OFFKX OF THE ATTORNEY GENERAL. STATE OF TEXAS 

JOHN CORNYN 

November 3,1999 

The Honorable Steven B. Payson 

Dawson County Attorney 

P.O. Box 1268 

Lamesa, Texas 7933 1 

OpinionNo. K-0136 

Re: Whether a contract for ambulance service may 

be exempt t?om competitive-purchasing requirements in the County Purchasing Act, chapter 262, 

subchapter C of the Local Government Code, and 

related questions (RQ-0042-K) 

Dear h4r. Payson: 

You ask whether the Commissioners Court of Dawson County may contract for ambulance 

service pursuant to the County Purchasing Act (the “Act”), TEX. Lot. GOV'T CODE ANN. ch. 262, 

subch. C (Vernon 1999), without engaging in competitive bidding. Because the contract for 

ambulance service is necessary to preserve or protect the public health or safety of residents of the 

county, the commissioners court may by order exempt it from the Act’s competitive bidding 

requirements. 

You also ask whether the county may seek bids on the ambulance contract, open and reject 

all bids, and decide to exempt the contract from the Act’s competitive-purchasing requirements. See 

Letter from Honorable Steven B. Payson, Dawson County Attorney, to Opinion Committee, Office 

of the Attorney General (Mar. 12, 1999) (on file with Opinion Committee) [hereinafter “Request 

Letter”]. After seeking competitive bids for ambulance services and rejecting all ofthem, the county 

may not immediately proceed to award the contract to a bidder who is not the lowest dollar bidder 

meeting specifications. However, once the Commissioners Court has decided in good faith to end 

the bidding process and to begin again the process of contracting for ambulance services, it may 

decide to exempt the ambulance service t?om the competitive bidding requirements of the Act. 

You inform us that Dawson County has bid out the ambulance service for ten years. The last 

two times have been for four-year contracts with a county subsidy, which consisted of $55,000 a 

year under the second four-year contract. The contract ended on January 1, 1999, and the present 

ambulance service provider asked for a subsidy of $72,000. The ambulance service was submitted 

to public bidding and four bids were received and opened on January 25,1999. The current provider 

requested a $72,000 subsidy, while other bidders sought lesser subsidies. The Commissioners Court 

rejected all bids at a special called meeting on February 8, 1999, and sought advice from this office. 

See Request Letter, supra. Pending the issuance of this opinion, we understand that the county has 

retained on a month-to-month basis the previous provider, who was the highest bidder, at the subsidy 

requested in his bid. See id. 
The Honorable Steven B. Payson - Page 2 (~-0136) 

A commissioners court may contract with a private entity to provide ambulance service for 

the county. TEX. HEALTH & SAFETY CODE ANN. $774.003(b) (V emon Supp. 1999); see Tex. Att’y 

Gen. Gp. No. H-976 (1977). We understand that Dawson County contracts with aprivate ambulance 

service to maintain, operate, and staff county-owned ambulances. Telephone Conversation with 

Honorable Steven B. Payson, Dawson County Attorney (May 12,1999); Agreement between County 

ofDawson and Dennis White (Jan. 9,1995) (tiled with Dawson County Clerk) (on tile with Opinion 

Committee). If a county wishes to purchase items under contract requiring an expenditure in excess 

of $25,000, the Act requires it to comply with competitive bidding or competitive proposal 

procedures. See Act of May 21, 1999, 76th Leg., R.S., ch. 505, 5 2, 1999 Tex. Sess. Law Serv. 

2989,299O (to be codified as an amendment to TEX. LOC. GOV’TCODEANN. 5 262.023(a)); see&o 

TEX. Lot. GOV’T CODE ANN. 4 262.030 (Vernon 1999) (competitive proposal procedure for 

insurance, high technology items, and certain special services). Contracts for certain items are 

exempt from the requirement of competitive purchasing “if the commissioners court by order grants 

the exemption.” These include contracts for: 

(1) an item that must be purchased in a case of public calamity . . . ; 

(2) an item necessary to preserve or protect the public health or safety 

of the residents of the county; 

. . 

(4) a personal or professional service; 

. . . 

TEX. Lot. GOV’T CODE ANN. 5 262.024(a) (Vernon 1999). The term “item” is defined to include 

“any service, equipment, good, or other tangible or intangible personal property.” Id. $262.022(5). 

Chapter 262 of the Local Government Code does not forbid a county from contracting for any of 

these items through competitive bidding. 

You suggest that a contract for ambulance service may be exempt from competitivepurchasing requirements either as a matter affecting the public health or safety, see id. 

$ 262.024(a)(2), or as personal or professional services, id. 9 262.024(a)(4). Attorney General 

Opinion M-806 of this offtce construed a prior version of the County Purchasing Act, see Act of 

May 25, 1967,6Oth Leg., R.S., ch. 376,s 1, 1967 Tex. Gen. Laws 870 (formerly codified as TEX. 

REV. Crv. STAT. ANN. art. 2368a, $ 2), and concluded that ambulance service is “necessary to 

preserve or protect the public health” of county citizens and, accordingly, that a county need not 

competitively bid a contract for these services. See Tex. Att’y Gen. Gp. No. M-806 (1971) at 6. 

You have asked that we reconsider Attorney General Opinion M-806 on the ground that the publichealth exemption should be restricted to purchases necessitated by a public calamity. See Request 

Letter, supra. You note specifically that the Act has been revised and codified since this office 

issued Attorney General Opinion M-806. See id. 
The Honorable Steven B. Payson - Page 3 (Jc-0136) 

We conclude that a contract for ambulance service is an item necessary to preserve or protect 

the public health or safety of county residents, and that a commissioners court consequently may 

exempt the contract from the Act’s competitive-purchasing requirements under section 262.024(a)(2) 

ofthe Local Government Code. See TEX. Lot. GOV’TCODEANN. 5262.024(a) (Vernon 1999). Our 

conclusion follows from Hoffman v. City ofM. Pleasant, a decision of the Texas Supreme Court, 

and Attorney General Opinion M-806. See Hoffman v. Civ ofhft. Pleasant, 89 S.W.2d 193 (Tex. 

1936); Tex. Att’y Gen. Gp. No. M-806 (1971). 

In Hoffman the Texas Supreme Court held that a county need not competitively bid a contract 

for the purchase of items necessary to protect or preserve the public health, regardless of whether 

the purchase was necessitated by a public calamity. See Hoffman, 89 S.W.2d at 194. Hoffman 

construes the exemption from the competitive-bidding requirement “when it is necessary to preserve 

or protect the public health of the citizens of a county” to be independent of the exemption for 

purchases necessitated by a public calamity. See id. Thus, Hoffman squarely rejects the argument 

that a contract for an item necessary to preserve or protect the public health must be competitively 

bid except in the case of a public calamity. See id. at 194. 

We find no change in the law that warrants a reversal of the conclusion in Attorney General 

Opinion M-806 that ambulance service is an item affecting the public health. “The institution of an 

emergency ambulance service is . incident to the police power of the state: i.e.[,] to protect the 

health, safety, and general welfare of its citizens.” Branfley v. City ofDaZZas, 545 S.W.2d 284,285 

(Tex. Civ. App.-Amarillo 1976, writ ref dn.r.e.) (and attorney general opinions citedtherein);tlyaZa 

v. City of Corpus Christi, 507 S.W.2d 324,328 (Tex. Civ. App.Corpus Christi 1974, no writ) (and 

attorney general opinions cited therein). The plain language of section 262.024(a)( 1) and (2) of the 

Local Government Code comports with the Supreme Court’s interpretation in Hoffman, separating 

purchases necessitated by public calamity from purchases necessary to preserve and protect the 

public health. Section 262.024(a)(2) must, therefore, be construed consistently with its predecessor, 

the statute at issue in Hoffman. We affirm the conclusion of Attorney General Opinion M-806, that 

a contract for ambulance service may be exempted by order of the commissioners court under 

section 262.024(a)(2) of the Local Government Code from competitive-purchasing requirements as 

a matter affecting the public health or safety. 

You suggest that because the county has competitively bid the contract for ambulance service 

for the past ten years, and because other counties similarly competitively bid contracts for ambulance 

service, a custom has developed that prevails over the statute exempting a contract of public-health 

items fiorn the competitive-bidding requirement. A statute is not repealed by nonuse, but remains 

in full force and effect until it is amended or repealed by the legislature, or impliedly repealed by an 

irreconcilable statute. Interstate Forwarding Co. v. Vineyard, 3 S.W.2d 947, 957 (Tex. Civ. 

App.-Dallas, 1928), rev ‘d on other grounds, 49 S.W.2d 403 (Tex. 1932); GulfRefining Co. v. City 

ofDallas, 10 S.W.2d 151,158-59 (Tex. Civ. App.-Dallas 1928, writ dism’d w.o.j.). Accordingly, 

the custom in Dawson County and other counties of competitively bidding a contract for ambulance 

service does not repeal section 262.024(a) of the Local Government Code or otherwise bar a 

commissioners court from exercising its statutory authority to grant the exemption. 
The Honorable Steven B. Payson - Page 4 (JC-0136) 

You also ask whether the ambulance service is excepted thorn the competitive purchasing 

requirements of the Act by the exception in that Act for personal or professional services. See TEX. 

LOC.GOV’TCODEANN. 5 262.024(a)(4) (V emon 1999). The determination that aparticularcontract 

is for “personal or professional services” within section 262.024 of the Local Government Code 

involves questions of fact, which cannot be resolved in an Attorney General Opinion. See Tex. An’y 

Gen. Gp. Nos. DM-418 (1996) at 13; DM-106 (1992) at 2; IM-I 136 (1990) at 2-3; IM-486 (1986) 

at 1. The prior opinions of this office do, however, provide guidance that may assist Dawson County 

officials in making this determination themselves. Attorney General Opinion IM-486 (1986), in 

considering whether a contract for janitorial services was a contract for personal services within the 

predecessor of section 262.024 of the Local Government Code, stated as follows: 

Someone who claims to have rendered “personal services” must have 

performed the services himself. If the contract you ask about 

requires a specific person to perform janitorial services, it is a 

contract for personal services. If the contract merely requires a 

personoracorporationtoprovidepersonswho willperformjanitorial 

services, it is not a contract for personal services. 

Tex. Att’y Gen. Gp. No. IM-486 (1986) at 1; see also Tex. Att’y Gen. Gp. No. JM-890 (1988) at 5 

(determining as a matter of law that a particular contract for microfilming services is not a contract 

for “personal services”). If the contract covers items in addition to employees’ wages, such as the 

use of equipment, taxes, and insurance, the contract is one for personal services only if the cost of 

other items is substantially less than the cost of employee’s wages. See Tex. Att’y Gen. Op. No. 

MW-344 (1981) at 4. 

This office has recognized in previous opinions that the term “professional services” in the 

Act may encompass more than the services ofphysicians, attorneys, or others traditionally regarded 

as “professionals.” See Tex. Att’y Gen. Gp. No. JM-940 (1988) at 3. It may include “members of 

disciplines requiring special knowledge or attainment and a high order of learning, skill, and 

intelligence.” Id. Case law suggests that this term comprehends labor and skill that is 

“predominantly mental or intellectual, rather than physical or manual.” Marylnnd Cuwalty Co. v. 

Crazy Water Co., 160 S.W.2d 102, 104 (Tex. Civ. App.-Eastland 1942, no writ). We need not 

decide whether the contract for ambulance services is exempt from the competitive bidding 

requirement of the Act, because it may be excepted as a matter affecting the public health. 

Moreover, this office generally abstains from determining whether a particular service is a 

professional service. See Tex. Att’y Gen. Gp. Nos. DM-418 (1996) at 11-13; DM-106 (1992) at 2; 

IM-1136 (1990) at 3; IM-1038 (1989) at 2; MW-344 (1981) at 3. 

We turn to your second question: whether a county that accepts and opens bids may reject 

the bids, claim that the contract is exempt from the County Purchasing Act’s competitive-purchasing 

requirements, and award the bid to a bidder other than the lowest bidder? 
The Honorable Steven B. Payson - Page 5 (X-0136) 

Once a county determines that it will competitively bid a particular contract, it must publish 

notice of the proposed purchase and open bids on the date specified in the notice. See TEX. LOC. 

GOV’TCODEANN. $5 262.025(a), .026(a) (Vernon 1999). Section262.027 ofthe Local Government 

Code provides in part: 

(a) The officer in charge of opening the bids shall present them 

to the commissioners court in session. Except as provided by (e) 

[pertaining to contracts for the purchase of road construction 

material], the court shall: 

(1) award the contract to the responsible bidder who 

submits the lowest and best bid; or 

(2) reject all bids and publish a new notice. 

The commissioners court may award the contract to a bidder other than the lowest dollar 

bidder if (1) the bidder is a responsible bidder, and (2) the commissioners court complies with the 

following procedure: 

(c) A contract may not be awarded to a bidder who is not the 

lowest dollar bidder meeting specifications unless, before the award, 

each lower bidder is given notice of the proposed award and is given 

an opportunity to appear before the commissioners court and present 

evidence concerning the lower bidder’s responsibility. 

Instead of complying with subsection (c), Dawson County Commissioners Court rejected all bids 

and attempted to exempt the contract from competitive bids and award it to a bidder other than the 

lowest bidder. 

You argue that, once the commissioners court decides to use the competitive bidding process 

to purchase an item that it may exempt from competitive bidding, it must award a contract by 

competitive bidding. Request Letter, sup-a. If the commissioners court rejects all bids, you believe 

that its only option is to reissue the bid notice, changing the specifications if it deems this necessary, 

and begin a new round of competitive bidding. We disagree. 

Your argument is based on the mandatory language of section 262.027(a) of the Local 

Government Code, which provides that the commissioners court “shalr’ do one of two things when 

the bids are presented to it: either award the contract to the responsible bidder who submits the 

lowest and best bid; or. . . “reject all bids and publish a new notice.” TEX. Lot. GOV’T CODE ANN. 

5 262.027(a) (Vernon 1999) (emphasis added). The word “shall” ordinarily imposes a duty, TEX. 

GOV’T CODE ANN. 5 3 11.016(2) (Vernon 1998), and we find no basis for reading this word as nonmandatory in subsection 262.027(a). 
The Honorable Steven B. Payson - Page 6 (JC-0136) 

We disagree with you, however, as to the nature of the duty imposed by subsection 

262.027(a). We read this provision as requiring the commissioners court to publish a new notice if 

it continues to seek a contract through competitive bidding. Subsection 262.027(a) of the Local 

Government Code does not repeal the commissioners court’s common law authority to rescind its 

orders and decisions. See generally Bexar County v. Hatley, 150 S.W.2d 980, 984 (Tex. 1941); 

Swaim v. Montgomery, 154 S.W.2d 695 (Tex. Civ. App.-Amarillo 1941, writ refd w.o.m.). The 

court may at any time amend or repeal administrative, executive, or legislative actions it has taken, 

as long as vested rights are not impaired. August A. Busch & Co. v. Caufield, 135 S.W. 244,245 

(Tex. Civ. App.-Austin 1911, writ refd); Collingsworth County v. Myers, 35 S.W. 414,416 (Tex. 

Civ. App.-Fort Worth 1896, no writ) (commissioners court may revoke or modify resolution setting 

county judge’s salary for ex officio services, when judge had not yet earned the salary); Tex Att’y 

Gen. Op. No. DM-228 (1993) at 1 (commissioners court may amend ordinance); see Head v. Starr, 

8 S.W.2d 819,822 (Tex. Civ. App.-Fort Worth 1928, writ dism’d) (legislative body ofmunicipality 

may rescind prior acts, provided vested rights are not violated) (citing McQuillin on Municipal 

Corporations); see 4 EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS 5 13.49, at 884 

(3rd ed)). 

The commissioners court has the authority under common law to rescind or modify 

purchasing decisions it has made under the County Purchasing Act, and nothing in the express 

language of section 262.027(a) repeals this power. After it has rejected all bids, and before it 

publishes a new notice, it may modify or rescind its prior decision to seek competitive bids. Thus, 

it may change the specifications for an item before publishing a new notice, or rescind entirely its 

decision to seek an item through competitive bidding and decide to contract with another political 

subdivision for ambulance service or to provide this service itself. See TEX. HEALTH & SAFETY 

CODE ANN. $ 774.003 (Vernon 1992 & Supp. 1999). If the commissioners court rescinds entirely 

its decision to seek an item through competitive bidding it may exercise its authority under section 

262.024 of the Local Government Code to issue an order granting an exemption i?om competitive 

bidding for ambulance services as “an item necessary to preserve or protect the public health or 

safety of the residents of the county.” TEX. Lot. GOV’TCODE ANN. 5 262.024(a)(2) (Vernon 1999). 

See Tex. Att’y Gen. Op. No. DM-4 (1991) (when county received no bids on item, it could thereafter 

rely on any applicable exception from competitive bidding requirements); see also Griswold v. 

Ramsey County, 65 N.W.2d 647,652 @inn. 1954) (county that voluntarily sought competitive bids 

for jail contract had to comply with this method as long as it had not been seasonably abandoned) 

(dicta). 

We conclude that, after the Dawson County Commissioners Court rejected all bids for the 

ambulance service, it was not limited to seeking new bids. It could decide to rescind its decision to 

seek ambulance services through competitive bidding and begin the procurement process anew, 

exercising its authority under section 262.024(a)(2) of the Local Government Code to issue an order 

exempting the contract for ambulance service from competitive bidding and to choose a provider by 

another method. 
The Honorable Steven B. Payson - Page 7 (JC-0136) 

While the Commissioners Court may decide, after rejecting all bids, to exempt the ambulance 

service from the requirements of the Act, it may not do so in a way that violates section 262.027(c) 

of the Local Government Code, pertaining to the award of a contract to a bidder who is not the 

lowest dollar bidder meeting specifications. Whether or not the Commissioners Court has complied 

with section 262.027(c) of the Local Government Code involves fact questions, which cannot be 

addressed in an Attorney General Opinion. The Court must at least complete all steps necessary to 

rescind its decision to seek bids on the ambulance service and to approve an order exempting the 

ambulance service from the competitive bidding requirements of the County Purchasing Act. 
The Honorable Steven B. Payson - Page 8 (JC-0136) 

SUMMARY 

A county contract for ambulance service may be exempted by 

order of the commissioners court under section 262.024(a)(2) of 

the Local Government Code from the County Purchasing Act’s 

normal competitive-purchasing requirement as “an item necessary to 

preserve or protect the public health or safety of the residents of the 

county.” Attorney General Opinion M-806 (1971) is affirmed. The 

commissioners court may issue an order exempting the contract for 

ambulance service from competitive-purchasing requirements as a 

matter affecting the public health or safety. 

If the commissioners court has sought competitive bids on a 

contract for ambulance service and rejected them all, it is not 

thereafter required to continue using the competitive bidding process 

until it awards a contract. Section 262.027 of the Local Government 

Code, which provides that the commissioners court shall “reject all 

bids and publish a new notice,” does not nullify the general authority 

of the commissioners court to rescind its orders and decisions, 

assuming no vested rights have been impaired. If the court rescinds 

its prior decision to seek a contract for ambulance service through 

competitive bidding, it has authority to issue an order exempting the 

ambulance service from the competitive bidding requirements of the 

County Purchasing Act. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK RENT ERVIN 

Deputy Attorney General - General Counsel 

ELIZABETH ROBINSON 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General - Opinion Committee