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THE ATTORNEY GENERAL 0F TEXAS

January 29, 1990

Honorable Robert T. Jarvis Opinion No. JM-1136 Grayson CountyAttorney Justice Center Re: Applicability of House Bill Sherman, Texas 75090 1434,Acts 1989, 71st Leg., ch. 1250, at 5046,which relates to purchasingby local units of government, to county attorneys, and related questions (RQ-1881)
Dear Mr. Jarvis:
You askwhether section 140.003of the Local Government Code is applicable to the county attorney of Grayson County. You also askwhether a "skilledcarpenter" comeswithin the

- V1professional service" exceptionto the competitive bidding requirements of section 262.023 of the Local Government Code. Section 140.003, as enacted **by** House Bill 1434, see Acts 1989, 71st Leg., ch. 1250, 5 1, eff. Sept. 1, 1989, provides inpertinentpart:

(a) In this section, 'specialized local entity'means:

(1) a district or criminal district attorney: (2) a juvenileboard, juvenile probation office, or juvenile department established for one or more counties; or (3) an adult probation office or department established for a judicial district.

- (b) A specialized local entity shall

purchase items in accordance with the same procedures and subject to the same reguirements applicable to a countyunder Subchapter C, Chapter 262 [LocalGov't Code 5 262.021& secr.1. For the purposes of this section, a specialized local entity is treated as if it

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were a county. A specialized local entity may make a contractwith a countyunder which the countyperformspurchasing functions for the entity. Section 262.023 of the Local Government Code requires a county to complywith specified competitivebidding or competitive proposal proceduresbeforepurchasing or otherwise acquiring one ormore items under a contract that will require an expenditure exceeding a specified amount. Section 140.003mandates that certain offices coming within the definition of "specializedlocal entity"purchase items in accordancewith the same procedures applicable to counties. The county attorneyperfor~ms the duties of a district attorney in Grayson County and is subject to the provisions of the Professional ProsecutorsAct. Gov't Code § 46.002. The office of county attorney is not one of the offices included in the definition of "specialized local entity" in section 140.003 of the Local Government Code. The fact that the county attorneyperforms the duties of a district attorney does not cons.Ztute the county attorney 'Ia district or criminal district attorney." Consequently, the county attorney does not comewithin the definition of "special local entity" as that term is defined in section 140.003.
In your second questionyou ask us to assume that the "specialized local entity"provision applies in determining whether a "skilled carpenter" comeswithin the "professional service" exception to the competitivebidding requirements of section 262.023. You do not provide any information regarding the work required to be performed by the carpenter. Section 262.023(a) of the Local Government Code, as amendedby House Bill 1434, raised the amount of expenditure by a county to an amount exceeding $10,000 (previously $5,000)before the competitivebidding requirements become applicable. Included in the items exempt from the competitive bidding process listed in section 262.024 of the Local Government Code is a V~professionalService.91Local Gov't Code g 262.024(a)(4). The question of whether a contract for the services of a skilled carpenter is a contract for a 9*professional service" is a fact question that must be decided on a case-by-casebasis. We cannot answer fact questions in the opinionprocess, but we can provide guidelines to use in determiningwhether the contract in question is a contract for nprofessionalservice."

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In Attorney General Opinion JW-940 (1988)the matter of what constitutes *'professionalservices" under section 21.907 of the Texas Education Code was considered. In Attorney General Opinion JM-940 itwas stated:

Section 21.907does not define the phrase 'professionalservices.' The courtshave not adopted a universal definition of the term; however, several cases suggest that it comprehends labor and skill that is 'predominantly mental or intellectual, rather than physical ormanual.' Marvland Casualtv so. v. CrazvWater Co. 160 S.W.2d 102 (Tex. Civ. App. - Eastland i942,no writ). It no longer includesonly the services of lawyers, physicians, or theologians,but also those members of disciplines requiring special knowledge or attainment and a high order of learning, skill, and intelligence. See Attorney General Opinion MW-344 (1981); Black's Law Dictionary 1089-90 (5thed. 1979) (definitionof 'profession').

- Accordingly, this questionmust be determined on a case-bycase basis.
SUMMARY.

The CountyAttorney of Grayson County is not a "specializedlocal entity" as that term is defined in section 140.003 of the Local Government Code. The question ofwhether a "skilled carpenter"comeswithin the l'professional service" exceptionto the competitive bidding requirements of section 262.023 of the Local GovernmentCode is a fact question that cannot be resolved in the opinion process.

3 I M MATTOX Attorney General of Texas

,.-, WARYKELLER

**First** AssistantAttorney General
ImJMCCREARY ExecutiveAssistantAttorney General

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JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General
RICK GILPIN Chairman, Opinion Committee Preparedby Tom G. Davis Assistant Attorney General

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