Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN OROVERSELLERS AzIoRWL* GCNEIAL Ron. Shelby K. Long County Attorney Jefferson County Beauont , Texas Opinion No. O-7478 Re: Payment of eng professionals county ram. Assioner w one-fourth of the to d'to pass, the engineers en Thousand Five Hund- ies of all maps and a total fee of Sixteen , said fee beihg the y of ProfessionalEngineers. t&ed the agreement entered into The ninutes of the special and regular gemions of the Conmissioners Court fomarded with your request do not reflect whe- ther or not t;:erewas a quorum present, or whether said sessions were otherwise legally constituted axidconvened to transact business of the nature in question. For the purposes of this opinion, we shall assume that the constitution, convention and proceedings of i 2c3 ton. Shelby K. Long - Page 2 3 laid sessions were all in due form and manner. The law seams well settled that this matter came within ;he jurisdiction of the Commissioners*Court. It is empowered to :reate and maintain adequate roads, and to do all such acts as nay IB necesaarv to construct wrmanent roads. Article 5. Section 18. :onstitution;Article 2351; R. S. (1923); Lasater v.‘tope3, 217 r ;.i;. 373. Under the powers granted above the courts have permitted ;ha enployment of persons of special ski&, such as architects, &torneys and en ineers by the Commissioners*Court for some parti- :ular work in whf ch theL profassix&. or scientific ability is leeded. Galveston County V. Sresham, 220 S. :;.560; ~.-illian3 vs. )eFee, 77 S. 1:;‘. (2nd) 729; Hackett v. btiddleton,280 S.Z.. 563; ialvestonCounty vs. Ducie, 49 S. “i. 798. The Courts have also held that contracts calling exclusively for the personal employment of persons because of professionalor xientific ability, training or efficiency do not come within the neaning of Article 2368a, R. S. 1925, requkin competitivebids. iunter v. Xhitaker & ?iashlngton,230 S. \i.109f ; Gulf Bitulithlc Co. Is. Bueces County, 11 S. 5. (2nd) 305. Therefore, your first question is answered in the affirm- Itive; that the Codssionerst Court did have the power to employ an mginesring firm to perfom such work. How the question arises whether or not the contract betueen the CommisslonersgCourt snd the engineering firm of Rohler & Shipley uas a valid one. The facts submitted in your letter do not disclose whether or not the payment to the engineers was contin&entupon the passage OS the bond issue. Of course if such were the case, the contract irouldbe conditional and said condition nould not have been fulfilled ,&henthe bonds failed to pass. Ue gN1 however, consider your request relying on the assumption that sAd engineers were r&a&d to perfonn the described services regardless of the outcoms of the bond issue election. The fact that there was no written contract, but nerely.an oral contract between the engineers and each of the Commissioners, ma or may not have resulted in an enforceable contract,but we bePieve the following excerpt frm the minutes of the Court 18 con- trolling: Hon. Shelby ii.Long - Taze 4 be authorised by the Court as amendnenta to the ori$nal bu&et. . . ,n Our 2OWt8 have construed the above statute fn Dancy v. error refused, and in Liatlsyv. Dexsr In the case of Dauey 'I*Davidson the question involved was whether the Comlsrionors~ Court of Csneron County could purchase f'fom:~irs. EaU a tract of land and pay her $37,500.00, ssid land to he used for county The court said that the propert be3ng tpur- cfitsedcould be r--' el;aJly-purchasedbythe county andthatt K e Cocmis- sionters' Court had the power to enter into the oontract relative theroto. 'r'hc Court of Civil hppals rt San Antonio, opeaking tehrou&Jude Xorvell, however s clfically held that since there xas no iten in the county budget x&at !e phase ve to the of the land fr.questiou;the county &id not have tha auth ty to pay for sass3snd r=eo,ti.ereEore, ?ro*rly enjoined frolppaying same* In the case of Xstley Y. Bexar Smnty, l&J+;$. (2d) 695, the qxs.im arose M to ðer the county could wchaso zutouatic votiaz sxiines, or ,psndingthe purchaas thereof xnt 8c.m tr',th t.e o%ion to yrchaso . The aotit, after quotl.n&ths budget l&w, Art. 46&l, J s+pci- aachinos Sictily heid that the court could ::otpay for s&ICI. or the renting thereof until or unless sam uere embraced in the budGet, r;r?d Leld that the attesqted amendfnentof the county budget v?acnot suffi- ciont to eubrace these item. The :juprsaeCowt zran;cd a wit of brro~ in s&d cause, end held that the cmndod budget as made by Begs County was sufficient ti therefore the voting mxhl.zxe~could be reuted, subject to the &ht OS the county thereafter -topurohxse sme. The effect, however,of the Sug-mmeCoartqs i;oldq we think is to tfMnn the o inlon of the Court of Civil Appesls that unless the itea was embraced % the ori&ta.l budget or the mended bud&get,the same could not Se paid. ir, the inforvmtios furnished,It ap.mars that Jefferson Co-Lqtyh&d m bond elections and that each of the proposed bond isSUe Were defeated. ‘vðer the contractwas m&de tith the en&mers before or after the first election, or Lofors or a--r the last electfon, and the emct, mount ti-,ereof ia not definitely revealed by the evidence *Cur- nished. In your letter you state the contract price v:as.,20,3XJ. The Order of the Ccmdsgionera~ Court pssoed on October 21, 1946,st~tes t&t Hon. Shelby K. Long - We 5 “the Co6daslonere~ Court hereby confirms and ratifies, and in all things approves the qreement heretofore,enteredinto” to y the engineers a total of q16,500.00,less ~3,CCO.OO that had aIteady been paid. In comection with this order it aeem6 the Commlssionerst Court had placed in the minutes of said Court a copy of a letter showing the 36,5#.00 to be the minimum fees that the Texas Society of Professional Engineer6 had adopted relative to work similar to that done by the engineersfor JeffersonCounty. In view of the various statementsmade% the infometion furnished,it is Impossible for u6 to amiwercategoricallyyour ques- tion as to whether the warrant should be paid, Ve trust the authoritierabove discus6ed and the suggestions made will be sufficient for you, as Count httorney, to determine the legality of the warrant in question and uiether It should be paid. The fact6 may be so complicated and disputed that only a Court of proper jurisdiction can determine sane. TNs department of course cannot determine controvertedissues of fact. Very truly yours ATTOREX GZGRAL OF TZ.iiS b%Ui:djm