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 

,and labor when competitive 

bids were not taken, and 

related questions. 

According to your letter, a member of the 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 a bill therefor which 

the Commissioners Court wirhes to pay. 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 payment of the claim. 

You ask If the claim may be paid. 

Article V, section 18 of the Texas Constitution states that the commi,ssioners court “shall exercise such powers and jurisdiction over all 

county business, was is conferred by this Constitution and the laws of the 

State . . . ” Article 2351. sections 6 and 7, V.,T.C.S., grants the. 

commissioners court general control over all roads anal authority to keep 

in repair all necessary public buildings. Since the asphalt plant in 

question falls within the area of control outlined by Article 2351, the 

commissioners court of most counties would have the authority to make 

decisions regarding the repair of the 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, 152 S. W. 2d 

1084, 1085 (Tex. 1941). 

p. 2184 
, ’ 

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

But Article 1580. V. T. C. S., as amended by Acts 1971. 62nd Leg., 

ch. 837, p. 2550, provides that counties of a population of 74.000 or 

more may have a purchasing 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 of a Board 

composed of the judges of the 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 of two (2) years . . . who shall execute a 

bond in the sum of Five Thousand Dollars ($5,000) 

. . . for the faithhrl performance of his duties. 

(b) It shall be the duty of such agent to make 

all purchases for ruch county of all 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.o Droperty 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.1 for any person, firm 

or corporation, other than, such purchasing agent, 

to purchase 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 no warrant shall be drawn by the county 

auditor or honored by the cJunly treasurer of any 

such county for any purchases except by such agent 

and those made by competitive bid as now provided 

by law; . . . 

(Emphasis added) 

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

Articles 1659, 1659a. 1659b and 2368a, V. T. C. S., all have to do 

with competitive bidding requirements, but none of them apply. Article 

1659 is applicable only to ‘tsupplies and material” used in a more narrow 

8 ense. Patten v. Conch0 County, 196 S. W. 2d 833 (Tex. Civ. App. --Austin 

1946, no writ). Articles 1659a hand 1659b apply only to counties of populations 

and assessed-valuation brackets larger than thee e of Jefferson County. 

Article 2368a does not apply to purchases of less than $3,000. 

. 

We do not believe that the contract of repair purportedly made by the 

individual Commissioner complied with Article 1580 and we do believe 

that the Auditor and Treasurer of the’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 of the 

contract but contends that it may nevertheless ratify it and that after 

ratification it becomes the duty of the Purchasing Agent to sign the purchase order so that a warrant therefor.may properly issue. 

The power of the Commissioners Court to regulate county fiscal matters 

hab been altered by Article 1580 where 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 of Jefferson County may not originally authorize 

purchases not made in accordance with Article 1580, V. T. CS. By virtue 

of that statute, control of county contracts not regulated by Article 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 

of Judges created by Article 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 not made in conformity with the statutes, it is 

sometimes held liable under a theory of unjust enrichments - - a contract 

implied in law - - for the value of the benefits received. Wyatt Metal & 

Boiler Works v. Fannin County, 111 S. W.2d 787 (Tex.Civ.App. -- Texarkana 1938, writ dism’d. ), Whether or not, such would be the case here 

depends upon matters not before us, and we venture no opinion on the question. 

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

SUMMARY 

The Commisrioners Court of Jefferson County cannot 

ratify an illegal contract made in violation of Article 1580, 

V.T.C.S., for the repair of a 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 . 

p. 2187