ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

February 28, 2008

The Honorable Jesse Gonzales, Jr.

Pecos County Attorney

103 West Callaghan

Fort Stockton, Texas 79735

Dear Mr. Gonzales:

Opinion No. GA-0604

Re: Whether a project financed in distinct phases

is subject to the competitive bidding requirements

ofthe County Purchasing Act (RQ-0620-GA)

You ask with regard to certain purchases in Pecos County:

Whether the County Auditor may present for payment, an invoice for

labor, that in the opinion ofthe County Attorney, has been determined

to violate the County Purchasing Act? Specifically, can a project be

set up to be performed in "phases" that are each under $25,000 and

not be subject to the County Purchasing Act, if the entire project,

when completed, is over $25,000?1

You explain that a county commissioner "contracted with a local contractor for a concrete

slab in a county park." Request Letter, supra note 1, at 1.2 You indicate that the concrete work is

described by the commissioner as "Phase I" of the project. Id. An invoice for the labor and

1See Letter from Honorable Jesse Gonzales, Jr., Pecos County Attorney, to Honorable Greg Abbott, Attorney

General ofTexas, at 1 (Sept. 7, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)

[hereinafter "Request Letter"].

2y ou also indicate that "except for the invoices being submitted for payment, no action was taken through the

entire commissioners court regarding this project." Request Letter, supra note 1, at 2. Although you do not specifically

raise it, the absence of commissioner court approval raises additional concerns regarding the validity ofthese invoices.

Generally, "[t]he commissioners court may only validly act as a body; the acts ofa single commissioner do not bind the

court." Hays County v. Hays County Water Planning P'ship, 106 S.W.3d 349,360-61 (Tex. App.-Austin 2003, no

pet.) (citing Canales v. Laughlin, 214 S.W.2d 451,455 (Tex. 1948); Eastex Wildlife Conservation Ass'n v. Jasper, 450

S.W.2d 904,907 (Tex. Civ. App.-Beaumont 1970, writrefd n.r.e)); see also Tex. Att'y Gen. Op. No. GA-0229 (2004)

at 8 (" [I]n the absence of a statute authorizing another county official to enter into a contract, the commissioners court

has the sole authority to enter into contracts binding the county."). Absent a claim "incurred as provided by law," "[t]he

county auditor may not audit or approve a claim." TEX. Lac. GOV'T CODE ANN. § 113.065 (Vernon 1999). Thus an

auditor might, depending on the facts, have a duty to refuse to pay a claim where a county official unilaterally acts to

enter into a contract.
The Honorable Jesse Gonzales, Jr. - Page 2 (GA-0604)

materials totaled $8,775; it was "processed" by the auditor and then submitted to and approved for

payment by the commissioners court. Id.

You tell us a pavilion structure was subsequently constructed on the concrete slab in what

is described as "Phase II" ofthe project. Id. Two separate invoices were submitted by the contractor

for the Phase II work.Id. We understand that the first invoice, totaling $12,921.52, was submitted

to and approved for payment by the commissioners court.3 The second invoice for the Phase II

work, totaling $12,000,4 brought the total cost ofthe Phase I and II work to $33,696.52. See supra

note 3. You explain that. all of the invoices "for either labor or materials were from the same

contractor by the same county official." Request Letter, supra note 1, at 2.

Pursuant to section 41.007, Government Code, you advised the county auditor that you find

no authority for her to submit the final Phase II invoice of $12,000 to the commissioners court for

approval because the final invoice would cause "the entire project to exceed $25,000[], and because

the job was not bid in compliance with the County Purchasing Act."s Id.; see also TEX. GOV'T CODE

ANN. § 41.007 (Vernon 2004) ("A district or county attorney, on request, shall give to a county or

precinct official of his district or county a written opinion or written advice relating to the official

duties ofthat official."). "Accordingly, she has refused to submit the remaining [$12,000] invoice"

to the commissioners court. Request Letter, supra note 1, at 2.

You first ask whether the county auditor may present the final invoice for payment to the

commissioners court in light of your advice. Id. We begin by examining relevant duties of the

county auditor under state law. Chapter 113, Local Government Code, providesthat "[a] claim, bill,

or account may not be allowed or paid until it has been examined and approved by the [county]

auditor." TEX. Loc. GOV'T CODE ANN. § 113.064(a) (Vernon 1999). Under Local Government

Code section 112.006(b), "[t]he county auditor shall see to the strict enforcement of the law

governing county finances." Id. § 112.006(b). "The county auditor may not audit or approve a claim

unless the claim was incurred as provided by law." Id. § 113.065. Thus, an auditor has a mandatory

duty to examine the lawfulness of a claim against the county before the claim is considered for

payment by the commissioners court. Crider v. Cox, 960 S.W.2d 703,706-07 (Tex. App.-Tyler

3See Letter attached to Request Letter from Honorable Jesse Gonzales, Jr., Pecos County Attorney, to Kay

Hardwick, Pecos County Auditor, at 2 (Aug. 31, 2007) ("To date, only $21,696.52 has been paid from County funds.").

4y ou tell us that the second invoice for the Phase II work was originally $13,500 but was subsequently adjusted

by the contractor to $12,000. Request Letter, supra note 1, at 1. Had the original invoice been correct, we note that

Phase II alone would have exceeded $25,000.

SWe assume for the purposes ofthis opinion that the project at issue is subject to the purchasing requirements

ofthe County Purchasing Act, Local Government Code sections 262.021-.036. See, e.g., TEX. Lac. GOV'T CODE ANN.

§§ 262.023(b) (Vernon Supp. 2007) (explaining that section 262.023(a)'s competitive bidding requirements "apply to

contracts for which payment will be made from current funds or bond funds or through anticipation notes authorized by

Chapter 1431, Government Code, or time warrants[, but] [c]ontracts for which payments will be made through

certificates ofobligation are governed by" subchapterC, chapter 271, Local GovernmentCode); 262.024-.0241 (Vernon

2005 & Supp. 2007) (setting out certain discretionary and mandatory exemptions); 271.111-.121 (setting out alternative

project delivery methods when entering into a contract for the construction of a "facility").
The Honorable Jesse Gonzales, Jr. - Page 3 (GA-0604)

1997, writ denied) (explaining the auditor'srole in the legislative scheme of checks and balancesthat

control county funds); Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App.-Dallas 1976, writ

dism'd) (addressing articles 1660 and 1661, the statutory predecessors to Local Government Code

sections 133.064-.065). And while we find no case law directly addressing the issue, this office has

previously concluded that a county auditor may not approve a claim for payment on a contract that

was not awarded in compliance with a competitive bidding law. Tex. Att'y Gen. Ope No. GA-0247

(2004) at 5; cf Kaufman County v. Crow, 176 S.W.3d 921, 926 (Tex. App.-Dallas 2005, pet.

denied) (indicating in the facts that the auditor refused to approve payment ofa claim because ofthe

failure to comply with the County Purchasing Act but not addressing whether the refusal was proper

under section 113.065).

In determining whether to approve a claim, bill, or account, a county auditor may tum to the

county attorney for an opinion or advice under section 41.007, Government Code: "A ... county

attorney, on request, shall give to a county or precinct official ofhis ... county a written opinion or

written advice relating to the official duties of that official." TEX. GOV'T CODE ANN. § 41.007

(Vernon 2004); see, e.g., Crider, 960 S.W.2d 703 at 707 (indicating that the auditor sought the

opinion ofboth the county criminal district attorney and the attorney general in deciding whether to

approve paymentofa bill for legal services). This provision imposes a duty on county attorneys to

provide advice and opinions to officials on request. Guynes v. Galveston County, 861.S.W.2d 861,

863-64 n.2 (Tex. 1993).

We do not believe, however, that the duty imposed on the county attorney under section

41.007 to provide advice and opinions binds the county auditor to act in accord with the opinion or

advice received from the county attorney. The opinion of a county attorney has no force of law.

Travis County v. Matthews, 235 S.W.2d 691, 696 (Tex. Civ. App.-Austin 1950, writ refd n.r.e.).

Moreover, the auditor has an independent duty to examine the lawfulness of a claim and generally

cannot delegate her duties to other county officials. Smith v. Flack, 728 S.W.2d 784, 790 (Tex.

Crim. App. 1987) ("[T]he Legislature has not provided a county auditor with any authority to

delegate [the] duty [to make an independent examination ofa claim and approve it] to another legal

entity or office."); Crider, 960 S.W.2d 703 at 706-07 (hold"ing that the county auditor had to

examine the lawfulness of a claim independent of the commissioners court); Comm'rs Court v.

Fullerton, 596 S.W.2d 572,578 (Tex. Civ. App.-Houston [1st Dist.] 1980, writrefdn.r.e.) ("The

county auditor ... cannot delegate his official duties to another, other than his duly appointed

deputies."). It is ultimately the auditor's duty under the statutory mandates of her office to decide

whether to approve a claim, bill, or account. TEX. Loc. GOV'T CODE ANN. §§ 113.064(a), .065

(Vernon 1999).6

6In Joe v. Two Thirty Nine Joint Venture, the court explains that "[t]o determine whether a public official has

acted in good faith, we use an objective standard, asking whether a reasonably prudent official, under the same orsimilar

circumstances, could have believed that his conduct was justified based on the information he possessed when the

conduct occurred." 145 S.W.3d 150, 164 (Tex. 2004). In light ofsuch judicial standards, a county auditor might, under

certain circumstances, be well-advised to follow the opinion or advice ofthe county attorney.
The Honorable Jesse Gonzales, Jr. - Page 4 (GA-0604)

We tum next to your question whether a project can "be set up to be performed in 'phases'

that are each under $25,000 and not be subject to the County Purchasing Act, ifthe entire project,

when completed, is over $25,000[.]" Request Letter, supra note 1, at 1.

The County Purchasing Act (the "Act"), Local Government Code chapter 262, subchapter

C, generally requires counties to make certain purchases using competitive bidding. Section

262.023(a), Local Government Code, provides that

[b]efore a county may purchase one or more items under a contract

that will require an expenditure exceeding $25,000, the

commissioners court ofthe county must:

(1) comply with the competitive bidding or competitive

proposal procedures prescribed by this subchapter;

(2) use the reverse auction procedure, as defined by Section

2155.062(d), Government Code, for purchasing; or

(3) comply with a method described by Subchapter H, Chapter

271.

TEX. Loc~ GOV'T CODE ANN. § 262.023(a) (Vernon Supp. 2007). In the Act, the term "item" is

defined to mean "any service, equipment, good, or other tangible or intangible personal property,

including insurance and high technology items." Id. § 262.022(5) (Vernon 2005). In applying

section 262.023(a), "allseparate, sequential, or component purchases ofitems ordered or purchased,

with the intent ofavoiding the requirements ofthis subchapter, from the same supplier by the same

county officer, department, or institution are treated as ifthey are part of a single purchase and of a

single contract." Id. § 262.023(c) (Vernon Supp. 2007). Section 262.022 defines "component

purchases," "separate purchases," and "sequential purchases" in the following manner:

(2) ."Componentpurchases" means purchases ofthe componentparts

ofan item that in normal purchasing practices would be purchased in

one purchase.

(7) "Separate purchases" means purchases, made separately, ofitems

that in normal purchasing practices would be purchased in one

purchase.

(8) "Sequential purchases" means purchases, made over a period, of

items that in normal purchasing practices would be purchased in one

purchase.

Id. § 262.022(2), (7)-(8) (Vernon 2005).
The Honorable Jesse Gonzales, Jr. - Page 5 (GA-0604)

Having set outthe relevant law, we conclude we cannot answer yoursecond question because

it would require us to resolve fact questions. For instance, it may have been more appropriate to

undertake this purchase in compliance with the Act because certain facts you relay, such as (1) the

invoices came from the same contractor and were delivered to the same commissioner, and (2) the

invoices resulted from what is characterized as Phase I and Phase II of a single project, raise

questions as to whether this purchase violates the Act. These facts are not, however, dispositive.

Section 262.023(c) applies when "separate, sequential, or component purchases" are undertaken

"with the intent of avoiding the requirements" ofthe Act. Id. § 262.023(c) (Vernon Supp. 2007)

(emphasis added); see also ide § 262.034(a) (Vernon 2005) ("A county officer or employee commits

an offense if the officer or employee intentionally or knowingly makes or authorizes separate,

sequential, or component purchases to avoid the competitive bidding requirements of Section

262.023."). Moreover, in determining whether a separate, sequential, or component purchase has

taken place, one must determine ifthe purchase would "in normal purchasingpractices" be made

as a single purchase. Id. § 262.022(2), (7)-(8) (emphasis added). Determining whether the requisite

intent is present and what constitutes a normal purchasing practice with respect to a particular item

requires the taking ofevidence and finding offacts that cannot be performed in the opinion process.

Tex. Att'y Gen. LO-94-087 (1994) at 2 (concluding that a determination of whether purchases by

Smith County of culverts and road sign components would fall within the prohibitions ofthe Act

involves questions offact that cannot be resolved in an opinion).

As previously discussed, it isthe county auditor who must determine whether a contract was

awarded in violation ofthe Act. TEX. Loc. GOV'T CODE ANN. §§ 113.064(a), .065 (Vernon 1999);

see also Tex. Att'y Gen. Ope No. GA-0247 (2004) ("[I]fa county auditor determines that a contract

was awarded in violation ofthe County Purchasing Act, section 113.065 ofthe Local Government

Code prohibits the auditor from approving the claim."); 36 DAVID B. BROOKS, TEXAS PRACTICE:

COUNTY AND SPECIAL DISTRICT LAW § 19.1 (2d ed. 2002) (explaining that it is the county auditor's

"duty to disapprove expenditures of county funds he believes to be unlawful. . . . [which] may

require the auditor, who is very seldom an attorney, to reach a legal decision based upon the

examination and interpretation ofstate law").
The Honorable Jesse Gonzales, Jr. - Page 6 (GA-0604)

SUMMARY

It is a county auditor's duty under the statutory mandates of

that office to decide whether to approve a claim, bill, or account. A

county auditor is not, therefore, bound by the advice or opinion ofthe

county attorney regarding the lawfulness of a claim, bill, or account

against a county.

In order to conclude that a project financed in distinct phases

violates the competitive bidding requirements of the County

Purchasing Act ("Act"), one must consider the facts, including

whether the purchase is undertaken with the intent of avoiding

the requirements of the Act and whether the purchase would in

normal purchasing practices be made as a single purchase. These

considerations involve questions of fact that cannot be resolved in an

attorney general opinion.

KENT C. SULLIVAN

First Assistant Attorney General

ANDREW WEBER

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Christy Drake-Adams

Assistant Attorney General, Opinion Committee