December 19, 1974

The Honorable Tom Hanna Criminal District Attorney Jefferson County P. 0. Box 2553 Beaumont, Texas 77704

Dear Mr. Hanna: Opinion No. H- 482 Re: Whether a commissioners court may ratify a contract for the purchase of materials ,andlabor when competitive bids were not taken, and related questions. According toyour letter, a member ofthe Commissioners Court of Jefferson County ordered approximately $900 worth of supplies and labor (without consulting the~court 

### or the Pu;chasing Aient) in order to repair the county asphalt plant which produces’ asphalt foi county roads. The person who supplied the tiaterials and labor pressnted abill therefor which the Commissioners Court wirhes topay. However~, the Purchasing Agent for the County and the County Auditor believe the contract was illegal and not subject to ratification. **They** have retired **to** take steps **toward pay**  ment 

### ofthe claim. You ask If the claim may bepaid. Article V, section 18ofthe Texas Constitution states that the commi,ssioners court “shall exercise such powers andjurisdiction over all county business, wasis conferred by this Constitution and the laws ofthe State

. . . ” Article 2351. sections 6and 7, V.,T.C.S., grants the. commissioners court general control over all roads analauthority to keep in repair all necessary public buildings. Since the asphalt plant in question falls within the area 

### of control outlined byArticle 2351, the commissioners court ofmost counties would have the authority tomake decisions regarding the repair ofthe plant. A commissioners court is

. . . ths general business and contracting agency of the county, and it alone has authority to make contracts binding on the county, unless othsrwise specificaliy provided by statute. Anderson v. Wood, 152S.W. 2d 1084, 1085 (Tex. 1941).

p. 2184, ’

The Honorable Tom Hanna, page 2 (H-482)

ButArticle 1580. V.T. C.S., as amended by Acts 1971.62nd Leg., ch. 837, p.2550, provides that counties ofapopulation of 74.000 or more may have apurchasing agent appointed. Jefferson County.falls into that group and such an officer has been appointed for it. The statute reads:

Section 1 (a) In all counties

. . . having a population of seventy-four thourand (74.000) or more inhabitants

. . . a majority ofa Board composed ofthe judges ofthe District~Courts and the County Judge

. . . , may appoint a . . .. county purchasing agent for such county, who shall hold office, unless removed by said judges, for a period oftwo (2) years . . . who shall execute a bond in the sum of Five Thousand Dollars ($5,000)

. . . for the faithhrl performance ofhis duties. (b) It shall be the duty of such agent to make all purchases for ruch county ofall supplies, materials and equipment required or used by such county or by a subdivision, officer, or employee thereof, excepting such purchases aa may by law be required to be made by competitive bid, and to contract for all repairs t.oDroperty used by such, county. its subdivisions. officers, and emplovees, except such as by law are required,to be contracted for by comnetitive bid.

. . (c) It shall be unlawfu.1for any person, firm or corporation, other than,such purchasing agent, topurchase any supplies, materials and equipment for, or to contract for any’repairs to property used bv such countv or subdivision, officer, or employee thereof, and nowarrant shall be drawn by the county auditor or honored by the cJunly treasurer ofany such county for any purchases except by such agent and those made by competitive bid as nowprovided bylaw;

. . . (Emphasis added)

p. 2185The Honorable .Tom Hanna, page 3 **(H-482)**

Articles 1659, 1659a. 1659band 2368a, V. T. C.S., all have to do with competitive bidding requirements, butnone **of**them apply. Article 1659is applicable only to ‘tsupplies andmaterial” used in **a**more narrow 8ense. Patten v. Conch0 County, 196S.W. 2d 833 (Tex. Civ. App. --Austin 1946, nowrit). Articles 1659ahand1659bapply only to counties ofpopulations andassessed-valuation brackets larger than theee of Jefferson County. Article 2368a does notapply to purchases of less than $3,000.

. We do notbelieve that the contract of repair purportedly made by the individual Commissioner complied with Article 1580andwe do believe that the Auditor and Treasurer ofthe’county are prohibited by Article 1580 from drawing or honoring warrants for purchases which are neither made **by** the Purchasing Agent nor made by competitive bid.. **As** we understand it, the Commissioners Court concedes the original invalidity ofthe contract but contends that it may nevertheless ratify it andthat after ratification it becomes the duty ofthe Purchasing Agent to sign the purchase order so that awarrant therefor.may properly issue. The power ofthe Commissioners Court to regulate county fiscal matters hab been altered by Article 1580where it app1ie.s. Attorney General Opinions M-708 (1970). WW-980 (1961). While it is axiomatic that the Commissioners Court may ratify any action which it could have originally authorized, the Commissioners Court ofJefferson County may not originally authorize purchases not made in accordance with Article 1580, V. T. CS. By virtue ofthat statute, control of county contracts not regulated byArticle 1659, Article 2368a, or a similar statute requiring competitive bidding, is in the County Purchasing **Agent.** Control of that officer is in the special Board ofJudges created byArticle 1580, not in the Commissioners Court of Jefferson County. We do not believe the illegal contract can be ratified by the Commissioners Court. Though the illegal contract cannot be ratified, where a county receives benefits under a contract notmade in conformity with the statutes, it is sometimes held liable under atheory ofunjust enrichments - - a contract implied in law - - for the value ofthe benefits received. Wyatt Metal & Boiler Works v. Fannin County, 111S.W.2d 787 (Tex.Civ.App. -- Texarkana 1938, writ dism’d. ), Whether or not,suchwould be the case here depends upon matters not before us, and we venture noopinion onthe question.

p. 2186The Honorable Tom Hanna, page 4 (H-482)

SUMMARY The Commisrioners Court ofJefferson County cannot ratify an illegal contract made in violation ofArticle 1580, V.T.C.S., for the repair ofa county building, though it may be liable upon a different theory for the benefits received. Very truly yours,

JOHN L. HILL (/ Attorney General of Texas APPROVED:

DAVID M. KENDALL, First Asrietant

C. ROBERT HEATH. Chairman Opinion Committae

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p. 2187