59.01(2)
(definition). All forfeited contraband is “administered by the attorney representing the
state," id. art. 59.06(a), that is, the felony prosecutor in the county in which the forfeiture
proceeding was held, dd. art. 59.01(1). The provisions relevant to the disposition of
forfeited contraband are quoted in large part below:

(a) All forfeited property shall be administered by the attorney
representing the state, acting as the agent of the state, in accordance
local agreement entered into between the attorney representing the
state and law enforcement agencies. If a local agreement has not
been executed, the property shall be sold on the 75th day after the
date of the final judgment of forfeiture at public auction under the
direction of the county sheriff, after notice of public auction as
provided by law for other sheriff's sales. The proceeds of the sale
shall be distributed as follows:

(1) to any interest holder to the extent of the interest holder's

(2) the balance, if any, after deductions of all storage and
disposal costs, to be deposited not later than the 30th day after the
date of the sale in the state treasury to the credit of the general
revenue fund.

(b) Ifa local agreement exists between the attorney representing
the state and law enforcement agencies, the attomey representing the
state may transfer the property to law enforcement agencies to
maintain, repair, use, and operate the property for official purposes if
the property is free of any interest of an interest holder. The agency
receiving the forfeited property may purchase the interest of an
interest holder a0 that the property can be released for use by the

2°The competitive bidding or competitive proposal requirements... apply only to contracts for
which payment will be from current fands or bond funds or through time warrants.” dd. § 262.023(0).

The act defines current funds w include, among other things, “funds in the county treasury that are
available in the current tax year.” Jd. § 262.022(2).

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Honorable Luis V. Saenz - Page 3 (DM-246)

(c) If a local agreement exists between the attorney representing
the state and law enforcement agencies, all money, securities,
negotiable instruments, stocks or bonds, or things of value, or
proceeds from the sale of those items, shal! be deposited according to
the terms of the agreement into one or more of the following finds:

(1) a special find in the county treasury for the benefit of the
office of the attorney representing the state, to be used by the
attorney solely for the official purposes of this office;

(2) a special find in the municipal treasury if distributed to a
municipal law enforcement agency .. . ;
Oe eT ee ey eT ehh for bea

county law enforcement agency, $0 be used solely for law
enforcement purposes; or

(4) a special fund in the state lsw enforcement agency if
distributed to a state law enforcement agency ... .

(d) Proceeds awarded under this chapter to a law enforcement
agency or the attorney representing the state may be spent by the
agency of the attorney after a budget for the expenditure of the
proceeds has been submitted to the commissioners court or
governing body of the municipality.

Id. art. 59.06; see id. art. $9.01(4) (defining law enforcement agency as agency of state or
political subdivision authorized to employ peace officers).

We understand from your request that the finds in question have been deposited in
a special fund in the county ireasury pursuant to the above-quoted subsection (c(1) of
article 59.06. You do not assert that forfeiture finds in the county treasury are not county
funds, nor do you assert that a purchase of a telephone system for the county attorney's
office made by “the attorney representing the state" is not a purchase by the county. The
only issue you raise is whether the act has been impliedly repealed with respect to
purchases made with county treasury forfeiture funds generated under article 59.06.

You rely on a letter opinion that this office issued in 1988, Letter Opinion
No. 88-112, withdrawn, Letter Opinion No. 88-114 (1988), reaff'd, Letter Opinion
No. 89-30 (1989). Letter Opinion No. 88-112 involved the old forfeiture provisions in the
Controlled Substances Act, V.T.C.S. art. 4476-15, §§ 5.03 - .10 (repealed by Acts 1989,
7ist Leg., ch. 678, § 13(1)).2 In that letter this office quoted dictum from Attorney

3Some of the forfeiture provisions of the former Controlled Substances Act have been
incorporated into chapter 59 of the Code of Crimina] Procedure. Code Crim. Proc. §§ 59.01 - .06, 59.08

historical and statutory notes; see Health & Safety Code §§ 481.001 - 205 (provisions of current Texas
Controlled Substances Act).

p. 1265

General Opinion JM-783 (1987) suggesting that the act did not apply to those forfeiture
Opinion No. 88-112, at 2-3 (quoting Attorney General Opinion JM-783 at 5). This office
then concluded that “the County Purchasing Act dfid] not apply to purchases made with
funds generated by forfeiture under section 5.08 of article 4476-15." Jd. at 3.

You believe that because the forfeiture Iaw commands that “[a]ll forfeited property
shall be administered by the attorney representing the state," id. art. 59.06(a), the
legislature intended to displace the act from purchases made with funds deposited in the
county registry pursuant to subsection (cX1) of article 59.06. We cannot find such an
intent in the language you cite. Subsections (a) through (c) of article 59.06 regulate the
administration of forfeited property only (1) until such property is sold and the proceeds
are distributed to the state, id. art. 59.06(a), or (2) until such Property oF is Proceeds are
transferred to law enforcement agencies pursuant to a local agreement, id. art.
59.06(b) - (c).4 Subsections (a) through (c) do not deal with purchases made with
forfeiture funds. See id. art. $9.08(a) (providing for the deposit of money seized as
contraband until judgment in forfeiture action).

We believe the pertinent provision addressing the authority of the attorney
representing the state or law enforcement agencies to make purchases with forfeiture
funds is located, rather, in subsection (d):

Proceeds swarded under this chapter to a law enforcement
agency or to the attorney representing the state may be spent by the
agency or the attorney afier a budget for the expenditure of the
proceeds has been submitied to the commissioners court or
governing body of the mumicipality. The budget must be detailed
and clearly list and define the categories of expenditures, but may not
list details that would endanger the security of an investigation or
Prosecution. Expenditures tre subject to Sint Provisions established

this afticle>... The bead of the agency or attomey

“Subsection (e) of article $9.05 of the Code of Criminal Procedure provides that when 8 court
finds that property is subject to forfeiture, “the judge shall forfeit the property to the state.” Subsection (2)
of article $9.06 provides that °[ajil forfeited property shall be administered by the atiorney representing
the state, acting as the agent of the state.” The administration provided for in subsection (a) lasts only
unui the forfeited property is sold and the proceeds distributed to interest holders and the state (if there is
mo “loca] agreement*), Code Crim Proc. art. $9.06(a), or “the attorney representing the state
property... transfer[s]" it to local law-enforcement agencies pursuant to 8 “local agreement,” id. art.
$9.06(b).

SSubsection (g) of article $9.06 provides:
All lew enforcement agencies and attorneys representing the state who

Teceive proceeds or property under this chapter shall sccount for the receipt and
disbursement of all such proceeds and property in an sudit, which is to be

p. 1266

Honorable Luis V. Saenz - Page $ (DM-246)

representing the state may not use the existence of an award to
increase a salary, expense, or allowance for an employee of the —
attorney or agency who is budgeted by the commissioners court or
governing body unless the commissioners court or governing body
first approves the expenditure.

Id. art. 59.06(d) (footnote and emphasis added). According to the legislative history of
chapter 59,6 the language of subsection (d) is a compromise between the desire of law
enforcement and prosecution agencies to have no “front-end review” of their purchases
and the legislators' desire that there be oversight by the commissioner's court or municipal
governing body.” Subsection (d) requires only the categorical submission of a budget of

Cootnote continued)
performed annually by the commissioners court or governing body of a
municipelity, as appropriate. Certified copies of the sudit shall be delivered to
the attorney general and the governor no ister than 30 days after the audit is
completed.

iouse Bill 65 of the 71st Legislature added chapter $9 to the Code of Criminal] Procedure. Acts
1989, 71st Leg., ist C.S., ch. 12, at 14.

7? The issue the legislators spent the most time on was the extent to which purchase decisions by
prosecuting atiorneys and law enforcement agencies would be subject to interference by commissioners’
courts or other governmental bodies. Russell Hardin, representing the Texas District and County
Aton bcenriati ified as follows at the S Criminal Justice C sttee's public hearing on

Bill 65:

No one objects to the auditing.... The disagreement seems to be...on the
front-end review of what prosecution is doing versus making sure after the fact
that it was done properly.... To isy out our projected law-enforcement
activities. . 1 don't believe it's good, sound public policy, in advance.

Let's take the smaller jurisdictions. They forfeit, let's say, $10,000. They
have a need for an immediate buy-sell operation. They go to the DA now and
they say, “I need this money for this thing®, he just turns it over to them. Once
you put [the buy-sell operation] in this budgetary operation [(ic. the budget
submitted to the commissioners court)], they are bound into government and not
being [sic] able to respond to the exigencies of law enforcement. They become
just like any other situation.

Hearing on FHLB. 65 Before the Senate Criminal Justice Comm., 71st Leg. Quly 18, 1989) (tape recording
available from Senate Staff Services). The sponsor of House Bill 65, Senator John Whitmire, made the

following remarks at the same hearing:

[The district attorneys) don't write the bill, but I'm telling you that they do have
access to the Governor's Office, and they will work to have the bill vetoed if it
has any supervision by a legislative body—being the commissioners court, the city
council, or another entity—over the spending and the application of the seized
property and the proceeds gained from the sale thereof... So, I know the will
of the Senate and this committee, because we spent long hours over it... . The
discussion among the commities during the regular session was just as strong 2

p. 1267

proposed forfeiture-fiund expenditures; it does not require the governing body's approval
of the budgeted expenditures, except for increases in "salary, expense, or allowance for"
certain employees. See Attorney General Opinion DM-72 (1991) at 3 (specification of
governing body's role in approving certain items of forfeiture fund budget indicates
limitation of governing body's authority to approve forfeiture find expenditures).
Subsection (d) thus grants purchasing authority to the attorney representing the state or
the law enforcement agency and generally requires only that the relevant governmental
body be kept informed of aggregate expenditures of forfeiture finds (by category) and
that the expenditures be subject to audit? See Attorney General Opinion DM-247 (1993)
at 10-12 (audit requirements for forfeiture funds).

Our review of the legislative history of chapter 59 did not reveal any reference to
the act. We also reviewed the legislative history of the act in search of clues on the
act, article 2368a.5, V.T.C:S. (repealed by Acts 1987, 70th Leg., ch. 149, § 49(1)), was
part of the 69th Legislature's comprehensive reform of various, sundry, and often
contradictory competitive bidding laws. See Acts 1985, 69th Leg., ch 641 (enacting
County Purchasing Act; amending, inter alia, former afticle 2368a, V.T.C.S., the
Certificate of Obligation Act of 1971, and the County Road and Bridge Act; and repealing
various laws), see also 35 D. BROOKS, COUNTY AND SPECIAL DISTRICT LAW § 18.3
(Texas Practice 1989) (summarizing various statutory requirements for competitive
bidding). Former article 2368a.5 provided, in part:

Before s 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.

(footnote continued)
feeling that it be an oversight [by the) legislative body. ... They don't want, after
the sale of a... _ seized snd forfeited house, or cat, or funds, whatscever~they
want, as they currently do undes {the) Controlled Substance [Act)—they have total
discretion of what they do to fight crime with that moncy.

ta

Sin House floor debste on FHLB. 65, the undersigned commented as follows on the suditing
requirements added by 2 Senate amendment % the bill: .

[Tihe Senate also put on an amendment which would make some reistively

significant auditing requirements part of the bill in order thet we can keep some
sort of handle on the manner in which the prosecutors and the law enforcement
and seizing agencies are expending the fands that came out of the forfeitures.

Debate on HLB. 65 on the Floor of the House of Representatives, 71st Leg. (July 18, 1989) (tape recording
available from House Committee Coordinator).

p. 1268

Honorable Luis V. Saenz - Page 7 (DM-246)

V.T.C.S. art. 2368a.5 (repealed by Acts 1987, 70th Leg., ch. 149, § 49(1)). The 70th
Legislature codified the act into the Local Government Code. Acts 1987, 70th Leg.,
ch. 149, § 1. The act now contains the same language as quoted above, except that the
“bid trigger” has been increased to $10,000. Local Gov't Code § 262.023.

The language of the act is broad; by its terms it applies to all county purchases
exceeding $10,000. I: also is significant that the current act omits the language of the old,
pre-reform law apparently limiting its application to purchases made by counties when
acting through their commissioners courts. The former law read in part:

expenditure or
payment in an amount exceeding five thousand dollars ($5,000.00)
out of any fund or funds of any... county or subdivision of any
Acts 1981, 67th Leg., ch. 853, § 2, at 3242 (amended by Acts 1985, 69th Leg., ch. 505,
§ 2; repealed by Acts 1987, 70th Leg., ch. 149, § 49(1)) (emphasis added).

In Attorney General Opinion MW-439 (1982), this office decided that the
competitive bidding laws then in effect? did not apply to a iaw'® that, like chapter 59,
created a special fund in the county treasury that was under the administrative contro! of
local officials other than the commissioners court. That decision was based in part on a
restrictive phrase (“acting through its Commissioners Court") in one predecessor
competitive bidding statute, V.T.C.S. art. 2368a, which language was omitted in the
legisistion that was enacted as article 2368a.5!! and is now codified as subchapter C of
chapter 262 of the Local Government Code. That opinion also relied on language (“in the
judgment of the Commissioners Court") in a competitive bidding law that
was repealed. V.T.C.S. art. 16592 (repealed by Acts 1985, 65th Leg., ch. 641, § 11).

9Those laws were V.T.C-S. article 2368a, Acts 1981, 67th Leg, ch. 853, § 2 (repealed by Acts
1987, 70th Leg., ch. 149, § 49(1)), and V.T.C.S. article 16590, Acts 1959, 56th Leg., ch. 105, § 1, at 187
(repealed by Acts 1985, 69h Leg., ch 641, § 11). Article 2368s at that time contained the language that
is quoted in the preceding paragraph in the text. Article 1659a provided in part:

In all counties having a population of eight hundred thousand . . . or more,
. supplies of every kind, road and bridge material, or any other material, for
the use of said county, or airy of its officers, departments, or institutions must be
purchased on competitive bids, the contract to be awarded to the party who, in
the judgment ¢ of the Commissioners Court, has submitted the lowest and best bid.

Id.

1The law was afticle 53.08 of the Code of Criminal Procedure (repealed by Acts 1987, 70th
Leg., ch. 167, § 4.01(b)). ‘The subject mater of former article 53.08 is mow located at article 102.007.

13 Acts 1985, 69th Leg., ch. 641 (repealed by Acts 1987, 70th Leg, ch. 149, § 49(1)).

p- 1269

Finally, the opinion relied on statutory language granting “sole discretion,” Code Crim.
Proc. art. 53.08(e) (repealed _1987),!2 to the prosecuting attorney in making expenditures
from the special fund. Attorney General Opinion MW-439 at 5. Such strong language
does not appear in chapter 59.4

Even when former article 2368e, V.T.C.S., contained a phrase apparently
restricting the competitive bidding law to actions taken by the commissioners court, we -
have been reluctant to construe that language strictly. See Attorney General Opinion
JM-313 (1985) at 3.4 A broad construction of the competitive bidding laws is more in

[The} lof titive bidding} is to stimul 2
prevent favoritism and secure the best work and materials at the
lowest practicable price, for the best interests and benefit of the
taxpayers and property owners.

Sterrett v. Bell, 240 S.W.2d $16, 520 (Tex. Civ. App.—Dallas 1951, no writ), quoted with
approval in Texas Highway Comm'n v. Texas Ass'n of Steel Importers, Inc., 372 §.W.2d
$25, 527 (Tex. 1963). Considering the beneficent purpose as well as the broad language

¥2Former V.T.C:S. article $3.08, subsection (e), provided in part as follows:

(e) Fees collected under this article shall be deposited iz the county treasury
im 2 special fund tw be administered by the county atioracy, district stloracy, or
Criminal district atioraey. 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.

in Attomey General Opinion JM-313 (1985), this office emphasized that the decision in
Attorney General Opinion MW-439 was based in part on the strong language (quoted above ia note 11)
vesting exctusive discretion in the prosecuting attorney to make purchases out of the hot-check Send.
Attorney General Opinion JM-313 at 2-3. In Attorney General Opinion IM-967 (1968) this office noted
that the "hot check fund” law and the competitive bidding statutes had beca amended but concluded that
the amendments did not change owr conclusion ia Attorney GeneraS Opinion MW-439 that “hot check
fund” purchases are not subject to competitive bidding requiremeats. Attorncy General Opinion IM-967
at 2.

Ip Attorney Genera! Opinion JM-313, this office tempered somewhat our analysis, in Aftoracy
Genera] Opinion MW-439, of the restrictive language (“acting through its Commissioners Court’) of
former article 23682 by making the following clarification:

We emphasize that [Attoracy General Ojpinicon [MW-439} does not indicate that
expenditures by a county officer never fall within the scope of statutes which
contain express references to actions taken by the commissioners court. Because
county finds heve been traditionally administered and expended by the
commissioners court, sbe legislature's reference to actions taken by the
Commissioners court may, in some instances, be intended to cover generally the
expenditure and handling of “county funds.”

Jd. 2.3 (emphasis added).

Honorable Luis V. Saenz - Page 9 (DM-246)

of the act, we would be especially reluctant to conclude that the act was impliedly

The act is readily harmonized with the purchasing authority granted to prosecuting
attorneys and law enforcement agencies under article 59.06.15 The attorney or lew
enforcement agency generally has suthority to decide what prosecutorial or law
enforcement purposes to spend forfeiture funds for, but in so doing it must deal with the
suppliers selected by the commissioners court through the bidding process provided in the
act. Except for salary, expense, or allowance increases for certain employees, the
commissioners court has no authority to reject expenditures out of forfeiture funds once
those expenditures are submitted in 2 budget. Attorney General Opinion DM-72 at 3.

We conclude that the act does apply to purchases made out of the special find in
the county treasury for the benefit of the attorney representing the state as provided by
article 59.06 of the Code of Criminal Procedure. Accordingly, Letter Opinions Nos.
88-112 and 89-30 should be disregarded to the extent that they would suggest a contrary
conchision.

You have not advanced it, but we anticipate the argument that the act and chapter
$9 could not operate together because the commissioners court would interfere with the
prosecutor's or law enforcement agency's spending authority. Although the act applies to
chapter 59, this does not mean that the commissioners court may second-guess the
prosecutor's or law enforcement agency's decision to make a purchase. The
commissioners court has a ministerial duty to initiate the competitive bidding process upon
receipt of a purchase request from the prosecutor or law enforcement agency. Although
the commissioners court has the right to reject all bids, Corbin v. Collin County
Commissioners’ Court, 651 §.W.2d 55, 57 (Tex. App.—Dallas 1983, no writ), it may not
do so for the purpose of preventing or delaying a forfeiture-fund purchase.'6

15¢f14) two laws relate to the same subject, [they] should be considered as if incorporated into one
act. Hf being so considered the two can be harmonized and effect given to each, there can be no [implied)
repeal fof the former law].° Conley v. Daughters of the Republic, 156 S$.W. 197, 199 (1913), 67 TEX.
WR. 3d Statutes § 136, at 750-51 (1989).

SérT}he various officials elected by all the voters of the county have spheres that are delegated to
them by law and within which the commissioners court may not interfere or wsurp.* Avery v. Adidland
County, 406 §.W.2d 422, 428 (Tex. 1966). “Even in matters involving some degroe of discretion, the
commissioners court may mot act arbitrarily." Vondy v. Commissioners Court, 620 §.W.26 104, 109 (Tex.
1981) (holding that district court should have granted mandamus sought by constable in petition against
county commissioners court to compel it to set reasonable salary). We assume that the commissioners
court will not sttempt to interfere with the attorney's or law enforcement agency's spending suthority by
refusing to initiate the competitive bidding process or by pretextuslly rejecting all bids. If interference
were to occur, however, the attorney or law enforcement agency could seck mandamus relief from the
courts.

p. 1271

Honorable Luus V. Ssenz - Page 10 (DM-246)

SUMMARY

The County Purchasing Act (“the act"), sections 262.021 - .035
of the Local Government Code, applies to purchases made out of the
a earasy naeectian the nate co edad ty side 0.06 at the

attorney representing the state as provided by article 59.06 of the
Code of Criminal Procedure. The commissioners court has a
ministerial] duty to initiate the competitive bidding process upon
receipt of a request from the prosecutor or law enforcement agency
and may not refuse all bids received for the purpose of preventing an
expenditure out of the special find. Letter Opinions Nos. 88-112
and 89-30 should be disregarded to the extent that they would

. MORALES
Attorney General of Texas

SS.

WILL PRYOR
First Assistant Attorney General

MARY KELLER

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Commi

Prepared by James B. Pinson
Assistant Attorney General

p- 1272