Case Information

*1 Hon. A. J. Bryan, Jr.

Criminal District Attorney

Hillsboro, Texas

Dear Sir: Opinion NO. 0-1685

Re: May the bommissioners~ court rent road machinery at a monthly rental for use on a jY; P. A. project without first advertising for bids for the rental of same?

We have received.your request for an opinion on the following situation: you please advise us whether or not the commis-

“Will sioners' court may rent road machinery at a monthly rental for use on a W.P.A. project, without first ad- vertising for bids for the rental of the same. "Briefly, the facts are as follows: In may, 1939, certain road machinery was purchased or rented by the Court without having advertised for bids, the rental contract including an option to purchase the machinery. The monthly rental was $185.00. Later the question of the validity of this transaotion.was raised and the option to purchase was stricken from the contract. Later the question of advertising was raised and the Court then advertised for bids and on October 29th, 19391 opened and read the bids on the machinery. The machinery was in possession of Hill County all of this time and was in actual use by the county. Only two bids were received. One of these bids was from the Company who had rented or sold the machinery to the The other bid was for a smaller county in May, 139. amount by about .l,OOO.OO, but did not include a monthly rental on the machinery. The higher bid pro- viding for a monthly rental was accepted, this bid being on the machinery already in possession of the county as aforesaid.

"During the time the quastrofi'of'advertising was raised and the present time two or three monthly rental *2 payments have accrued and the question is whether or not these rentals may be paid, these particular rentals having accrued just prior to the date of advertising for bids~ and one payment just after the acceptance of the above described bid." Article 2351, Vernon's Annotated Civil Statutes, constitutes the general grant of power to the commissioners court of a county.

Among other things it provides:

“3. Lay out and establish, change and discontinue public roads and highways.

"5. Appoint road'overseers and apportion hands. “6. E xercise general control over all roads, highways, ferries and bridges in their counties." The power expressly given to the commi.ssioners' court to lay out and establish public roads carries with it by implication all such other powers as are reasonably necessary to carry into effect the granted authority.

Lasater v. Lopei, 202 S.W; 1039

Owen v. Fleming-Stilaer Road Building Company, 250 S.'ry..1038.

The commissioners' court of a county has express authority under Art. Revised Civil.Statutes, 1925, to lease, rent or hire necessary road machinery, tools, implements, etc. for grading, draining, or repairing the roads of the county. 675’1, supra, reads as -follows:

"The commissioners court of any such county is authorized to purchase or hire all necessaryroad machinery, tools, implements, teams and labor required to grade, drain, or repair the roads of such county, and said court is authorized and empowered to make all reasonable and necessary rules, orders and regulations not in conflict with law for laying out, working and otherwise improving the public roads, and to utilize the labor and money expended therecn, and to enforce the same.’ On thebasis of the above authorities ~itis our opinion that the county commissioners1 court has both express and implied authority *3 Hon. A. J. Bryan, Jr., page 3, O-1685

to rent or lease road machinery for necessary uses on county roads.

The question now presents itself as to.whether or not the commissionersl court may rent or lease road machinery without first advertising for bids for the rental. 165'9, Revised Civil Statutes 1925, provides for competitive bid advertisements for purchase of road and bridge

material. As pertinent hereto, it reads as follows:

wSupplies‘of every kind, road andbridge material or any other material, for the use of said county, or any of its officers, departments, or institutions must be urchased on competitive bids, the contract tobe Pawarded to the party wh in the judgment of the commissioners1 court, hzi submitted the lowest and best bid." (Underscoring ours)

Article 1659, aupra, does not apply to rentals or leases of road machinery by the county. This is evident from its own terms. It is to be noted moreover that it was enacted subsequent to Article 67% supra, (Acts p. 149, General and Special Laws 22nd Leg.) authorizing the commissioners' court to..."hire all necessary road machinery, etc." (Art. 1659 was originally Acts, 1905, p. 384, amended Acts-1921, p. 185).

We have reached the conclusion that it was not the intention of the Legislature to require advertisement for bids in the leasing or renting of road machLnery by the county commissioners1 court. It is our opinion and you are so advised that the commissioners' court of a county has the authority to rent road machinery at a- monthly rental for use on a W.P.A. project without first adverA tising for bids for the rental of said machinesy.

your attention is called to Opinion O-7117 of this department to Hon. Wm. J. Fanning to Hon. T. K. Wilkinson, County Auditor, Hill County,-Hillsboro, Texas, holding that the commissioners' court cannot lease or rent, with the option to purchase, road- machinery, pickups or trucks, warehouses for the storage of equipment.

We note that in the penultimate paragraph of your letter you refer to the fact that "two or three monthly rental payments have accrued" and st,a_te,that "the question is whether or not these rentals may be paid." The answer to this question depends upon whether therentals accrued under the old lease contract including the option to purchase or a subsequent lease contract omitting the option provision. We refrain from passing upon this *4 phase of the matter because of insufficient information. 16.59, supra, is applicable

The bid requirement of Afticle to _ any purchase of road machinery or equipment by a county commls- sioners' court and cannot be avoided in any manner.

Trusting that we have fully answered your inquiry, we are

Yours very truly ATTORNEY GENER.AL OF TEXAS s/ Dick Stout BY Dick Stout .Assistant DS:jm/cge

APPROVED DECEMBER 16,

s/.Gerald.G..Mann

ATTORNEY GENERAL OF TEXAS

Approved Opinion Committee

By BWB, Chairman