**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS AUSTIN**  **OROVER SELLERS**  **AzIoRWL***

**GCNEIAL**

Ron. Shelby K. Long County **Attorney** Jefferson County Beauont , Texas Opinion No. O-7478
Re: Payment of eng professionals county ram.

Assioner w one-fourth of the to

d'to pass, the engineers en Thousand Five Hundies of all maps and a total fee of Sixteen

, said fee beihg the y of ProfessionalEngineers. t&ed the agreemententered into

The ninutes of the special and regular gemions of the Conmissioners Court fomarded with your request do not reflect whether or not t;:ere was a quorum present, or whether said sessions were otherwise legally constitutedaxid convenedto transact business of the nature in question. For the purposesof this opinion, we shall assume that the constitution,conventionand proceedings ofi

2c3

ton.Shelby K. Long - Page 2

laidsessions were all in due form and manner.

The law seams well settled that this matter came within ;he jurisdictionof the Commissioners*Court. It is empoweredto :reateand maintain adequateroads, and to do all such acts as nay IBnecesaarv to constructwrmanent roads. Article 5. Section 18. :onstitution;

Article 2351; R. S. (1923);Lasaterv.‘ ;.i;. 373. Under the powers grantedabove the courts ;ha enploymentof persons of special ski&, such as &torneys and en ineers by the Commissioners*Court :ularwork in wh

fch theL profassix&. or scientific leeded. GalvestonCounty V. Sresham, 220 S. :;.560; )eFee, 77 **S. 1:;** **‘**

**.** (2nd) **729; Hackett**  v. btiddleton, 280 ialveston

County vs. Ducie, 49 S. “i. 798. tope3, 217 r

have permitted architects, **for** some partiability is ~.-illian3

vs. S.Z.. 563;

The Courts have also held that contracts callingexclusively for the personal employmentof persons because of professionalor xientific ability, training or efficiency do not come within the neaningof Article **2368a,** R. S. 1925, requkin iunterv. Xhitaker & ?iashlngton, 230 S. \i. f

109 competitivebids. ; Gulf BitulithlcCo. Is. Bueces County, 11 S. 5. (2nd) 305.

Itive; Therefore,your first question is answered in the affirmthat the Codssionerst Court did have **the** power to employ an **mginesring** firm to perfom such work.

How the question ariseswhether or not the contractbetueen the CommisslonersgCourt snd the engineering **firm** of Rohler& Shipley uas a valid one.

The facts submittedin your letter do not disclosewhether or not the payment to the engineerswas contin&entupon the passage OS the bond issue. Of course if such were the case, the contract irould be conditional **and** said conditionnould not have been fulfilled ,&hen the bonds failed to pass. Ue gN1 however, consideryour request relying on the assumptionthat sAd engineerswere r&a&d to perfonnthe described services regardless of the outcoms of the bond issue election.

The fact that there was no written contract,but nerely.an oral contract between the engineers and each of the Commissioners, ma be P or may not have resulted in an enforceable contract,but we ieve the followingexcerpt frm the minutes of the Court 18 controlling: 

# 3Hon. Shelby ii. Long - Taze 4

be authorisedby the Court as amendnentato the ori$nal bu&et.

. . , n Our **2OWt8** have construedthe **above** statute fn Dancy v. error refused, and in Liatlsy v. Dexsr

In the case **of** Dauey 'I* Davidson the question **involved** was whether the Comlsrionors~ Court of Csneron County could purchase f'fom :~irs. EaU a tract of land and pay her $37,500.00,ssid land to he used for county r--' The court said that the propert be3ng tpurcfitsed could be el;aJly-purchasedby the county andthatt e CocmisK sionters' Court had the power to 

### enter into the oontractrelative theroto. 'r'hc Court 

### of Civil hppals 

### rt San Antonio, **opeaking** 

### tehrou& Jude Xorvell, however s clficallyheld that since there xas no iten in the county budget x&at ve to the !e county &id not have tha auth phase of the land fr. questiou;the ty to pay for sass3 snd r=eo,

ti.ereEore, ?ro*rly enjoined frolp paying same*
In the case of Xstley Y. Bexar Smnty, l&J+ ;$. (2d) 695, the qxs.im 

### aroseM to 

### ðer the county could wchaso zutouaticvotiaz sxiines, or ,psnding the purchaas thereof xnt 8c.m tr',th t.e o%ion to yrchaso

. The aotit, after quotl.n& ths budget l&w, Art. J 46&l, s+pciSictilyheid that the court could ::ot pay for s&ICI.

aachinos or the renting thereofuntil or unless sam uere embraced in the budGet, r;r?d Leld that the attesqtedamendfnent of the county budget v?ac not sufficiont to 

### eubracethese item.

The :juprsae

Cowt zran;cd 

### a wit of brro~ in s&d cause, end held that the cmndod budget as made 

### by Begs County was sufficient ti therefore the voting mxhl.zxe~ could be reuted, subject to the &ht OS the 

### countythereafter -to purohxse sme. 

### The effect, 

### however, of the Sug-mme

Coartqs i;oldq we think is to tfMnn the o inlon of the Court of Civil Appesls that unless the itea was embraced % the ori&ta.lbudget or the mended bud&get, the same could not Se 

### paid.

ir, the inforvmtios

### furnished, It ap.mars that Jefferson Co-Lqty h&d m bond elections and that each of the proposed bond isSUe Were defeated.‘vðer

### the contract **was m&de**  tith the en&mers before or 

### after the first election, or Lofors or a--r the last electfon, and the emct, mount ti-,ereof ia not definitelyrevealedby 

### the evidence*Curnished. In your letter you state the contractprice v:as.,20,3XJ.The **Order** of the Ccmdsgionera~ Court pssoed on October 21, 1946,st~tes **t&t Hon.**  Shelby K. 

### Long - We 5

“the Co6daslonere~ Court hereby confirmsand ratifies,

### and in all things approves the qreement heretofore,entered into” to engineers a total of 

### q16,500.00, less ~3,CCO.OOthat had y the aIt been paid. eady

In comection with this order it aeem6 the Commlssionerst Court had placed in the minutes of said Court a copy of a letter showing the 

### 36,5#.00 to be the minimum fees that the Texas Society of ProfessionalEngineer6 had adopted relative to work similar to that done by 

### the engineers for 

### Jefferson

County.
In view of the various statements

### made % the infometion furnished,it is Impossible for u6 to amiwer

### categorically your question as to whether the warrant should

### be paid,



### Ve trust the 

### authoritier above discus6edand the suggestions made will be sufficient for you, as Count httorney, to determinethe legality 

### of the warrant in **question** and uiether It shouldbe paid. The fact6 may be so complicatedand disputed that only a 

### Court of proper jurisdictioncan determine sane. TNs departmentof course cannot determine controverted

### issuesof fact. Very truly yours ATTOREX GZGRAL OF TZ.iiS

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