Honorable Hubert W. : Ureen, Jr. 

Crlmlnal .Matrlot Attorney 

Bexar County: Courthoa8e 

San Antonio .!5, Texas 

Opinion No. WW-406 

Re: Authori+? of County Auditor ..a. - - - 

Dear Mr. Ureen: 

to Pay 03r443.09 for addltlonal work .ar%sing rrom 

unexpeoted dtffihultles 

,,under a .oontriot ~-and $1,238.22 

for extra~,wo?$c~..qot lnoluded 

under .the :.oontraat j. applloation of Artlole i&659 and 

Artlole 236& to Bexar County. 

.,. 

your requert for an opinion of thi.8 ofSloe.:haa .been 

reoelved . lhe folloulng faots are quoted from your letter: 

: 

“One County Commli*lonel, aought~.to have..tuo ..:. 

parking areaa In hla oounty park resurfaoed with 

asphalt .and:oertaln ourblng and 8ldeualks .lnrtalled. 

me projeot uaa properly,.advertlaed and bidswere 

reoelved on a unlt+prloe.oontraot:basilri. ,Ime total 

oost. :of the .,projeot .advertlsed, based upon’~ the 

approximate number .of .unltr required;uaa in the, 

total amount OS $ 

aooepted Andy beoame. =%Pi* 

‘Ihe ‘prloe per unit was 

0 asis of -the odntraot 

entered into. 

,“Hhen the bill was .gresented upon qompletlon 

OS .:the ..woi-k, it .wad ln’+he amount ;of $10,621.5x and 

war, aooompanled bf ‘a ‘lettir from’: the Commls’alo~er 

for whom .$he work. wan done whloh read, :ln .part, a8 

f 0llowe t ., 

: ,- 

'ytDurlng the prooeae of the pa&&(the. 

County hglneer~s offloe) dlsoovered:the~~neoesslty 

for lnoreaslng the thloknesa of the asphalt to be 

u8ed as a’new surfroe;’ In addition, I lnstruoted 

the oontraotor to’pave about two..‘thoueand square 

fret that *as not inoluded’ln the briglnal oontraot . * ” I’ 
Honorable Hubert W. Green, Jr., Page 2 (~~-406). 

.tate 

The questions you submit are as followa: 

"1 . May the County Auditor lawfully pay an 

additional $1,443.09 on a unit-price contract of 

$7,939.20 because of unforeeeen and unexpeoted 

dlfflcultles not reasonably anticipated when the 

contract was made? 

"2. May the County Auditor lawfully pay an 

additional $1,238.22 which waa~ not In oontemplatlon originally but was for material aotually 

furnished and work actually done In addition to 

and not lnoluded in, bu$.in connection with, a 

unit-price contract for.$7,93$?.20? 

“3. Do the provisions of Article 1659 

Vernon's Texas Statutes, requir'ing the purchase of 

supplles and material by lowest and best bid, conti?ol In Bexar County rather than the provision8 of 

Article 2368a, Seotlon 2a, due to the fact that 

the population of Bexar Count{ exceeds 350,000 

according to the 1950 cenaua? 

Consideration of your third question will faolllthe answers to questions one and two, 

Section 2 of Article 2368a of Vernon's Annotated 

Texas Civil Statutes reads In pa& as follows: 

11 

. . . Provided, however,, that the provlalons of this Act shall not apply to counties 

having a population of more than three hundred 

fifty thousand (350,000) Inhabitants aooorfllng to 

the last preoedlng or any future Federal Censure;" 

Article 1659, Vernon's Annotated Texas Civil 

reads In part a8 follows: 

Statutee; 

"Suppllee of every kind, road and bridge 

material, or any other material, for the use of 

said county, or any of Its offloer8, departments, 

or lnatitutlons must be purchased on oompetltlve _ _ 

blCl8, the contract to be awarded to the party who, 

In the judgment of the commleslonera court& has 

submitted the lowest and best bid. . . . 

(Emphasis oure). 

Since Article 2368a applies only to counties having 

a population of 350;000, or less, and since Bexar County haa 

more than 350,000 Inhabitants, it ia clear that Article 2368a 

does not apply to your situation. We are of the further 
. Honorable Hubert W. Green, Jr., Page 3 (w-406). 

opinion that Article 1659, Vernon's Annotated Texas Civil 

Statutes, does not apply for the reason that the terms 

"supplies" and "materials" do not encompass the paving services Involved In your request. These terms have been 

defined In Patton v. Con&o County 196 S.W.2d 833 (Tex.Clv. 

App. 1946), wherein the Court refe:red to the definition set 

out In Century Indemnity Co. of Chicago, Ill. v. Shunk Mfg. 

CO., 253 0. 30, bo S.W.2d 772 (1934), "materials" Is 

Ere defined as ' . . . something that becomes a part of the 

finished structure; something thatgoes Into and forms.a part 

of the finished structure." 

The word "supplies" Is there defined as " . . . . 

articles furnished for carrying on work which, from Its 

nature, are necessarily consumed by the use in the work." We 

do not think the paving contract comes under the definition 

of either supplies or materials, It follows that competitive 

bids are not required under the terms of Article 1659, Vernon's Annotated Texas Civil Statutes. 

Accordingly, It Is our opinion that under the facts 

neither Article 1659, Vernon's Annotated Texas Clvll~Statutes, 

nor Article 2368a, Vernon's Annotated Texas Civil Statutes, 

required competitive bidding In this case. 

Because of the similarity of questions one and two 

stated above, we will answer them together. 

Section 53 of Article III of the Constitution of 

Texas reads as follows: 

"The legislature shall have no power to grant, 

or to authorize any county or municipal authority 

to grant, any extra compensation, fee or allowance 

to a public officer, agent, servant or contractor, 

after service has been rendered, or a contract has 

been entered Into, and performed In whole or in 

Dart: nor oav. nor authorize the oayment of, any 

3ZY.m creaiei*agalnst any county or-munlclpallty 

of the State, under any agreement or contract, 

made without authority of law." (Emphasis added). 

This provision of the Constitution of Texas precludes the grant of any extra compensation, over and above 

the contract price, to a contractor after the contract has 

been performed in whole or In part. Shelby County v. Gibson, 

44 S.W. 302 (Clv.App. 1898, error ref.). 

In Dallas County v. Lively, 106 Tex. 364, 167 S.W. 

219 (1914) at page 220, we find: 
Honorable Hubert W. Green, Jr., Page 4 (WW-406). . 

. . The Constitution does not forbid the 

fixing of compensation after service rendered, but 

forbids Increasing the agreed or prescribed sum 

after service rendered or work performed. . . . II 

The $1,443.09 Item referred to In your first question Is claimed for labor and materials used or expended by 

the contractor In Increasing the thickness of the asphalt 

paving of the area covered by the contract. This expenditure 

for the additional thickness was over and above the terms of 

the contract between the Commissioners t Court and the contractor, and the sum claimed for this additional thickness, therefore, does not constitute "extra compensation" for the services 

rendered under the contract within the meaning of the above 

quoted constitutional provision. The $1,238.22 Item mentioned 

In your second question Is clearly In addition to and over and 

above the original contract, and Its payment would not constltute "extra compensation" under the terms of the above quoted 

constitutional provision. The only question Involved with 

regard to these two Items Is the binding effect of the authorlzatlon to the contractor upon the Commissioners' Court. mat 

Is to say, are the directions given to the contractor by the 

County Engineer and by one County Commissioner binding on the 

Commissioners1 Court In this Instance? In 11B Texas Jurlsprudence, Counties, Section 137, page 206, It Is stated: 

"A contract which the commissioners court Is 

shown to have had authority to make may be blndlnf 

by virtue of subsequent acts of the court; . . . 

Roydstun v. Rockwall County, 86 Tex. 234, 24 S.W. 

72 693). Galveston County v. Gresham, 220 S.W. 

560 &.v.App. 1920, error ref.}. 

As we have stated, competitive bidding was not 

required in a contract of this type by the Commissioners' 

Court'of Bexar County under either Article 2368a or Article 

1659, Vernon's Annotated Texas Civil Statutes. Therefore, 

the Commissioners1 Court had the power and authority to contract for the extra work which was performed by the contractor. 

Having such authority, the Commissioners' Court could ratify 

unauthorized agreements made on Its behalf for such paving. 

We, therefore, answer your questions one and two In the 

affirmative. 

SUMMARY 

Neither Article 2368a nor Article 1659, 

Vernon's Annotated Texas Civil Statutes, 

applies to a contract by the Commissioners' 

Court of Bexar County with a contractor 

for the paving of certain areas in a county 
Honorable Hubert W. Green, Jr:, Page 5 (~~-406). , .I* - 

. . ' 

park. Article 2368a does not apply beoauae 

Bexar County, having more than 350,000 

Inhabitants, Is excluded therefrom. Since, 

In our opinion, the paving contract does 

not constitute either "supplies" or "materials", Article 1659 does not apply. Payment for paving done over and above that 

required and called for In the oontract 

would not constitute "extra compensation" 

within the prohibition of Section 53, Article III of the Texas Constitution. Slnoe 

the Commissioners' Court had authority to 

contract for the extra paving work which 

was done It may, by subsequent action, 

ratify the acts of the County Engineer and 

County Cormnlssloner In directing additional 

paving work to be done. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

Ld cg By 

W. 0. Shultz 

Assistant 

WOS:wb:jl 

APPROVED: 

OPINION COMMITTEB 

Geo. P. Blackburn, Chairman 

J. Mark McLaughlin 

,J. Milton Richardson 

John Ii. Mlnton 

REVIEXEDFORTHE A'M'OFiNEYffENERAL 

BY: 

w. v. Geppert