THE ATNBRNEY GENERAL
OF ?rExAs
Honorable Charles A. Allen Opinion No. M- 164
Criminal District Attorney
Harrison County Re: Authority of the Commissioners
Marshall, Texas Court ta ratify or approve a
purchase of equipment, supplies
or materials purchased by any
other person other than the
county engineer under facts
Dear Mr. Allen: submltted.
Your request for an opinion on the above subject matter
poses the following question:
‘Can the Commissioners Court of Harrison
County, Texas ratify or approve a purchase of
equipment, supplies or material purchased by
any other person other than the County Engineer?”
You state In your request that the voters of Harrison
County pursuant to the provisions of Section 31 of House Bill 1346,
Acts 60th Legislature, Regular Session, 1967, Chapter 778, Page
2076, adopted the provisions of said Act. House Bill 1346 is
an Act commonly known as the Harrison County Road and Bridge Law
and Is an Act relating to the establishment of a more efficient
road system for Harrison County. Sections 9 and 14 of said Act
provide as follows:
“Sec. 9. The Commissioners Court of Harrison
County, Texas, shall have authority to purchase all
machinery, equipment, supplies, and materials neces-
sary, requisite and/or convenient to lay out, con-
struct, repair, and maintain an integrated and
correlated system of all-weather local public roads
tin such county, with gravel or other all-weather
surface, and to make payment therefor out of the
general road and bridge fund. Before any such
machinery, equipment, supplies, and materials are
purchased under the provisions of this section, the
commissioners court shall order the county engineer
Honorable Charles A. Allen, page 2 (~-164)
to prepare speclficatlons for such machinery, equlp-
ment, supplies, or materials, and the commissioners
court shall use such specifications as recommenda-
tions In making Its purchases.
nor reJectIon-of all machinery, equipment,
tbbls, supplies, and materials ordered by the com-
mlssloners court for use In the laying out, opening,
widening, constructing, draining, grading, repairing,
and maintenance of the county roads, and shall receipt
for such machinery, equipment, tools, supplies, and
materials purchased by the county for the road and
bridge department.
“The county engineer shall keep a dally report,
In triplicate, which shall show the amount of supplies
and materials used and where the same were used, one
copy of which shall be furnished the county auditor,
one copy ot the commissioners court, and one copy
shall be retained In his office; said report shall
show which project such supplies and materials are
charged to and shall so allocate the expenditures
made on each pro ect as to show the cost thereof.”
(Emphasis added. 3
“Set o 14. The county engineer Is empowered and
authorized to purchase, rent, lease, or hire all neces-
sary machinery, Implements, tools, labor, and materials
required to maintain, construct, and Improve the public
roads of Harrison County, Texas, subject to the rules
and regulations adopted by the commissioners court
and the terms of this Ac t . 11 purchases made, for
the use of the road and bridge department of said
county, In an amount In excess of $500, shall be made
on the basis of competitive bids, except as may be
otherwise provided by order of the commissioners court.
Purchases of under $500, required for the efficient
operation of the road and bridge department, shall be
made by the county engineer under the rules and regu-
lations adopted by the Commissioners Court of Harrison
-169-
Honorable Charles Ai Allen, page 3 (M-164)
County, Texas. No purchase’shall be made’ for
the benefit of the road and bridge department
for which funds are not provided ,ln the current
approved road and bridge department budget, ex-
cept In the case of emergency Involving public
safety, hsalth, and the protection of life and
property. (Emphasis added).
You state in your request that pursuant to Section 14
above quoted the Commissioners Court of Harrison County adopted
certain rules and regulations and that paragraph 3 of said rules
and regulations reads as follows:
“3. All purchases for the Road and Bridge
Department shall be made In strict compliance
with Sec. 14 of the Road and Bridge Law. The
Engineer shall be the sole and exclusive ps
chasing agent. Any purchase made wlthout his
authorization shall be void. In the event of
a purchase wlthout the authority of the Engineer,
such person usurplng the authority of the Engineer
shall be lndlvldually responsible to the supplier
or other person involved. The Rnglneer shall be
authorized to purchase materials and supplies,
which in his judgment dare necessary for the opera-
tion of the Road and Bridge Department, but no one
purchase shall exceed Five Hundred Dollars ($500.00),
unless previously authorized by a contract entered
into as required by Sec. 14 of the Road and Bridge
Law. ” (Emphasis added ) .
Construing the provisions of Sections 9 and 14 of House
Bill 1346 above quoted together, we note that the ultimate power
for the purchase of machinery, equipment, supplies and materials
necessary requisite and/or convenient to lay out, construct, repair
and maintain public roads In Harrison County rests in the Commlsslonerl
Court of Harrison County.
While the Commissioners Court cannot bind the county by
ratification of an Illegal contract (Cermo Mfg. Co. vs. Coleman
C!ULUI;~,~;~& S.W. 1063 (Tex.Clv.App. lglb, no writ) Ll mestone
Y Knox, 234 S.W. 131 (Tex.Clv.App. 1921, ho writ)
bchlltree County vs. Hedrlck, 366 S.W.2d 866, (Tex.Clv.Appf 1963,
error ref. n.r.e.11, it Is well settled law in this State that
what the Commlssloners Court could have authorized In the beginning,
the Commlssloners Court may subsequently ratify; and where a county
receives benefits under a contract not made In conformity with the
Constitution or statute of the State, the county will be held liable
Honorable Charles A, Allen, page 4 (M-164)
on an Implied contract for the reasonable value.of the benefits
which ttie county may have received. Rbdners vs. CountV of Tavlor.
.W.2d 794 (Tex.Clv.ADDLl963, no- Cameron County vs.
%?61 S W~i?d 483 of San’ Ant on10 vs.
E&h, al,iex. 575,
‘?‘ex;707; 27 S;W. 258
Tex. 234;24 S.W.
341, 78 S.W.2d 929
560 (Tex.Clv.ADD.
tiouniy_, 118 Si’:2d g30-(Tex.&v.App. 193cII rror dlsm.).
This ruling ls,succlnctly summarized In Rodger$ vs.
County of Taylor, supra, as follows:
“We have concluded that the Conusisslonersl
Court had authority to pay Rodgers’ bill’. When
the Comlssloner8’ Court ratified the contract
of the District Attorney, the’county w&e bound
by such contract, ‘What the commlsslonera’
court could have authorized In the ba~lqnl~,
that court could subse+ently ratify. Cameron
County v. FOX, Tex.Com.App., 61 S.W.2d 483.
“If the Commlsslonere’ Court did not have
authority’ to pay Rod,gere,’ bill under the above
statute, we hold that the Commissioners1 Court
was authorized to pay Rodgers’ ‘blll~ under &n
Implied contract. In Sluder v. City of San
Antonio, Tex.Com.App., 2 S.W.2d 841, the court
said ‘Since the decision In the IPrenoh’Case.
fity of San Antonio v. French, 80 Tex. 575,
T6 S.W. 4407 our courts have uniformly announced
the doctrliGe that where a county or munlcl allty
receives benefits under a contract, illega P
because not made In conformity with the Con-
stitution or statute of the state, or charter
provision of the city, It will be held liable
on an Implied contract for the reasonable value
of the benefits which It may have received. In
other words, while such contracts are void, and
no recovery Is permitted thereon, our courts hold
that common honesty and fair dealing require that
a county or municipality should not be permitted
to receive the benefit of money, property, or
services, without paying just compensation there-
for. Under such circumstances, a private cor-
poration would clearly be liable under an Implied
-771.
.
Honorable Charles A. Allen, page 5 (M-164)
contract. There can be no sound reason why the
same obligation to do justice should not rest
upon a municipal corporation.'"
In Leon County vs. Vann, supra, the county was not per-
mitted to assert a want of authority where the Commissioners Court
had ratified the contract made by the agent, the court stating:
.The reasonable intendment from this
11
. .
averment is that Leon county recognized and
ratified the contract which had been made on
Its behalf, and paid the defendant for the work
that had been done In pursuance of its terms.
It Is clear that, in such a case, the defendant
should not be permitted to assert a want of
authority In the agents who purported to act
on behalf of the county in maklng the contract.
Having received the benefit of the contr;ct, he
is estopped to deny its validity. . . .
In view of the foregoing authorities, you are advised
that the Commissioners Court of Harrison County may ratify or
approve a purchase of equipment, supplies or material purchased
pursuant to the provisions of Houee Bill 1346, Acts 60th Leglsla-
ture, Regular Session, 1967, Chapter 778, Page 2076, even though
such purchase was made by a person other than the county engineer.
SUMMARY
The Commissioners Court of Harrison County may
ratify or approve a purchase of equipment, supplies,
or material purchased pursuant to the provisions of
House Bill 1346, Acts 60th Legislature, Regular Ses-
sion, 1967, Chapter 778, Page 2076, even though such
purchase was made by a person other than the county
engineer.
very truly,
Prepared by John Reeves
Assistant Attorney General
Honorable Charles A. Allen, page 6 (M-164)
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
Brandon Blckett
Harold Kennedy
Roger Tyler
A. J. CARUBBI, JR.
Staff Legal Assistant