Does a Texas criminal district attorney's office have to follow the county purchasing agent's rules?

Plain-English summary

A criminal district attorney's office spends public money, and the question here was whose purchasing rules govern that spending. The Tarrant County Criminal District Attorney asked the AG whether her office had to comply with the procedures and rules adopted by the county's purchasing agent. The answer required sorting out how the office fits into the county's purchasing structure.

The AG started with the office's status. A criminal district attorney is a kind of district attorney, created by the Legislature for certain counties, and for purchasing and financial-accounting purposes the Legislature designates the office as a "specialized local entity" under Local Government Code section 140.003. That status makes the office separate and distinct from the county. The office still deposits its funds in the county treasury and the county holds, disburses, and cares for those funds and the county auditor may audit them, but on deposit the funds become the office's funds to be disbursed as the office directs, and they lose their character as county funds. The key purchasing provision, section 140.003(b), says the office "shall purchase items in accordance with the same procedures and subject to the same requirements applicable to a county under Subchapter C, Chapter 262," the County Purchasing Act, and that the office is "treated as if it were a county" and may contract with the county to perform its purchasing.

From there the AG split chapter 262 into its subchapters. Subchapter B is the part that lets a county employ a purchasing agent and sets out that agent's duties, including supervising competitive-bid transactions and making non-competitive purchases, backed by criminal penalties. Section 140.003(b) ties the office only to subchapter C, not subchapter B, and the office is not a subdivision of the county for purchasing. So the AG concluded a criminal district attorney is not subject to rules a county purchasing agent adopts under subchapter B. But subchapter C, the County Purchasing Act, itself grants the purchasing agent specific rule-making authority: section 262.0235 requires rules ensuring the identification, security, and confidentiality of electronic bids or proposals, and section 262.0245 requires procedures for competitive procurement when an item is not subject to competitive bidding or draws no responsive bid. Because section 140.003(b) treats the office as if it were a county subject to the same County Purchasing Act requirements, the AG concluded that to the extent a county is subject to those purchasing-agent rules under the County Purchasing Act, the criminal district attorney's office is subject to them as well.

Currency note

This opinion was issued in 2019. 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.

What the opinion meant for those who asked

Criminal district attorney offices: At the time of the opinion, the AG read section 140.003 to keep the office independent of the county purchasing agent's general subchapter B rules, while still binding the office to the County Purchasing Act's requirements, including the agent's rules on electronic-bid confidentiality and competitive-procurement procedures adopted under that act. The office was "treated as if it were a county" for those purposes.

County purchasing agents and commissioners courts: The opinion drew a line between the agent's subchapter B supervisory authority (which did not reach the specialized local entity) and the agent's subchapter C rule-making under the County Purchasing Act (which did). It also noted the office could contract with the county to perform its purchasing functions.

County auditors and treasurers: The opinion restated that the office deposits its funds in the county treasury and the county cares for and disburses them subject to county-auditor review, but that the funds become the office's to direct once deposited, consistent with prior opinions on the auditor's role.

Common questions

Is a criminal district attorney's office part of the county for purchasing?
No. The opinion explained that section 140.003 designates the office a "specialized local entity," separate and distinct from the county, though treated "as if it were a county" for purchasing under the County Purchasing Act.

Does the office have to follow the county purchasing agent's rules?
It depends on which rules. The AG concluded the office is not subject to rules the agent adopts under subchapter B of chapter 262, but is subject to the rules the agent adopts under subchapter C, the County Purchasing Act.

Which County Purchasing Act rules bind the office?
The opinion pointed to section 262.0235 (security and confidentiality of electronic bids or proposals) and section 262.0245 (competitive-procurement procedures for items not competitively bid or drawing no responsive bid).

Can the office just have the county do its purchasing?
Yes. The opinion noted section 140.003(b) lets a specialized local entity contract with the county for the county to perform the entity's purchasing functions.

Background and statutory framework

A criminal district attorney is a class of district attorney created by the Legislature for certain counties (Hill County v. Sheppard; Texas Constitution article V, section 21; Government Code section 44.001), and the office can function as a district, state, or local official depending on the task (MW-252; the Fifth Circuit decisions in Esteves v. Brock and Crane v. County of Dallas). For purchasing and financial accounting, section 140.003 designates the office a specialized local entity separate from the county (El Paso County v. Solorzano, recognizing DM-460's conclusion that the office is distinct from the county for financial and purchasing purposes). The office deposits funds in the county treasury, which holds and disburses them subject to county-auditor review (GA-0978; GA-0053), files a financial statement and budget with the commissioners court (section 140.003(c); JM-70), yet directs disbursement of its own funds once deposited (JC-0209).

On purchasing, section 140.003(b) ties the office to subchapter C of chapter 262 (the County Purchasing Act, sections 262.021-.037), treating the office as if it were a county. Subchapter B (sections 262.011, .0115) authorizes a county purchasing agent and defines that agent's bidding-supervision and purchasing duties, with criminal penalties under section 262.011(m). Because section 140.003(b) does not extend subchapter B to the office and the office is not a county subdivision for purchasing, the AG found subchapter B inapplicable. The County Purchasing Act's own rule-making grants in sections 262.0235 and 262.0245, however, apply to the office to the same extent they apply to a county.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, § 21
• Tex. Gov't Code § 44.001; §§ 41.107, 41.201, .203; §§ 46.002(2), .003, .004(a)
• Tex. Code Crim. Proc. arts. 59.06, 102.007
• Tex. Loc. Gov't Code § 140.003(a), (b), (c), (f), (g); §§ 262.011(a), (d), (e), (m), (o), .0115; §§ 262.021-.037; §§ 262.0235, .0245

Cases:

• Hill Cty. v. Sheppard, 178 S.W.2d 261, 263 (Tex. 1944)
• Esteves v. Brock, 106 F.3d 674, 677-78 (5th Cir. 1997)
• Crane v. Cty. of Dallas, 766 F.2d 193, 194-95 (5th Cir. 1985)
• El Paso Cty. v. Solorzano, 351 S.W.3d 577, 582-83 (Tex. App.-El Paso 2011, no pet.)

Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0523 (2007)
• Tex. Att'y Gen. Op. No. MW-252 (1980)
• Tex. Att'y Gen. Op. No. GA-0978 (2012)
• Tex. Att'y Gen. Op. No. GA-0053 (2003)
• Tex. Att'y Gen. Op. No. JM-70 (1983)
• Tex. Att'y Gen. Op. No. JC-0209 (2000)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0264
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp0264.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 13, 2019

The Honorable Sharen Wilson Opinion No. KP-0264
Tarrant County Criminal District Attorney
401 West Belknap Re: Purchasing authority of a criminal district
Fort Worth, Texas 76196-0201 attorney's office as a specialized local entity
under Local Government Code section
140.003 (RQ-0272-KP)

Dear Ms. Wilson:

    You ask whether a criminal district attorney's office must comply with purchasing

procedures and rules adopted by a county purchasing agent.1 A criminal district attorney is "a
class or kind" of district attorney. Hill Cty. v. Sheppard, 178 S.W.2d 261, 263 (Tex. 1944). The
Legislature creates the office of criminal district attorney for certain counties, and where created,
the criminal district attorney acts in lieu of and performs the functions of the county attorney. Tex.
Att'y Gen. Op. No. GA-0523 (2007) at 2; see TEX. CONST. art. V, § 21; TEX. GOV'T CODE
§ 44.001. This office generally classifies criminal district attorneys as district officers, but
depending on the function performed, these officers can qualify as state or local officials. Tex.
Att'y Gen. Op. No. MW-252 (1980) at 2; see Esteves v. Brock, 106 F.3d 674, 677-78 (5th Cir.
1997); Crane v. Cty. of Dallas, 766 F.2d 193, 194-95 (5th Cir. 1985). For purposes of purchasing
and financial accounting, the Legislature designates criminal district attorneys as "specialized local
entities" under Local Government Code section 140.003 and provides that these entities are
separate and distinct from the county in which the criminal district attorney exercises jurisdiction.
See TEX. LOC. GOV'T CODE § 140.003(a), (f); El Paso Cty. v. Solorzano, 351 S.W.3d 577, 582-83
(Tex. App.-El Paso 2011, no pet.). However, section 140.003 delegates certain responsibilities
to the county with respect to the finances of a specialized local entity.2

    As a specialized local entity, a criminal district attorney must deposit funds allocated to the

office into the county treasury.3 TEX. LOC. GOV'T CODE § 140.003(f) ("Each specialized local
entity shall deposit in the county treasury of the county in which the entity has jurisdiction the
funds the entity receives."). The county must then "hold, deposit, disburse, invest, and otherwise
care for the funds" on behalf of the criminal district attorney, and the funds are subject to audit by
the county auditor to the same extent county funds are subject to the auditor's authority. Id.
§ 140.003(f), (g); see Tex. Att'y Gen. Op. Nos. GA-0978 (2012) at 1-2 (discussing role of county
auditor with respect to specialized local entity's funds), GA-0053 (2003) at 2 (discussing that
certain state funds distributed to a prosecutor are not subject to county audit). The criminal district
attorney must also prepare and file a financial statement and budget with the county commissioners
court. TEX. LOC. GOV'T CODE § 140.003(c); but see Tex. Att'y Gen. Op. No. JM-70 (1983) at 2
("It is our opinion that the budgetary statutes permit the commissioners court to determine the
[district attorney's] use of county funds only."). The statute therefore vests the county with some
oversight and responsibility for the criminal district attorney's funds; however, section 140.003
also provides that the criminal district attorney is distinct from the county for financial purposes
and that the county must "disburse" the funds on behalf of the criminal district attorney as the
entity directs. TEX. LOC. GOV'T CODE § 140.003(f); see Solorzano, 351 S.W.3d at 583
(recognizing Attorney General Opinion DM-460's conclusion that section 140.003 provides that
the criminal district attorney is distinct from the county for financial accounting and purchasing
purposes because if the office was part of the county, "there would be no need to require" the
deposit in the county treasury or disbursement by the county). Thus, upon deposit in the county
treasury, "the funds become funds of the [criminal district attorney] to be disbursed as directed by
[that office] and lose their character as county funds." Tex. Att'y Gen. Op. No. JC-0209 (2000) at
4.

   Regarding the purchasing authority of the criminal district attorney, subsection 140.003(b)

provides:

              A specialized local entity shall purchase items in accordance with
              the same procedures and subject to the same requirements
              applicable to a county under Subchapter C, Chapter 262 [the County
              Purchasing Act]. For the purposes of this section, a specialized local
              entity is treated as if it were a county. A specialized local entity may
              make a contract with a county under which the county performs
              purchasing functions for the entity.

TEX. LOC. GOV'T CODE § 140.003(b) (footnote omitted). This subsection-consistent with section
140.003's other provisions-provides that a criminal district attorney is not a subdivision of the
county for purchasing purposes. See id. Rather, the criminal district attorney "is treated as if it
were a county" for purchasing purposes and may contract with the county to perform its purchasing
functions. Id. However, subsection 140.003(b) mandates that the criminal district attorney
purchase items in accordance with the requirements applicable to a county under subchapter C,
chapter 262 of the Local Government Code. Id. Commonly known as the County Purchasing Act,
this subchapter generally requires counties to make certain purchases using competitive bidding
procedures. Id. §§ 262.021-.037 ("County Purchasing Act").

    With this background in mind, we turn to your question as to whether a criminal district

attorney must comply with rules and procedures adopted by a county purchasing agent. Request
Letter at 2. Subchapter B of chapter 262 of the Local Government Code provides that a county
may employ a person to act as the county purchasing agent. TEX. LOC. GOV'T CODE §§ 262.011(a),
.0115. Under subchapter B, the duties of the purchasing agent depend upon whether a purchase
or contract is subject to competitive bidding. Id. § 262.011(d). For purchases and contracts subject
to competitive bidding, subchapter B requires the purchasing agent to supervise these transactions.
Id. § 262.011(e). For purchases and contracts not subject to competitive bidding, the purchasing
agent must "purchase all supplies, materials, and equipment . . . and contract for all repairs to
property used, by the county or a subdivision, officer, or employee of the county." Id. § 262.011(d)
(providing that a "person other than the county purchasing agent may not make the purchase of
the supplies, materials, or equipment or make the contract for repairs"), 262.011(m) (providing
criminal penalties for violation of section). Subchapter B also vests the purchasing agent with the
authority "necessary to implement" these duties subject to approval by the commissioners court.
Id. § 262.011(o).

     With respect to the criminal district attorney, subsection 140.003(b) does not expressly

provide that subchapter B of chapter 262 governs specialized local entities. Id. § 140.003(b).
Rather, it requires specialized local entities to comply only with subchapter C of that chapter (the
County Purchasing Act). Id. Moreover, as subsection 140.003(b) provides that a specialized local
entity is not part of the county for purchasing purposes, a criminal district attorney is not generally
subject to subchapter B as a subdivision of the county. See id. Accordingly, a criminal district
attorney is not subject to rules adopted by a county purchasing agent pursuant to subchapter B.

     However, the County Purchasing Act-which governs specialized local entities-also

provides the purchasing agent with specific grants of rule-making authority. See id. §§ 262.0235,
.0245. Section 262.0235 provides that the purchasing agent "shall adopt rules" ensuring the
"identification, security, and confidentiality of electronic bids or proposals." Id. § 262.0235. The
purchasing agent, under section 262.0245, must also adopt procedures providing "for competitive
procurement, to the extent practicable under the circumstances, for the county purchase of an item
that is not subject to competitive procurement or for which the county receives no responsive bid."
Id. § 262.0245.4 Thus, for county purchases not subject to competitive bidding or for which the
county receives no responsive bids, the county purchasing agent must adopt other procedures for
competitive procurement. Id. Subsection 140.003(b) instructs that, for purposes of the County
Purchasing Act, a criminal district attorney is "treated as if it were a county" and "subject to the
same requirements applicable to a county." Id. § 140.003(b). Accordingly, to the extent a county
is subject to rules adopted by the purchasing agent under the County Purchasing Act, a criminal
district attorney is likewise subject to those rules.

                                   SUMMARY

                  A criminal district attorney is not subject to rules adopted by
          the county purchasing agent pursuant to subchapter B of chapter 262
          of the Local Government Code; however, the entity is subject to
          rules implemented by the agent pursuant to the County Purchasing
          Act.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee

1See Letter and Brief from Honorable Sharen Wilson, Tarrant Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (Feb. 15, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "Brief," respectively).
2"If a specialized local entity has jurisdiction in more than one county, the district judges having jurisdiction in those counties, by a majority vote, shall designate from among those counties the county responsible for managing the entity's funds." TEX. LOC. GOV'T CODE § 140.003(f).
3The criminal district attorney may receive funding from a variety of sources, including county and state resources. See, e.g., TEX. GOV'T CODE §§ 41.107 (county may furnish items necessary for prosecuting attorney's office and may pay expenses incident to the operation of the office), 41.201, .203 (providing state appropriations for counties with criminal district attorney), 46.002(2), .004(a) (providing state funding for certain criminal district attorneys under the Professional Prosecutors Act), 46.003 (providing that counties may supplement state prosecutor's salary); TEX. CODE CRIM. PROC. arts. 59.06 (providing that criminal district attorney may obtain funding from the disposition of forfeited property), 102.007 (providing that criminal district attorney may collect fees for processing hot checks). Depending on the source of the funding, more specific expenditure laws may apply in certain circumstances.
4In a county without a purchasing agent, "the commissioners court shall adopt" these procedures. TEX. LOC. GOV'T CODE § 262.0245.