ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

,The Honorable David R. Austin 

Ector County Auditor 

1010 East Eighth Street, Room 520 

Odessa, Texas 79761 

September 8,2004 

Opinion No. GA-0247 

Re: Whether a county auditor may approve 

a claim for payment on a contract that was 

not awarded in compliance with the County 

Purchasing Act (RQ-0195GA) 

Dear Mr. Austin: 

You ask whether a county auditor may approve a claim for payment on a contract that was 

not awarded in compliance with the County Purchasing Act, Local Government Code chapter 262, 

subchapter C. You also ask several related questions about such a contract’s legal effect and the 

county’s authority to make payments under such a contract.’ 

I. Background 

A. Legal Framework 

Your questions involve an Ector County contract for a third-party administrator to 

administer the county’s self-insured medical benefits plan. See Request Letter, supra note 1, at 1. 

Section 157.002 of the Local Government Code provides that a “commissioners court by rule may 

provide for medical care and hospitalization and may provide for compensation, accident, hospital, 

and disability insurance” for, among others, county employees, retirees, and their dependents. TEX. 

LOC. GOV’T CODE ANN. 3 157.002(a) (Vernon 1999). In a county that adopts rules under section 

157.002, the commissioners court may require health plan participants to contribute toward the 

payment of the plan and may establish the “Hospital and Insurance Fund-County Employees” to 

“pay for the medical care or hospitalization or the insurance.” Id. 5 157.003(a). 

Section 157.003 provides that “[cllaims shall be paid from the fund in the same manner as 

provided by law for the payment of other claims of the county.” Id. 5 157.003(d). Chapter 113 of 

the Local Government Code establishes procedures for paying county claims. Section 113.064(a) 

requires that 

[i]n a county that has the office of county auditor, each claim, 

bill, and account against the county must be tiled in sufficient time 

‘See Letter from Honorable David R. Austin, Ector County Auditor, to Honorable Greg Abbott, Texas Attorney 

General (Mar. 12,2004) (on tile with the Opinion Committee, also available athttp://~.oag.state.tx.us) [hereinafier 

Request Letter]. 
The Honorable David R. Austin - Page 2 (GA-0247) 

for the auditor to examine and approve it before the meeting of the 

commissioners court. A claim, bill, or account may not be allowed 

or paid until it has been examined and approved by the auditor. 

Id. 5 113.064(a). Section 113.065 provides that “[tlhe county auditor may not audit or approve a 

claim unless the claim was incurred as provided by law.” Id. § 113.065. 

The County Purchasing Act generally requires counties to make certain purchases using 

competitive bidding. Section 262.023(a) of the Local Government Code provides that 

[blefore a county may purchase one or more items under a 

contract that will require an expenditure exceeding $25,000, the 

commissioners court of the county must: 

(1) comply with the competitive bidding or competitive 

proposal procedures prescribed by this subchapter; 

(2) use the reverse auction procedure, as defined by Section 

2155.062(d), Government Code, for purchasing; or 

(3) comply with a method described by Subchapter H, Chapter 

271. 

Id. 4 262.023(a) (Vernon Supp. 2004); see also id. $5 271.111-,121 (Local Government Code, 

chapter 271, subchapter H). In the Act, the term “item” means “any service, equipment, good, or 

other tangible or intangible personal property, including insurance and high technology items.” Id. 

5 262.022(5) (Vernon 1999). In applyingsection262,023(a), “all separate, sequential, or component 

purchases of items ordered or purchased, with the intent of avoiding the requirements of this 

subchapter, from the same supplier by the same county officer, department, or institution are, treated 

as if they are part of a single purchase and of a single contract.” Id. 5 262.023(a) (Vernon Supp. 

2004). A contract for the purchase of a personal or professional service is exempt from the section 

262.023 competitive bidding requirement ifthe commissioners court by order grants the exemption. 

See id. 5 262,024(a)(4). 

Among other things, the Act requires that notice of a proposed purchase 

be published at least once a week in a newspaper of general 

circulation in the county, with the first day of publication occurring 

before the 14th day before the date of the bid opening. If there is no 

newspaper of general circulation in the county, the notice must be 

posted in a prominent place in the courthouse for 14 days before the 

date of the bid opening. 

Id. 5 262.025(a). The notice must include detailed information about the proposed purchase. See 

id. § 262.025(b). 
The Honorable David R. Austin - Page 3 (GA-0247) 

Sections 262.0295 and 262.030 of the Local Government Code authorize a county to use 

alternate competitive procedures in certain limited circumstances. Under section 262.0295, upon 

a finding by the commissioners court that it is impractical to prepare detailed specifications for an 

item to support the award of a purchase contract, the county official who makes purchases for the 

county may use a multistep competitive proposal procedure, soliciting quotations through a request 

for proposals. See id. 5 262,0295(a)(l)-(2), (b) (V emon 1999); see also id. 5 262.0295(a)(3) (“This 

section applies only to a county with a population of 125,000 or more.“). Section 262.030 permits 

counties to use a competitive proposal procedure, soliciting quotations through a request for 

proposals, to purchase, among other things, insurance and high technology items. See id. 5 262.030 

(Vernon Supp. 2004). 

Sections 262.0295 and 262.030 both require the county to provide notice. See id. 

35 262.0295(b) (Vernon 1999) (“Public notice for the request for proposals must be made in the 

same manner as provided in the competitive bidding procedure, except that the notice may include 

a general description of the item to be purchased, instead of the specifications describing the item 

or a statement of where the specifications may be obtained, and may request the submission of 

unpriced proposals.“), 262.030(b) (Vernon Supp. 2004) (“Public notice for the request for proposals 

must be made in the same manner as provided in the competitive bidding procedure.“). 

Section 262.033 provides that “[a]ny property tax paying citizen of the county may enjoin 

performance under a contract made by a county in violation of this subchapter.” Id. § 262.033 

(Vernon 1999). In addition, a county officer or employee who violates the Act is subject to criminal 

prosecution and removal from office.’ 

B. Factual Background 

You inform us that in 1983 Ector County established a self-insured medical benefits 

plan for its employees, retirees, and their dependents, as authorized by section 157.002 ofthe Local 

Government Code. See Request Letter, supra note 1, at 1; see also TEX. Lot. GOV'T CODE ANN. 

$9 157.002-.003 (Vernon 1999), supra. Historically, the county has obtained the services ofathirdparty administrator (“TPA”) to administer the plan and has followed the County Purchasing Act to 

award the TPA contract. See Request Letter, supra note 1, at 1, 

Your questions involve a TPA contract that Ector County entered into in the fall of 2003. 

In September 2003, the Ector County Commissioners Court rescinded the TPA contract that was 

then in effect for a one-year term, and it awarded a new contract to another TPA, effective October 

‘Under section 262.034(a)-(b), a county officer OI employee who “intentionally or knowingly makes or 

authorizes separate, sequential, or component purchases to avoid” section 262.023’s competitive bidding requirements, 

OI intentionally or knowingly violates section 262.023 by other conduct, commits a Class B misdemeanor. &~TEx. LOC. 

Gov'r CODE ANN. 5 262.034(a)-(b) (V anon 1999). Under section 262.034(c), a county officer or employee who 

intentionally OT knowingly violates the Act, other than by conduct described by section 262.034(a) or (b), commits a 

Class C misdemeanor. See id. 5 262.034. “The final conviction of a county officer or employee for an offense under 

Section 262.034(a) OI (b) results in the immediate removal from off& OI employment ofthat person.” Id. 5 262.035(a). 

The removed ofticer or employee is ineligible for four years after the date of final conviction for public office and for 

county employment or compensation. See id. 5 262.035(b). 
The Honorable David R. Austin - Page 4 (GA-0247) 

1,2003. As county auditor, you determined that the commissioners court had not complied with the 

County Purchasing Act’s competitive bidding requirements in procuring the new TPA contract and 

asked the county attorney for an opinion. See id. at 1-2. While waiting for the county attorney’s 

opinion, the county made payments to the new TPA for services provided under the contract. See 

id. at 2. The county attorney concluded that the county had failed to comply with the County 

Purchasing Act’s notice requirements in procuring the new TPA contract but also stated that the 

contract “‘is in effect and the County is under obligation to perform under the contract.“’ Id. 

II. Analvsis 

You ask nine questions about the TPA contract. We understand that there is some dispute 

regarding the county auditor and the county attorney’s conclusion that the county did not comply 

with the County Purchasing Act in awarding the contract. For example, an attorney for the TPA 

contends that the TPA provides professional services and that the commissioners court was therefore 

authorized to exempt the contract from competitive bidding.’ A county commissioner, on the other 

hand, asserts that the county solicited proposals for the contract pursuant to a procedure permitted 

by section 262.030 of the Local Government Code! Your questions ask us to assume that the TPA 

contract was not awarded in compliance with the County Purchasing Act. We do not examine that 

assumption. 

A. Local Government Code, Section 113.065 

First you ask, “[alssuming the contract was not competitively procured,” whether 

the county auditor may legally approve a claim for payment to the TPA for services rendered under 

the contract under Local Government Code, section 113.065. See id. at 3. 

Claims paid from a county’s hospital and insurance fund must be paid in the “same manner 

as provided by law for the payment of other claims of the county.” TEX. Lot. GOV’T CODE ANN. 

5 157.003(d) (Vernon 1999). Chapter 113 of the Local Government Code expressly provides that 

a claim, bill, or account may not be allowed or paid until it has been examined and approved by the 

county auditor. See id. § 113.064(a). Section 113.065 provides that “[tlhe county auditor may not 

audit or approve a claim unless the claim was incurred as provided by law.” Id. 5 113.065. 

“The language ofthese statutes is mandatory. They impose on the auditor the responsibility, 

before approving a claim, to determine whether it strictly complies with the law governing county 

‘See Brief from Eric J. Nathan, Weener & Nathan, L.L.P., at 2 (May 28, 2004) (on file with the Opinion 

Committee); see dso TEX. LOC. GoV’T CODE ANN. 8 262,024(a)(4) (V anon Supp. 2004); Tex. Att’y Gen. Op. Nos. 

DM-418 (1996) at 9-13, JM-1038 (1989) at 2 (considering whether a contract for services of a third party administrator 

is exempt from competitive bidding laws as a contract for professional services). 

‘See Letter from Honorable Barbara Graff, Ector County Commissioner, to Nancy Fuller, Chair, Opinion 

Committee, Office of the Attorney General (May 26,2004) (on file with the Opinion Committee); see also TEX. LOC. 

GOV’T CODE ANN. $ 262.030 (Vernon Supp. 2004) (p ermitting counties to use a competitive proposal procedure, 

soliciting quotations through a request for proposals, to purchase, among other things, insurance and high technology 

items). 
The Honorable David R. Austin - Page 5 (GA-0247) 

finances.” Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App.-Dallas 1976, writ dism’d) 

(addressing the statutory predecessors to Local Government Code sections 113.064-,065, former 

articles 1660 and 1661); see nlso Criderv. Cox, 960 S.W.2d 703,706 (Tex. App.-Tyler 1997, writ 

denied) (“A claim against the county may not be approved by the Auditor unless it was incurred in 

accordance with the law.“) (citing Local Government Code section 113.065). Although no court has 

addressed the issue, a number of attorney general opinions have concluded that a county auditor may 

not approve a claim for a contract that was not awarded in compliance with a competitive bidding 

law, see Tex. Att’y Gen. Op. Nos. V-285 (1947), O-770 (1939), or similar law limiting county 

purchasing authority, see Tex. Att’y Gen. Op. Nos. JC-0266 (2000) (a county auditor may not 

approve a claim for payment under a contract made in violation of the Professional Services 

Procurement Act) (citing Local Government Code section 113.065), H-1237 (1978) (“The 

commissioners court is not authorized to order payment of a claim under a contract made in violation 

of article 1580 [requiring county purchases to be made by purchasing agent], and the auditor is 

prohibited from paying such a claim.“). 

In answer to your question, if a county auditor determines that a contract was awarded in 

violation of the County Purchasing Act, section 113.065 of the Local Government Code prohibits 

the auditor from approving the claim. A claim may not be approved by the commissioners court or 

paid by the county without the auditor’s approval5 See Crider, 960 S.W.2d at 706 (the county 

auditor’s approval of a claim is a requisite to the commissioners court’s approval; without county 

auditor approval, the commissioners court’s approval of a claim is void). 

B. The Contract’s Legal Effect 

You ask several questions about the TPA contract’s legal effect. We begin with your 

question asking whether “a contract that does not comply with the [County] Purchasing Act [is] void 

or voidable?” Request Letter, supra note 1, at 3 (question 5). As you point out, Local Government 

Code chapter 271, subchapter B establishes competitive bidding requirements for certain public 

works contracts. ~TEx. Lot. GOV’TCODE ANN. @ 271.021.,030 (Vernon 1999 & Supp. 2004). 

Section 271.028 of the Local Government Code expressly provides that “[a] contract awarded in 

violation of this subchapter is void.” Id. 5 271.028 (Vernon 1999). Similarly, chapter 252 of the 

Local Government Code, governing municipal purchasing, contains a provision stating that a 

contract “made without compliance with this chapter” is “void and performance of the contract 

may be enjoined” by a municipal taxpayer. See id. 5 252.061. By contrast, the County 

Purchasing Act provides that “[a]ny property tax paying citizen of the county may enjoin 

performance under a contract made by a county in violation of this subchapter,” id. 5 262.033, but 

does not contain a provision stating that a contract awarded in violation of its requirements is void. 

The legislature adopted the statutory predecessor to the County Purchasing Act, former article 

2368a.5, in 1985. See Act ofMay27, 1985, 69th Leg., R.S., ch. 641, 1985 Tex. Gen. Laws 2377, 

‘Given our answer to your first question, we do not answer your second question. See Request Letter, supra 

note 1, at 3 (“If the answer to #I is ‘yes,’ are there judicial rulings or statlltory authority other than Local Government 

Code, Section 113.065 providing for County Auditor approval for either the past 01 the future payment of services?“). 
The Honorable David R. Austin - Page 6 (GA-0247) 

2377-85. Prior to 1985, various statutes governed county purchasing, many of which applied to 

counties, municipalities, and other political subdivisions. For example, the statutory predecessor to 

the municipal purchasing provisions, former article 2368a, now chapter 252 of the Local 

Government Code, applied to both cities and counties. See, e.g., Corbin v. CoNin County Comm ‘rs 

Court, 651 S.W.2d 55,56 (Tex. App.-Dallas 1984, no writ) (addressing whether a county awarded 

a contract in compliance with former article 2368a). Article 2368a, section 2(d) provided: 

Any and all contracts or agreements hereafter made by any 

county or city in this state, without complying with the terms of this 

section, shall be void and shall not be enforceable in any court of this 

state and the performance of same and the payment of any money 

thereunder may be enjoined by any property taxpaying citizen of such 

county or city. 

See Bond and Warrant Law of 193 1, Act of May 21,193 1,42d Leg., R.S., ch. 163,193 1 Tex. Gen. 

Laws 269, 270-71, as amended by Act of May 30, 1981, 67th Leg., R.S., ch. 505, 5 2, 1981 Tex. 

Gen. Laws 2164, 2164-65. Statutes that predated article 2368a, former articles 2368 and 2268b, 

contained similar provisions. SeeLimestone County v. Knox, 234 SW. 13 1 (Tex. Civ. App.-Dallas 

192 1, no writ) (addressing similar language in former article 22681, and concluding that a contract 

was void because the commissioners court awarded it without complying with statutory 

requirements). A contract that is void under the terms of such a statute is a nullity: 

The commissioners’ court being without power or authority to 

make the contract in the first instance without compliance with the 

terms of the statute, the contract was void and could not be vitalized 

and made binding and enforceable by ratification or otherwise. 

[A] contract which the law denounces as void is necessarily 

no contract whatever and the acts of the parties in an effort to create 

one in no wise bring about a change of their legal status. A void 

contract is a mere nullity, and is obligatory on neither party to it. “It 

requires no disaffinnance to avoid it and cannot be validated by 

ratification.” 

Id. at 134. 

In 1985, the legislature adopted the County Purchasing Act, amended article 2368a and other 

laws applicable to counties and other entities to remove counties from their scope, and repealed 

many inconsistent countypurchasingprovisions. See Act ofMay27,1985,69th Leg., R.S., ch. 641, 

35 1 (enacting County Purchasing Act), 2-4, 8 (amending other laws to delete counties), 11 

(repealing county purchasing laws), 1985 Tex. Gen. Laws 2377,2377-84. 

Although the County Purchasing Act, unlike Local Government Code sections 252.061 and 

271.028 and provisions in former laws applicable to county purchasing, does not contain language 

stating that a contract awarded in violation of its provisions is void, no judicial or attorney general 

opinion since 1985 has addressed this change’s potential significance. The 1985 legislative history 
The Honorable David R. Austin - Page 7 (GA-0247) 

does not discuss the change.6 However, the legislature’s omission of language in the County 

Purchasing Act making contracts void is significant and must be given effect. See City of Houston 

Y. Clear Creek Basin Auth., 589 S.W.2d 671, 681 (Tex. 1979) (“It is apparent that in amending the 

statute, the legislature intended some change in the existing law, and this court will endeavor to 

effect the change.“); Am, Sur. Co. 0fN.Y. v. Axtell, 36 S.W.2d 715,719 (Tex. 1931) (the legislature 

is presumed to have intended some change to existing law when enacting an amendment and effect 

must be given to the amendment); see also TEX. GOV’T CODE ANN. 5 3 11.023(4) (Vernon 1998) (in 

construing a statute, a court may consider “former statutory provisions, including laws on the same 

or similar subjects”). As a result, we conclude that contracts awarded in violation of the County 

Purchasing Act are not void ab initio but rather may be declared void by a court. 

Under section 262.033 of the Local Government Code, “[a]ny tax paying citizen may enjoin 

performance under a contract made by a county in violation of’ the County Purchasing Act. TEX. 

Lot. GOV’T CODE ANN. $ 262.033 (Vernon 1999). In addition, in some cases an unsuccessful 

bidder may bring a declaratoryjudgment action seeking to have a contract declared void on the basis 

that the county failed to award it according to the County Purchasing Act’s procedures. See, e.g., 

Securtec, Inc. Y. County of Gregg, 106 S.W.3d 803 (Tex. App.-Texarkana 2003, pet. denied) 

(concluding that an unsuccessful bidder could bring a declaratory judgment action requesting the 

court to declare a contract void because the county did not comply with the County Purchasing Act). 

We stress, however, that the County Purchasing Act’s enforcement provisions do not modify 

a county auditor’s duty under section 113.065 of the Local Government Code to refuse to approve 

a claim that was not incurred in compliance with law. Section 113.065’s charge that “[tlhe county 

auditor may not audit or approve a claim unless the claim was incurred as provided by law,” TEX. 

LOC. GOV’T CODE ANN. 5 113.065 (Vernon 1999), remains in effect. Under section 113.065, a 

county auditor need not obtain a court order declaring the contract void for noncompliance with the 

County Purchasing Act to exercise the duty to withhold approval of a claim. See Smith, 533 S.W.2d 

at 459 (acountyauditorwho acted to deny claims under the statutorypredecessor to section 113.065 

“was acting within his official discretion to deny the claims and to require that their validity be 

established in a court of law”). Moreover, a county auditor’s decision to approve or disapprove a 

claim is a discretionary as opposed to a ministerial act. Id.; see also Crider, 960 S.W.2d at 706-07. 

A court will require a county auditor to approve a claim only if the auditor has abused his or her 

discretion. See Crider, 960 S.W.2d at 706-07 (mandamus will lie to force a county auditor to 

approve a claim only “to correct a clear abuse of discretion when there is no adequate remedy by 

ordinary appeal”). If a party cannot establish that the auditor abused his or her discretion, “the 

remedy. is a suit against the countyto establish the [claim’s] validity.” Smith, 533 S.W.2d at 461. 

6S~~H~~~~C~~~.~~C~~~A~~~~,B~~~A~~~~~~~,Tex. S.B. 807,69thLeg.,R.S. (1985);Hous~S~~~~ 

GROUP, BILL ANALYSIS, Tex. S.B. 807, 69th Leg., R.S. (May 14, 1985); HOUSE COMM. ON COLJNTY AFFAIRS, BILL 

ANALYSIS, Tex. C.S.S.B. 807, 69th Leg., R.S. (1985); Hearings on Tex. S.E. 807 Before rhe Senate Comm. on 

InfergovernmenralRe[ntions, 69thLeg., R.S. (Mar. 26,1985) (tapes available &Senate StaffServices Office); Hearings 

on Tu. S.B. 807 Before the Senate Comm. on Intergovernmental Relations, 69th Leg., R.S. (Apr. 2, 1985) (tapes 

available at Senate Staff Services Offke); Debate on Ta. S.B. 807 on the Floor ofthe Senate, 69th Leg., R.S. (Apr. 11, 

1985) (tapes available at Senate Staff Services Office); Debate on Tex. S.B. 807 on fhe No& of the House, 69th Leg., 

R.S. (May 15, 1985) (tapes available at House Video/Audio Dep’t). 
The Honorable David R. Austin - Page 8 (GA-0247) 

C. The Commissioners Court’s Authority to Provide a Basis for Contract 

Payments 

You ask several questions about a commissioners court’s authority to provide a basis 

for a county auditor to approve contract payments even though the claim was not “incurred as 

provided by law.” TEX. Lot. GOV’T CODE ANN. 5 113.065 (Vernon 1999). 

You ask about the commissioners court’s authority to ratify the contract: “[Wlhat action, if 

any, could be taken by the County in order for the County Auditor to lawfully approve a claim for 

payment to [the TPA] for future services under the contract? For example, could the Court in some 

way ratify a contract that did not comply with competitive bidding statutes?” Request Letter, supra 

note 1, at 3 (question 4). In a related question you ask whether the fact that a contract that does not 

comply with the County Purchasing Act is voidable rather than void affects the commissioners 

court’s authority to ratify it. See id. (question 5) (“Is a contract that does not comply with the 

Purchasing Act void or voidable, and does the determination make a difference in whether or not a 

contract can be ratified?“). 

A commissioners court lacks authority to ratify a contract expressly made void by law, such 

as a competitive bidding law providing that a contract made in violation of its terms is void. See, 

e.g., Wyatt Metal & Boiler Worh v. Fannin County, 111 S.W.2d 787, 790 (Tex. Civ. 

App.-Texarkana 1937, writ dism’d) (“These purchases having been made in violation of the 

provisions of the articles requiring competitive bids, the [commissioners court] was without 

authority to ratify same, for this would grant them a power to do something indirectly they could not 

do directly.“); Limestone County, 234 S.W. at 134 (a commissioners court could not ratify a contract 

awarded in violation of competitive bidding requirements). 

But authority to ratify does not depend on the contract being void rather than voidable. The 

authority to ratify is premised on the authority to enter into the contract in the first place. See 

Stratton v. Liberty County, 582 S.W.2d 252,254 (Tex. Civ. App.-Beaumont 1979, writ ref d n.r.e.) 

(“That which the Commissioners’ Court could authorize in the first instance could be ratified by it 

at a subsequent date.“); Angelina County v. Kent, 374 S.W.2d 313,317 (Tex. Civ. App.-Beaumont 

1963, no writ) (“what the Commissioners Court could approve in the first instance, it may ratify”); 

Cameron Countyv. Fox, 61 S.W.2d 483,487 (Tex. Comm’n App. 1933, holding approved) (“What 

the commissioners’ court could have authorized in the beginning, that court could subsequently 

ratify.“). Conversely, a commissioners court may not subsequently ratify a contract that it lacked 

authority to make. See JaCkv. State, 694 S.W.2d 391,397 (Tex. App.-San Antonio 1985, writ ref d 

n.r.e.) (“Ratification may not be used to justify the making of an illegal contract, A contract which 

is made in violation of a statute is illegal and void and therefore not subject to ratification.“); Tex. 

Att’y Gen. Op. Nos. JM-1027 (1989) at 8 (“[The purchase] camrotbe ‘ratified’ bythe commissioners 

court since the commissioners court cannot bind the county by ratification of a contract the court 

itself had no authority to make in the first place.“), H-1237 (1978) at 1 (“The authority of the 

commissioners court to regulate county fiscal matters has been circumscribed by article 1580, and 

since the court was powerless to make the contract initially, it was equally powerless to ratify it.“). 
The Honorable David R. Austin - Page 9 (GA-0247) 

A commissioners court’s authority is limited to those powers conferred either expressly or 

by necessary implication from the constitution and laws of this state. See Guynes v. Galveston 

County, 861 S.W.2d 861, 863 (Tex. 1993) (citing Canales Y. Laughlin, 214 S.W.2d 451,453 (Tex. 

1948)); Tex. Att’y Gen. Op. Nos. GA-0158 (2004) at 4, GA-0085 (2003) at 2; see also TEX. CONST. 

art. V, 5 18(b). When the County Purchasing Act governs the commissioners court’s authority to 

enter into a contract, the commissioners court lacks authority to enter into a contract outside its 

provisions. Because it lacks authority to enter into a contract in violation of the County Purchasing 

Act in the first place, a commissioners court lacks authority to subsequently ratify such a contract. 

It is immaterial to the authority to ratify that the County Purchasing Act does not provide that a 

contract awarded in violation of its requirements is void. 

You also ask about the commissioners court’s authorityto make “quantum meruit”payments 

on the contract: “[Wlhat action, if any, could be taken by the County, in order for the County Auditor 

to audit and lawfully approve a claim for payment [to the TPA] for services already rendered? For 

example, could the Court approve payment in quantum meruit?” Request Letter, supra note 1, 

at 3 (question 3). In a similar question you ask, “If the only legal vehicle for payment is a claim in 

quantum meruit, could the court suffer the continuing provision of services while making periodic 

‘quantum meruit’ settlement payments?” Id. at 4 (question 9). 

Quantum meruit is a legal doctrine pursuant to which a court may order a party to pay for 

benefits received despite the absence of an enforceable contract. See Heldenfek Bros., Inc. Y. City 

of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992) (“Quantum meruit is an equitable theory of 

recovery which is based on an implied agreement to pay for benefits received.“). A plaintiff must 

establish the following to recover under the doctrine of quantum meruit: (1) valuable services or 

materials were furnished, (2) for the person or entity sought to be charged, (3) which were accepted, 

used, and enjoyed by the person or entity sought to be charged, and (4) under such circumstances as 

reasonably notified the person or entity sought to be charged that the plaintiff, in performing services 

or furnishing properties, expected to be paid by the person or entity to be charged. Id. 

Under chapter 113 of the Local Government Code, a commissioners court may not pay a 

claim until it has been examined and approved by the county auditor, see TEX’. Lot. GOV’T CODE 

ANN. $5 113.064-,065 (Vernon 1999), and “[tlhe county auditor may not audit or approve a claim 

unless the claim was incurred as provided by law, ” id. § 113.065. Neither chapter 113 nor the 

County Purchasing Act authorizes a commissioners court to approve quantum meruit payments on 

a contract that was not awarded in compliance with the County Purchasing Act to provide a basis 

for the county auditor to approve claims on the contract. In the event a county auditor rejects a claim 

for payment for noncompliance with the County Purchasing Act, the claimant could tile a legal 

action to recover damages in quantum meruit. Seegenerally Base-Seal, Inc. v. Jefferson County, 901 

S.W.2d 783 (Tex. App.-Beaumont 1995, writ denied) (discussing the recovery available in a 

quantum meruit action brought by a company whose claims for payment by a county were rejected 

for noncompliance with the County Purchasing Act). A court may order a county to make quantum 

meruit payments in such a legal action. In that case, the court’s order would provide a basis for the 

county auditor to determine that the claim “was incurred as provided by law.” TEX. Lot. GOV’T 

CODE ANN. 5 113.065 (Vernon 1999). See generally Wyatt Metal &Boiler Works, 111 S.W.2d at 
The Honorable David R. Austin - Page 10 (GA-0247) 

790-91 (“Under the record [establishing that contract was void and commissioners court lacked 

authority to ratify it], plaintiff was relegated to a suit against the county upon an implied contract for 

the reasonable value of the benefits which Famrin County received from the use of these culverts.“). 

D. Questions Premised on Void Contract 

Finally, you premise several questions on the conclusion that a contract made in 

violation of the County Purchasing Act is void: 

Ifthe contract is void, should the County take action to bid the 

services as provided under Local Government Code, Chapter 262 and 

would this limit or increase potential liability to the County? 

If the contract is void, can the County enter into a month-tomonth contract with [the TPA] for TPA services until such time as a 

vendor can be awarded the TPA services under Local Government 

Code, Chapter 262 or would a month-to-month contract create a 

continuing violation? 

If the contract is void, ratification is not an option and the 

Purchasing Act does not provide for a month-to-month contract, are 

there other legal avenues available to the County in order to continue 

the activities of the Plan as it pertains to plan and claims 

administration? 

Request Letter, sup-a note 1, at 3-4 (questions 6-8). Given our conclusion that the contract is not 

void ab initio, and because we understand that the county has made monthly payments on the 

contract, which terminates on September 30,2004, we do not answer these questions. Should you 

decide to disapprove future contract payment claims under section 113.065 ofthe Local Government 

Code, we suggest that you seek the county attorney’s advice with respect to the county’s options to 

obtain TPA services and the county’s legal position in any potential litigation. 
The Honorable David R. Austin - Page 11 (GA-0247) 

SUMMARY 

If the county auditor determines that the county awarded a 

contract without complying with the County Purchasing Act, section 

113.065 of the Local Government Code prohibits the auditor from 

approving a claim for payment on the contract. Such a contract is not 

void ab initio but may be voided by a court. The fact that the County 

Purchasing Act does not provide that a contract made in violation of 

its terms is void does not affect a county auditor’s duty under section 

113.065 of the Local Government Code to disapprove a claim for 

payment on a contract awarded without complying with the County 

Purchasing Act. A commissioners court lacks authority to ratify such 

a contract or to approve quantum meruit contract payments for such 

a contract. 

G ABBOTT 

ey General of Texas 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER “’ 

Chair, Opinion Committee 

Mary R. Crouter 

Assistant Attorney General, Opinion Committee