Honorable Henry Wade   Opinion No. C-156
District Attorney
Dallas County          Re: Whether the County of Dallas may
Dallas',Texas              hire professionalservices with-
                           out advertisingfor bids and re-
Dear Hr. Wade:             lated questions.
         You have requested an opinion from this office upon
the following questions:
          "1* May the County of Dallas hire professional
     services without advertisingfor bids?
          "2. May Dallas County contract for three years
     for a professionalservice contract?
          “3* Can the Commissioners'Court ratify the
     action of the individualmembers and then assume the
  A( obllgatian of paying for the services rendered and to
  :' be rendered as they come due in the future?
         “4.0 If No. 3 is answered in the negative, can
    Dallas County pay on quantum meruit for the services     ,
    rendered?”
          These questions have arisen in connection with a series
of events which were set forth in your letter as follows:
          "In January~of this year, a public,spirited
    benefactor contacted orally one or more members of
     the Commissioners8Court .individually, and in conver-
     satlon with said members agreed to beautify oertain
    .countyowned property by planting and maintaining
    numerous trees on same. This individualundertook
     this task on the erroneous assumption that the County
     of Dallas had officiallyagreed to the planting of the
     trees and that .theCounty had assumed the obligation
     of maiptaining same with a landscape.architectto be
     agreed'uponby the parties.
         l'Immediatelythereafter,said trees were planted,
    and the landscape architect commenced performing his
    duties, under the assumptionthat he had a three year

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        Hon. Henry Wade,:,page2   (C-156)


             contract in the sum of $2,000.00 per year, with
             the County of Dallas, for his services. These
             professionalservices include spraying, trimming,
             replacing dead trees, watering and maintaining
             the beauty of the location. He has now submitted
             a statement for professionalservices rendered to
             date."
                  In regard to your first question concerningwhether
        the County of Dallas may hire professionalservices without
        advertisingfor bids, the provisionsof Section 2 of Article
        2368a, Vernon's Civil Statutes, should be noted, and the perti-
        nent portions are set forth es follows:
                  "No county, acting through its Commissioners
             court * e 0 shell hereafter make any contract cell-
             ing for or re uiring the expenditureor payment of
             Two Thousand s$2,000.00)Dollars or more'out of any
             fundorfunds a e a without first submittingsuch
             proposed contract to competitivebids.          Pro-
             vided. that in case of Dublic celamitv .'.*.'this
             provision shall not eppiy; and provided further,
             that it shall not be aDDlied to contracts for ner-
             sonal or urofessionelserviceq. . . .'I(Emphasis
             added).
                  In Attorney General's Opinion No. R-2315 (19511, this
        office had before it the validity of a contract.forengineering
        services releting~to county roads which was let by the Commis-
        sioners' Court without competitivebids, and in such opinion it
        is stated that:
                  1,   o even before Article 2368 was superseded
             by Article 2368e, which expressly provides that the
             bidder requirements 'shallnot be applied to contracts
             for personal or professionalservices,'it was held
             that contracts involving special skill and experience
             were not within the contemplationof the statute re-
             quiring competitivebids. o 0 q
                  'I*0 e the engineeringcompany has contracted to
             perform services requiring technical skill and experi-,I
             ence, - 'professionalservices.' We agree with the
             opinion a 0 o that the contract in.questioncells for
             professionalservices requiring technical skill and
             experience,that it does not fell within the competi-
             tive bid provisions of the law, and that, es such, it
             is expressly excepted from the competitivebid require-
             ments of Article 2368e."

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     Hon. Henry Wade, page 3   (C-156)


    -See.@so, .Gulf Bitulit&c Co. v. Nueces County, 11 S.W.2d
     305 (Tex.Comm.App.192S);~hunterv. Whiteakey,.230 S.W. 1096
     $;e;.Civ.App. 1921, error ref.):
                                    ~-
           W.2d 67               1971):
     McC~.       I   122 Tex.‘i48,-32-S.
     Middleton,‘ "S.W. 563 (Tex.Comm.               The first two
     cases pertain to persona.1services requiring special skill and
     experience and the last three cases pertain to professional
     architecturalservices.
              The services to be performed in the posed situation,
    if they are not to be considered professionalservices
    certainly personal services requiring special skill anA t?peri-
    ence, and consequentlywould be the type of services exempted
    from the competitivebid provisionsof Article 2368a.
              In connectionwith your second question concerning
    whether Dallas County may enter into a three year contract for
    professional services,~attentionshould be called to certain
    provisions contained in Section 7 of Article XI of the Consti-
    tution of Texas which provide that:
              et
               . . . no,debt for any purpose shell ever be
         incurred in any manner by any city or county unless
         provision is made, et the time of creating the same,
         for levying and collecting a sufficient.taxto pay
         the interest thereoa.andprovide at least two per
         cent (2%) as a sinking fund; . . .I1
              The term "debt" as used In the above quoted con&i-.
    tutional provision has been uniformly held by the courts of
    this State to mean any pecuniary obligation imposed by contract,
    except such as were, at the date of the contract, within the
    lawful and reasonable contemplationof the parties, to be satis-
    fied out of the current revenues for the year, or out of some
    fund then within the Immediate control of the city or count
    See, Stevenson v. Blake, 131 Tex. 103, 113 S.W.2d 525 (19387;~
    Bexar Counts v. Hatley 1 g ;::I 254, 150 S.W.2d 980 (1941);
    McNeil1 v. Citv of Waci i         3, 33 S.W. 322 (1895); Foerd
    County v. Sendifer 105'Tex. 420 151 S.W. 523 (1912); Attorney
    General's Opinion ho. TV-1556(1942).
              In the case of Stevenson v. Blake 88 S.W.2d 773
    (Tex.Civ.App.1935), affirmed in Stevenson v: Blake, 131 Tex.
    103, 113 S.W.2d 525 (1938), the 'Commissioners'Court had en-
    tered into'e contract with certain attorneys and pursuant to
    such contract the attorneys were to perform certain duties for
    which they were to be compensated$3,000.00. This sum was to


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        Hon. Henry Wade, page 4   (C-156)


        be paid In three Installments. The first installmentof
        $l,OOO.OO was due shortly after the making of the contract
        in July of 1935* the second installmentof $l,OOO.OO was due
        in February of 1936; and the balance upon completion of the
        contemplatedlitigation.
                  The court in Stevenson v. Blake, 88 S.W.2d 733 (Tex.
        Civ.App. 19351, in ‘holdinnthe contract lnv,alldas being in
                           -~__~~~~”
        contraventionof the constitutionalrestrictionfound in Sec-
        tion 7 of Article XI of the Constitutionof Texas stated thatt
                  1,
                          the validity of such contract is de-
             termi&bb;e’bythe good-faithintention o? the
             parties, at the time of contracting,as to whether _
             the county’s obligation is, upon the one hand, to
             be paid out of unappropriatedrevenues then in hand
             or to be collected during the year of the contract,
             and lawfully available for the purpose, or, upon
             the other hand, out of revenues to be collected af-
             ter the terminationof that fiscal year. In the
             first case, thencontract does not contravene the
             constitution.ellimitation;in the second, it does,.”
                  As the.contract in the Instant situation calls for
        anuual payment&ver a period of ~threeyears, and would not be
        payable solely out of current revenues, we are of the opinion
        that such e contract would be invalid unless the constitutional
        restrictionsfound In~Section7 of~ArticleXI of the Constitu-
        tion had first been c~ompliedwith.
                  In regard to your question concerningwhether the Com-
        missioners’Court can ratify the action of the individualmem-
        bers and then assume the obligationof paying for the services
        rendered landto be re’nderedas they become due in the future,
        tkets stated in 15 Tex.Jur.2d,Countieg, Section 96, page 322,
            :
                  ‘IAcontract the commissioners’court has au-
             thority to make may be binding by virtue of subse-
             quent acts of the court, although the agent making
             it had no authority to enter ‘intoit.. Thus where   ‘.
             the commissioners’court, with knowledge of the lack
             of authority of an agent to enter into a contract,
             elects to accept its benefits, it thereby ratifies
             the contract and the county is estopped to deny its
             validity. . . .”
        See also, Gussett v. Nueces County 235 S.W. 857 (Tex.Com.App.
        1921); Morrison v. Kohler, 207 S.Wl2d 951 (Tex.Civ.App.1948,.
        error ref. n.r.e.1.
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        Hon. H,?nryWade, page 5    (C-156)



                  In view of the foregoing authority, we are of the
        opinion that the Commissioners* Court could ratify the action
        of individualmembers of the Commissioners'Court if the con-
        tract so ratified Is one which the Commissioners'Court had
        authority to make and which was not in excess of the powers of
        the CoutmissionerstCourt.
                  Your third question being answered in the affirmative,
        it becomes unnecessary to answer your fourth question.



                  The County of Dallas may hire professional
             services without advertisingfor bids. The com-
             petitive bid provisions of Article 2368a, Vernon's
             Civil Statutes, exempt professionaland personal
             services requiring technical skill and experienoe.
                  A professional service contract extending
             over a period of three years and not payable out
             of current revenues would be invalid unless the
             provisions of Section 7 of Article XI of the Con-
             stitution of Texas were first complied with.
                  The CommissionersCourt may ratify the action
             cf the individual members of the Commissioners'
             Court if the contract so ratified is one which the
             C.ommissionerslCourt had authority to make and
             which was not in excess of the powers of the Com-
             missionerst Court.
                                       Yours very truly,
                                       WAGGONER CARR



        PB:wb
        APPROVED:
        OPINION COMMITTEE
        W. V. Geppert, Chairman
        Faul Phy
        William Allen
        H. Gr:ldyChandler
        APPRO'IBDFOR THB ATTORNEY GENERAL
        EY: :;tantonStone

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