ATTORNEY GENERAL OF TEXAS GREG ABBOTT



### February 28, 2008

The Honorable Jesse Gonzales, Jr. Pecos County Attorney 1

### 03 West Callaghan Fort Stockton, Texas 79735

Dear Mr. Gonzales: Opinion No. GA-0604
Re: Whether aproject financed in distinctphases is subjectto the competitivebidding requirements ofthe County Purchasing Act (RQ-0620-GA)

You ask with regard to certain purchases in Pecos County: Whetherthe County Auditormaypresentfor payment, an invoice for labor, thatinthe opinionofthe CountyAttorney, has beendetermined 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, ifthe 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" ofthe 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 withthe Opinion Committee, also available athttp://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 courtregarding this project." RequestLetter, supra note 1, at 2. Althoughyou do not specifically raise it, the absence ofcommissioner 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.2d451,455 (Tex. 1948); Eastex Wildlife ConservationAss'n v. Jasper, 450 S.W.2d 904,907 (Tex. Civ. App.-Beaumont 1970, writrefdn.r.e)); see also Tex. Att'y Gen. Op. No. GA-0229 (2004) at 8 (" [I]n the absence ofa 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 providedby 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.

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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 submittedbythe contractor for the Phase II 

### work.Id. We understand thatthe 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 ofthe invoices "for either labor or materials were from the same contractor by the same county official." Request Letter, 

### supra note 1, at 2.
Pursuantto section 41.007, Government Code, you advised the county auditorthatyou 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 projectto exceed $25,000[], andbecause thejob was notbid incompliancewiththe CountyPurchasingAct."s 

### Id.; see also TEX. GOV'TCODE ANN. 

### § 41.007 (Vernon 2004) ("A district or county attorney, on request, shall give to a county or precinct official ofhis district or county a written opinion or written advice relating to the official duties ofthat official."). "Accordingly, she has refused to submitthe 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 ofyour advice. 

### Id. We begin by examining relevant duties ofthe county auditorunder state law. Chapter 113, Local GovernmentCode, provides that "[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 countyfinances." I

### d. § 112.006(b). "The county auditormaynot auditorapprove a claim unless the claim was incurred as providedby law." 

### Id. 

### § 113.065. Thus, an auditorhas a mandatory duty to examine the lawfulness ofa 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 outell us thatthe second invoice forthe Phase II workwas originally $13,500 butwas 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 CODEANN. §§ 262.023(b) (Vernon Supp. 2007) (explaining that section 262.023(a)'s competitive bidding requirements "apply to contracts for which paymentwill be made from current funds orbond funds orthrough anticipation notes authorized by Chapter 1431, Government Code, or time warrants[, but] [c]ontracts for which payments will be made through certificates ofobligation are governedby" subchapterC, chapter271, Local GovernmentCode); 262.024-.0241 (Vernon 2005 & Supp. 2007) (setting outcertain discretionary andmandatory exemptions); 271.111-.121 (setting outalternative project delivery methods when entering into a contract for the construction ofa "facility").

### The Honorable Jesse Gonzales, Jr.

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1997, writdenied) (explainingthe auditor's role inthe legislative scheme ofchecks andbalancesthat 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). Andwhile 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 contractthat was not awarded in compliance with a competitive bidding law. Tex. Att'y Gen. Ope No. GA-0247 (2004) at 5; 

### cfKaufman County 

### v. Crow, 176 S.W.3d 921, 926 (Tex. App.-Dallas 2005, pet. denied) (indicating inthe facts thatthe auditorrefused to approve paymentofa claimbecause ofthe failure to comply withthe CountyPurchasing Actbutnot addressing whetherthe refusal was proper under section 113.065).
In determining whetherto approve a claim, bill, or account, a county auditormaytumto the county attorney for an opinion or advice under section 41.007, Government Code: "A

... county attorney, on request, shall give to a county orprecinct official ofhis

... county a written opinion or written advice relating to the official duties ofthat 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 ofboththe county criminal district attorney and the attorney general in deciding whetherto 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 ofa county attorney has no force oflaw. 

### Travis County 

### v. Matthews, 235 S.W.2d 691, 696 (Tex. Civ. App.-Austin 1950, writrefd n.r.e.). Moreover, the auditor has an independent duty to examine the lawfulness ofa 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 ofthe commissioners court); 

### Comm'rs Court 

### v. Fullerton, 596 S.W.2d 572,578 (Tex. Civ. App.-Houston [1stDist.] 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 ofher 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 whetherareasonably prudentofficial, underthe same or similar 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 ofsuchjudicial standards, a county auditormight, under certain circumstances, be well-advised to follow the opinion or advice ofthe county attorney.

### The Honorable Jesse Gonzales, Jr.

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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 amethod described by SubchapterH, 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 section262.023(a), "all separate, sequential, orcomponentpurchases ofitems orderedorpurchased, with the intent ofavoiding the requirements ofthis subchapter, from the same supplierby the same county officer, department, or institution are treated as ifthey are part ofa single purchase and ofa 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" meanspurchases of thecomponentparts ofan itemthat in normal purchasing practices would bepurchased in one purchase.

(7) "Separatepurchases" meanspurchases, made separately, ofitems that in normal purchasing practices would be purchased in one purchase. (8) "Sequentialpurchases" means purchases, made overaperiod, 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.

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Having setouttherelevantlaw, we concludewecannotansweryour secondquestionbecause 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 ofavoiding the requirements" ofthe Act. 

### Id. § 262.023(c) (Vernon Supp. 2007) (emphasis added); 

### see also ide 

### § 262.034(a) (Vernon2005) ("A county officeroremployee 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 normalpurchasingpractices" be made as a singlepurchase. 

### Id. § 262.022(2), (7)-(8) (emphasis added). Determining whetherthe 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 cannotbe performed inthe opinionprocess. Tex. Att'y Gen. LO-94-087 (1994) at 2 (concluding that a determination ofwhether purchases by Smith County ofculverts and road sign components would fall within the prohibitions ofthe Act involves questions offact that cannot be resolved in an opinion).
As previously discussed, itis the county auditorwho must determine whether a contractwas awarded in violation ofthe Act. TEX. Loc. GOV'T CODEANN. §§ 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 SPECIALDISTRICTLAW 

### § 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.

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### 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 auditoris not, therefore, boundbythe advice oropinion ofthe county attorney regarding the lawfulness ofa claim, bill, or account against a county. In orderto conclude that aproject financed in distinctphases 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 offactthat cannotbe 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