Honorable Henry Wade Opinion No. C-156
District Attorney
Dallas County Re: Whether the County of Dallas may
Dallas',Texas hire professionalservices with-
out advertisingfor bids and re-
Dear Hr. Wade: lated questions.
You have requested an opinion from this office upon
the following questions:
"1* May the County of Dallas hire professional
services without advertisingfor bids?
"2. May Dallas County contract for three years
for a professionalservice contract?
“3* Can the Commissioners'Court ratify the
action of the individualmembers and then assume the
A( obllgatian of paying for the services rendered and to
:' be rendered as they come due in the future?
“4.0 If No. 3 is answered in the negative, can
Dallas County pay on quantum meruit for the services ,
rendered?”
These questions have arisen in connection with a series
of events which were set forth in your letter as follows:
"In January~of this year, a public,spirited
benefactor contacted orally one or more members of
the Commissioners8Court .individually, and in conver-
satlon with said members agreed to beautify oertain
.countyowned property by planting and maintaining
numerous trees on same. This individualundertook
this task on the erroneous assumption that the County
of Dallas had officiallyagreed to the planting of the
trees and that .theCounty had assumed the obligation
of maiptaining same with a landscape.architectto be
agreed'uponby the parties.
l'Immediatelythereafter,said trees were planted,
and the landscape architect commenced performing his
duties, under the assumptionthat he had a three year
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Hon. Henry Wade,:,page2 (C-156)
contract in the sum of $2,000.00 per year, with
the County of Dallas, for his services. These
professionalservices include spraying, trimming,
replacing dead trees, watering and maintaining
the beauty of the location. He has now submitted
a statement for professionalservices rendered to
date."
In regard to your first question concerningwhether
the County of Dallas may hire professionalservices without
advertisingfor bids, the provisionsof Section 2 of Article
2368a, Vernon's Civil Statutes, should be noted, and the perti-
nent portions are set forth es follows:
"No county, acting through its Commissioners
court * e 0 shell hereafter make any contract cell-
ing for or re uiring the expenditureor payment of
Two Thousand s$2,000.00)Dollars or more'out of any
fundorfunds a e a without first submittingsuch
proposed contract to competitivebids. Pro-
vided. that in case of Dublic celamitv .'.*.'this
provision shall not eppiy; and provided further,
that it shall not be aDDlied to contracts for ner-
sonal or urofessionelserviceq. . . .'I(Emphasis
added).
In Attorney General's Opinion No. R-2315 (19511, this
office had before it the validity of a contract.forengineering
services releting~to county roads which was let by the Commis-
sioners' Court without competitivebids, and in such opinion it
is stated that:
1, o even before Article 2368 was superseded
by Article 2368e, which expressly provides that the
bidder requirements 'shallnot be applied to contracts
for personal or professionalservices,'it was held
that contracts involving special skill and experience
were not within the contemplationof the statute re-
quiring competitivebids. o 0 q
'I*0 e the engineeringcompany has contracted to
perform services requiring technical skill and experi-,I
ence, - 'professionalservices.' We agree with the
opinion a 0 o that the contract in.questioncells for
professionalservices requiring technical skill and
experience,that it does not fell within the competi-
tive bid provisions of the law, and that, es such, it
is expressly excepted from the competitivebid require-
ments of Article 2368e."
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E
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Hon. Henry Wade, page 3 (C-156)
-See.@so, .Gulf Bitulit&c Co. v. Nueces County, 11 S.W.2d
305 (Tex.Comm.App.192S);~hunterv. Whiteakey,.230 S.W. 1096
$;e;.Civ.App. 1921, error ref.):
~-
W.2d 67 1971):
McC~. I 122 Tex.‘i48,-32-S.
Middleton,‘ "S.W. 563 (Tex.Comm. The first two
cases pertain to persona.1services requiring special skill and
experience and the last three cases pertain to professional
architecturalservices.
The services to be performed in the posed situation,
if they are not to be considered professionalservices
certainly personal services requiring special skill anA t?peri-
ence, and consequentlywould be the type of services exempted
from the competitivebid provisionsof Article 2368a.
In connectionwith your second question concerning
whether Dallas County may enter into a three year contract for
professional services,~attentionshould be called to certain
provisions contained in Section 7 of Article XI of the Consti-
tution of Texas which provide that:
et
. . . no,debt for any purpose shell ever be
incurred in any manner by any city or county unless
provision is made, et the time of creating the same,
for levying and collecting a sufficient.taxto pay
the interest thereoa.andprovide at least two per
cent (2%) as a sinking fund; . . .I1
The term "debt" as used In the above quoted con&i-.
tutional provision has been uniformly held by the courts of
this State to mean any pecuniary obligation imposed by contract,
except such as were, at the date of the contract, within the
lawful and reasonable contemplationof the parties, to be satis-
fied out of the current revenues for the year, or out of some
fund then within the Immediate control of the city or count
See, Stevenson v. Blake, 131 Tex. 103, 113 S.W.2d 525 (19387;~
Bexar Counts v. Hatley 1 g ;::I 254, 150 S.W.2d 980 (1941);
McNeil1 v. Citv of Waci i 3, 33 S.W. 322 (1895); Foerd
County v. Sendifer 105'Tex. 420 151 S.W. 523 (1912); Attorney
General's Opinion ho. TV-1556(1942).
In the case of Stevenson v. Blake 88 S.W.2d 773
(Tex.Civ.App.1935), affirmed in Stevenson v: Blake, 131 Tex.
103, 113 S.W.2d 525 (1938), the 'Commissioners'Court had en-
tered into'e contract with certain attorneys and pursuant to
such contract the attorneys were to perform certain duties for
which they were to be compensated$3,000.00. This sum was to
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Hon. Henry Wade, page 4 (C-156)
be paid In three Installments. The first installmentof
$l,OOO.OO was due shortly after the making of the contract
in July of 1935* the second installmentof $l,OOO.OO was due
in February of 1936; and the balance upon completion of the
contemplatedlitigation.
The court in Stevenson v. Blake, 88 S.W.2d 733 (Tex.
Civ.App. 19351, in ‘holdinnthe contract lnv,alldas being in
-~__~~~~”
contraventionof the constitutionalrestrictionfound in Sec-
tion 7 of Article XI of the Constitutionof Texas stated thatt
1,
the validity of such contract is de-
termi&bb;e’bythe good-faithintention o? the
parties, at the time of contracting,as to whether _
the county’s obligation is, upon the one hand, to
be paid out of unappropriatedrevenues then in hand
or to be collected during the year of the contract,
and lawfully available for the purpose, or, upon
the other hand, out of revenues to be collected af-
ter the terminationof that fiscal year. In the
first case, thencontract does not contravene the
constitution.ellimitation;in the second, it does,.”
As the.contract in the Instant situation calls for
anuual payment&ver a period of ~threeyears, and would not be
payable solely out of current revenues, we are of the opinion
that such e contract would be invalid unless the constitutional
restrictionsfound In~Section7 of~ArticleXI of the Constitu-
tion had first been c~ompliedwith.
In regard to your question concerningwhether the Com-
missioners’Court can ratify the action of the individualmem-
bers and then assume the obligationof paying for the services
rendered landto be re’nderedas they become due in the future,
tkets stated in 15 Tex.Jur.2d,Countieg, Section 96, page 322,
:
‘IAcontract the commissioners’court has au-
thority to make may be binding by virtue of subse-
quent acts of the court, although the agent making
it had no authority to enter ‘intoit.. Thus where ‘.
the commissioners’court, with knowledge of the lack
of authority of an agent to enter into a contract,
elects to accept its benefits, it thereby ratifies
the contract and the county is estopped to deny its
validity. . . .”
See also, Gussett v. Nueces County 235 S.W. 857 (Tex.Com.App.
1921); Morrison v. Kohler, 207 S.Wl2d 951 (Tex.Civ.App.1948,.
error ref. n.r.e.1.
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Hon. H,?nryWade, page 5 (C-156)
In view of the foregoing authority, we are of the
opinion that the Commissioners* Court could ratify the action
of individualmembers of the Commissioners'Court if the con-
tract so ratified Is one which the Commissioners'Court had
authority to make and which was not in excess of the powers of
the CoutmissionerstCourt.
Your third question being answered in the affirmative,
it becomes unnecessary to answer your fourth question.
The County of Dallas may hire professional
services without advertisingfor bids. The com-
petitive bid provisions of Article 2368a, Vernon's
Civil Statutes, exempt professionaland personal
services requiring technical skill and experienoe.
A professional service contract extending
over a period of three years and not payable out
of current revenues would be invalid unless the
provisions of Section 7 of Article XI of the Con-
stitution of Texas were first complied with.
The CommissionersCourt may ratify the action
cf the individual members of the Commissioners'
Court if the contract so ratified is one which the
C.ommissionerslCourt had authority to make and
which was not in excess of the powers of the Com-
missionerst Court.
Yours very truly,
WAGGONER CARR
PB:wb
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Faul Phy
William Allen
H. Gr:ldyChandler
APPRO'IBDFOR THB ATTORNEY GENERAL
EY: :;tantonStone
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