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. projectwithout first advertising for bids for the rental of same? We have received.your request for an opinion on the following situation:

“Will you please adviseus whether or not the commissioners' courtmay 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, certainroad machinery was purchased or rentedby the Courtwithout 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.wasraised and the option to purchase was strickenfrom the contract. Later the question of advertisingwas 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 actualuse by the county. Only two bids were received. One of thesebids was from the Companywho had rented or sold the machinery to the county in May, 139.

9 The other bid was for a smaller amountby 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 threemonthly rentalHon. A. J. Bryan, Jr., page 2, O-1685

payments have accrued and the question is whether or not these rentals may be paid, theseparticular rentals having accrued justprior to the date of advertising for bids~and one payment just after the acceptance of the above describedbid." 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 apportionhands. 

### “6. Exercise general control over all roads, highways, ferries andbridges in their counties." The power expresslygiven to the commi.ssioners' court to lay out and establishpublic roads carrieswith it by implication all such other powers as are reasonablynecessary to carry into effect the granted authority. Lasater v. Lopei, 202 S.W; 1039 Owen v. Fleming-StilaerRoad 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 roadmachinery, 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 suchcounty 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 regulationsnot 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 authorityHon. A. J. Bryan, 

### Jr.,page 3, O-1685

to rent or lease roadmachinery for necessary uses on county roads. The question now presents itself as to.whether or not the commissionersl courtmayrent or lease road machinerywithout first advertising for bids for therental.
Article 

### 165'9,

Revised Civil Statutes 1925,provides for competitivebid advertisementsfor purchase of road and bridge material. As pertinenthereto, it reads as follows: wSupplies‘of everykind, road andbridge material or any othermaterial, for theuse of said county, or any of its officers, departments, or institutionsmust be urchased on competitivebids, the contract tobe Pawardedto the party wh in the judgmentof the commissioners1court, hzi submitted the lowest andbest bid." (Underscoringours) Article 

### 1659,aupra, doesnot apply torentals or leases of road machinery by the county. This is evident from its own terms. It is tobe 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. 

### 1659was originallyActs, 

### 1905, p. 384, amended Acts-1921, p. 185). We have reached the conclusion that it was not the intentionof the Legislature torequire advertisement for bids in the leasing or renting ofroad machLnery by the county commissioners1court. 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 saidmachinesy.
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 orrent, with the option to purchase,roadmachinery, pickups or trucks, warehouses for the storage of equipment.
We note that in the penultimateparagraph of your letteryou refer to the fact that "two or threemonthly rental payments have accrued" and st,a_te,that "the question is whether or not these rentalsmay be paid." The answer to this questiondepends upon whether therentals accrued under the old lease contract including the option to purchase or a subsequent lease contract omitting the optionprovision. We refrain frompassingupon thisHon. A. J. Bryan, Jr., page 4, O-1685

phase of thematter because of insufficient information. The bid requirement of Afticle 

### 16.59, supra, is applicable

_ to any purchase ofroad machinery or equipmentby a county commlssioners' court and cannotbe avoided in anymanner. Trusting that we have fully answered your inquiry,we are

DS:jm/cge

APPROVED DECEMBER 16, 

### 1939 s/.Gerald.G..Mann ATTORNEYGENERAL OF TEXAS Yoursvery truly ATTORNEYGENER.ALOF TEXAS s/Dick Stout
BY Dick Stout

.Assistant

Approved Opinion Committee By BWB, Chairman