Hon. George J. Jennings, Jr. Opinion No. C-267
County Attorney
Swisher County Re: Whether the Commission-
Tulia, Texas ers' Court of Swisher
County has authority 'to
execute a contract call-
ing for services to be
rendered to the Board of
Equalization of Swisher
County in connection
with the evaluation of
real property within
Swisher County, and
Dear Mr. Jennings: related questions.
You have regueated an opinion from this office
con'cerning the validity of a proposed contract whereby the
Board of Equalization of Swisher County would be given pro-
fessional assistance in the evaluation of real property in
connection with a revaluation program.
Your letter states that it is now proposed that
the following steps be takenr
"1. The county would give notice of its
intetition to authorize the execu-
tion of a contract with . . . for
the perforaiance of services outlined
in the contract, and of the county's
intention to issue interest Bearing
time warrants in payment of all or a
part of the contract price. The
notice would be published in the time
and manner'prwided by Article 2368a.
V.A.T.C.S., and,contain the informa-
tion therein required.
-1273-
Bon. George J. Jenninga. Jr., page 2 (C-267)
"2, At the time and place provided in the
notice - if no referendum petition
is presented - the Court would au-
thorize the issuance of the time war-
rants. The warrants would remain in
the custody of the County Clerk,
County Treasurer and County Judge for
delivery to the contractor upon esti-
mated approval by the Commissioners'
Court as the work progressed. At the
time the warrants were to be authorized,
provisions would be made for the payment
thereof in accordance with the provi-
sions of Article XI, Section 7. of the
Constitution of Texas, as well as Article
2354 and Article 1212, V.A.T.C.S."
We understand your use of the phrase "upon esti-
mated approval by the Commissioners"Court" in "2" above,
to mean approval by the Commissioners" Court of an esti-
mate of work completed.
In' connection with the foregoing you have posed
several questions, the first of which is:
"1. hoes Swisher County have the authority
to execute a contract to appraise and
value real property within the county?"
Article 7206, Vernon's Civil Statutes, provides,
in part, thats
"Each Commissioners0 Court shall con-
vene and sit as a board of egualiaa-
tion a a OoD
Article 7212, Vernon's Civil Statutes, provides
that:
-.1274-
r ,
Hon. George J. Jennings, Jr., page 3 (C-267)
“(A). The Boards of Equalization shall
have the power and it is made their
official duty to supervise the as-
sessment of their respective coun-
ties and if satisfied that the
valuation of such property is not
in accordance with the laws of the
State to increase or diminish the
same and to affix the proper valu-
ation thereto as provided for in
the preceding Article and when any
assessor in the State shall have
furnished the said Board with a
rendition as provided for in the
preceding Article it shall be the
duty of such court to call before
it such persons as in its judgment
may know the market value or true
value of such property, as the case
may be, by proper process, who shall
testify under oath the character,
quality, quantity of such property
as well as the value thereof. Said
Court after hearing the evidence
shall fix the value of such property
in accordance with the evidence so
introduced and as provided in the
preceding Article and their action in
such case or cases shall be final:
provided, however, the Commissioners'
Court of any countv mav emplov an
individual, firm or corporation deemed
to have special skill and experience
,
~to comnile taxation data for its use
while sittinq as a Board of Equaliza-
tion and to provide for the wvment of
the compensation for such professional
services out of the uroner fund or funds
of the countv.
-1275-
, .
non. George J. Jennings, Jr., page 4 (C-267)
i
"(B) To pay any contractual obligation
to b&incurred for professional
services, under the provisions
hereof, the Commissioners' Courts
are herebv authorized to issue
time warrants payable from the
general fund of the countv in the
manner provided bv the Bond and.
Warrant Law of 1931: provided,
however, the warrants so issued
shall mature within six (6) years
from their resnective dates."
(Emphasis added)
Prior to the amendments made to Article 7212 by
the Legislature in 1963, Acts of 1963, 58th Leg., p. 1256,
Ch. 481, Sec. 1, it had been stated by this office in At-
torney General's Opinion No. C-63 (April 23, 1963) that:
"It has been definitely decided by
our courts, however, that the Com-
missioners O Court has the implied
power to employ independent assist-
ants to assist in arriving at the
value to be fixed by the Commission-
ers' Court as a Board of Equalization
where technical or special knowledge
is necessary and which knowledge the
Commissioners' Court would not be
presumed to possess . 0 SW
The above statement in Attorney General's Opinion No. C-63
had for its basis such cases as Roper v, Hall, 280 S.W.289
(Tex.Civ,App,l926); Simkins v, Citv of Corsicana, 86 S.W.Zd
792 (Tex.Civ,App. 193,5);Marsuart v, Barris Countv, 117
S.w.Zd 494(Tex.Civ.App. 1938, error dism.): Pritchard and
Abbott v. McRenna, 162 Tex.617, 282 S,W.Zd 378 (1955).
In view of the foregoing authority and the ex-
press language contained in Article 7212 as amended by
Hon. George J. Jennings, Jr., page 5 (c-267)
the Legislature in 1963, we are of the opinion that Swisher
County, acting through its Commiasioners' Court may con;
tract with and employ individuals, firms or corporations
to compile taxation data to be used by the Commissioners'
Court while sitting as a Board of Equalization.
Your second question, as set out in your letter,
is:
"2. Assuming an affirmative answer to ques-
tion number one, the followingr
(a) May such a contract be entered
without receipt of competitive
bids?
(b) Does the proposed contract con-
travene the provisions of Article
7264(a), V.A.T.C.S., or Article
7335, V.A.T.C.S., or Article
7335a, V.A.T.C.S.?
(c) Does the proposed contract usurp
the powers vested in the Tax As-
sessor?"
The provisions of Sec. 2 of Article 2368a, Ver-
non's Civil Statutes, are, in part, as followst
"No county, acting through its commission-
ers ' court . D D shall hereafter make any
contract calling for or requiring the ex-
penditure or payment of Two Thousand
($Z,OOO.OO) Dollars or more out of any fund
or funds . D s without first submitting such
proposed contract to competitive bids . . .
and provided further, that it shall not be
applied to contracts for wrsonal or profes-
sional services e D *I' (Emphasis added)
Hon. George J. Jennings, Jr., page 6 (C-267)
In Attorney General's Opinion No. R-2315 (1951),
this office had before it the question of the validity of
a contract for engineering services which was let by Com-
missioners' Court without competitive bids, and in such
opinion it is stated that:
w . . . even before Article 2768 WS)R nnndr-
Ron. George J. Jennings, Jr., page 14(C-267)
7264(a), 7335, or 7335a, Vernon's Civil
Statutes. Pritchard & Abbott v. McRenna,
162 Tex. 617, 350 S.W.28 333, (1961).
Article 7212 (as amended by the Legis-
lature in 1963, Acts of 1963, 58th Leg.,
p. 1256, ch. 481, Sec.l)is constitu-
tional insofar'as it provides forpay-
ment of such obligations by time war-
rants payable from the general fund of
the county.
The Commissioners' Court of Swisher County
canentrr into a contract fork appraisal
services which contains provisions for
payment similar to those approved by the
court in the case'of White v. Thomas Y.
Pickett & Company, 355 S.W.28 848 ~(Tex.
Civ.App., 1962), error ref. n.r.e.) if
the wording is changed to properly reflect
that payment is to be made from the gen-
eral fund of the county.
Where payment of a contractual obligation
is to be made,from current funds it is
sufficient that the proper constitutional
fund of the county contain sufficient
money on hand or within reasonable anti-
cipation of being on hand during the year
in which the contract is made.
Very truly yours,
Hon. George J. Jennings, Jr., page 7 (C-267)~
Furthermore, the services to be performed under
the provisions of Article 7212 are specifically referred
to in the statute itself as requiring "special skill and
experience" and as "professional services under the pro-
visions hereof." Therefore, in answer to your question,
.the services to be performed in the instant situation
would be the type of services exempted from the competi-
tive bid provisions of Article 2368a.
Articles 7264a, 7335, and 7335a, Vernon's Civil
Statutes, all pertain to various aspects of the collection
of delinquent taxes. As the contract in the situation you
have here posed deals merely with services to be rendered
to the Commissioners' Court sitting as a Board of Equalisa-
tion in the evaluation of property for tax purposes, we are
of the opinion that the proposed contract between the Com-
missioners' Court of Swisher County and the party to render
these services to the Commissioners' Court would not con-
flict with or contravene the provisions of Articles 7264a.
1335, or 7335a. This question was before the Supreme
Court of Texas in the case of Pritchard & Abbott v. McEenna.
162 Tex. 617, 350 S.W.Zd 333 (1961), and the court held
that a contract of the type here considered was not the
type of contract or activity subject to the provisions of
Articles 7264a, 7335, and 7335a.
In this same connection the case of Pritchard &
Abbott v. McEenna, sunra, also decided the question of
whether a contract of the nature we have before us usurps
the powers, duties and responsibilities of the Tax Asses-
sor and Collector. The court in its opinion stated that:
Di
D We quite agree that the County
0 D
Conunissioners" Court is not charged with
the management and control of all the
County's'business affairs. Each of the
various elected officials, including the
Assessor-Collector, has the sphere that
is delegated to him by law and within
,which the Commissioners' Court may not
interfere or usurp, But that is not to
say that the functions of the Board of
-1279..
Hon. George J. Jennings, Jr., page 8 (C- 267)
Equalization and those of the Assessor-
Collector are so diverse that information
may not be lawfullv contracted for and
obtained bv the Equalization Board be-
cause it may likewise be of aid to the
Assessor in the performance of his
duties . . ." (Emphasis added)
Your third question reads as follows8
"3. Are the provisions of paragraph VI
of the contract a legally and suf-
ficient provision for payment, if at
the time of execution of the con-
tract provision has been made for
the issuance of the interest bear-
ing time warrants?*
Section VI of the proposed contract provides for
payment to the party performing the evaluation services
for the Commissioners' Court sitting as a Board of Equa-
lization by the issuance and delivery of interest bearing
time warrants which have been authorized by an order of
the Commissioners' Court. Such time warrants are to be
dated February 1, 1964, are to bear interest at the rate
of 5% per annum and are scheduled to mature in five equal
installments - the first maturing on December 1, 1964,
and thereafter on the same date of each succeeding year
through 1968, The order authorizing the time warrants and
the levying of the tax for payment of the principal and
interest is incorporated by reference and made a part of
the contract,
Section B of Article 7212, Vernon's Civil Statutes.
which is set out in its entirety elsewhere in this opinion,
provides. specifically that time warrants may be issued by
a Commissioners' Court for this purpose in the manner pro-
vided for in the Bond and Warrant Law of 1931,~but with the
additional limitation that warrants so issued shall mature
within six years from their respective dates,
-1280-
,
Ron. George J. Jennings, Jr., page 9 (C-267)
Since nothing in Section VI of the proposed con-
tract conflicts with the provisions of the Bond and Warrant
Law of 1931 or with the provisions of Article 7212, and pre-
suming that the Bond and Warrant Law of 1931, i.e., Article
256Sa, Vernon's Civil Statutes, is fully complied with in
authorizing the warrants and levying the tax for payment
thereof, your question number three is answered in the af-
firmative.
In your next question you inquire as followsx
“4. Is Article
7212 (as amended by Chap-
ter 481, Acts of the 58th Legislature,
Regular Session, 1963) constitutional
insofar as it provides that warrants
are to be payable from the general
fund of the county?"
Section 9 of Article VIII of the Constitution of
Texas reads, in part, as follows:
H D 0 D at the time the Commissioners'
Court meets,to levy the annual tax rate
for each county it shall levy whatever
tax rate may be needed for the four (4L
constitutional purposes: namely, ceneral
fund, permanent improvement fund, road
and bridse fund and iurv fund." (Emphasis
added)
It is clear that the county can levy a tax in this
instance only for the benefit of one of the above enumerated
constitutional funds. The contractual obligation for which
these warrants are to be issued would seem clearly to con-
stitute an operating expense of the county and therefore
properly chargeable to the general fund. Certainly it can
not be said that these warrants are to be issued to pay for
permanent improvements or roads and bridges or in payment
of juries.
Article 7212 was amended by the Legislature in 1949,
Acts of 1949, 51st Legislature, p* 1196, ch. 607, Sec. 1, to
-1281-
Hon. George J. Jennings, Jr., page 10 (C-267)
f
provide payment for such services "- 0 D on a pro rata
' basis from each county fund receiving any taxes derived
from such valuation", Prior to that time there was no
valid statutory provision regarding payment of such obli-
gations, but various Attorney General's Opinions upheld
the legality of contracts which provided that such obli;
gations were payable from the general fund. Enclosed is
a copy of Attorney General's Opinion No. O-4114 (November.
7, 1941) which deals directly with this specific question.
The 1963 amendment to Article 7212 repealed the 1949 amend-~
ment and gave statutory recognition to the rule that had
been consistently followed by this officeuntil the 1949
amendment.
In the opinion of this office the specific pro-
vision in Article 7212 to the effect that'these warrants are
to be paid from the general fund of the county simply a-
mounts to an enunciation of what would be properly construed
as a constitutional requirement and therefore is not itself
violative of the Constitution.
your letter further sets out, as a fifth question,
the follwingr
$'5.May such a contract be entered into
without giving notice of County's
intention to'do so where general
fund warrants are to be used to pay
for services?"
Article 7212 specifically authorizes the county to
enter into such a contract but is entirely silent as to any
requirement of notice of intention to enter into same, al-
though it does provide that time warrants authorized there-
under shall be issued '#inthe manner provided by the Bond
and Warrant Law of 1931",
We must, therefore, look to the provisions of
Article 2368a for any requirement as to notice of intention
to contract, Section 2 of said Act, the pertinent,portion
of'which is,quoted herein at page 5, gives the provisions
-1282-
Hon. George J. Jennings, Jr., page 11 (C-267)
as to notice under the Act, The only other provision
pertinent to the question of notice is Section 3, which
prov'idese
""Sec. 3, When it shall be the intention
of the Commissioners' Court . . . to issue
time warrants for the payment of all or any
part of the proposed contract, the notice
to bidders required under Section 2 of this
Act shall recite that fact. setting out the
maximum amount of the proposed time warrant
indebtedness, the rate of interest such
time warrants are to bear, and the maximum
maturity date thereof". (Emphasis added)
Since Section 3, by its own terms, applies only
where notice is required under Section 2, and since we
have already held in answering your question 2(a) above,
that no notice to bidders is required in the instant case
because Section 2 specifically exempts contracts for "per-
sonal or professional service' from its terms, we answer
your question number five in the affirmative, i.e., the
proposed contract can be entered into without giving notice
of intention to do= when time warrants are to be used to
pay for the services contracted for,
your sixth question isz
"'6q Should the Commissioners" Court of
Swisher County desire to do so may
they enter into a contract such as
enclosure contract #2 which calls for
the performance of appraisal services
over a two year period and payment out
of General Fund monies at the end of
each of the designated two years, pro-
vided the percentage of work is com-
pleted by appraiser as prescribed in
contract?"
This question, as well as question seven, concerns
an entirely different contract than that considered in the
first five questions and relates to the manner in which
-1283-
lion. WOtge J. Jennings, Jr., page 12 (C-267)
provision has been xade for payment of the amount to become
due the appraiser for work performed thereunder. Our re-
view of proposed contract nuxber two has been limited to
this aspect only.
It should be observed at the outset that the mu-
tract referred to doem not make reference to payxent out
of the "General Fundm, es your question itself does, but
rather to "the proper fund or funds of Swisher County" and
to "said proper county fund or funds". Article 7212 pro-
vides specifically that paymnts for such services are to
be made frox the general fund and we have affirmed in this
opinion in answer to your guestion four that this is the
constitutional fund properly to be charged with much ex-
penditure. Therefore, the wording of enclosure contract
numbei two should be changed accordingly.
In all other relevant rempects enclosure contract
number two is easentially identical in forx to a conttact
entered into between the Cormniecrionerm Court of Aransaa
County and Thoxas Y. Pickett & Company, Snc., which in-
volved similar services to the county~and similar provi-
eions as to payxent for such services, and which was upheld
by the courts in the case of mite v.,Thoxas Y. Pickett and
company, 355 S.W.2d 848 (Tex.Civ.App.,1962, error ref.
n.r.e.1.
Therefore,our answer to your sixth question fs~tbat
the Conmissioners' Court of Swisher County can enter into a
contract containing provisions for payment for apprai8al
services performed thereunder such am is found in your en-
closure contract nuxber two, provided that the wording is
changed SO as to correctly reflect that payments thereunder
shall be xade frox the genmral fund of the county.
We interpret your seventh and final question to xean
tbe follwinga Mere an obligation incurred under a contract
is to be paid out of current funds, must the County Treasury
actually contain, at the time the contract is signed. suffi-
cient funds to satisfy the obligation or is it necessaxy only
that money in the Treasusy, taxes in the process of collec-
tion during such tax year, and all other revenue8 which may
-1204-
, .
Hon. George J. Jennings, Jr., page 13(C-267)
be anticipated with reasonable certainty during such tax
year be sufficient to pay the obligation?
It has been held that no debt is created within
the meaning of Section 7 of Article 11 of the Constitution
of Texas if a valid appropriation is made for the payment
of the total amount due from funds on hand or funds within
reasonable anticipation of beinc on hand during the current
year in which the contract is made. McNeil1 v. City of Waco,
89 Tex. 83, 33 s-w.322 (1895): Citv of Ft. Worth v. Bobbitt,
121 Tex,14, 41 s.w.Zd 228 (1931).
Thus, in answer to the question posed above it would
not be necessary that at the time the contract is signed the
County Treasury actually contain the money to pay the obli-~
gation but only that the proper constitutional fund contains
sufficient money on hand or within reasonable anticipation of
being onhand during the year in which the contract is made.
Swisher County, acting through its Com-
missioners' Court,'may contract with and
employ individuals, firms or corporations
to compile taxation data to be used by
the Commissioners0 Court while sitting as
a Board of Equalization, under' the.provi-
sions of Article 7212, Vernon's Civil
Statutes.
Such a contract may be entered into with-
out receipt of ccmpetitive bias or giving
notice of intention to contract even when
general fund time warrants issued under
the provisions of the Bona and Warrant Law
of 1931, are to be used to pay for ~the
services to be rendered,
The Cosanissioners' Court can enter into
such a contract without usurping the powers
vested in the Tax Assessor and without con-
travening the provisions of Articles
-1285-
Hon. George 3. Jennings, Jr., page 14(C-267)
7264(a), 7335, or 7335a, Vernon's Civil
Statutes. Pritchard & Abbott v. McKenna,
162 Tex. 617, 350 S.W.28 333 (1961).
Article 7212 (as amended by the Legis-
lature in 1963, Acts of 1963, 58th Leg.,
p. 1296, ch. 481, Sec.1) ~i.sconstitu-
tional insofar'as it provides for pay-
ment of such obligations by time war-
rants payable from the general fund of
the county.
The Commissioners' Court of Swisher County
canenter into a contract for'appraisal
services which contains provisions for
payment similar to those approved by the
court in the case of White v. Thomas Y.
Pickett & Companv, 355 S.W.2d 848 (Tex.
Civ.App., 1962), error ref. n.r.e.1 if
the wording is changed to properly reflect
that payment is to be made from the gen-
eral fund of the county.
Where payment of a contractual obligation
is to be made ~from current fun& it is
sufficient that the proper constitutional
fund of the county contain sufficient
money on hand or within reasonable anti-
cipation of being on hand during the year
in which the contract is made.
Very truly yours,
WAGGONER CARR
Attorney General
Assistant
Jns-s
Enclosure
-1286-
. .
Hon. George.3. Jennings, page 15 (C-267)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Howard W. Mays
J. C. Davis
Robert Smith
Howard Fender
APPROVED FOR TIIE ATTORNEY GENERAL
By: Stanton Stone
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