Hon. Clifton I-i.
Morris Chairman
State Board of Public Accountancy
Fair Building
Fort Worth, Texas Opinion No. O-2237'
Re: Necessity of counties, municipal
corporations and other public bodies
submitting contracts for services of
professional public accountants to
Dear Sir: competitive bids.
This will acknowledge receipt of your letter of
4pri.l16, 1940, requesting the opinion of this department upon
the above stated question. We also acknowledge our apprecia-
tion of your accompanying brief.
Your two questions are as follows:
"(1) Under the laws of Texas is it obli-
gatory for the officials of a County, City,
School District, Road District, Water Improve-
ment District, or any legally constituted public
body, to take bids on services to be rendered
by professional public accountants, or
“(2) Is the engagement of professional pub-
lic accountants by officials of the bodies named
left to their discretion?"
Prior to its repeal in 1931, Article 2368 of the
Revised Civil Statutes, 1925, read, in part, as follows:
"No commissioners' court shall make a con-
tract calling for or requiring the expenditure
or payment of two thousand dollars or more out
of any fund or funds of any county or subdivi-
sion of any county, without first submitting
such proposed contract to competitive bids. ***'I
Although the statute contained no such exception,
the rule became well established in Texas that the statute did
not apply or control the discretion of the commissioners' court
in contracting for professional and other services requiring
.
t
Hon. Clifton H. Morris, page 2
special skill or technical learnin Thus it was held in
Gibson vs. Davis (C.C.A. 19211, 232'S.W. 202, and Caldwell
vs. Crosser (C.C.A. 1928)) 20 S.W.(2d) 822, writ refused,
not to apply to the employment of attorneys; in Roper vs.
Hall (C.C.A. 1925) 280 S.W. 289, not to apply to a tax ex-
pert; in Stephens E ounty vs. J. NO McCammon, Inc., 122 Tex.
148, 52 S.W. (2d) 53, not to apply to the services of an
architect. In Co&ran County vs. West Audit Cc., (C.C.A.
19281, 10 S.W. (2d) 229, writ refused, it was expressly held
that the employment of auditors by the county was not to be
governed by the provisions of Article 2368 of the Revised
Civil Statutes, because special skill and technical learning
was required.
As stated in Gulf Bitulithic Co. vs. Nueces County
(Corn.App.), 11 S.W. (2d) 305:
I1*** In the very nature of things, the
Legislature, in passing this statute did not
contemplate that services of the kini covered
by the contract in question should be subject
to competitive bids, but evidently intended
that, when personal services, demanding special
skill, experience and business judgment, were
required the commissioners1 court might adopt
such method in securing such services that would
be reasonably calculated to obtain the particular
type of services desired."
This is also familiar law in other jurisdictions.
Miller vs. Boyle, 43 Calif. A p. 39, 184 Pac. 421; Rollins VS.
the City of Salem, 251 Mass. 6 68 146 N.E. 795; HOrgan and
Slattery vs. City of New York, 114 App. Div. 555, 100 N.Y.
vs. Allegheny County 245 Pa. 519 91 Atl.
Flagg, 17 N.Y. 584; He&on VS. Atlantic City,
Atl. 820; Commonwealth VS. Tice. 272 Pa.
2 Dillon Mun. Corp. 1802. Cf. Wallace VS.
Commissioners' Court (C.C.A. 19261, 281 S.W. 5933 Ashby VS.
James, 226 S.W. 732.
Prior to the enactment of Article 2368a in 1931
General Laws, 42nd Legislature, 1931, Chapter 163, page 2E,
9,
there was no statute requiring competitive bidding as the basis
for a contract by a city incorporated under the general laws;
and such a city could make a contract without requiring bids.
Montgomery vs. City of Alamo Heights (Civ.App.1, 8 S.W.(2d)
258, writ dismissed. However, under the provisions of numerous
municipal charters requiring competitive bids on contracts ex-
ceeding a certain sum of money, the same rule was held applicable.
Hon. Clifton H. Morris, page 3
City of Houston vs. Glover (C.C.A. 1905), 40 Tex.Civ.App.
177, 89 S.W. 425 (employment of architect)* City of Houston
vs. Potter, 41 Tex.Civ.App. 381, 91 S.W. 369 (supervisor
of Public Works )j Hunter vs. Whitaker (Civ.App.), 230 S.W.
1096, writ denied (~1~11 engineers); Tackett VS. Middleton
(Com.App. 1926), 280 S.W. 563 (employment of architect).
As stated in the Middleton case, supra:
"The employment of an architect and others
of technical learning by the authorities of a
municipality is not controlled by statutes re-
quiring bids in writing for services or work
to be done, and the payment of such services so
performed by an architect or ,others of special
technical learning may be made out of current
revenues of a city."
See also 30 Tex. Jur. 331.
In 1931 the Legislature repealed Article 2368 and
passed in its stead Article 2368a Vernon's Annotated Civil
Statutes, which reads in part as h0110~s:
"Sec. 2. No county acting through its
Commissioners~ Court, and no city in this State,
shall hereafter make or enter into any contract
or agreement for the construction of any public
building, or the prosecution and completion of
any public work requiring or authorizing any
expenditure in excess of Two Thousand Dollars
($2,000.00), creating or imposing an obligation
or liability of any nature or character upon
such county, or any subdivision of such county,
or upon such city, without first submitting such
proposed contract or agreement to competitive
bids. ***j and provided further, that it shall
not be applied to contracts for personal or for
professional services, nor to work done by such
county or city and paid for by the day, as such
work progresses.U
Hon. Clifton H. Morris, page 4
Note that the article expressly applies to cities
and counties, and that the Legislature followed the lead of
the courts and added the proviso that the act llshallnot be
applied to contracts for personal or professional services."
It is the opinion of this department that insofar
as counties and municipalities are concerned, the rule hereto-
fore set forth and exemplified by cases such as Gulf Bitulith-
ic Company vs. Nueces County (Corn.App.) 118 S.W.(2d) 305,
and Tackett vs. Middleton, supra, is still applicable in Texas
under Article 2368a, Vernon's Annotated Civil Statutes. More
specifically it is the opinion of this department that the
employment 0h a skilled public accountant is not governed by
the provisions~of Article 2368a, requiring the submission of
contracts to competitive bids. Cochran County vs. West Audit
co. We do call your attention however, to the fact
thaf EE%es 1641 and 164la Vernon's'Annotated Civil Statutes,
must be strictly complied wiih in the'employment of an auditor
or accountant by the Commissioners1 Court. These articles read
as follows:
"art. 1641, Audit by accountant.--Any com-
missioners court, when in its judgment an imperative
public necessity exists therefor, shall have author-
ity to employ a disinterested competent and expert
public accountant to audit ali or any part of the
books records or accounts of the County; or of any
district, county or precinct officers, agents or
employes, including auditors of the counties, and
all governmental units of the county, hospitals
farms, and other institutions of the county kepc and
maintained at public expensei as well as for all
matters relating to or affec ing the fiscal affairs
of the county. The resolution providing for such
audit shall recite the reasons and necessity exist-
ing therefor such as that in the judgment of said
court there exists official misconduct, willful
omission or negligence in records and reports, mis-
application, conversion or retention of public
funds, failure in keeping accounts, making reports
and accounting for public funds byeany officer,
agent or employe of the district, county or precinct,
including depositories, hospitals, and other public
institutions maintained for the public benefit and
at public expense; or that in the judgment of the
court, it is necessary that it have the information
sought to enable it to determine and fix proper ap-
propriation and expenditure of public moneys, and
Hon. Clifton H. Morris, page 5
to ascertain and fix a just and proper tax levy.
The said resolution may be presented in writing at
any regular or called session of the commissioners
court, but shall lie over to the next regular term
of said court, and shall be published in one issue
of a newspaper of ,generalcirculation published
in the county; provided if there be no such news-
paper published in the county then notice thereof
shall be posted in three public places in said
county one of which shall be at the court house
door, hor at least ten days prior to its adoption.
At such next regular term said resolution shall be
adopted by a majority vote of the four commissioners
of the court and approved by the county judge. Any
contract entered into by said commissioners court
for the audit provided herein shall be made in ac-
cordance with’the statutes applicable to the letting
of contracts by said court payment for ,which may
be made out of the public funds of the county in
accordance with said statutes. The authority con-
ferred on county auditors contained in this title
as well as other provisions of statutes relating
to district, county and precinct finances and ac-
counts thereof shall be held subordinate to the
powers given herein to the commissioners1 court.
(Acts 1923, p. 170.1”
“k-t. 1641a. (Public Accountant in certain
counties.)--In counties of a population of not less
than 298,000 and not more than 355,000, according
to the last Federal Census, that the Grand Jury of
any County or the State Auditor when in the judg-
ment of either, an imperative public necessity ex-
ists therefor, shall have authority to employ a
disinterested, competent and expert public account-
ant for the same purposes authorized by Article
1641, or for any other necessary purpose; provided,
however, that same shall not be made more than once
every two years, except for the purposes of supple-
menting any audit theretofore made. The same notice
shall be given as provided in the preceding Article,
one week prior to the making of said contract with
such ,Auditor and the same shall be paid for out of
the general &nds of said County. (Acts 1931, 42nd
Leg., p. 842, ch. 353, X 1.1”
Insofar as school districts, road districts, water
improvement districts and other legally constituted public
Hon. Clifton H. Morris, page 6
corporations are concerned, it is the opinion of this depart-
ment, and you are respectfully advised, that in the absence of
a statute specifically requiring the same it is not necessary
that contracts for the employment of skilied professional men,
such as attorneys architects and professional public account-
ants, be submitteA to competitive bids.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By /s/ Walter Koch
Walter Koch, Assistant
By /s/ James D. Smullen
James D. Smullen
APPROVF,DMAY 10, 1940
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED: OPINION COMMITTEE
BY: BWB, CHAIRMAN
JDS/oe:wb