                 THE        ATNBRNEY               GENERAL
                                  OF    ?rExAs




Honorable  Charles       A. Allen            Opinion    No. M- 164
Criminal  District       Attorney
Harrison  County                             Re:    Authority    of the Commissioners
Marshall,  Texas                                    Court ta ratify     or approve a
                                                    purchase   of equipment,    supplies
                                                    or materials    purchased   by any
                                                    other person other than the
                                                    county engineer     under facts
Dear Mr. Allen:                                     submltted.

               Your request   for an opinion        on the   above   subject   matter
poses    the   following  question:

              ‘Can the Commissioners   Court of Harrison
        County, Texas ratify   or approve a purchase    of
        equipment,  supplies or material    purchased by
        any other person other than the County Engineer?”

           You state   In your request   that the voters      of Harrison
County pursuant to the provisions      of Section     31 of House Bill    1346,
Acts 60th Legislature,    Regular Session,      1967, Chapter 778, Page
2076, adopted the provisions     of said Act.      House Bill   1346 is
an Act commonly known as the Harrison        County Road and Bridge Law
and Is an Act relating    to the establishment       of a more efficient
road system for Harrison    County.    Sections    9 and 14 of said Act
provide  as follows:

                “Sec. 9.     The Commissioners      Court of Harrison
        County, Texas,        shall have authority       to purchase    all
        machinery,      equipment,    supplies,    and materials     neces-
        sary, requisite        and/or  convenient     to lay out, con-
        struct,     repair,    and maintain     an integrated    and
        correlated      system of all-weather       local   public   roads
        tin such county,       with gravel    or other all-weather
        surface,     and to make payment therefor          out of the
        general    road and bridge      fund.     Before   any such
        machinery,      equipment,    supplies,    and materials     are
        purchased     under the provisions        of this section,      the
        commissioners       court shall    order the county engineer
Honorable   Charles    A. Allen,     page     2   (~-164)



     to prepare   speclficatlons     for such machinery,  equlp-
     ment, supplies,     or materials,   and the commissioners
     court shall   use such specifications      as recommenda-
     tions  In making Its purchases.




            nor       reJectIon-of     all machinery,       equipment,
     tbbls,     supplies,    and materials      ordered by the com-
     mlssloners      court for use In the laying          out, opening,
     widening,     constructing,      draining,     grading,    repairing,
     and maintenance       of the county roads,         and shall receipt
     for such machinery,         equipment,     tools,   supplies,     and
     materials     purchased     by the county for the road and
     bridge    department.

           “The county engineer    shall keep a dally report,
     In triplicate,   which shall    show the amount of supplies
     and materials   used and where the same were used,          one
     copy of which shall be furnished        the county auditor,
     one copy ot the commissioners       court,   and one copy
     shall be retained    In his office;     said report   shall
     show which project    such supplies     and materials    are
     charged to and shall    so allocate     the expenditures
     made on each pro ect as to show the cost thereof.”
     (Emphasis added. 3

             “Set o 14.     The county engineer         Is empowered and
     authorized      to purchase,    rent,    lease,     or hire all neces-
     sary machinery,        Implements,    tools,     labor,   and materials
     required     to maintain,     construct,     and Improve the public
     roads of Harrison        County, Texas, subject          to the rules
     and regulations        adopted by the commissioners           court
     and the terms of this Ac t .            11 purchases      made, for
     the use of the road and bridge department                  of said
     county,     In an amount In excess         of $500, shall be made
     on the basis       of competitive     bids,    except as may be
     otherwise      provided   by order of the commissioners             court.
     Purchases      of under $500, required         for the efficient
     operation      of the road and bridge department,             shall be
     made by the county engineer           under the rules        and regu-
     lations     adopted by the Commissioners            Court of Harrison


                                      -169-
Honorable    Charles    Ai Allen,    page   3   (M-164)


      County, Texas.      No purchase’shall    be made’ for
      the benefit    of the road and bridge     department
      for which funds are not provided       ,ln the current
      approved road and bridge      department   budget,    ex-
      cept In the case of emergency Involving          public
      safety,   hsalth,   and the protection    of life   and
      property.       (Emphasis added).

            You state   in your request   that pursuant to Section   14
above quoted the Commissioners       Court of Harrison  County adopted
certain  rules  and regulations    and that paragraph   3 of said rules
and regulations    reads as follows:

             “3.    All  purchases     for the Road and Bridge
      Department shall        be made In strict      compliance
      with Sec. 14 of the Road and Bridge Law.               The
      Engineer     shall be the sole and exclusive          ps
      chasing    agent.     Any purchase     made wlthout    his
      authorization       shall be void.       In the event of
      a purchase     wlthout    the authority     of the Engineer,
      such person usurplng         the authority     of the Engineer
      shall be lndlvldually         responsible    to the supplier
      or other person involved.           The Rnglneer     shall be
      authorized     to purchase materials        and supplies,
      which in his judgment dare necessary            for the opera-
      tion of the Road and Bridge Department,              but no one
      purchase     shall   exceed Five Hundred Dollars          ($500.00),
      unless    previously     authorized    by a contract     entered
      into as required       by Sec. 14 of the Road and Bridge
      Law. ” (Emphasis added ) .

            Construing    the provisions    of Sections     9 and 14 of House
Bill   1346 above quoted together,       we note that the ultimate      power
for the purchase      of machinery,   equipment,    supplies   and materials
necessary   requisite    and/or  convenient    to lay out, construct,     repair
and maintain    public   roads In Harrison     County rests    in the Commlsslonerl
Court of Harrison      County.

               While the Commissioners         Court cannot bind the county by
ratification       of an Illegal      contract    (Cermo Mfg. Co. vs. Coleman
C!ULUI;~,~;~& S.W. 1063 (Tex.Clv.App.             lglb,   no writ)      Ll mestone
        Y       Knox,     234 S.W.  131   (Tex.Clv.App.       1921,  ho  writ)
bchlltree      County vs. Hedrlck,        366 S.W.2d 866, (Tex.Clv.Appf            1963,
error    ref.   n.r.e.11,     it Is well settled        law in this State that
what the Commlssloners           Court could have authorized          In the beginning,
the Commlssloners          Court may subsequently        ratify;    and where a county
receives      benefits     under a contract     not made In conformity          with the
Constitution       or statute     of the State,      the county will be held liable
Honorable     Charles   A, Allen,    page     4 (M-164)



on an Implied contract      for the reasonable    value.of   the benefits
which ttie county may have received.       Rbdners vs. CountV of Tavlor.
        .W.2d 794 (Tex.Clv.ADDLl963,     no-          Cameron County vs.
%?61       S W~i?d 483                                  of San’ Ant on10 vs.
E&h,       al,iex. 575,
‘?‘ex;707;   27 S;W. 258
Tex. 234;24 S.W.
341, 78 S.W.2d 929
560 (Tex.Clv.ADD.
tiouniy_, 118 Si’:2d   g30-(Tex.&v.App.    193cII    rror dlsm.).

              This ruling    ls,succlnctly       summarized     In Rodger$   vs.
County   of   Taylor,   supra, as follows:

           “We have concluded    that the Conusisslonersl
     Court had authority    to pay Rodgers’ bill’.       When
     the Comlssloner8’     Court ratified      the contract
     of the District   Attorney,   the’county     w&e bound
     by such contract,     ‘What the commlsslonera’
     court could have authorized      In the ba~lqnl~,
     that court could subse+ently        ratify.     Cameron
     County v. FOX, Tex.Com.App.,      61 S.W.2d 483.
             “If the Commlsslonere’        Court did not have
     authority’ to pay Rod,gere,’ bill          under the above
     statute,     we hold that the Commissioners1             Court
     was authorized        to pay Rodgers’ ‘blll~ under &n
     Implied     contract.      In Sluder v. City of San
     Antonio,     Tex.Com.App.,     2 S.W.2d 841, the court
     said ‘Since      the decision     In the IPrenoh’Case.
     fity     of San Antonio      v. French,     80 Tex. 575,
     T6 S.W. 4407 our courts          have uniformly       announced
     the doctrliGe      that where a county or munlcl allty
     receives     benefits    under a contract,       illega P
     because not made In conformity            with the Con-
     stitution     or statute     of the state,      or charter
     provision     of the city,     It will be held liable
     on an Implied       contract   for the reasonable         value
     of the benefits        which It may have received.             In
     other words, while such contracts             are void,      and
     no recovery      Is permitted     thereon,    our courts       hold
     that common honesty and fair           dealing     require     that
     a county or municipality          should not be permitted
     to receive      the benefit    of money, property,         or
     services,     without    paying just compensation          there-
     for.     Under such circumstances,          a private     cor-
     poration     would clearly     be liable     under an Implied




                                      -771.
    .




Honorable     Charles    A. Allen,    page   5 (M-164)


        contract.    There can be no sound reason why the
        same obligation   to do justice   should not rest
        upon a municipal   corporation.'"

             In Leon County vs. Vann, supra,  the county was not per-
mitted to assert    a want of authority where the Commissioners     Court
had ratified    the contract made by the agent,  the court stating:

                       .The reasonable     intendment    from this
              11
                 . .

        averment is that Leon county recognized              and
        ratified     the contract     which had been made on
        Its behalf,      and paid the defendant       for the work
        that had been done In pursuance            of its terms.
        It Is clear      that,    in such a case,    the defendant
        should not be permitted          to assert   a want of
        authority     In the agents who purported          to act
        on behalf     of the county in maklng the contract.
        Having received        the benefit    of the contr;ct,     he
        is estopped      to deny its validity.         . . .

            In view of the foregoing   authorities,    you are advised
that the Commissioners    Court of Harrison    County may ratify    or
approve a purchase    of equipment,  supplies    or material  purchased
pursuant to the provisions     of Houee Bill   1346, Acts 60th Leglsla-
ture,  Regular Session,   1967, Chapter 778, Page 2076, even though
such purchase   was made by a person other than the county engineer.


                            SUMMARY

               The Commissioners   Court of Harrison    County may
        ratify    or approve a purchase   of equipment,   supplies,
        or material    purchased pursuant   to the provisions     of
        House Bill    1346, Acts 60th Legislature,    Regular Ses-
        sion,   1967, Chapter 778, Page 2076, even though such
        purchase    was made by a person other than the county
        engineer.

                                             very   truly,




Prepared     by John Reeves
Assistant     Attorney General
Honorable   Charles   A. Allen,   page 6 (M-164)



APPROVED:
OPINION COMMITTEE

Hawthorne Phillips,    Chairman
Kerns Taylor,   Co-Chairman
W. V. Geppert
Brandon Blckett
Harold Kennedy
Roger Tyler

A. J.   CARUBBI, JR.
Staff   Legal Assistant
