Hon. George J. Jennings, Jr. Opinion No. C-267

County Attorney Swisher County Re:Whether the CommissionTulia, Texas ers' Court of Swisher County has authority 'to execute a contract calling for services tobe rendered to the Board of Equalization of Swisher County in connection

Dear Mr. Jennings: with the evaluation of real property within Swisher County, and related questions.

You have regueated an opinion from this office con'cerningthe validity of aproposed contract whereby the Board of Equalization of Swisher County would be given professional assistance in the evaluation of real property in connection with a revaluation program.

Your letter states that it isnow proposed that the following steps be takenr

"1.The countywould give notice of its intetitionto authorize the execution **of** a contract with

. . . for the perforaianceof services outlined in the contract, and of the county's intention to issue interest Bearing timewarrants inpayment of all or a part **of** the contract price. The notice would be published in the time andmanner'prwided by Article 2368a. V.A.T.C.S., and,contain the information therein required.

-1273-Bon. George J. Jenninga. Jr., page 2 (C-267)

"2,At the time and place provided in the notice - ifno referendum petition ispresented - the Court would authorize the issuance of the timewarrants. The warrants would remain in the custody of the County Clerk, County Treasurer and County Judge for delivery to the contractor upon estimated approval by the Commissioners' Court as thework progressed. At the time thewarrants were tobe authorized, provisions would bemade for the payment thereof in accordance with the provisions ofArticle XI, Section 7. of the Constitution of Texas, aswell asArticle 2354 andArticle 1212, V.A.T.C.S."

We understand your use of the phrase "upon estimated approval by the Commissioners"Court" in "2"above, tomean approval by the Commissioners" Court of an estimate ofwork completed.

In'connection with the foregoing you have posed several questions, the first ofwhich is:

"1.hoes Swisher County have the authority to execute a contract to appraise and value real property within the county?"
Article 7206,Vernon's Civil Statutes, provides, inpart, thats

"EachCommissioners0 Court shall convene and sit as aboard of egualiaation a a OoD
Article 7212,Vernon's Civil Statutes, provides that:

-.1274-, r ,

Hon. George J. Jennings, Jr., page 3 (C-267)

“(A). The Boards ofEqualization shall have the power and it ismade their official duty to supervise the assessment of their respective counties and **if** satisfied that the valuation of such property is not in accordance with the laws of the State to increase **or** diminish the same and to affix the proper valuation thereto as provided for in the preceding Article andwhen any assessor in the State shall have furnished the said Board with a rendition as provided for in the preceding Article it shall be the duty of such court to call before it such persons as in its judgment may know themarket value or true value of such property, as the case may be, by proper process, who shall testify under oath the character, quality, quantity of such property aswell as the value thereof. Said Court after hearing the evidence shall fix the value of such property in accordance with the evidence so introduced and asprovided in the preceding Article and their action in such case or cases shall be final: provided, however, the Commissioners' Court of any countv mav emplov an individual, firm or corporation deemed tohave special skill and experience ~tocomnile taxation data for itsuse while sittinq as a Board ofEqualization and to provide for the wvment of the compensation for such professional services out of the uroner fund or funds of the countv.

-1275-, .

non. George J. Jennings, Jr., page 4 (C-267)

i "(B)To pay any contractual obligation

tob&incurred for professional services, under the provisions hereof, the Commissioners' Courts areherebv authorized to issue timewarrants payable from the general fund of the countv in the manner provided bv the Bond and. Warrant Law of 1931: provided, however, thewarrants so issued shallmature within six (6)years from their resnective dates." (Emphasis added)
Prior to the amendments made toArticle 7212 by the Legislature in 1963,Acts of 1963, 58thLeg., p. 1256, Ch. 481, Sec. 1, it had been stated by this office in Attorney General's Opinion No. C-63 (April 23, 1963) that:

"Ithas been definitely decided by
our courts, however, that the Commissioners OCourt has the implied power to employ independent assistants to assist in arriving at the value tobe fixed by the Commissioners' Court as a Board ofEqualization where technical or special knowledge is necessary andwhich knowledge the Commissioners' Court would not be presumed to possess . 0 SW

The above statement inAttorney General's Opinion No. C-63 had for itsbasis such cases asRoper v, Hall, 280 S.W.289 (Tex.Civ,App,l926); Simkins v, Citv of Corsicana, 86 S.W.Zd 792 (Tex.Civ,App. 193,5);Marsuart v, Barris Countv, 117 S.w.Zd 494(Tex.Civ.App. 1938, error dism.): Pritchard and Abbott v.McRenna, 162 Tex.617, 282 S,W.Zd 378 (1955).

Inview of the foregoing authority and the express language contained inArticle 7212 as amended byHon. George J. Jennings, Jr., page 5 (c-267)

the Legislature in 1963,we are of the opinion that Swisher County, acting through its Commiasioners' Court may con; tractwith and employ individuals, firms or corporations to compile taxation data tobe used by the Commissioners' Court while sitting as aBoard ofEqualization.

is: Your second question, as set out in your letter,

"2.Assuming an affirmative answer to question number one, the followingr
(a)May such a contract be entered without receipt of competitive bids?
(b)Does the proposed contract contravene the provisions ofArticle 7264(a), V.A.T.C.S., orArticle 7335, V.A.T.C.S., orArticle 7335a, V.A.T.C.S.?
(c)Does the proposed contract usurp the powers vested in the Tax Assessor?"

The provisions of Sec. 2 ofArticle 2368a, Vernon's Civil Statutes, are, inpart, as followst

"No county, acting through its commissioners'court . D Dshall hereafter make any contract calling for or requiring the expenditure or payment ofTwo Thousand ($Z,OOO.OO) Dollars or more out of any fund
or funds . D swithout first submitting such proposed contract to competitive bids . . . and provided further, that it shall not be applied to contracts for wrsonal or professional services e D *I'(Emphasis added)Hon. George J. Jennings, Jr., page 6 (C-267)

InAttorney General's Opinion No. R-2315 (1951), this office had before it the question of the validity of a contract for engineering services which was letby Commissioners' Court without competitive bids, and in such opinion it is stated that:

w

. . .even before Article 2768WS)RnnndrRon. George J. Jennings, Jr., page 14(C-267)

7264(a), 7335, or 7335a, Vernon's Civil Statutes. Pritchard &Abbott v.McRenna, 162Tex. 617, 350 S.W.28 333,(1961).

Article 7212 (asamended by the Legislature in 1963, Acts of 1963, 58th Leg., p. 1256, ch. 481, Sec.l)is constitutional insofar'as itprovides forpayment of such obligations by time warrants payable from the general fund of the county.

**The** Commissioners' Court of Swisher County canentrr into a contract forkappraisal services which contains provisions **for** payment similar to those approved by the court in the case'of White v. Thomas Y. Pickett & Company, 355 S.W.28 848~(Tex. Civ.App., 1962), error ref. n.r.e.) if thewording is changed to properly reflect that payment is to bemade **from** the general fund of the county.

Where payment of a contractual obligation is tobemade,from current funds it is sufficient that the proper constitutional fund of the county contain sufficient money onhand orwithin reasonable anticipation ofbeing onhand during theyear inwhich the contract ismade.

Very truly yours,Hon. George J. Jennings, Jr., page 7 (C-267)~

Furthermore, the services tobe performed under the provisions ofArticle 7212 are specifically referred to in the statute itself as requiring "special skill and experience" and as "professional services under the provisions hereof." Therefore, in answer to your question, .theservices tobe performed in the instant situation would be the type of services exempted from the competitive bid provisions ofArticle 2368a.

Articles 7264a, 7335, and 7335a, Vernon's Civil Statutes, all pertain tovarious aspects of the collection of delinquent taxes. As the contract in the situation you have here posed deals merely with services tobe rendered to the Commissioners' Court sitting as a Board ofEqualisation in the evaluation of property for tax purposes, we are of the opinion that the proposed contract between the Commissioners' Court of Swisher County and the party to render these services to the Commissioners' Court would not conflictwith or contravene the provisions ofArticles 7264a. 1335, or 7335a. This question was before the Supreme Court of Texas in the case of Pritchard &Abbott v.McEenna. 162 Tex. 617, 350 S.W.Zd 333 (1961),and the court held that a contract of the type here considered was not the type of contract or activity subject to the provisions of Articles 7264a, 7335, and 7335a.

In this same connection the case of Pritchard & Abbott v.McEenna, sunra, also decided the question of whether a contract of the nature we have before us usurps the powers, duties and responsibilities of the Tax Assessor and Collector. The court in its opinion stated that:

Di D 0 D We quite agree that the County Conunissioners"Court isnot charged with themanagement and control of all the County's'business affairs. Each of the various elected officials, including the Assessor-Collector, has the sphere that is delegated tohim by law andwithin ,which the Commissioners' Court may not interfere orusurp, But that isnot to say that the functions of the Board of

-1279..Hon. George J. Jennings, Jr., page 8 (C-267)

Equalization and those of theAssessorCollector are so **diverse** that information **may** notbe lawfullv contracted for and obtained bv theEqualization Board because itmay likewise be of aid to the **Assessor** in the performance ofhis duties . . ." (Emphasis added)

Your third question reads as follows8

"3.**Are** the provisions of paragraph VI of the contract a legally and sufficient provision for payment, if at the time of execution of the contract provision has been made for the issuance of the interest bearing timewarrants?*
Section VI of the proposed contract provides **for** payment to the party performing the evaluation services for the Commissioners' Court sitting as aBoard ofEqualization by the issuance and delivery of interest bearing timewarrants which have been authorized by an order of the Commissioners' Court. Such timewarrants are tobe dated February 1, 1964, are tobear interest at the rate of 5%per annum and are scheduled tomature in five equal installments - the firstmaturing onDecember 1, 1964, and thereafter on the same date **of** each succeeding **year** through 1968, The order authorizing the timewarrants and the levying of the tax for payment of the principal and interest is incorporated by reference andmade a part of the contract,

Section **B** of **Article** 7212, Vernon's Civil Statutes. which is set out in its entirety elsewhere in this opinion, provides.specifically that **time** warrants may be issued by
a Commissioners' Court for this purpose in themanner provided for in the Bond andWarrant Law **of** 1931,~but with the additional limitation thatwarrants **so issued**  **shall** mature within six years from their respective dates,

-1280-,

Ron. George J. Jennings, Jr., page 9 (C-267)

Since nothing in Section VI of the proposed contract conflicts with the provisions of the Bond andWarrant Law of 1931 orwith the provisions ofArticle 7212, and presuming that the Bond andWarrant Law of 1931, i.e.,Article 256Sa,Vernon's Civil Statutes, is fully complied with in authorizing thewarrants and levying the tax for payment thereof, your question number three is answered in the affirmative.

Inyour next question you inquire as followsx

**“ 4.**  **Is Article**  7212 (asamended by Chapter 481, Acts of the 58th Legislature, Regular Session, 1963) constitutional insofar as itprovides thatwarrants are tobe payable from the general fund of the county?"
Section 9 ofArticle VIII of the Constitution of Texas reads, inpart, as follows:

H D 0 Dat the time the Commissioners' Court meets,to levy the annual tax rate for each county it shall levywhatever tax ratemay be needed for the four (4L constitutional purposes: namely, ceneral fund, permanent improvement fund, road andbridse fund and iurv fund." (Emphasis added)

It is clear that the county can levy a tax in this instance only for the benefit of one of the above enumerated constitutional funds. The contractual obligation forwhich thesewarrants are tobe issuedwould seem clearly to constitute an operating expense of the county and therefore properly chargeable to the general fund. Certainly it can not be said that thesewarrants are tobe issued **to pay**  for permanent improvements or roads andbridges or inpayment of juries.

**Article** 7212was amended by the Legislature in 1949, Acts of 1949, 51stLegislature, p* 1196, ch. 607, Sec. 1, to

**-1281-**Hon. George J. Jennings, Jr., page 10 (C-267)

f

provide payment for such services "- 0 Don a pro rata 'basis from each county fund receiving any taxes derived from such valuation", Prior to that time there was no valid statutory provision regarding payment **of** such obligations, but various Attorney General's Opinions upheld the legality of contracts which provided that such obli; gations were payable from the general fund. Enclosed is
a copy ofAttorney General's Opinion No. O-4114 (November. 7, 1941)which deals directly with this specific question. The 1963 amendment toArticle 7212 repealed the 1949 amend-~ ment and gave statutory recognition to the rule that had been consistently followed by this officeuntil the 1949 amendment.

In the opinion **of** this office the specific provision inArticle 7212 to the effect that'these warrants are tobe paid from the general fund of the county simply amounts to an enunciation ofwhat would be properly construed as a constitutional requirement and therefore is not itself violative of the Constitution.

your letter further sets out, as a fifth question, the follwingr

$'5. May such a contract be entered into without giving notice of County's intention to'do so **where** general fundwarrants are tobe used topay for services?"

Article 7212 specifically authorizes the county to enter into such a contract but isentirely silent as to any requirement ofnotice of intention to enter into same, although itdoes provide that timewarrants authorized thereunder shallbe issued '#inthemanner provided by the Bond andWarrant Law of 1931",

We must, therefore, look to the provisions of Article 2368a for any requirement as to notice of intention to contract, Section 2of saidAct, the pertinent,portion of'which is,quoted herein at page 5,gives the provisions

-1282-Hon. George J. Jennings, Jr., page 11 (C-267)

as to notice under theAct, The only other provision pertinent to the question ofnotice is Section 3,which prov'idese

""Sec.3, When it shall be the intention of the Commissioners' Court . . .to issue timewarrants for the payment of all or any part of the proposed contract, the notice to bidders required under Section 2 of this Act shall recite that fact. setting out the maximum amount of theproposed timewarrant indebtedness, the rate of interest such timewarrants are tobear, and themaximum maturity date thereof". (Emphasis 

### added)

Since Section 3,by its own terms, applies only where notice is required under Section 2,and sincewe have already held in answering your question 2(a) above, that no notice tobidders is required in the instant case because Section 2 specifically exempts contracts for "personal or professional service' from its terms, we answer your question number five in the affirmative, i.e., the proposed contract canbe entered intowithout giving notice of intention to do= when timewarrants are tobe used to pay for the services contracted for,

your sixth question isz

"'6 qShould the Commissioners" Court of Swisher County desire to do somay they enter into a contract such as enclosure contract #2 which calls for the performance of appraisal services
over a two year period and payment out of General Fund monies at the end of each of the designated twoyears, pro

### vided the percentage ofwork is completed by appraiser asprescribed in contract?"
This question, aswell as question seven, concerns an entirely different contract than that considered in the first five questions and relates to themanner inwhich

-1283-lion.WOtge J. Jennings, Jr., page 12 (C-267)

provision has been xade for payment**of the**  amount tobecome due the appraiser 

### forwork performed thereunder. Our review of proposed contract nuxber two has

### been **limited** 

### to this aspect only.

It should be observed at the outset that the mutract referred to doem not makereference to payxent **out of**  the "General Fundm, esyour question itself does, but 

### ratherto "the

### properfundor funds of Swisher County" and to "said proper county fund or funds". Article 7212 provides specifically that paymnts **for** such services are **to** be **made**frox the general fund andwe have affirmed in this 

### opinionin answer to **your** guestion **four** that this is the constitutional fund properly tobe **charged** with much expenditure. Therefore, thewording of enclosure contract numbei two should be changed accordingly.

In all other relevant rempects enclosure contract number two iseasentially identical in forx to a conttact entered intobetween the CormniecrionermCourt ofAransaa County and Thoxas Y. Pickett & Company, Snc.,which involved similar services to the county~and similar provieions as to payxent **for** such services, and which was upheld by the courts in the case ofmite v.,Thoxas Y. Pickett and **company,** 355 S.W.2d 848 (Tex.Civ.App.,1962, error ref. n.r.e.1.
**Therefore,** our answer toyour sixth question fs~tbat the Conmissioners' Court of Swisher County can enter 

### intoa contract containing provisions **for** payment for apprai8al services performed thereunder such 

### amis found in

### yourenclosure contract nuxber two, provided that thewording 

### is changed SO as to correctly reflect that payments thereunder shall be xade frox the

### genmralfund **of** the county.

We interpret your seventh and final question toxean tbe follwinga Mere **an** obligation incurred under 

### acontract is to be paid out **of** current funds, **must** the

### CountyTreasury actually contain, at the time the contract is signed. sufficient funds to satisfy 

### theobligation or is it necessaxy only that money in the Treasusy, taxes in the process **of** collection during such taxyear, and all other **revenue8** which may

**-1204-**, .

Hon. George J. Jennings, Jr., page 13(C-267)

be anticipated with reasonable certainty during such tax year be sufficient to pay the obligation?

It has been held that no debt is created within themeaning of Section 7 ofArticle 11 of the Constitution of Texas if avalid appropriation ismade for the payment of the total amount due from funds onhand or fundswithin reasonable anticipation ofbeinc onhand during the current year inwhich the contract ismade. McNeil1 v. City ofWaco, 89 Tex. 83, 33 s-w.322 (1895):Citv ofFt.Worth v. Bobbitt, 121Tex,14, 41 s.w.Zd 228 (1931).

Thus, in answer to the question posed above itwould notbe necessary that at the time the contract is signed the County Treasury actually contain themoney to pay the obli-~ gation but only that the proper constitutional fund contains sufficient money on hand orwithin reasonable anticipation of being onhand during theyear inwhich the contract ismade.

Swisher County, acting through its Commissioners' Court,'may contract with **and** employ individuals, firms or corporations to compile taxation data to be used by the Commissioners0 Court while sitting as aBoard ofEqualization, under'the.provisions of Article 7212, Vernon's Civil Statutes.

Such a contract may be entered intowithout receipt of ccmpetitive bias or giving notice of intention to contract evenwhen general fund timewarrants issued under the provisions of the Bona andWarrant Law of 1931, are to be used to pay for ~the services tobe rendered,

The Cosanissioners'Court can enter into such a contract without usurping the powers vested in the Tax Assessor andwithout contravening the provisions ofArticles

-1285-Hon. George 3. Jennings, Jr., page 14(C-267)

7264(a), 7335, or 7335a, Vernon's Civil Statutes. Pritchard &Abbott v.McKenna, 162Tex. 617, 350 S.W.28 333 (1961).
Article 7212 (asamended by the Legislature in 1963,Acts of 1963, 58th Leg., p. 1296, ch. 481, Sec.1)~i.sconstitutional insofar'as itprovides for payment of such obligations by timewarrants payable from the general fund **of** the county.

The Commissioners' Court of Swisher County canenter into a contract for'appraisal services which contains provisions for payment similar to those approved by the court in the case ofWhite v. Thomas Y. Pickett & Companv, 355 S.W.2d 848 (Tex. Civ.App., 1962), error ref. n.r.e.1 if thewording is changed to properly reflect that payment is tobe made from the general fund of the county.

Where payment of a contractual obligation is tobe made ~fromcurrent fun& it is sufficient that the proper constitutional fund of the county contain sufficient money onhand orwithin reasonable anticipation ofbeing onhand during the year inwhich the contract ismade.

Very truly yours,

WAGGONER CARR Attorney General

Jns-s Enclosure

-1286- Assistant. .

Hon. George.3. Jennings, page 15 (C-267)

APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman

Howard W. Mays J. C. Davis Robert Smith Howard Fender

APPROVED FOR TIIEATTORNEY GENERAL
By: Stanton Stone

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