OFFXCE am 

THE AFFORNEY GENERAL 

AUSTIN.TEXAS 

PRICE DANIEL 

*TTORNEY ‘Eh‘E8.a 

February 20, 1948 

Hon. Joaeph C. Ternus 

County Attorney 

San Patrlcio County 

Sinton. Texas 

Opinion Ho. V-506 

Re: The necessity of lettina contracts based on 

co~etltlve bidding for 

road work to be done by 

the Comtulssloners' 

Court Itself, rather 

than by a general contractor. 

Dear Sir: 

Reference Is made to your recent.raquest for 

an opinion of this Department, which reads, in part, as 

follows: 

"Sometime-ago~the Connty of-San PatrlOio voted a $1;500,000.00 bond Issue to improve and construct roads in this county. 

The mohey Is now avtiilable and the oommLssloners expect to @end at least $750,000.00 

of this money on road Improvements and construction done directly under their imme& 

iate supervl.slon anB direction; that Is to 

say, It Is not contemplated that the work 

would be let to a contractor under bid to 

do a completed job, but that the commlssionem would, with the'help of an engineer hired for that purpose, do their own road construction and rebuilding. This will necsasltate many direct, individual e%pendltures 

of money since they contemplate purobaslng 

road materials themselves, directly paying 

for hauling, etc. In other words, the commissloners do not contemplate'contractlng 

with anyone for an 'end Item', I. e. a completed roab. 

"I would appreciate receiving an opinion from you concerning the questions hereinafter set forth. 
188 

Hon. Joseph C. Terms, page 2 (V-506) 

"Questlon,Bo. 1. Is there any law requiring the commlssioners~ court to let the 

San Patricia County road building and improvement progrtim out on oontract~under 

competitive bids, or may the commissioners1 

court build and improve the roads, doing the 

job themselves? . . . 

"Question No. 2. There will be consic¶- 

erable hauling to be done. The commisslonera would like to hire local men in the county, who own trucks, to do most of the hauling. It 1.3 further contemplated to pay for 

the hauling on a yardage basis. It is fur- . . 

ther contemplated that, if a man were to 

start hauling for the oounty and hauled as 

long as the county had work for him to ao, 

he would be paid a total In excess of $2,CCO.- 

00; however, the man would probably bill 

the county by the week which amount would 

probably be under $2,000.00 peti week.' Does 

Art. 2368a, Section 2 (or any other law), require this type of work to be let under competitive bids? 

"Question No. 3. It is contemplated 

that the commLssloners~ court would hire 

from the owner a dragline, the owner furnishing the operator and bearing the expenses and upkeep of the dragline; to be 

used in excavating road material and placing same in the dump trucks, the owner of 

the dragline to be paid &t the rate of SO 

much a yar@ loaded In the dump trucks. 

Would Art; 2368a, Section 2“(or any.,,other 

law) require that the oommissioners' court 

let this type of contract out for bids? 

"Question HO. 4. Akme that the 

dragline owner referred to above also. 

furnished the road building materials, 

would not Art. 1659 apply so that in that 

case the contract would have to be let Under bids? 

"The dragline owner in both Instances 

above would bill the county either by the 

day or by the week as the work progresses; 
Hon. Joseph C. Ternus, page 3 (v-506) 

of any nature or character upon such county or any 

subdivision of such oounty or upon auoh olty, without 

first submitting such proposed contract to competitive bids. . . 

“Provided, that in case of public. calamity, where it 

becomes necessary to act at once to appropriate money 

to relieve the necessity of the citizens, or to pre - 

,serve the property of such county or city, or where it 

is necessary to preserve or protect the public health 

of the citizens of such county or city, or in case of 

unforeseen damage to public property, machinery, or 

equipment, this provision shall not apply; and provided 

further, that it shall not be applied to contracts for 

personal or for professional servlces, nor to work done 

by such county or city'and paid for by the day, as such 

work prbgresses.” 

Ths purpose of these provisions is to enable counties to obtain 

the performance of any public work at the lowest possible cost to 

taxpayers. However, the Commissioners t Court has the option of 

carrying on the work itself and the provIsions of Article 2368a do 

not apply to any work done under the direot supervlslon of the 

County Conrmlssloners, 'and paid for by the day. Gulf Bltullthlc 

Compan 

?ur. c 

v. &4oes County (Corn. App.) 11 S.W. (26) 305; 11 Tex. 

6 3. 

'I;herefore, It is our opinion that the Commissioners' Court has 

authority to do this work in the same ~manner that they provide for 

other construction on the county highway system ,lnstead of asking 

for bids from private concerns. 

Inasmuch aa your questions 2 and 3 are 80 closely related, and 

since the same rule of law will govern in eaoh lnstanoe, we shall 

oonsider both questions together. 

The provisions of the above 

dltter4nt from Article 2368 

uoted Article 2368a am somewhat 

? now repealed), but the same rule of 

law l pplicabls under Article.2368 may now-be applied under Arti~cle 

2368a. W4 do not believe that such contracts as presentedT$ th4 

above questions are."such as to require oompotitive bids; 

Commissioners' Court may terminate the employment in each instance 

eny time It drsires to do so* 

The caao of Jackson v. Noel, 37 S.W. (26) 787, wan one In which 

the Commfssionsra' Court of Way County has entersd Into a contract 

with appsllant Jackson by which Jackson agreed to furnish certain 

road material for public roads for a prioe of $3.00 per yard of' 

gravel and material to be paid by Gra 

32 

County;. further the price 

agroad upon was greatly fn excess of ,ccc.cc. 
Hon. Joseph C. Ternus, page 4 (v-5061 

The court in passing upon the question of whether such a contract 

oame within the provisions of Article 2368, had this to say:, 

"The contract made by the commfssioners' court with' 

Jackson ~through Coxs one of its commisslon4r8, was 

for the hauling of material and for the spreading of 

same on the road. ; The record does not disclose that 

any contract was made with reforonco to the plaoing 

of such material upon any special numbor of yards of 

road, and no number of yards of gravel or caliche or 

other material was contracted for; hence It dannot 

be said that the making of the contract called for the 

expenditure of the sum of $2,000 or more. In other 

words, it was such a contract for the delivery of 

material that work could be stopped at any time. 

*That the contract now before this court is not 

controlled by article 2368, R.C.S. See Gulf Bttullthlc Co. v. Nueces County (Tex.Com. App.). 11 S.W. 

(2%) 30% - 

"For the reason that the evidence fails to dLsclose 

that the contract as made with Jackson necessarily 

amounted to the sum of #2,000, and for the roason 

that the conmlsaloners~~ court9 when having county 

road work done under its supervision, was not llmlted~ 

to such sum In the repair of the roads of the county 

and that they had the option as to whether suah work 

should be mubmitted to competitive bidders, w4 rovers8 

.the judgment of the trial court* and remand the cause 

for another triaz." 

Therefore; in view of the foregoing, it Is the opinion or thla 

Department that your questions 2 and 3 should be answored In the 

nogativs. 

Artlola 1659, V.C.S., Is aa follows% 

wSupplles of over kind, road and bri o~matsrlal, 

any other materia 9 p for the ua4 of sal 9 county, or 

of ltr offloors, departments, or institutiona must 

purchased on competitive bids,.th4 contract-t?-bo 

or 

tty 

awarded to the party who9 in the judgment of the commissionora Court, had'rubmltted the lowest and bort bid. 

The oounty auditor shall advertise for a perlod of 

two weeks in at least one daily newapapor.I\, published 

and oirculatsd In the county9 for such suppllss and 

material aocordfng to specifl&atlons, glvi,ng in d&all 

what is needed. Such advertisements shall atats whsro 

the specifications are to be found, and shall give th4 
Hon. Joseph C. Ternus page 5, (v-506) 

time and,place for receiving such bids. All such 

competitive bfds shali be kept on file by-the 

county ,audqtor as a part of the records of hfa 

office, and shal,l be subject to inspection by any 

one desiring to see them. Copies of all bfds 

received snail be furnis!led by the county auditor to 

the county judge and to the commissioners court; and 

when the bids received are not satisfactory to,the 

said judge or county commissioners, the auditorshall 

reject said bids and readvertfse for new bids. In 

cases of emergency, pur=has-es not in excess of one 

hundred and fifty doli.ars may be made upon requisftfon to be approved by the commissioners court, without advertfsfng for competftfve bfds." 

In thecase of iEast Texas Const. Co. v. Lfberty County, 139 S.W. 

{2d) 669# the court fn passPng upon the question of whether gravel 

'purchased by the county sk;ould be under competitfve bids said: 

"Since, on the allegatfona of the petition, the 

gravel fn controversy was sold and delivered by 

appellant and accepted by appellee on contract 

. without competitive bids, the oontract was unauthorfzed by law." 

So4 also Wyatt 

(2%) 787. 

Meta; and Broiler Works 'v. Farmin County, 111 S.W. 

&o&fore, in'viow of the foregoing, it is our opinion that road 

building materfals purchased by the county, ,must be submitted 

under.competftive bids. 

In compliance wit&your request, we are encPosfng the following 

opfnfonss v-285, C-6369, O-6$6, and C-2955. 

subwRY 

X0. The CommisaloneraD Court is not rsquired to let 

a contract under oompetitfve bids to build dounty 

roads? but may supervise the buflding of the .same 

ft44u. Art. V, Sec. 18, Art. XI, SerP.'2$ Art. XVI. 

Se0 24# State Constitution; Art..2351, V.C.S.; @.Qf 

Bitulfthfc Co. v. Nizeces Co. (Corn. App.). 11.S.W.. 

.@d) 3%. 

2. In the construction of oounty roads, the Commfssfonerac Court may employ persons to haul gravel and 

material, and pay them on a per yard baais, without 

requfrfn Jackson v. Noel, 37 

S.W. (2% 7 

competftivo bids. 

787. .- 

~, 
Hon. Joseph C. Ternus page 6, (V-506) 

3. Road building material purchased by the 

county must be submitted under competitive bids. 

Art. d~59~ .V.C.S.; East Texas Const. Co. v. Liberty 

Coay, 139 S.W. (2d1 669, 

Yours very truly, 

AlTOFiNEYGENERAL OF TEXAS 

S/ B&ice Allen 

BY 

Bruce Allen 

Assistant 

APPROVED: 

s/ Fagan'Dickson 

FIRiT ASSiSTANT 

ATTORNEY GQWUL 

Bh:mw/cge