Hon. Clifton I-i. Morris Chairman State Board of Public Accountancy Fair Building Fort Worth, Texas OpinionNo. O-2237' Re: Necessity of counties,municipal corporationsand other public bodies submitting contracts for servicesof professionalpublic accountants to Dear Sir: competitivebids.

Thiswill acknowledgereceipt of your letter of 4pri.l 

### 16, 1940,requesting the opinion of this departmentupon the above stated question. We also acknowledge our appreciation of your accompanyingbrief.

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 constitutedpublic body, to take bids on services to be rendered by professionalpublic accountants, or

“(2) Is the engagement of professional public accountantsby officials of the bodies named left to their discretion?"

Prior to its repeal in 

### 1931, Article 

### 2368of 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 containedno such exception, the rule becamewell established in Texas that the statute did not apply or control the discretion of the commissioners' court in contracting for professional and other services requiringt .

Hon. Clifton H. Morris, page 2

special skill or technical learnin2' 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 StephensEounty vs. J. NO McCammon, Inc., 122 Tex. 148, 52 S.W. (2d) 

### 53,not to apply to the servicesof an architect. In Co&ran County vs.West AuditCc., (C.C.A. 19281, 10 S.W. (2d) 229, writ refused, it was expressly held that the employment of auditors by the countywas not to be governed by the provisions of Article 

### 2368of 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 verynature 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 competitivebids, but evidently intended that,when personal services,demanding special skill, experience and business judgment,were required the commissioners1 courtmight adopt suchmethod in securing such services thatwould be reasonably calculated to obtain the particular type of servicesdesired."

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. 

### 146N.E. 795; HOrgan and Slatteryvs. City of New York, 114 App. Div. 

### 555, 100 N.Y.
vs. AlleghenyCounty 245 Pa. 519 91 Atl. Flagg, 17 N.Y. 584; He&on VS. AtlanticCity, 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 AshbyVS. James, 

### 226 S.W. 732.

Prior to the enactment of Article 2368a in 1931 General Laws, 42nd Legislature, 1931, Chapter 

### 163,page 2 9, E, therewas no statuterequiring competitivebidding as the basis for a contract by a city incorporatedunder the general laws; and such a city could make a contractwithout requiring bids. Montgomeryvs. City of Alamo Heights (Civ.App.1,8 S.W.(2d) 

### 258,writ dismissed. However, under the provisions of numerous municipal charters requiring competitivebids on contracts exceeding a certain sum of money, the same rulewas 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 (employmentof architect)*City of Houston
vs. Potter, 41 Tex.Civ.App. 

### 381, 91 S.W. 

### 369 (supervisor of PublicWorks )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 (employmentof architect).

As stated in the Middleton case, supra:

"The employment of an architect and others of technical learning by the authoritiesof a municipality is not controlledby statutesrequiringbids in writing for services orwork to be done, and the payment of such services so performed by an architect or ,othersof special technical learning may be made out of current
revenues of a city."

See also 30 Tex. Jur. 331.

In 1931 the Legislature repealedArticle 2368 and passed in its stead Article 2368a Statutes,which reads in part as h Vernon's AnnotatedCivil 0110~s:

"Sec. 2. No county acting through its Commissioners~Court, and no city in this State, shallhereafter make or enter into any contract
or agreement for the construction of any public building, or the prosecution and completion of any publicwork 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 characterupon 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.UHon. 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 contractsfor personal or professional services."

It is the opinion of this department that insofar
as counties and municipalitiesare concerned, the rule heretofore set forth and exemplifiedby 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 skilledpublic accountant is not governed by the provisions~ofArticle 2368a, requiring the submissionof contracts to competitivebids. Cochran County vs. West Audit
co. thaf We do call your attention however, to the fact EE%es 1641 and 164la Vernon's'AnnotatedCivil Statutes, must be strictly compliedwiih in the'employment of an auditor
or accountant by the Commissioners1Court. These articles read
as follows:

"art. 1641, Auditby accountant.--Any commissioners court,when in its judgment an imperative public necessity exists therefor, shallhave 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 governmentalunits of the county, hospitals farms, and other institutions of the countykepc and maintained at public expense as well as for all matters relating to or affec iing the fiscal affairs of the county. The resolutionproviding for such audit shall recite the reasons and necessity existing therefor such as that in the judgment of said court there exists officialmisconduct,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 byeany officer, agent or employe of the district, county or precinct, including depositories,hospitals, and other public institutionsmaintained 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, andHon. Clifton H. Morris, page 5

to ascertainand fix a just and proper tax levy. The saidresolutionmay be presented inwriting at any regular or called session of the commissioners court, but shall lie over to the next regular term of said court, and shallbe published in one issue of a newspaper of ,generalcirculationpublished in the county;provided if there be no suchnewspaper published in the county then notice thereof shallbe posted in three public places in said county door, h one ofwhich shall be at the courthouse

or at least ten days prior to its adoption. At suchnext regular term said resolution shallbe adopted by a majorityvote of the four commissioners of the court and approved by the county judge. Any contract entered into by said commissionerscourt for the auditprovided herein shall be made in accordancewith’the statutes applicable to the letting of contractsby said court payment for ,whichmay be made out of the public funds of the county in accordancewith said statutes. The authority conferred on county auditors contained in this title
aswell as otherprovisions of statutesrelating to district, county and precinct finances and accounts thereof shall be held subordinateto the powers given herein to the commissioners1court. (Acts 1923, p. 170.1”

“k-t. 1641a. (PublicAccountant in certain counties.)--Incounties 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, shallhave authority to employ a disinterested,competent and expert public accountant for the samepurposes 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 theretoforemade. The same notice shall be given as provided in the precedingArticle,
oneweek prior to the making of said contractwith 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 improvementdistricts and other legally constitutedpublicHon. 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 specificallyrequiring the same it is not necessary that contracts for the employment of skiliedprofessional men, such as attorneys architectsand professionalpublic accountants, be submitteAto competitivebids.

Very truly yours

ATTORNEYGENERAL 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