The Honorable J. B. Hunt             Opinion No. H-977
County Auditor
Hutchinson County                    Re: County purchases which
Box 850                              must be accompanied by
Stinnett, Texas   79083              requisitions to receive
                                     audit approval, and related
                                     questions.

Dear Mr. Hunt:

     Article 1661 reads:

             Section 1.   [The County Auditor] shall
          not audit or approve any [claim, bill or
          account against the county] unless it has
          been contracted as provided by law, nor any
          account for the purchase of supplies or
          materials for the use of said county or any
          of its officers, unless, in addition to other
          requirements of law, there is attached thereto
          a requisition signed by the officer ordering
          same and approved by the county judge. Said
          requisition must be made out and signed and
          approved in triplicate by the said officers,
          the triplicate to remain with the officer
          desiring the purchase, the duplicate to be
          filed with the county auditor, and the
          original to be delivered to the party from
          whom said purchase is to be made before any
          purchase shall be made. All warrants on the
          county treasurer, except warrants for jury
          service, must be countersigned by the county
          auditor.

             Section 2. The county judge of a county
          having an auditor may waive by his own written
          order the approval of the county judge on




                           P. 4068
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    The Honorable J. B. Hunt - page 2     (H-977)


              requisitions.  The order shall be recorded
              in the minutes of the Commissioners Court.
              If the county judge's approval is waived,
              all claims must be approved by the Coimnis-
              sioners Court in open court.

         You advise that the county and district attorney have
    declined to answer your question, a;ld you ask if the requisi-
    tion requirement applies to:   (1) claims for labor, services,
    intangibles .or other claims not involving the purchase of
    supplies and material; (2) claims approved by the welfare
    officer for the purchase of food, clothing and drugs for
    welfare recipients; (3) claims for the purchase of fuel and
    other items (purchased exclusively for resale and not for
    use) at the county airport; (4) claims for the purchase of
    books for the county library: and (5) claims against the
    county hospital.

         Article 1661 does not embrace claims of every nature.
    It does not apply to, unliquidated claims for damages against
    the county arising in tort. Southern Surety Co. v. McGuire,
    275 S.W. 845 (Tex. Civ. App. -- El Paso 1925,Gitref'd).
    Nor does it apply to claims by county officers for the recovery
    of their statutorily established salaries. Nacadoches County
    v. Jinkins, 140 S.W.Zd 901 (Tex. Civ. App. -- Beaumont 1940,
    writ ref'd). The Jinkins Court said:

              It is evident that the claims which [the
              county auditor] is authorized to audit
              and approve under Article 1661 are claims
              based upon contracts lawfully made, and
              accounts for supplies and material supplied
              and contracted for as required by law, to
              which are attached the proper requisitions.

    Id. at 904.
    -
         It is important to observe that article 1661 gives the
    auditor no control over a purchase before it is made. Where
    it applies, the statute prevents the payment of the purchase
    price without the approval of the auditor, and the auditor
    must base any rejection on a reasonable perception that the
    claim is founded upon an illegal contract.   See Smith v.
    &llCoCd,;3~,~,Wi2~ 4;;n$;;x. Civ. App. -- Dal%,TpyrE
                     2         315 S.W.Zd 20 (Tex. Crv.




                                P. 4069
The Honorable J. B. Hunt - page 3 (H-977)



Austin 1958, writ ref'd n.r.e.); Wyatt Metal & Boiler Works
Lgjz$;        87 S.W.2d 331 (Tex. Civ. App. -- Texarkana 1935,
              Attorney General Opinions M-955 (lY71), M-40
(1967), WW-1346 (19621, O-6784 (19451, O-6506 (1945). It
should also be noted that article 1661 is a general statute
dealing with county purchases and is not applicable where a
special statute controls the procedure for audit and approval
of purchases.   See Attorney General Opinions WW-980 (1961),
v-11~88 (1951), o-1753 (lY39).

     The statute does not require that a requisition
accompany every article 1661 claim presented to the county
auditor for audit and approval.   The requisition requirement
applies only to "any account for the purchase of supplies or
materials for the use of said county or any of its officers,"
Where it is applicable, it is mandatory because the auditor
can audit and approve the claim only if the requisition is
supplied "in addition to other requirements of law." See
Nacodoches County 5 Jinkins, supra. See also the let=
opinions dated March 16, 1927 and February 15, 1927, addressed
to County Attorney Wayne Somerville by H. Grady Chandler,
Assistant Attorney General and found in the Attorney General's
Letter Opinion Collection, book 286 at page 54 and book 285
at page 457. Cf. Attorney General Opinions WW-1121 (19611,
o-6506 (1945).-

     "Account" has various meanings, depending in part on
the context in which it is used. Article 1661 refers to
claims and accounts separately, requiring a requisition for
certain accounts but not for other claims. Not every claim
on a contractual obligationis   a claimon an account; some
are based on "special contract".   See McCamant v. Batsell,
59 Tex. 363, 368 (1883); McDonald CWatkins,    3z S.W.Zd 905
(Tex. Civ. App. -- Ft. Worth 1962,0    writ). We do not think
a requisition is required to pay for supplies and materials
bought on special contract.   Furthermore, the terms "supplies"
and "materials" have a restricted meaning when applied to
county pur.chases. Patten v. Conch0 County, 196 S.W.2d 833
(Tex. Civ. App. -- Austin -46, no writ). And see Century
Indemnity --
          Co. of Chicago v. Shunk 3     Co., 68 S.W.Zd 772
     1934) upon which thFPatten    Court heavily relied. AlSO
iEz*Attorn&y General Opinioii-WWr?Ob (1958)   Cf. Attorney
General Opinions M-403 (19691, S-104 (19S3j, o-5357 (lY43).
When supplies and materials ,are required by law to be pur-
chased on competitive bids, they usually become the subject
of transactions resting on special contract, and article 1659,




                          P- 4070
The Honorable J. B. Hunt - page 4   (H-977)



V.T.C.S., which is applicable to Hutchinson County, specifies
that supplies and materials of all kinds for the use of the
county or any of its officers, departments or institutions
must be purchased on competitive bids.

     Where article 1659 applies, there is only one exception:
"in cases of emergency, purchases not in excess of,$300 may
be made on requisition to be approvzd by the Commissioners
Court without advertising for competitive bids." Attorney
General Opinion M-403 (1969). Thus, only Hutchinson County
emergency -purchases of supplies ,and materials will ordinarily
generate a claim on an account which must have a requisition
attached, because all other such purchases will usually rest on
special contract. - Cf. Attorney General Opinion V-285 (1947).

     With these principles in mind, we advise there is no
legal requirement under article 1661 that claims for labor,
services, intangibles or other claims not involving the
purchase of supplies and materials be accompanied by a
requisition.

     Food, clothing and drugs for welfare recipients are
"supplies" and unless there is a special statute controlling
the audit and approval of such supplies, articles 1659 and 1661
apply. No such statute has come to our attention, and in
absence thereof, claims for the purchase price of such
supplies purchased on an "account" basis, but not otherwise,
must be accompanied by a proper requisition to be eligible
for audit and approval by the county auditor under article
1661. -See Attorney General Opinion WW-980 (1961).

     We think most items purchased by a county for resale,
including fuel, generally would be considered "supplies."
If they are properly purchased on an account basis for the
county airport, claims thereon would be subject to the
requisition requirement of article 1661 unless a special
statute controls the matter. We are not aware of any such
statute.

     Library books on occasion have been considered "equipment,"
Attorney General Opinion H-91 (1973), and in that sense we
think they can also be considered something that goes into
and forms a part of the finished library, i.e., books are
library materials, and if properly purchased on an account
basis, and if no other statute controls, claims for their




                          P. 4071
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    The Honorable J. B. Hunt - page 5   (H-977)


    purchase would be subject to the requisition requirement Of
    article 1661. -Cf. Attorney General Opinions M-403 (196Y),
    s-104 (19531, o-5357 (1943).

         Unless a special statute controls the matter, claims
    against the county hospital are treated like other claims against
    the county. In an opinion dated April 5, 1917, Assistant
    Attorney General C. W. Taylor advised County Attorney T. J.
    Newton (Opinion No. 1733, Bk. 49, p. 113):

              lW]e agree . . . that it would be the
              duty of the board of managers and of the
              county hospital to file all claims, bills
              and accounts with the commissioners court
              and that same should be examined and
              approved by the county auditor . . . .

    In our opinion, in the absence of a different controlling
    statute, claims against the county hospital for materials
    and supplies based on accounts therefor must be accompanied
    by proper article 1661 requisitions.

         Your final question concerned the necessity of approval
    by the Commissioners Court for claims already approved by
    both the county auditor and the county judge.

         Specific powers and duties of the Commissioners Court
    are set out in article 2351, V.T.C.S.  In part, it states,
    "lelach Commissioners Court shall . . . . laludit and settle all
    accounts against the county and direct their payment."  Also,
    article 1637 reads:

              The commissioners court shall, at each
              regular term, examine all accounts and
              reports relating to the finances of the
              county, and compare the same with the
              vouchers accompanying them, and cause
              such corrections to be made as are
              necessary . . . .
    By providing in section 2 of article 1661 that the Commissionrrs
    Court must approve all claims in open court if the county
    judge waives the necessity of his approval on requisitions,
    the Legislature did not inferentially repeal articles 2351




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          The Honorable J. B. Hunt - page 6    (H-977)



          and 1637 or suggest that no Commissioners Court's action on
          the claim would be necessary if the county judge's approval was
          not waived. See Acts 1973, 63rd Leg., ch. 155 at 357.

                The dutv of the Commissioners Court to audit and settle
          claims against the county is judicial in nature and cannot be
          delegated to another. Padgett v. Young County, 204 S.W. 1346
           (Tex. Civ. APP. -- Ft. Worth 19m), writ dism'd, 229 S.W. 459;
          Attorney General Opinion O-5049 (1943). We answer, therefore,
          that an article 1661 claim may not be paid without presenting
          it to the Commissioners Court even though the claim for payment
          has been approved by both the county auditor and the county
          judge.

                               SUMMARY

                    The requisition requirement of article
                    1661, V.T.C.S., applies only to materials
                    and supplies purchased on account.~ The
                    requirement does not apply to claims for
                    labor, services, intangibles or other claims
                    not involving the purchase of supplies and
                    material.  If no other statute controls, it
                    does apply to claims on account for food,
                    clothing, and drugs for welfare recipients,
                    to claimson account for fuel and other
                    items purchased for resale at a county
                    airport, to claims on account for the
                    purchase of book's for the county library,
                    and to claims on account against the
                    county hospital for the purchase of
                    supplies and materials.   The Commissioners
                    Court must pass on article 1661 claims,
                    even though they have been approved for
                    payment by the county auditor and the county
                    judge.




                                         JOHN L. HILL
                                         Attorney General of Texas




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                The Honorable J. B. Hunt - page 7   (H-977)


                APPROVED:




                C. ,ROBERT HEATH, Chairman
                Opinion Committee

                km1




                                        p. 4074
