Does a Texas prosecutor have to use county competitive bidding when spending money from the hot check fund?

Texas AG Opinion JM-967: The Hot Check Fund and County Bidding Rules

Plain-English summary

When someone passes a bad check in Texas, the prosecutor's office often handles collecting on it, and the office charges a fee for that work. Those fees pile up in what everyone calls the "hot check fund," a special account controlled by the county, district, or criminal district attorney. The money can only be spent on the salaries and expenses of the prosecutor's office, and the prosecutor cannot use it to pad his own salary. The Hidalgo County Auditor had a specific question about how that money can be spent: when the prosecutor buys things with hot check funds, does he have to follow the county's normal competitive bidding rules, the sealed-bid, lowest-responsible-bidder process that applies to ordinary county purchases?

The Attorney General said no, and the reasoning comes straight from the words of the statute. Article 102.007 of the Code of Criminal Procedure says expenditures from the fund "shall be at the sole discretion of the attorney." Competitive bidding, by contrast, is run by the commissioners court, which administers the process and decides whether to accept or reject bids. If you layered the bidding rules on top of the hot check fund, you would effectively give the commissioners court a veto over how the prosecutor spends the money. It could refuse to accept any bids in a given situation and thereby block a purchase the prosecutor wanted to make. That would gut the "sole discretion" the statute gives the prosecutor. The two cannot coexist, so the bidding rules do not apply.

This was not a new conclusion. The office had said the same thing back in 1982 in Opinion MW-439. The auditor's real concern was that a later opinion, JM-313 from 1985, might have quietly changed the rule. JM-313 had said the prosecutor must administer the fund "within the confines of laws applicable to the use of county funds," which could sound like it was pulling the fund back under all the usual county spending rules, including bidding.

The Attorney General rejected that reading. JM-313, he explained, was making a narrower point. It recognized that even though the commissioners court does not approve hot check fund spending, the fund is still subject to the general statutes about handling county money, things like the county auditor's power to set accounting and control procedures for deposits and disbursements, and the reporting requirements that apply to county funds. Being subject to those bookkeeping and oversight rules is a different matter from being subject to competitive bidding. There was no real conflict between the two opinions. So the office reaffirmed MW-439: hot check fund expenditures are not subject to the county competitive bidding requirements.

Currency note

This opinion was issued in 1988. 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.

The hot check fund statute (article 102.007 of the Code of Criminal Procedure) and the county competitive bidding statutes (sections 262.021 et seq. of the Local Government Code) have been amended since 1988, and the fee amounts, permitted uses, and bidding thresholds have changed. Anyone dealing with a prosecutor's hot check fund or county purchasing today should consult the current statutes rather than relying on the provisions as they stood in 1988.

Who this opinion affected (as of 1988)

County, district, and criminal district attorneys: The opinion confirmed their control over hot check fund spending and freed those expenditures from the county competitive bidding process.

County auditors and commissioners courts: The opinion clarified that while the fund remains subject to normal accounting, control, and reporting rules, the commissioners court's bidding process does not reach it.

County taxpayers: The opinion explained the boundary between prosecutorial discretion over a fee-funded account and the county's general purchasing controls.

Common questions

Does a prosecutor have to use county competitive bidding to spend hot check funds?
No. In this opinion the Attorney General concluded that because hot check fund expenditures are made at the sole discretion of the attorney under article 102.007, they are not subject to the county competitive bidding requirements.

Why would competitive bidding conflict with the fund?
Because competitive bidding is administered by the commissioners court, which could reject bids and thereby control the prosecutor's spending, interfering with the exclusive discretion the statute grants over the fund.

Is the hot check fund free of all oversight, then?
No. The fund remains subject to general statutes on handling county money, including the county auditor's accounting and control procedures and applicable reporting requirements. It just is not subject to competitive bidding.

Did the 1985 opinion (JM-313) change the rule?
No. The Attorney General held that JM-313 did not overrule the 1982 opinion (MW-439); it only recognized that the fund is subject to general county-money statutes, not to competitive bidding.

Background and statutory framework

Article 102.007 of the Code of Criminal Procedure (formerly article 53.08) provides for the collection by a county attorney, district attorney, or criminal district attorney of a fee in connection with collecting or processing a check or similar sight order that was issued or passed in a manner constituting one of the offenses enumerated in the article. Subdivision (e) provides that fees collected are deposited in the county treasury in a special fund administered by the attorney, that expenditures from the fund are at the sole discretion of the attorney and may be used only to defray the salaries and expenses of the prosecutor's office, and that in no event may the attorney supplement his own salary from the fund.

Attorney General Opinion MW-439 (1982) addressed the same question and concluded that because the competitive bidding provisions (then articles 2368a and 1659a) require the commissioners court to administer the procedure and to reject bids or award contracts to the lowest responsible bidders, those provisions cannot apply to purchases from the hot check fund, which are made at the sole discretion of the attorney. The auditor pointed to Attorney General Opinion JM-313 (1985), which stated that the attorney "must administer the fund within the confines of laws applicable to the use of county funds," and suggested it may have implicitly overruled MW-439 as to competitive bidding.

The Attorney General disagreed. JM-313 simply pointed out that although expenditures from the hot check fund are not subject to commissioners court approval, the fund is generally subject to statutes regulating the handling of county money, citing Attorney General Opinion MW-188 (1980) (fund subject to the county auditor's power to prescribe accounting and control procedures for deposits and disbursements) and Attorney General Opinion MW-584 (1982) (fund subject to various reporting requirements applicable to county funds). There was no conflict between JM-313 and MW-439. Subjecting hot check fund expenditures to the competitive bidding requirements would place ultimate control of these expenditures in the commissioners court, which could refuse to accept any or all bids in a particular instance and thus interfere with the exclusive right of the designated attorneys to administer the fund and to determine when, for what purposes, and under what circumstances expenditures are made, contrary to the express provision that expenditures shall be at the sole discretion of the attorney. Finding nothing in the current provisions of state law to change the conclusion, the office reaffirmed MW-439 that hot check fund expenditures are not subject to the competitive bidding requirements.

Citations

Statutory authority:

• Article 102.007, Texas Code of Criminal Procedure (formerly article 53.08) (hot check fund; sole discretion of the attorney)
• Sections 262.021 et seq., Local Government Code (county competitive bidding and competitive proposal requirements)

Cases: none cited.

Prior Attorney General opinions referenced: MW-439 (1982), JM-313 (1985), MW-188 (1980), MW-584 (1982).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-967
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0967.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. The opinion's own text at points labels article 102.007 as being in the Local Government Code; the correct location is the Code of Criminal Procedure, as stated in the opinion's caption.

October 20, 1988

Mr. Stephen F. Austin, C.P.A.
Hidalgo County Auditor
Hidalgo County Courthouse
Edinburg, Texas 78539

Opinion No. JM-967

Re: Competitive bidding requirements on items purchased with funds under article 53.08, now section 102.007, of the Texas Code of Criminal Procedure (RQ-1504)

Dear Mr. Austin:

You ask whether expenditures from the so-called "hot check fund" provided for by article 102.007 of the Code of Criminal Procedure are subject to the competitive bidding and competitive proposal requirements generally applicable to county purchases pursuant to sections 262.021 et seq. of the Local Government Code.

Article 102.007 provides for the collection by a county attorney, district attorney, or criminal district attorney of a fee in connection with the collection or processing by his office of a check or similar sight order if the check had been issued or passed in a manner constituting one of the offenses enumerated in that article. Subdivision (e) of article 102.007 provides with respect to the disposition of such fees as follows:

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, but in no event may the county attorney, district attorney, or criminal district attorney supplement his own salary from this fund. (Emphasis added.)

Attorney General Opinion MW-439 (1982) dealt with the same question and concluded that since the competitive bidding provisions (then articles 2368a and 1659a) require the commissioners court to administer the procedure and to reject bids or award contracts to the lowest responsible bidders, those provisions could not apply to purchases from the "hot check" fund which are made "at the sole discretion of the attorney."

You point to the statement in a later opinion, Attorney General Opinion JM-313 (1985), that the "attorney must administer the fund within the confines of laws applicable to the use of county funds," and suggest that that opinion may have implicitly overruled the conclusion of MW-439 with respect to the applicability of the competitive bidding and proposal requirements to purchases from the "hot check" fund.

We disagree. Attorney General Opinion JM-313 simply pointed out that although expenditures from the "hot check" fund were not subject to commissioners court approval, the fund was generally subject to statutes regulating the handling of county moneys, citing Attorney General Opinions MW-188 (1980) ("hot check" fund subject to county auditor's power to prescribe accounting and control procedures for making deposits and disbursements), and MW-584 (1982) ("hot check" fund subject to various reporting requirements applicable to county funds).

We find no conflict between JM-313 and MW-439. We adhere to the rationale of MW-439 that to subject "hot check" fund expenditures to the competitive bidding requirements would place ultimate control of these expenditures in the commissioners court which "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." Attorney General Opinion MW-439 (1982), at 6. Such a result would be contrary to the express provision of section 102.007 that "[e]xpenditures from this fund shall be at the sole discretion of the attorney."

Though they have undergone subsequent amendment and codification we find nothing in the current provisions of state law regulating these matters which changes the conclusion we reached in MW-439.

We therefore reaffirm the conclusion of MW-439 that expenditures from the "hot check" fund are not subject to the competitive bidding requirements.

SUMMARY

Attorney General Opinion JM-313 (1985) did not overrule Attorney General Opinion MW-439 (1982). Expenditures from the "hot check" fund created under Code of Criminal Procedure article 102.007 are not subject to the competitive bidding requirements generally applicable to county purchases.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General