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: 

“Will you please advise us whether or not the commissioners' court may rent road machinery at a monthly 

rental for use on a W.P.A. project, without first advertising 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 

county in May, 139. 

9 

The other bid was for a smaller 

amount by about .l,OOO.OO, but did not include a 

monthly rental on the machinery. The higher bid providing 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 
Hon. A. J. Bryan, Jr., page 2, O-1685 

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. 6751, 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. 

Article 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 
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. 

Article 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 1891, 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 amonthly 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, roadmachinery, 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 
Hon. A. J. Bryan, Jr., page 4, O-1685 

phase of the matter because of insufficient information. 

The bid requirement of Afticle 16.59, supra, is applicable _ to 

any purchase of road machinery or equipment by a county commlssioners' court and cannot be avoided in any manner. 

Trusting that we have fully answered your inquiry, we are 

DS:jm/cge 

APPROVED DECEMBER 16, 1939 

s/.Gerald.G..Mann 

ATTORNEY GENERAL OF TEXAS 

Yours very truly 

ATTORNEY GENER.AL OF TEXAS 

s/ Dick Stout 

BY 

Dick Stout 

.Assistant 

Approved Opinion Committee 

By BWB, Chairman