Untitled Texas Attorney General Opinion ( 1974 )

December 19, 1974
The Honorable Tom Hanna Opinion No. H- 482
Criminal District Attorney
Jefferson County Re: Whether a commissioners
P. 0. Box 2553 court may ratify a contract
Beaumont, Texas 77704 for the purchase of materials
,and labor when competitive
bids were not taken, and
Dear Mr. Hanna: related questions.
According to your letter, a member of the Commissioners Court of
Jefferson County ordered approximately $900 worth of supplies and labor
(without consulting the~court or the Pu;chasing Aient) in order to repair
the county asphalt plant which produces’ asphalt foi county roads. The
person who supplied the tiaterials and labor pressnted a bill therefor which
the Commissioners Court wirhes to pay. However~, the Purchasing Agent
for the County and the County Auditor believe the contract was illegal and
not subject to ratification. They have retired to take steps toward pay-
ment of the claim.
You ask If the claim may be paid.
Article V, section 18 of the Texas Constitution states that the commi,s-
sioners court “shall exercise such powers and jurisdiction over all
county business, was is conferred by this Constitution and the laws of the
State . . . ” Article 2351. sections 6 and 7, V.,T.C.S., grants the.
commissioners court general control over all roads anal authority to keep
in repair all necessary public buildings. Since the asphalt plant in
question falls within the area of control outlined by Article 2351, the
commissioners court of most counties would have the authority to make
decisions regarding the repair of the plant. A commissioners court is
. . . ths general business and contracting agency of
the county, and it alone has authority to make contracts
binding on the county, unless othsrwise specificaliy
provided by statute. Anderson v. Wood, 152 S. W. 2d
1084, 1085 (Tex. 1941).
p. 2184
, ’
The Honorable Tom Hanna, page 2 (H-482)
But Article 1580. V. T. C. S., as amended by Acts 1971. 62nd Leg.,
ch. 837, p. 2550, provides that counties of a population of 74.000 or
more may have a purchasing agent appointed. Jefferson County. falls
into that group and such an officer has been appointed for it. The
statute reads:
Section 1 (a) In all counties . . . having a
population of seventy-four thourand (74.000) or
more inhabitants . . . a majority of a Board
composed of the judges of the District~Courts and
the County Judge . . . , may appoint a . . ..
county purchasing agent for such county, who shall
hold office, unless removed by said judges, for a
period of two (2) years . . . who shall execute a
bond in the sum of Five Thousand Dollars ($5,000)
. . . for the faithhrl performance of his duties.
(b) It shall be the duty of such agent to make
all purchases for ruch county of all supplies,
materials and equipment required or used by such
county or by a subdivision, officer, or employee
thereof, excepting such purchases aa may by law
be required to be made by competitive bid, and to
contract for all repairs t.o Droperty used by such,
county. its subdivisions. officers, and emplovees,
except such as by law are required,to be contracted
for by comnetitive bid. . .
(c) It shall be unlawfu.1 for any person, firm
or corporation, other than, such purchasing agent,
to purchase any supplies, materials and equipment
for, or to contract for any’ repairs to property used
bv such countv or subdivision, officer, or employee
thereof, and no warrant shall be drawn by the county
auditor or honored by the cJunly treasurer of any
such county for any purchases except by such agent
and those made by competitive bid as now provided
by law; . . .
(Emphasis added)
p. 2185
The Honorable .Tom Hanna, page 3 (H-482)
Articles 1659, 1659a. 1659b and 2368a, V. T. C. S., all have to do
with competitive bidding requirements, but none of them apply. Article
1659 is applicable only to ‘tsupplies and material” used in a more narrow
8 ense. Patten v. Conch0 County, 196 S. W. 2d 833 (Tex. Civ. App. --Austin
1946, no writ). Articles 1659a hand 1659b apply only to counties of populations
and assessed-valuation brackets larger than thee e of Jefferson County.
Article 2368a does not apply to purchases of less than $3,000.
.
We do not believe that the contract of repair purportedly made by the
individual Commissioner complied with Article 1580 and we do believe
that the Auditor and Treasurer of the’county are prohibited by Article 1580
from drawing or honoring warrants for purchases which are neither made
by the Purchasing Agent nor made by competitive bid.. As we understand
it, the Commissioners Court concedes the original invalidity of the
contract but contends that it may nevertheless ratify it and that after
ratification it becomes the duty of the Purchasing Agent to sign the pur-
chase order so that a warrant therefor.may properly issue.
The power of the Commissioners Court to regulate county fiscal matters
hab been altered by Article 1580 where it app1ie.s. Attorney General Opinions
M-708 (1970). WW-980 (1961). While it is axiomatic that the Commissioners
Court may ratify any action which it could have originally authorized, the
Commissioners Court of Jefferson County may not originally authorize
purchases not made in accordance with Article 1580, V. T. CS. By virtue
of that statute, control of county contracts not regulated by Article 1659,
Article 2368a, or a similar statute requiring competitive bidding, is in
the County Purchasing Agent. Control of that officer is in the special Board
of Judges created by Article 1580, not in the Commissioners Court of
Jefferson County. We do not believe the illegal contract can be ratified by
the Commissioners Court.
Though the illegal contract cannot be ratified, where a county receives
benefits under a contract not made in conformity with the statutes, it is
sometimes held liable under a theory of unjust enrichments - - a contract
implied in law - - for the value of the benefits received. Wyatt Metal &
Boiler Works v. Fannin County, 111 S. W.2d 787 (Tex.Civ.App. -- Texar-
kana 1938, writ dism’d. ), Whether or not, such would be the case here
depends upon matters not before us, and we venture no opinion on the question.
p. 2186
The Honorable Tom Hanna, page 4 (H-482)
SUMMARY
The Commisrioners Court of Jefferson County cannot
ratify an illegal contract made in violation of Article 1580,
V.T.C.S., for the repair of a county building, though it
may be liable upon a different theory for the benefits
received.
Very truly yours,
JOHN L. HILL
(/ Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Asrietant
C. ROBERT HEATH. Chairman
Opinion Committae .
p. 2187