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 

professional s 

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 Professional Engineers. 

t&ed the agreement entered 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 constituted axid convened to transact business 

of the nature in question. For the purposes of this opinion, we 

shall assume that the constitution, convention and proceedings of 
i 

2c3 

ton. Shelby K. Long - Page 2 

laid sessions were all in due form and manner. 

The law seams well settled that this matter came within 

;he jurisdiction of the Commissioners* Court. It is empowered to 

:reate and maintain adequate roads, and to do all such acts as nay 

IB necesaarv to construct wrmanent roads. Article 5. Section 18. 

:onstitution; Article 2351; R. S. (1923); Lasater v.‘ 

;.i;. 373. 

Under the powers granted above the courts 

;ha enployment of persons of special ski&, such as 

&torneys and en ineers by the Commissioners* Court 

:ular work in wh f ch theL profassix&. or scientific 

leeded. Galveston County 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 calling exclusively 

for the personal employment of persons because of professional or 

xientific ability, training or efficiency do not come within the 

neaning of Article 2368a, R. S. 1925, requkin 

iunter v. Xhitaker & ?iashlngton, 230 S. \i. 109 f 

competitive bids. 

; Gulf Bitulithlc Co. 

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 arises whether or not the contract betueen 

the Commisslonersg Court snd the engineering firm of Rohler & Shipley 

uas a valid one. 

The facts submitted in your letter do not disclose whether 

or not the payment to the engineers was contin&ent upon the passage 

OS the bond issue. Of course if such were the case, the contract 

irould be conditional and said condition nould not have been fulfilled 

,&hen the bonds failed to pass. 

Ue gN1 however, consider your request relying on the 

assumption that sAd engineers were r&a&d to perfonn the 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 following excerpt frm the minutes of the Court 18 controlling : 

3 

Hon. Shelby ii. Long - Taze 4 

be authorised by the Court as amendnenta to the 

ori$nal bu&et. . . , n 

Our 2OWt8 have construed the 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 K e Cocmissionters' Court had the power to enter into the oontract relative theroto. 

'r'hc Court of Civil hppals rt San Antonio, opeaking tehrou& Jude 

Xorvell, however s clfically held that since there xas no iten in the 

county budget x&at !e ve to the 

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 arose M to ðer the county could wchaso zutouatic votiaz 

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. 46&l, J s+pciSictily heid that the court could ::ot pay for s&ICI. aachinos or the 

renting thereof until or unless sam uere embraced in the budGet, r;r?d 

Leld that the attesqted amendfnent of the county budget v?ac not sufficiont to eubrace these 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 county thereafter -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.l budget 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 definitely revealed by the evidence *Curnished. In your letter you state the contract price 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 confirms and ratifies, and in all 

things approves the qreement heretofore,entered into” to 

engineers a total of q16,500.00, less ~3,CCO.OO that 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 Professional Engineer6 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 discus6ed and the suggestions 

made will be sufficient for you, as Count httorney, to determine the 

legality of the warrant in question and ui ether It should be paid. 

The fact6 may be so complicated and disputed that only a Court of 

proper jurisdiction can determine sane. TNs department of course 

cannot determine controverted issues of fact. 

Very truly yours 

ATTOREX GZGRAL OF TZ.iiS 

b%Ui:djm