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 cometo myattention that Gregg County, Texas, ownsand 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 abidder to supply the State with asphaltlc concrete. llSlnce Gregg County is a political subdivision andmight at any time in the future submit an apparent low and acceptable bid, weneed your opinion onthe following points at your earliest convenience :

“1) Canpolitical subdivLsLons below the State level (such as counties, cities, towns, etc.) apply for listing on State bid invitation lists for any commodity7

“2) Canthe Board of Control accept the application and the class and item booklet fee identifying commodities onwhich bids maybe submitted from such political subdivision?

“3) If such lesser political subdivision should submit a bid andit is a low bid, can the Board of Control makeanaward on the bid?” iirtlcle 634a, Vernon’s Civil Statutes provides as follows:

“Sec. 1. TheBoard of Control shall In all public contracts to be let or awarded by it inviteHonorable Vm.J. Burke, page 2 W-192)

bids andfurnish proposals to those desirous of bidding on such forms as it maydeemproper. Said Board mayplace 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. Tobe 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 sameshall not be less than Five (jT.Ob) Dollars nor more than Seven Dollars andFifty ($7.50) Cents. Sec. 2. Where any bidder or prospective bidder, other than those appearing on said State mailing list, desires to bid onany contract to be let by said ijoard, he shall pay such amount for the proposal or proposals furnished to him, ds said Board maydetermine is just andnecessary; provided, huMever, in the event said Board finds that a service charge maywork ahardship on someparticular bidder or class of bidders, it mayforego such charge andshall 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 nameof the ‘State board of ,Control Special Service Account’, and enough of s;:id funds so collected shall be used by said Doard andpaid 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 acounty. 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 Countyto 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)

TheCommissioners’ Court is a court of limited jurisdiction end has only such powers as are conferred upon it by express terms or bynecessary implication. Childress Countv v. State, 127Tex. 

### 343,92 S.W.2d 1011 (1936); VonRosenbera 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.

‘.ieknowof no

’provisions which would authorize the County to enter into contracts with the State, whereby theCounty 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, andthose in charge of road building projects of Gregg County to reasonably anticipate the amount of asphalt andother 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 Countywere 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 136Tex. 370, 150S.W.2d 1000 (1941); Bennett v. EirownCount; I$ater Control andImorovement District Ro. l., 

### 153Tex. 

### 599,2755.X.2d 

### 498(1954); holding that a county can perform only governmental functions. Tothe sameeffect see Attorney General’s Opinions 

### S-55(1953)andv-763 (1949).

Youare, therefore, advised that the application for listin,- as abidder 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, WILLWILSON &torney General of Texas

JR:pf:wb $?5Zev~ AssistantFr”-F) 2 * Honorable Wm.J. Burke, page 4 (W&192)

APPROVdD: OPINIONCOMMITTB 3. GradyChandler, Chairman _I L. iz. Richards john Lennan Marvin Thomas

BY: Geo. P. BlacKLurn