THE ATTORNEY GENERAIOF TEXAS 

April 11, 1988 

Honorable Bill Turner Opinion No. JR-890 

Brazos County Courthouse 

300 E. 26th Street, Suite 310 Re: Whether a contract for 

Bryan, Texas 77803 microfilming of records of 

county clerks office is 

subject to competitive 

bidding (RQ-1280) 

Dear Mr. Turner: 

You ask: 

[Wlhether the use of a private company to 

microfilm records for the County Clerk's 

Office of Brazos County must comply with the 

competitive bidding requirements of Local 

Government Code, Sec. 262.021 et se ., 

County Purchasing Act, or whether said item 

is a personal or professional service under 

Sec. 262.024(4), suvra, and thus need not be 

competitively purchased. 

You describe such services as follows: 

The County Clerk has contracted with a 

company in Dallas to microfilm legal 

instruments filed in the county clerk's 

office. The company furnishes the county 

clerk with a camera, film, and provides 

maintenance for the camera. Every day the 

county clerk microfilms the instruments 

filed in his office. At the end of each day 

he splices the film and sends it to the 

company in Dallas where it is developed. 

The company makes an archival print of the 

film which it keeps and returns the original 

microfilm back to the county clerk's office. 

The company also makes indices of the 

clerk's records, binds the indices and sends 

it to the county clerk's office. The annual 

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Honorable Bill Turner - Page 2 U-M-890) 

cost for this service is slightly more than 

$100,000. 

Section 262.023(a) of the Local Government Code provides 

that, for county contract purchases requiring expenditures 

over $5,000, the commissioners court "must comply with the 

competitive~ bidding or competitive proposal procedures 

prescribed by this subchapter.11 

Section 262.024 of the Local Government Code provides 

in pertinent part: 

(a) A contract for the purchase of any of 

the following items is exempt from the 

requirement established by section 262.023 

if the commissioners court by order grants 

the exemption: 

-, 

. . . . 

(4) a personal or professional service. 

The "personal or professional service" exception 

currently codified as section 262.024(a)(4) remains 

substantially unchanged from that in the section's 

predecessor provisions, article 2368a.5, section 4(a)(4), 

V.T.C.S. (Acts 1985, 69th Leg., ch. 641, 51, at 2377) and 

article 2368a, section 2, V.T.C.S. (Acts 1931, 42nd Leg., 

ch. 163, at 270-71). 

--, 

Prior to the codification of the "personal 

professional service" exception in 1931, the competitizz 

bidding statute provided the sole statutory exception to 

its operation for "work done under the direct supervision 

of the county commissioners and paid for by the day." 

V.T.C.S. art. 2368 (Acts 1923, 38th Leg., ch. 127, at 262, 

repealed by Acts 1931, 42nd Leg., at 269); and V.T.C.S 

art. 2368a (Acts 1917, 35th Leg., ch. 141, 51, at 349, 

repealed in part by Acts 1987, 70th Leg., ch. 149, 549(l), 

at 2545). Hunter et al v. Whiteaker & Washington et al, 

230 S.W. 1096 (Tex. Civ. APP. - San Antonio 1921, writ 

ref'd) considered the latter statute as applied to 

engineering services: 

There is but one question of law in this 

case, and that is whether a commissioners' 

court has the legal power and authority to 

enter into a contract with engineers for 

their technical and professional services in 

connection with the construction and 

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Honorable Bill Turner - Page 3 W-890) 

maintenance of public highways and roads in 

their county, without advertising for competitive bids' for such services. 

. . . . 

To hold that the act would require that 

the services of a man belonging to a 

profession such as that of the law, of 

medicine, of teaching, civil engineering, or 

architecture should be obtained by a county 

only through competitive bidding would give 

a ridiculous meaning to the act, and require 

an absurdity. 

. . . . 

Such a construction would require the 

selection of attorneys, physicians, school 

teachers, and civil engineers by competitive 

bids, the only test being the lowest bid for 

the services of such men. Such a test would 

probably be the best that could be conceived 

for obtaining the services of the least 

competent man, and would be most disastrous 

to the material interest of a county. 

Civil engineering is a profession, 

requiring years of education and service to 

obtain perfection in it, and calling, in its 

application, for a high order of intelligence and extraordinary skill and learning, 

and it was never contemplated by the Legislature that the money of the citizens of a 

county, raised for road purposes, should be 

expended upon the advice of a civil engineer 

who had obtained his employment by underbidding his competitors, and without regard to 

his ability to fill the position. 

Id. at 1097-98. 

Gulf Bitulithic Co. v. Nueces County, 11 S.W.2d 305 

(Tex. Comm’n App. 1928, judgm't adopted) ruled on the 

applicability of the competitive bidding requirements 

imposed by article 2368a, to the services of a company 

engaged by the county to supervise the construction of 

county roads. Stressing that the county itself directly 

paid the cost of labor and material for the projects, and 

that "[t]he company was not employed as contractor or 

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Honorable Bill Turner - Page 4 (JM-890) 

materialman but as agent" the court, in holding such 

services within the "personal or professional services" 

exception, reasoned as follows: 

To hold that contracts for the 

suvervision of work done directly by the 

county must be let to the lowest bidder 

would result in the county obtaining the 

least competent supervision, as those 

possessing the necessary skill, experience, 

and business judgment to supervise a large 

construction program in the most efficient 

and economical manner could not hope to 

successfully compete with those of lesser 

skill, experience, or business judgment. 

(Emphasis added.) 

& at 309. 

all c 0 issioner Court of M Co 

S.W. t93 "(Gez: &? App. -' 

adison ., 281 

Waco 1926), m on other 

arounds, 15 S.W.Zd 535 (Tex. 1929), considered a 

contract with a 

county 

company for various services such as 

making abstracts of property upon which taxes were 

delinquent, making a map and plat system or block map of 

all land in the county, surveying where necessary br 

agreed, and making reports of such to the commissioners 

court, and held that: 

Some of the things embraced in the contract in this case would perhaps require 

technical knowledge and some would not, and 

those that do not would be controlled by 

[the competitive bidding requirements of] 

said statute. 

L at 595. 

Attorney General Opinion MW-344 (1981) pointed out 

that the pre-1931 cases established an exception for 

services involving "special skills," but that the language 

of the exception adopted in 1931 for "personal or 

professional services" does not on its face appear to be a 

mere codification of that prior court-created exception. 

"Personal services@' in its ordinary meaning, for - 

example, would include other sorts of services than only 

those involving "special skills." 

General Opinion JM-486 (1986), 

Recently, Attorney 

in seeking to elucidate the 

scope of the personal SeNice exception, referred to a ? 

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Honorable Bill Turner - Page 5 (JM-890) 

- 

definition of personal services developed by Van Zandt v. 

Port Worth Press, 359 S.W.2d 893 (Tex. 1962) which had 

considered the applicability of a statute providing for 

recovery of attorneys fees by persons "having a valid 

claim . . . for personal services rendered." Attorney 

General Opinion JM-486 concluded with respect to the 

question of the applicability of the competitive bidding 

statute to janitorial services: 

Someone who claims to have rendered 

'personal services' must have performed the 

services himself. The claimant's employees, 

in contrast, may have rendered 'services.' 

If the contract you ask about requires a 

specific person to perform janitorial 

services, it is a contract for personal 

services. If the contract merely requires a 

person or corporation to provide persons who 

will perform janitorial services, it is not 

a contract for personal services. 

.c, 

It is our opinion that the microfilm services which 

are the subject of your request are not "personal 

services" within the scope of section 262.024(a)(4) of the 

Local Government Code, because from your description of 

such services they are not to be rendered by a person or 

persons chosen specifically by the commissioners court, 

but rather by personnel of the service company, many or 

most of whom are unknown to the commissioners. 

The next question is: Are the microfilm services 

"professional services?" Webster's definitions of "professional" range from "of relating to, or characteristics 

of a profession" to "engaged in one of the learned 

professions" and "characterized by or conforming to the 

technical or ethical standards of a profession." The 

definition of profession includes Ita calling requiring 

specialized knowledge and often long and intensive 

academic preparation" as well as 'Ia principal calling, 

vocation, or employment." See Webster's Ninth New 

Collegiate Dictionary (1985). 

Black's Law Dictionary (5th Ed. 1979) contains the 

following entry under "profession": 

r 

A vocation or occupation requiring 

special, usually advanced, education and 

skill: e.q. law or medical professions. 

Also refers to whole body of such profession. 

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Honorable Bill Turner - Page 6 (J?.-890) 

The labor and skill involved in a 

profession is predominantly mental or 

intellectual, rather than physical or 

manual. 

The term originally contemplated only 

theology, law, and medicine, but 

applications of science and learning a:: 

extended to other departments of affairs, 

other vocations also receive the name, which 

implies professed attainments in special 

knowledge as distinguished from mere skill. 

Marvland Casualtv Co. v. Crazv Water Co., 160 S.W.Zd 

102 (Tex. Civ. App. - Eastland 1942, no writ) interpreted 

the meaning of "professionalV' services as found in an 

insurance policy rider and found that the services of the 

bath house operator policy holder were not "professional" 

services, the labor and skill required for the latter 

sorts of services being "predominantly mental or 

intellectual, rather than physical or manual." Id. at 

105. Marvland Casualtv Co. was cited in Attorney General 

Opinion MW-344 (1981), which held that a contract for the 

services of a container terminal operator was not one for 

"professional services." 

A more recent indication by the legislature as to the 

present scope of the "professionall* service exception it 

created 57 years ago is found in two other sections of the 

County Purchasing Act: 

5262.022. Definitions 

In this subchapter: 

. . . . 

(3) *High technology item' means a 

service, equipment, or good of a highly 

technical nature, including: 

(A) data processing equipment and 

software and firmware used in conjunction 

with data processing equipment; 

(B) telecommunications, radio, and 

microwave systems: 

? 

? 

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(C) electronic distributed control 

systems, including building energy 

management systems: and 

(D) technical services related to 

those items. 

Local Gov't Code 5262.022. 

5262.030. Alternative Competitive Proposal 

Procedure for Insurance or High Technology 

Items 

(a) The competitive proposal procedure 

provided by this section may be used for the 

purchase of insurance or high technology 

items. Quotations must be solicited through 

a request for proposals. Public notice for 

the request for proposals must be made in 

the same manner as provided in the 

competitive bidding procedure. The request 

for proposals must specify the relative 

importance of price and other evaluation 

factors. The award of the contract shall be 

made to the responsible offeror whose 

proposal is determined to be the lowest 

evaluated offer resulting from negotiation, 

taking into consideration the relative 

importance of price and other evaluation 

factors set forth in the request for 

proposals. 

Local Gov't Code $262.030. 

In providing for "high-technology items." a "competitive proposal" procedure alternative to the competitive 

bidding procedure set out in the Act, section 262.030 

clearly contemplates that such high technology items are 

covered by the requirement of section 262.023 that certain 

items be purchased in compliance with the "competitive 

bidding or competitive proposal procedures." The 

legislature therefore could not have considered such "high 

technology" items to be exempted from the coverage of 

section 262.023 by the provisions of section 262.024 which 

provide for the "personal or professional service" and 

other exceptions to the operation of section 262.023. 

It is our opinion that since the legislature intended 

such high technology items to be covered by the competitive bidding or competitive proposal requirements and not 

p. 4362 
Honorable Bill Turner - Page 8 W-890) 

to fall within the section 262.024 exceptions, it would 

not have considered the microfilm services in question 

here as exempted from coverage. If services requiring 

such high skills and technical expertise as "electronic 

distributed control systems," "microwave systems," and the 

other examples of high technology services listed in 

§262.022(3) are nevertheless not "professional" services 

within the meaning of 5262.024(a)(4), then it is clear 

that the microfilm services which, from your description, 

involve a lower level of technology, are not "professional 

services." 

We conclude therefore that the microfilm services you 

described are subject to the competitive bidding or 

competitive proposal requirements of the County Purchasing 

Act, Local Gov't Code 5262.021, et sea. 

SUMMARY 

A contract for microfilm services does 

not fall within the "personal or professional service" exception of Local Government 

Code section 262.024, and therefore must be 

let under the competitive bidding or 

competitive proposal procedures set forth in 

the County Purchasing Act, Local Government 

Code section 262.021, et sea. 

Very 

I 

truly yodd 

Lb+& hc ““~ 

JIM MATTOX - 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

‘7 

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