f‘ 

0 

THE ATTORNEY GENERAL 

0F TEXAS 

January 29, 1990 

Honorable Robert T. Jarvis Opinion No. JM-1136 

Grayson County Attorney 

Justice Center Re: Applicability of House Bill 

Sherman, Texas 75090 1434, Acts 1989, 71st Leg., ch. 

1250, at 5046, which relates to 

purchasing by local units of 

government, to county attorneys, 

and related questions (RQ-1881) 

Dear Mr. Jarvis: 

You ask whether section 140.003 of the Local Government 

Code is applicable to the county attorney of Grayson County. 

You also ask whether a "skilled carpenter" comes within the 

- 

V1professional service" exception to 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 in pertinent part: 

(a) In this section, 'specialized local 

entity' means: 

(1) a district or criminal district 

attorney: 

(2) a juvenile board, 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. 

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(b) A specialized local entity shall 

purchase items in accordance with the same 

procedures and subject to the same reguirements applicable to a county under Subchapter 

C, Chapter 262 [Local Gov't Code 5 262.021 & 

secr.1. For the purposes of this section, a 

specialized local entity is treated as if it 

P. 5984 
Honorable Robert T. Jarvis - Page 2 (JM-1136) 

were a county. A specialized local entity 

may make a contract with a county under which 

the county performs purchasing functions for 

the entity. 

Section 262.023 of the Local Government Code requires a 

county to comply with specified competitive bidding or competitive proposal procedures before purchasing or otherwise 

acquiring one or more items under a contract that will require an expenditure exceeding a specified amount. Section 

140.003 mandates that certain offices coming within the 

definition of "specialized local entity" purchase items in 

accordance with the same procedures applicable to counties. 

The county attorney perfor~ms the duties of a district 

attorney in Grayson County and is subject to the provisions of the Professional Prosecutors Act. 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 attorney performs 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 come within the definition of 

"special local entity" as that term is defined in section 

140.003. 

In your second question you ask us to assume that the 

"specialized local entity" provision applies in determining 

whether a "skilled carpenter" comes within the "professional 

service" exception to the competitive bidding 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 

amended by House Bill 1434, raised the amount of expenditure 

by a county to an amount exceeding $10,000 (previously 

$5,000) before the competitive bidding 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~professional Service.91 Local 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-case basis. We cannot answer fact questions in the 

opinion process, but we can provide guidelines to use in 

determining whether the contract in question is a contract 

for nprofessional service." 

p. 5985 
Honorable Robert T. Jarvis - Page 3 (JM-1136) 

In Attorney General Opinion JW-940 (1988) the matter of 

what constitutes *'professional services" under section 

21.907 of the Texas Education Code was considered. In 

Attorney General Opinion JM-940 it was stated: 

Section 21.907 does not define the phrase 

'professional services.' The courts have 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 or manual.' Marvland Casualtv 

so. v. Crazv Water Co. 160 S.W.2d 102 (Tex. 

Civ. App. - Eastland i942, no writ). It no 

longer includes only 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 (5th ed. 1979) 

(definition of 'profession'). 

- Accordingly, this question must be determined on a case-bycase basis. 

SUMMARY. 

The County Attorney of Grayson County is 

not a "specialized local entity" as that term 

is defined in section 140.003 of the Local 

Government Code. The question of whether a 

"skilled carpenter" comes within the l'professional service" exception to the competitive 

bidding requirements of section 262.023 of 

the Local Government Code is a fact question 

that cannot be resolved in the opinion 

process. 

3 I M MATTOX 

Attorney General of Texas 

,.-, 

WARYKELLER 

First Assistant Attorney General 

ImJ MCCREARY 

Executive Assistant Attorney General 

p. 5986 
Honorable Robert T. Jarvis - Page 4 (JM-1136) 

; 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

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P. 5987