Honorable Wm. J. Burke Opinion No. ww-192 

Executive Director 

State Board of Control Re: Questions concerning bid llstAustin, Texas lng, bid fee, bids and contracts with political subdiviDear Sir.: sions below State level. 

Your request for an opinion reads as follows: 

“In reviewing bid lists it has just come to 

my attention that Gregg County, Texas, owns and 

operates an asphalt plant and that under date of 

December 10, 1956, Gregg County asphalt Plant, 

through Mr. W. R. Scrogglns, Gregg County Rngineer, filed an application for listing as a bidder 

to supply the State with asphaltlc concrete. 

llSlnce Gregg County is a political subdivision and might at any time in the future submit 

an apparent low and acceptable bid, we need your 

opinion on the following points at your earliest 

convenience : 

“1) Can political subdivLsLons below the 

State level (such as counties, cities, towns, etc.) 

apply for listing on State bid invitation lists 

for any commodity7 

“2) Can the Board of Control accept the application and the class and item booklet fee identifying commodities on which bids may be submitted 

from such political subdivision? 

“3) If such lesser political subdivision 

should submit a bid and it is a low bid, can the 

Board of Control make an award on the bid?” 

iirtlcle 634a, Vernon’s Civil Statutes provides as follows: 

“Sec. 1. The Board of Control shall In all 

public contracts to be let or awarded by it invite 
Honorable Vm. J. Burke, page 2 W-192) 

bids and furnish proposals to those desirous 

of bidding on such forms as it may deem proper. 

Said Board may place any person, firm or corporation so desiring on a State mailing list 

which said list shall entitle said holder to a 

copy of the proposal on any contract that is to 

be let. To be entitled to receive such State 

mailing list, said holder shall first pay in advance an annual service charge, to be determined 

by the Board of Control which same shall not 

be less than Five (jT.Ob) Dollars nor more than 

Seven Dollars and Fifty ($7.50) Cents. 

Sec. 2. Where any bidder or prospective 

bidder, other than those appearing on said State 

mailing list, desires to bid on any contract to 

be let by said ijoard, he shall pay such amount 

for the proposal or proposals furnished to him, 

ds said Board may determine is just and necessary; provided, huMever, in the event said Board 

finds that a service charge may work a hardship 

on some particular bidder or class of bidders, 

it may forego such charge and shall be authorized to furnish such proposals. 

“Sec. 3. All amounts collected from the 

annual service charge of those on the State mailing list or from proposals furnished shall be 

deposited in the State Treasury, in the name of 

the ‘State board of ,Control Special Service Account’, and enough of s;:id funds so collected 

shall be used by said Doard and paid out as other 

funds are to. defray all necessary expenses and 

charges in connection with the making and furnishing of said proposals.n 

The above quoted provisions will be repealed on the 

effective date of Senate Bill 169, .-icts of the 55th Legislature. 

Subdivision (b) oi Section 8 of Senate Bill 189~provides that 

the Board of Control shall maintain a bidders’ list. It is to 

be noted that under neither the provisions of Article 634a nor 

the provisions of Senate Bill 18.9, would the State board of 

Control be prohibited from awarding contracts to a county. However, since the Board of Control is required under both Acts to 

determine the capacity of a prospective bidder to perform the 

contract as awarded, your question necessarily involves the authority of the Commissioners * Court of Gregg County to furnish 

asphaltic concrete to the State of Texas if it is a successful 

bidder on a purchase contract.. 
Honorable Wm. J. Burke, page 3 (WW-192) 

The Commissioners’ Court is a court of limited jurisdiction end has only such powers as are conferred upon it 

by express terms or by necessary implication. Childress Countv 

v. State, 127 Tex. 343, 92 S.W.2d 1011 (1936); Von Rosenbera v. 

Lovett 173 S.U. 508 (Tex.Civ.ipp. 1915, error ref.); 

&&&, 380 S.W. 289 (Tex.Civ.ipp. 1925); Hill v. 

S.W.2d 766 (Tex.Civ.App. 1952, error ref. n.r.e.1. 

‘.ie know of no’ provisions which would authorize the 

County to enter into contracts with the State, whereby the County 

is to furnish the State with concrete asphalt. It is further 

our opinion that such contract is not the performance of a governmental function necessary to county business. In this connection, it is the duty of the Commissioners Court, the engineers, and those in charge of road building projects of Gregg 

County to reasonably anticipate the amount of asphalt and other 

material needed for road building projects. If, by reason of 

unforeseen circumstances there should remain surplus material 

after projects are completed, then the surplus could be sold by 

Gregg County. However, Gregg County cannot engage in the asphalt business. If Gregg County were to attempt to engage in 

the asphalt or the road building business, then it would be engaging in proprietary functions not authorized. See Miller v. 

Zl Paso County 136 Tex. 370, 150 S.W.2d 1000 (1941); Bennett 

v. Eirown Count; I$ater Control and Imorovement District Ro. l., 

153 Tex. 599, 275 5.X.2d 498 (1954); holding that a county can 

perform only governmental functions. To the same effect see 

Attorney General’s Opinions S-55 (1953) and v-763 (1949). 

You are, therefore, advised that the application for 

listin,- as a bidder to supply the State with asphalt concrete 

submitted by the Gregg County bsphalt Plant, acting by and 

through the Gregg County dnginee,r, cannot be honored by the 

State 3o:ird of Control. 

Gregg County does hot have authority to enter 

into supply contracts with the State of Texas whereby it will furnish the State with asphaltic conCrete. 

Yours very truly, 

WILL WILSON 

&torney General of Texas 

JR:pf:wb $?5Zev~ 

Assistant 
Fr”-F) 2 * 

Honorable Wm. J. Burke, page 4 (W&192) 

APPROVdD: 

OPINION COMMITTB 

3. Grady Chandler, Chairman _I L. iz. Richards 

john Lennan 

Marvin Thomas 

BY: Geo. P. BlacKLurn