Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
OROVER SELLERS AzIoRWL* GCNEIAL
Ron. Shelby K. Long
County Attorney
Jefferson County
Beauont , Texas
Opinion No. O-7478 Re: Payment of eng professional s 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 Professional Engineers.
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;:ere was a quorum present, or whether said sessions were otherwise legally constituted axid convened 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 3 ton. Shelby K. Long - Page 2
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 architects, ;ha enployment of persons of special ski&, such as
&torneys and en ineers by the Commissioners* Court some parti- :ular work in wh f 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;
ialveston County vs. Ducie, 49 S. “i. 798.
The Courts have also held that contracts calling exclusively for the personal employment of persons because of professional or xientific ability, training or efficiency do not come within the neaning of Article 2368a, R. S. 1925, requkin competitive bids.
iunter v. Xhitaker & ?iashlngton, 230 S. \i. f ; Gulf Bitulithlc Co.
Is. Bueces County, 11 S. 5. (2nd) 305.
Therefore, your first question is answered in the affirm- that the Codssionerst Court did have power to employ an Itive; firm to perfom such work. mginesring
How the question arises whether or not the contract betueen the Commisslonersg Court 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&ent upon the passage OS the bond issue. Of course if such were the case, the contract irould be conditional said condition nould not have been fulfilled ,&hen the 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 be P ieve the following excerpt frm the minutes of the Court 18 con- trolling :
Hon. Shelby ii. Long - Taze
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 Liatlsy v. 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 pay her $37,500.00, ssid land to he used for county The court said that the propert be3ng tpur- cfitsed could be el;aJly-purchasedby the county andthatt e Cocmis- r--' K Court had the power to enter into the oontract relative theroto. sionters' 'r'hc Court Civil hppals rt San Antonio, opeaking tehrou& Jude Xorvell, however s clfically held that since there xas no iten in the county budget x&at ve to the !e phase of the land fr. questiou;the county &id not have tha auth ty to pay for sass3 snd r=eo, ti.ereEore, ?ro*rly enjoined frolp paying same*
In the case of Xstley Y. Bexar Smnty, l&J+ ;$. (2d) 695, the qxs.im arose M to ðer the county could wchaso zutouatic votiaz sxiines, or ,psnding the purchaas thereof xnt 8c.m tr',th t. e o%ion to yrchaso . The aotit, after quotl.n& ths budget l&w, Art. J 46&l, s+pci- Sictily heid that the court could ::ot pay for s&ICI. aachinos or the renting thereof until or unless sam uere embraced in the budGet, r;r?d Leld that the attesqted amendfnent of the county budget v?ac not suffi- ciont to eubrace these item.
The :juprsae Cowt 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 -to purohxse sme.
The effect, however, of the Sug-mme Coartqs i;oldq we think is to tfMnn the o inlon of 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-Lqty h&d m bond elections and that each of the proposed bond isSUe Were defeated. ‘vðer the contract was 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 *5 Hon. Shelby K. Long - We 5
“the Co6daslonere~ Court hereby confirms and ratifies, and in all things approves the qreement heretofore,entered into” to y the engineers a total of q16,500.00, less ~3,CCO.OO that had aIt eady 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 engineers Jefferson County.
In view of the various statements made % the infometion furnished,it is Impossible for u6 to amiwer categorically your ques- tion as to whether the warrant should be paid,
Ve trust the authoritier above discus6ed and the suggestions made will be sufficient for you, as Count httorney, to determine the legality the warrant in question and ui ether 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 controverted issues of fact.
Very truly yours ATTOREX GZGRAL OF TZ.iiS b%Ui:djm