In a Texas county that has a county purchasing agent, who is allowed to buy the county's supplies, and does the $5,000 competitive-bid rule apply to the agent?

Texas AG Opinion JM-974: County Purchasing Agents and the $5,000 Bid Rule

Plain-English summary

Big Texas counties often appoint a county purchasing agent, an officer who handles buying supplies and equipment for the whole county. The Harris County Attorney had two practical questions about how that job works, and he sent them to the Attorney General.

The first question was about who is allowed to buy things. If a county has a purchasing agent, can individual officers and departments still go out and buy their own supplies, or does everything have to run through the agent? The Attorney General's answer was clear: the purchasing agent must make all the purchases that do not have to go out for competitive bid. In other words, there are two lawful ways for the county to buy something. Either it goes through the competitive-bidding process, or it goes through the purchasing agent. A department head cannot set up a third path and buy supplies on his own. The statute backs this up with a hard enforcement mechanism. The county auditor is forbidden to draw a warrant, and the county treasurer is forbidden to honor one, for any purchase unless the purchasing agent made it or it went out for competitive bid. So an end run around the agent simply does not get paid.

The Attorney General distinguished an earlier opinion, JM-725 from 1987, which had said a county officer could buy its own supplies. That opinion involved a county that had no purchasing agent at all, so the rules about the agent did not apply. Where there is a purchasing agent, a 1978 opinion, H-1237, already held that a commissioners court could not order payment for a purchase the sheriff made on his own, bypassing the agent.

The second question was about the dollar limit. Section 262.023 of the Local Government Code says a county must use competitive bidding for a contract that will cost more than $5,000. The county attorney pointed out that in a county the size of Harris, keeping under that limit is hard, because the county maintains a large inventory of heavy equipment that constantly needs parts and repairs. Does the purchasing agent still have to follow the $5,000 rule for maintenance and repair items that come up unexpectedly? The Attorney General said yes. The statute has no exception based on how big the county is; the Legislature deliberately made the purchasing rules uniform for all counties in 1985.

That said, the same law that imposes the $5,000 threshold also lists exemptions, and those apply to the purchasing agent too. Section 262.024 exempts, among other things, an item that can be obtained from only one source, including "captive replacement parts or components for equipment." So if a maintenance or repair item really is a sole-source, captive replacement part, the commissioners court can grant the exemption and skip the bidding. But whether a given item actually qualifies as a captive replacement part is a fact question that has to be decided case by case, not something the Attorney General could resolve in the abstract.

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 county purchasing provisions cited here (sections 262.011, 262.023, and 262.024 of the Local Government Code) have been amended repeatedly since 1988, and the competitive-bidding dollar threshold and the list of exemptions have changed. Anyone dealing with county purchasing today should consult the current version of the Local Government Code rather than relying on the figures and subsections as they stood in 1988.

Who this opinion affected (as of 1988)

County purchasing agents: The opinion confirmed that they, and not individual departments, must handle all non-bid county purchases, and that they are bound by the $5,000 competitive-bidding threshold.

County officers and department heads: The opinion told them they could not buy their own supplies around the purchasing agent, because the auditor and treasurer are barred from paying for such purchases.

County auditors and treasurers: The opinion reinforced their gatekeeping role in refusing warrants for purchases that skipped both the agent and the bidding process.

Common questions

In a county with a purchasing agent, can a department buy its own supplies?
No. In this opinion the Attorney General concluded that the purchasing agent must make all purchases that are not required to go out for competitive bid. A department cannot create a separate purchasing channel.

What happens if an officer buys something on his own anyway?
It does not get paid. The county auditor may not draw, and the treasurer may not honor, a warrant for a purchase unless the purchasing agent made it or it went out for competitive bid.

Does the $5,000 competitive-bidding limit apply to the purchasing agent?
Yes. The Attorney General concluded the agent is subject to the $5,000 threshold in section 262.023, and there is no exception based on the county's size.

Are there any exceptions for maintenance and repair parts?
Yes, if the item qualifies. Section 262.024 exempts sole-source items, including captive replacement parts or components for equipment, but whether a particular item qualifies is a case-by-case factual determination.

Background and statutory framework

Under section 262.011 of the Local Government Code (formerly article 1580, V.T.C.S.), a county with a population of 74,000 or more may appoint a county purchasing agent through a board of the district judges and the county judge, for a two-year term. Section 262.011(d) requires the purchasing agent to purchase all supplies, materials, and equipment required or used, and to contract for all repairs to property used, by the county or a subdivision, officer, or employee, except purchases and contracts required by law to be made on competitive bid; a person other than the county purchasing agent may not make such purchases. Section 262.011(f) provides that a purchase made by the purchasing agent is paid by a warrant drawn by the county auditor, and that the auditor may not draw, and the treasurer may not honor, a warrant for a purchase unless it is made by the county purchasing agent or on competitive bid. Section 262.011(n) applies these rules to all purchases of supplies, materials, and equipment for the county and its officers, including purchases made by officers paid out of fees of office.

The first question was prompted by Attorney General Opinion JM-725 (1987), which concluded that a county officer, department, or institution may purchase its own supplies subject to the limitations of section 3 of article 2368a.5, V.T.C.S. (now section 262.023). But the request in JM-725 came from a county that did not have a purchasing agent, so section 262.011 did not apply. In Attorney General Opinion H-1237 (1978), the question was whether the commissioners court of El Paso County could order payment for a purchase made by the sheriff when the county had a duly appointed purchasing agent under then article 1580 (now section 262.011). That opinion concluded the commissioners court lacked authority to direct payment of a claim under a contract that contravened the statute, explaining that the purchasing agent, an officer not under the commissioners court's supervision, is the proper party to contract for all county supplies and services except those required to be let on competitive bid, and that the statute directs the auditor not to draw warrants for purchases except by the agent and those made by competitive bid. The county purchasing agent must therefore make all purchases that are not subject to the competitive-bid requirements.

On the second question, section 262.023(a) provides that before a county may purchase items under a contract requiring an expenditure exceeding $5,000, the commissioners court must comply with the competitive-bidding or competitive-proposal procedures, with all bids or proposals sealed. The statute contains no exception based on population. The Bill Analysis to Senate Bill 807 (Acts 1985, 69th Leg., ch. 641, effective September 1, 1985) explains that S.B. 807 repealed many old purchasing laws and created a uniform purchasing law for counties regardless of population, giving all counties the same purchasing requirements. Subsection (d) of section 262.011 expressly excludes purchases and contracts required by law to be made on competitive bid from the purchasing agent's authority. Because the purchasing agent is subject to the competitive-bidding requirements of section 262.023, the exceptions to those requirements apply as well. Section 262.024(a) exempts from the section 262.023 requirement a contract for certain items if the commissioners court grants the exemption by order, including an item that can be obtained from only one source, such as captive replacement parts or components for equipment (section 262.024(a)(7)(D)). Whether particular maintenance and repair items constitute captive replacement parts or components is a factual determination that must be made on a case-by-case basis.

Citations

Statutory authority:

• Section 262.011, Local Government Code (formerly article 1580, V.T.C.S.) (county purchasing agent; who may make purchases; auditor and treasurer warrant restrictions)
• Section 262.023, Local Government Code (formerly article 2368a.5, section 3, V.T.C.S.) ($5,000 competitive-bidding threshold)
• Section 262.024, Local Government Code (exemptions, including sole-source items and captive replacement parts)

Cases: none cited.

Prior Attorney General opinions referenced: JM-725 (1987), H-1237 (1978).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-974
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0974.pdf

Original opinion text

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

October 28, 1988

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002

Opinion No. JM-974

Re: Competitive bidding in counties with a county purchasing agent (RQ-1484)

Dear Mr. Driscoll:

You ask:

(1) In counties with county purchasing agents, must the county purchasing agent make all purchases which are not made by competitive bid or can individual officers and departments purchase their own supplies?

(2) Is the county Purchasing Agent subject to the $5,000 limitation imposed by TEX. GOV'T CODE section 262.023 in making purchases of maintenance and repair items the need for which is not foreseeable[?]

In your first question you ask whether the county purchasing agent in Harris County must make all purchases which are not subject to the competitive bid requirements of section 262.023 of the Local Government Code.

You advise that Harris County has a duly appointed purchasing agent subject to the provisions of section 262.011 of the Local Government Code. Section 262.011 provides in pertinent part:

(a) In a county with a population of 74,000 or more, a board composed of the judges of the district courts in the county and the county judge, by majority vote, may appoint a suitable person to act as the county purchasing agent. The term of office of the county purchasing agent is two years.

. . . .

(d) The county purchasing agent shall purchase all supplies, materials, and equipment required or used, and contract for all repairs to property used, by the county or a subdivision, officer, or employee of the county, except purchases and contracts required by law to be made on competitive bid. A person other than the county purchasing agent may not make the purchase of supplies, materials, or equipment or make any contract [described above].

. . . .

(f) A purchase made by the county purchasing agent shall be paid for by a warrant drawn by the county auditor on funds in the county treasury in the manner provided by law. The county auditor may not draw and the county treasurer may not honor a warrant for a purchase unless the purchase is made by the county purchasing agent or on competitive bid as provided by law.

. . . .

(n) This section applies to all purchases of supplies, materials, and equipment for the use of the county and its officers, including purchases made by officers paid out of fees of office or otherwise, regardless of whether the purchase contract is made by the commissioners court or any other officer authorized to bind the county by contract. An officer making a purchase out of fees of office in violation of this section may not deduct the amount of the purchase from the amount of any fees of office due the county. (Emphasis added.)

You state that your question was prompted by Attorney General Opinion JM-725 (1987). In Attorney General Opinion JM-725 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. (now section 262.023 of the Local Government Code). The request in Attorney General Opinion JM-725 was from a county that did not have a purchasing agent. Hence, the provisions of section 262.011 were not applicable.

In Attorney General Opinion H-1237 (1978), the question arose as to whether the commissioners court of El Paso County had authority to order payment for a purchase made by the sheriff when the county had a purchasing agent duly appointed under then article 1580, V.T.C.S. (now section 262.011). In concluding that the commissioners court did not have authority to direct payment of a claim under a contract which contravened the statute, the opinion stated:

Article 1580 [now section 262.011] establishes the county purchasing agent, an officer not under the supervision of the commissioners court, as the proper party to contract for all county supplies and services except those required to be let on competitive bid. The statute prohibits any other person from entering into such contracts and directs the county auditor not to draw warrants 'for any purchases except by such agent and those made by competitive bid.'

Attorney General Opinion H-1237 (1978), at 1. The county purchasing agent must make all purchases that are not subject to the competitive bid requirements.

In your second question you ask whether the county purchasing agent is subject to the $5,000 limitation imposed by section 262.023(a), which provides:

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 subchapter. All bids or proposals must be sealed.

You state that in counties the size of Harris, compliance with the $5,000 limitation is difficult because of the maintenance of a large inventory of heavy equipment. The statute does not contain an exception based on population. The background information contained in the Bill Analysis to Senate Bill 807, Acts 1985, 69th Leg., ch. 641, at 2377, effective September 1, 1985, (now section 262.023) reflects:

S.B. 807 repeals many of these old purchasing laws and amends others and creates a new, uniform purchasing law for counties regardless of population. . . . In effect, S.B. 807 gives all counties the same requirements relating to purchasing and removes the disadvantage imposed by earlier methods of regulating the purchasing activity of county officials. . . .

Bill Analysis, Tex. S.B. 807, 69th Leg. (1985). Subsection (d) of section 262.011 expressly excludes from the county purchasing agent's authority "purchases and contracts required by law to be made on competitive bid."

You suggest that the purchase of maintenance and repair items may come within the exceptions to the competitive bidding process under the "captive replacement parts or components for equipment" exception in subsection (a)(7)(D) of section 262.024. Section 262.024 provides in pertinent part:

(a) A contract for the purchase of any of the following items is exempt from the requirement established by Section 262.023 if the commissioners court, by order grants the exemption:

. . . .

(7) an item that can be obtained from only one source, including:

. . . .

(D) captive replacement parts or components for equipment.

Since the county purchasing agent is subject to the competitive bidding requirements of section 262.023, it follows that the exceptions thereto are applicable. Before there may be an exception to the bidding requirement the parts or components must be items "that can be obtained from only one source." In addition the "maintenance and repair items" must be "captive replacement parts or components." Of necessity the factual determination of whether "maintenance and repair items" constitute "captive replacement parts or components" must be made on a case-by-case basis.

SUMMARY

In counties with county purchasing agents, the county purchasing agent must make all purchases that are not subject to the competitive bid requirements of section 262.023 of the Local Government Code. The county purchasing agent is subject to the $5,000.00 limitation imposed by section 262.023 in making purchases of maintenance and repair items unless such purchases fall within the exceptions set forth in section 262.024 of the Local Government Code.

Very truly yours,

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 Tom G. Davis
Assistant Attorney General