Hon. Clifton I-i. Morris Chairman 

State Board of Public Accountancy 

Fair Building 

Fort Worth, Texas Opinion No. O-2237' 

Re: Necessity of counties, municipal 

corporations and other public bodies 

submitting contracts for services of 

professional public accountants to 

Dear Sir: competitive bids. 

This will acknowledge receipt of your letter of 

4pri.l 16, 1940, requesting the opinion of this department upon 

the above stated question. We also acknowledge our appreciation of your accompanying brief. 

Your two questions are as follows: 

"(1) Under the laws of Texas is it obligatory for the officials of a County, City, 

School District, Road District, Water Improvement District, or any legally constituted public 

body, to take bids on services to be rendered 

by professional public accountants, or 

“(2) Is the engagement of professional public accountants by officials of the bodies named 

left to their discretion?" 

Prior to its repeal in 1931, Article 2368 of the 

Revised Civil Statutes, 1925, read, in part, as follows: 

"No commissioners' court shall make a contract calling for or requiring the expenditure 

or payment of two thousand dollars or more out 

of any fund or funds of any county or subdivision of any county, without first submitting 

such proposed contract to competitive bids. ***'I 

Although the statute contained no such exception, 

the rule became well established in Texas that the statute did 

not apply or control the discretion of the commissioners' court 

in contracting for professional and other services requiring 
t 

. 

Hon. Clifton H. Morris, page 2 

special skill or technical learnin 

2' 

Thus it was held in 

Gibson vs. Davis (C.C.A. 19211, 23 S.W. 202, and Caldwell 

vs. Crosser (C.C.A. 1928)) 20 S.W.(2d) 822, writ refused, 

not to apply to the employment of attorneys; in Roper vs. 

Hall (C.C.A. 1925) 280 S.W. 289, not to apply to a tax expert; in Stephens E ounty vs. J. NO McCammon, Inc., 122 Tex. 

148, 52 S.W. (2d) 53, not to apply to the services of an 

architect. In Co&ran County vs. West Audit Cc., (C.C.A. 

19281, 10 S.W. (2d) 229, writ refused, it was expressly held 

that the employment of auditors by the county was not to be 

governed by the provisions of Article 2368 of the Revised 

Civil Statutes, because special skill and technical learning 

was required. 

As stated in Gulf Bitulithic Co. vs. Nueces County 

(Corn. App.), 11 S.W. (2d) 305: 

I1 *** In the very nature of things, the 

Legislature, in passing this statute did not 

contemplate that services of the kini covered 

by the contract in question should be subject 

to competitive bids, but evidently intended 

that, when personal services, demanding special 

skill, experience and business judgment, were 

required the commissioners1 court might adopt 

such method in securing such services that would 

be reasonably calculated to obtain the particular 

type of services desired." 

This is also familiar law in other jurisdictions. 

Miller vs. Boyle, 43 Calif. A p. 

the City of Salem, 251 Mass. 6 68 

39, 184 Pac. 421; Rollins VS. 

146 N.E. 795; HOrgan and 

Slattery vs. City of New York, 114 App. Div. 555, 100 N.Y. 

vs. Allegheny County 245 Pa. 519 91 Atl. 

Flagg, 17 N.Y. 584; He&on VS. Atlantic City, 

Atl. 820; Commonwealth VS. Tice. 272 Pa. 

2 Dillon Mun. Corp. 1802. Cf. Wallace VS. 

Commissioners' Court (C.C.A. 19261, 281 S.W. 5933 Ashby VS. 

James, 226 S.W. 732. 

Prior to the enactment of Article 2368a in 1931 

General Laws, 42nd Legislature, 1931, Chapter 163, page 2 E, 9, 

there was no statute requiring competitive bidding as the basis 

for a contract by a city incorporated under the general laws; 

and such a city could make a contract without requiring bids. 

Montgomery vs. City of Alamo Heights (Civ.App.1, 8 S.W.(2d) 

258, writ dismissed. However, under the provisions of numerous 

municipal charters requiring competitive bids on contracts exceeding a certain sum of money, the same rule was held applicable. 
Hon. Clifton H. Morris, page 3 

City of Houston vs. Glover (C.C.A. 1905), 40 Tex.Civ.App. 

177, 89 S.W. 425 (employment of architect)* City of Houston 

vs. Potter, 41 Tex.Civ.App. 381, 91 S.W. 369 (supervisor 

of Public Works )j Hunter vs. Whitaker (Civ.App.), 230 S.W. 

1096, writ denied (~1~11 engineers); Tackett VS. Middleton 

(Com.App. 1926), 280 S.W. 563 (employment of architect). 

As stated in the Middleton case, supra: 

"The employment of an architect and others 

of technical learning by the authorities of a 

municipality is not controlled by statutes requiring bids in writing for services or work 

to be done, and the payment of such services so 

performed by an architect or ,others of special 

technical learning may be made out of current 

revenues of a city." 

See also 30 Tex. Jur. 331. 

In 1931 the Legislature repealed Article 2368 and 

passed in its stead Article 2368a 

Statutes, which reads in part as h 

Vernon's Annotated Civil 

0110~s: 

"Sec. 2. No county acting through its 

Commissioners~ Court, and no city in this State, 

shall hereafter make or enter into any contract 

or agreement for the construction of any public 

building, or the prosecution and completion of 

any public work requiring or authorizing any 

expenditure in excess of Two Thousand Dollars 

($2,000.00), creating or imposing an obligation 

or liability of any nature or character upon 

such county, or any subdivision of such county, 

or upon such city, without first submitting such 

proposed contract or agreement to competitive 

bids. ***j and provided further, that it shall 

not be applied to contracts for personal or for 

professional services, nor to work done by such 

county or city and paid for by the day, as such 

work progresses.U 
Hon. Clifton H. Morris, page 4 

Note that the article expressly applies to cities 

and counties, and that the Legislature followed the lead of 

the courts and added the proviso that the act llshall not be 

applied to contracts for personal or professional services." 

It is the opinion of this department that insofar 

as counties and municipalities are concerned, the rule heretofore set forth and exemplified by cases such as Gulf Bitulithic Company vs. Nueces County (Corn. App.) 118 S.W.(2d) 305, 

and Tackett vs. Middleton, supra, is still applicable in Texas 

under Article 2368a, Vernon's Annotated Civil Statutes. More 

specifically it is the opinion of this department that the 

employment 0 h a skilled public accountant is not governed by 

the provisions~of Article 2368a, requiring the submission of 

contracts to competitive bids. Cochran County vs. West Audit 

co. 

thaf 

We do call your attention however, to the fact 

EE%es 1641 and 164la Vernon's'Annotated Civil Statutes, 

must be strictly complied wiih in the'employment of an auditor 

or accountant by the Commissioners1 Court. These articles read 

as follows: 

"art. 1641, Audit by accountant.--Any commissioners court, when in its judgment an imperative 

public necessity exists therefor, shall have authority to employ a disinterested competent and expert 

public accountant to audit ali or any part of the 

books records or accounts of the County; or of any 

district, county or precinct officers, agents or 

employes, including auditors of the counties, and 

all governmental units of the county, hospitals 

farms, and other institutions of the county kep c and 

maintained at public expense as well as for all 

matters relating to or affec 

i 

ing the fiscal affairs 

of the county. The resolution providing for such 

audit shall recite the reasons and necessity existing therefor such as that in the judgment of said 

court there exists official misconduct, willful 

omission or negligence in records and reports, misapplication, conversion or retention of public 

funds, failure in keeping accounts, making reports 

and accounting for public funds bye any officer, 

agent or employe of the district, county or precinct, 

including depositories, hospitals, and other public 

institutions maintained for the public benefit and 

at public expense; or that in the judgment of the 

court, it is necessary that it have the information 

sought to enable it to determine and fix proper appropriation and expenditure of public moneys, and 
Hon. Clifton H. Morris, page 5 

to ascertain and fix a just and proper tax levy. 

The said resolution may be presented in writing at 

any regular or called session of the commissioners 

court, but shall lie over to the next regular term 

of said court, and shall be published in one issue 

of a newspaper of ,general circulation published 

in the county; provided if there be no such newspaper published in the county then notice thereof 

shall be posted in three public places in said 

county 

door, h 

one of which shall be at the court house 

or at least ten days prior to its adoption. 

At such next regular term said resolution shall be 

adopted by a majority vote of the four commissioners 

of the court and approved by the county judge. Any 

contract entered into by said commissioners court 

for the audit provided herein shall be made in accordance with’the statutes applicable to the letting 

of contracts by said court payment for ,which may 

be made out of the public funds of the county in 

accordance with said statutes. The authority conferred on county auditors contained in this title 

as well as other provisions of statutes relating 

to district, county and precinct finances and accounts thereof shall be held subordinate to the 

powers given herein to the commissioners1 court. 

(Acts 1923, p. 170.1” 

“k-t. 1641a. (Public Accountant in certain 

counties.)--In counties of a population of not less 

than 298,000 and not more than 355,000, according 

to the last Federal Census, that the Grand Jury of 

any County or the State Auditor when in the judgment of either, an imperative public necessity exists therefor, shall have authority to employ a 

disinterested, competent and expert public accountant for the same purposes authorized by Article 

1641, or for any other necessary purpose; provided, 

however, that same shall not be made more than once 

every two years, except for the purposes of supplementing any audit theretofore made. The same notice 

shall be given as provided in the preceding Article, 

one week prior to the making of said contract with 

such ,Auditor and the same shall be paid for out of 

the general &nds of said County. (Acts 1931, 42nd 

Leg., p. 842, ch. 353, X 1.1” 

Insofar as school districts, road districts, water 

improvement districts and other legally constituted public 
Hon. Clifton H. Morris, page 6 

corporations are concerned, it is the opinion of this department, and you are respectfully advised, that in the absence of 

a statute specifically requiring the same it is not necessary 

that contracts for the employment of skilied professional men, 

such as attorneys architects and professional public accountants, be submitteA to competitive bids. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

By /s/ Walter Koch 

Walter Koch, Assistant 

By /s/ James D. Smullen 

James D. Smullen 

APPROVF,D MAY 10, 1940 

/s/ Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

APPROVED: OPINION COMMITTEE 

BY: BWB, CHAIRMAN 

JDS/oe:wb