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 

### 03r443.09for addltlonal work.ar%sing rrom unexpeoted **dtffihultles** 

### ,,under a.oontriot ~-and$1,238.22 for extra~,wo?$c~..qotlnoluded under .the:.oontraat j. applloation of Artlole 

### i&659and 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 $

=%Pi* aooepted Andy

beoame. ‘Ihe ‘prloe per unit was

0 asis of -the odntraot entered into.

,“Hhenthe bill was.gresented upon qompletlon OS.:the..woi-k, it .wad ln’+he amount;of 

### $10,621.5xand war,aooompanled bf 

### ‘ a‘lettir from’:the Commls’alo~er for whom.$he work. wan done whloh read, :ln .part, a8 

### f0llowe t .,

: ,- 'ytDurlngthe **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’HonorableHubert W. Green, Jr., Page 2 (~~-406).

.tate The questionsyou submit are as followa:

"1
. May the County Auditor lawfullypay an additional $1,443.09 on a unit-price contract of $7,939.20because of unforeeeen and unexpeoted dlfflcultlesnot reasonably anticipatedwhen the contractwas made? "2. May the County Auditor lawfullypay an additional 

### $1,238.22which waa~not In oontemplatlon originallybut was for material aotually furnished and work actually done In addition to and not lnoluded in, bu$.in connectionwith, a unit-price contract for.$7,93$?.20? 

### “3. Do the provisions of Article 1659 Vernon's Texas Statutes, requir'ingthe purchase of suppllesand material by lowest and best bid, conti?olIn 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? Considerationof your third questionwill 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 threehundred fifty thousand (350,000) Inhabitants aooorfllngto the last preoedlng or any future Federal Censure;" Article 1659, Vernon's AnnotatedTexas 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 lnatitutlonsmust 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.

. . . (Emphasisoure). Since Article 2368a applies only to counties having a population of 350;000, or less, and since Bexar Countyhaa more than 350,000 Inhabitants, it ia clear that Article 2368a does not apply to your situation. We are of the further. HonorableHubert 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 Pattonv. 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 '
. . . somethingthat 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 consumedby 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 requiredunder the terms of Article 1659, Vernon's AnnotatedTexas 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 competitivebidding In this case.

Because of the similarityof 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 shallhave 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 servicehas 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*agalnstany county or-munlclpallty of the State, under any agreement or contract, made without authority of law." (Emphasisadded). 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:HonorableHubert W. Green, Jr., Page 4 

### (WW-406).
.

. . The Constitutiondoes 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 expendedby the contractor In Increasing the thickness of the asphalt paving of the area coveredby the contract. This expenditure for the additional thicknesswas over and above the terms of the contractbetween the CommissionerstCourt 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 constitutionalprovision. The 

### $1,238.22Itemmentioned 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 constitutionalprovision. The only question Involvedwith 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 directionsgiven to the contractorby the County Engineer and by one County Commissionerbinding on the Commissioners1Court 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 subsequentacts 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.}.
Aswe have stated, competitivebidding 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 Courthad 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 contractby the Commissioners' Court of Bexar County with a contractor for the paving of certain areas in a countyHonorableHubert W. Green, Jr:, Page 5 (~~-406). ,.I*-

. . '

park. Article 2368a does not applybeoauae 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'Courthad authority to contract for the extrapaving 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