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 to be 

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'cerning the validity of a proposed 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 is now proposed that 

the following steps be takenr 

"1. The county would give notice of its 

intetition to authorize the execution of a contract with . . . for 

the perforaiance of services outlined 

in the contract, and of the county's 

intention to issue interest Bearing 

time warrants in payment of all or a 

part of the contract price. The 

notice would be published in the time 

and manner'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 - if no referendum petition 

is presented - the Court would authorize the issuance of the time warrants. 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 the work progressed. At the 

time the warrants were to be authorized, 

provisions would be made for the payment 

thereof in accordance with the provisions of Article XI, Section 7. of the 

Constitution of Texas, as well as Article 

2354 and Article 1212, V.A.T.C.S." 

We understand your use of the phrase "upon estimated approval by the Commissioners"Court" in "2" above, 

to mean approval by the Commissioners" Court of an estimate of work completed. 

In' connection with the foregoing you have posed 

several questions, the first of which 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, 

in part, thats 

"Each Commissioners0 Court shall convene and sit as a board 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 of Equalization shall 

have the power and it is made 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 and when 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 the market 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 

as well 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 as provided 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 

to have special skill and experience 

~to comnile taxation data for its use 

while sittinq as a Board of Equalization 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 

to b&incurred for professional 

services, under the provisions 

hereof, the Commissioners' Courts 

are herebv authorized to issue 

time warrants payable from the 

general fund of the countv in the 

manner provided bv the Bond and. 

Warrant Law of 1931: provided, 

however, the warrants so issued 

shall mature within six (6) years 

from their resnective dates." 

(Emphasis added) 

Prior to the amendments made to Article 7212 by 

the Legislature in 1963, Acts of 1963, 58th Leg., 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: 

"It has been definitely decided by 

our courts, however, that the Commissioners O Court has the implied 

power to employ independent assistants to assist in arriving at the 

value to be fixed by the Commissioners' Court as a Board of Equalization 

where technical or special knowledge 

is necessary and which knowledge the 

Commissioners' Court would not be 

presumed to possess . 0 SW 

The above statement in Attorney General's Opinion No. C-63 

had for its basis such cases as Roper 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). 

In view of the foregoing authority and the express language contained in Article 7212 as amended by 
Hon. 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; 

tract with and employ individuals, firms or corporations 

to compile taxation data to be used by the Commissioners' 

Court while sitting as a Board of Equalization. 

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 of Article 

7264(a), V.A.T.C.S., or Article 

7335, V.A.T.C.S., or Article 

7335a, V.A.T.C.S.? 

(c) Does the proposed contract usurp 

the powers vested in the Tax Assessor?" 

The provisions of Sec. 2 of Article 2368a, Vernon's Civil Statutes, are, in part, as followst 

"No county, acting through its commissioners ' court . D D shall hereafter make any 

contract calling for or requiring the expenditure or payment of Two Thousand 

($Z,OOO.OO) Dollars or more out of any fund 

or funds . D s without 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) 

In Attorney 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 let by Commissioners' Court without competitive bids, and in such 

opinion it is stated that: 

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

7264(a), 7335, or 7335a, Vernon's Civil 

Statutes. Pritchard & Abbott v. McRenna, 

162 Tex. 617, 350 S.W.28 333, (1961). 

Article 7212 (as amended by the Legislature in 1963, Acts of 1963, 58th Leg., 

p. 1256, ch. 481, Sec.l)is constitutional insofar'as it provides 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 fork appraisal 

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 

the wording is changed to properly reflect 

that payment is to be made from the general fund of the county. 

Where payment of a contractual obligation 

is to be made,from current funds it is 

sufficient that the proper constitutional 

fund of the county contain sufficient 

money on hand or within reasonable anticipation of being on hand during the year 

in which the contract is made. 

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

Furthermore, the services to be performed under 

the provisions of Article 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, 

.the services to be performed in the instant situation 

would be the type of services exempted from the competitive bid provisions of Article 2368a. 

Articles 7264a, 7335, and 7335a, Vernon's Civil 

Statutes, all pertain to various aspects of the collection 

of delinquent taxes. As the contract in the situation you 

have here posed deals merely with services to be rendered 

to the Commissioners' Court sitting as a Board of Equalisation 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 conflict with or contravene the provisions of Articles 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 is not charged with 

the management 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 to him by law and within 

,which the Commissioners' Court may not 

interfere or usurp, But that is not to 

say that the functions of the Board of 

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

Equalization and those of the AssessorCollector are so diverse that information 

may not be lawfullv contracted for and 

obtained bv the Equalization Board because it may likewise be of aid to the 

Assessor in the performance of his 

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 time warrants?* 

Section VI of the proposed contract provides for 

payment to the party performing the evaluation services 

for the Commissioners' Court sitting as a Board of Equalization by the issuance and delivery of interest bearing 

time warrants which have been authorized by an order of 

the Commissioners' Court. Such time warrants are to be 

dated February 1, 1964, are to bear interest at the rate 

of 5% per annum and are scheduled to mature in five equal 

installments - the first maturing on December 1, 1964, 

and thereafter on the same date of each succeeding year 

through 1968, The order authorizing the time warrants and 

the levying of the tax for payment of the principal and 

interest is incorporated by reference and made 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 the manner provided for in the Bond and Warrant Law of 1931,~ but with the 

additional limitation that warrants 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 and Warrant 

Law of 1931 or with the provisions of Article 7212, and presuming that the Bond and Warrant Law of 1931, i.e., Article 

256Sa, Vernon's Civil Statutes, is fully complied with in 

authorizing the warrants and levying the tax for payment 

thereof, your question number three is answered in the affirmative. 

In your next question you inquire as followsx 

“4. Is Article 7212 (as amended by Chapter 481, Acts of the 58th Legislature, 

Regular Session, 1963) constitutional 

insofar as it provides that warrants 

are to be payable from the general 

fund of the county?" 

Section 9 of Article VIII of the Constitution of 

Texas reads, in part, as follows: 

H D 0 D at the time the Commissioners' 

Court meets,to levy the annual tax rate 

for each county it shall levy whatever 

tax rate may be needed for the four (4L 

constitutional purposes: namely, ceneral 

fund, permanent improvement fund, road 

and bridse 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 for which 

these warrants are to be issued would 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 these warrants are to be issued to pay for 

permanent improvements or roads and bridges or in payment 

of juries. 

Article 7212 was amended by the Legislature in 1949, 

Acts of 1949, 51st Legislature, p* 1196, ch. 607, Sec. 1, to 

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

f 

provide payment for such services "- 0 D on 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 of Attorney General's Opinion No. O-4114 (November. 

7, 1941) which deals directly with this specific question. 

The 1963 amendment to Article 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 in Article 7212 to the effect that'these warrants are 

to be paid from the general fund of the county simply amounts to an enunciation of what 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 

fund warrants are to be used to pay 

for services?" 

Article 7212 specifically authorizes the county to 

enter into such a contract but is entirely silent as to any 

requirement of notice of intention to enter into same, although it does provide that time warrants authorized thereunder shall be issued '#in the manner provided by the Bond 

and Warrant Law of 1931", 

We must, therefore, look to the provisions of 

Article 2368a for any requirement as to notice of intention 

to contract, Section 2 of said Act, 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 the Act, The only other provision 

pertinent to the question of notice is Section 3, which 

prov'idese 

""Sec. 3, When it shall be the intention 

of the Commissioners' Court . . . to issue 

time warrants 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 the proposed time warrant 

indebtedness, the rate of interest such 

time warrants are to bear, and the maximum 

maturity date thereof". (Emphasis added) 

Since Section 3, by its own terms, applies only 

where notice is required under Section 2, and since we 

have already held in answering your question 2(a) above, 

that no notice to bidders 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 can be entered into without giving notice 

of intention to do= when time warrants are to be used to 

pay for the services contracted for, 

your sixth question isz 

"'6 q Should the Commissioners" Court of 

Swisher County desire to do so may 

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 two years, provided the percentage of work is completed by appraiser as prescribed in 

contract?" 

This question, as well as question seven, concerns 

an entirely different contract than that considered in the 

first five questions and relates to the manner in which 

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

provision has been xade for payment of the amount to become 

due the appraiser for work 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 make reference to payxent out 

of the "General Fundm, es your question itself does, but 

rather to "the proper fund or 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 and we have affirmed in this 

opinion in answer to your guestion four that this is the 

constitutional fund properly to be charged with much expenditure. Therefore, the wording of enclosure contract 

numbei two should be changed accordingly. 

In all other relevant rempects enclosure contract 

number two is easentially identical in forx to a conttact 

entered into between the Cormniecrionerm Court of Aransaa 

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 of mite v.,Thoxas Y. Pickett and 

company, 355 S.W.2d 848 (Tex.Civ.App.,1962, error ref. 

n.r.e.1. 

Therefore, our answer to your sixth question fs~tbat 

the Conmissioners' Court of Swisher County can enter into a 

contract containing provisions for payment for apprai8al 

services performed thereunder such am is found in your enclosure contract nuxber two, provided that the wording is 

changed SO as to correctly reflect that payments thereunder 

shall be xade frox the genmral fund of the county. 

We interpret your seventh and final question to xean 

tbe follwinga Mere an obligation incurred under a contract 

is to be paid out of current funds, must the County Treasury 

actually contain, at the time the contract is signed. sufficient funds to satisfy the obligation or is it necessaxy only 

that money in the Treasusy, taxes in the process of collection during such tax year, 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 

the meaning of Section 7 of Article 11 of the Constitution 

of Texas if a valid appropriation is made for the payment 

of the total amount due from funds on hand or funds within 

reasonable anticipation of beinc on hand during the current 

year in which the contract is made. McNeil1 v. City of Waco, 

89 Tex. 83, 33 s-w.322 (1895): Citv of Ft. Worth v. Bobbitt, 

121 Tex,14, 41 s.w.Zd 228 (1931). 

Thus, in answer to the question posed above it would 

not be necessary that at the time the contract is signed the 

County Treasury actually contain the money to pay the obli-~ 

gation but only that the proper constitutional fund contains 

sufficient money on hand or within reasonable anticipation of 

being onhand during the year in which the contract is made. 

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 

a Board of Equalization, under' the.provisions of Article 7212, Vernon's Civil 

Statutes. 

Such a contract may be entered into without receipt of ccmpetitive bias or giving 

notice of intention to contract even when 

general fund time warrants issued under 

the provisions of the Bona and Warrant Law 

of 1931, are to be used to pay for ~the 

services to be rendered, 

The Cosanissioners' Court can enter into 

such a contract without usurping the powers 

vested in the Tax Assessor and without contravening the provisions of Articles 

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

7264(a), 7335, or 7335a, Vernon's Civil 

Statutes. Pritchard & Abbott v. McKenna, 

162 Tex. 617, 350 S.W.28 333 (1961). 

Article 7212 (as amended by the Legislature in 1963, Acts of 1963, 58th Leg., 

p. 1296, ch. 481, Sec.1) ~i.s constitutional insofar'as it provides for payment of such obligations by time warrants 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 of White v. Thomas Y. 

Pickett & Companv, 355 S.W.2d 848 (Tex. 

Civ.App., 1962), error ref. n.r.e.1 if 

the wording is changed to properly reflect 

that payment is to be made from the general fund of the county. 

Where payment of a contractual obligation 

is to be made ~from current fun& it is 

sufficient that the proper constitutional 

fund of the county contain sufficient 

money on hand or within reasonable anticipation of being on hand during the year 

in which the contract is made. 

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 TIIE ATTORNEY GENERAL 

By: Stanton Stone 

-1287-