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                  THE   ATTORNEY             GENERAL
                           0F TEXAS


                              January 29, 1990



     Honorable Robert T. Jarvis    Opinion     No. JM-1136
     Grayson County Attorney
     Justice Center                Re: Applicability of House Bill
     Sherman, Texas   75090        1434, Acts 1989, 71st Leg., ch.
                                   1250, at 5046, which relates to
                                   purchasing by local units of
                                   government, to county attorneys,
                                   and related questions (RQ-1881)
     Dear Mr. Jarvis:
          You ask whether section 140.003 of the Local Government
     Code is applicable to the county attorney of Grayson County.
     You also ask whether a "skilled carpenter" comes within the
-    V1professionalservice" exception to the competitive bidding
     requirements of section 262.023 of the Local Government
     Code.
          Section 140.003, as enacted by House         Bill 1434, see
     Acts 1989, 71st Leg., ch. 1250, 5 1, eff.         Sept. 1, 1989,
     provides in pertinent part:
                (a) In this    section, 'specialized local
             entity' means:
                     (1) a district or criminal        district
                attorney:
                     (2) a juvenile board, juvenile pro-
                bation office, or juvenile      department
                established for one or more counties; or
                     (3) an adult probation office or
                department established for a  judicial
                district.

                (b) A specialized local entity       shall
             purchase items in accordance with the same
             procedures and subject to the same reguire-
             ments applicable to a county under Subchapter
-            C, Chapter 262 [Local Gov't Code 5 262.021 &
             secr.1. For the purposes of this section, a
             specialized local entity is treated as if it


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Honorable Robert T. Jarvis - Page 2 (JM-1136)




       were a county. A specialized local entity
       may make a contract with a county under which
       the county performs purchasing functions for
       the entity.
     Section 262.023 of the Local Government Code requires a
county to comply with specified competitive bidding or com-
petitive proposal procedures before purchasing or otherwise
acquiring one or more items under a contract that will re-
quire an expenditure exceeding a specified amount.   Section
140.003 mandates that certain offices coming within the
definition of "specialized local entity" purchase items in
accordance with the same procedures applicable to counties.
     The county attorney perfor~ms the duties of a district
attorney in Grayson County and is subject to the pro-
visions of the Professional Prosecutors Act.     Gov't Code
§ 46.002. The office of county attorney is not one of the
offices included in the definition of "specialized local
entity" in section 140.003 of the Local Government Code.
The fact that the county attorney performs the duties of a
district attorney does not cons.Ztute the county attorney 'Ia
district or criminal district attorney." Consequently, the
county attorney does not come within the definition of
"special local entity" as that term is defined in section
140.003.
     In your second question you ask us to assume that the
"specialized local entity" provision applies in determining
whether a "skilled carpenter" comes within the "professional
service" exception to the competitive bidding requirements
of section 262.023. You do not provide any information re-
garding the work required to be performed by the carpenter.
     Section 262.023(a) of the Local Government Code, as
amended by House Bill 1434, raised the amount of expenditure
by a county to an amount exceeding $10,000 (previously
$5,000) before the competitive bidding requirements become
applicable. Included in the items exempt from the competi-
tive bidding process listed in section 262.024 of the Local
Government Code is a V~professional Service.91 Local Gov't
Code g 262.024(a)(4).
     The question of whether a contract for the services
of a skilled carpenter is a contract for a 9*professional
service" is a fact question that must be decided on a
case-by-case basis. We cannot answer fact questions in the
opinion process, but we can provide guidelines to use in
determining whether the contract in question is a contract
for nprofessional service."




                             p. 5985
       Honorable Robert T. Jarvis - Page 3 (JM-1136)




            In Attorney General Opinion JW-940 (1988) the matter of
       what constitutes *'professional services" under      section
       21.907 of the Texas Education Code was considered.        In
       Attorney General Opinion JM-940 it was stated:
                  Section 21.907 does not define the phrase
               'professional services.' The courts have not
               adopted a universal definition of the term;
               however, several cases     suggest that    it
               comprehends labor and skill that is 'pre-
               dominantly mental or intellectual, rather
               than physical or manual.' Marvland Casualtv
               so. v. Crazv Water Co. 160 S.W.2d 102 (Tex.
               Civ. App. - Eastland i942, no writ). It no
               longer includes only the services of lawyers,
               physicians, or theologians, but also those
               members of disciplines requiring      special
               knowledge or attainment and a high order
               of learning, skill, and intelligence. See
               Attorney General    Opinion MW-344    (1981);
               Black's Law Dictionary 1089-90 (5th ed. 1979)
               (definition of 'profession').
-      Accordingly, this question must be determined on a   case-by-
       case basis.
                              SUMMARY.
                  The County Attorney of Grayson County is
               not a "specialized local entity" as that term
               is defined in section 140.003 of the Local
               Government Code. The question of whether a
               "skilled carpenter" comes within the l'profes-
               sional service" exception to the competitive
               bidding requirements of section 262.023 of
               the Local Government Code is a fact question
               that cannot be resolved in the        opinion
               process.




                                         3 I M    MATTOX
                                          Attorney General of Texas
       WARYKELLER
       First Assistant Attorney General
,.-,
       ImJ MCCREARY
       Executive Assistant Attorney General



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Honorable Robert T. Jarvis - Page 4 (JM-1136)




JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General




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