             OFFICE   OF   THE   ATTORNEY    GENERAL   OF TEXAS
                                    AUSTIN
  OROVERSELLERS
  AzIoRWL*
         GCNEIAL




Ron. Shelby K. Long
County Attorney
Jefferson County
Beauont , Texas

                                      Opinion No. O-7478
                                      Re:    Payment of eng
                                             professionals
                                             county ram.




                                                       Assioner w
one-fourth of the to

                                                   d'to pass, the engineers
                                                   en Thousand Five Hund-
                                                   ies of all maps and
                                                    a total fee of Sixteen
                                                  , said fee beihg the
                                                  y of ProfessionalEngineers.
                                             t&ed the agreement entered into




          The ninutes of the special and regular gemions of the
Conmissioners Court fomarded with your request do not reflect whe-
ther or not t;:erewas a quorum present, or whether said sessions
were otherwise legally constituted axidconvened to transact business
of the nature in question. For the purposes of this opinion, we
shall assume that the constitution, convention and proceedings of
                                                                           i


                                                                     2c3




ton. Shelby K. Long - Page 2
                                                                           3

laid sessions were all in due form and manner.
          The law seams well settled that this matter came within
;he jurisdiction of the Commissioners*Court. It is empowered to
:reate and maintain adequate roads, and to do all such acts as nay
IB necesaarv to construct wrmanent roads. Article 5. Section 18.
:onstitution;Article 2351; R. S. (1923); Lasater v.‘tope3, 217 r
;.i;.   373.
          Under the powers granted above the courts have permitted
;ha enployment of persons of special ski&, such as architects,
&torneys and en ineers by the Commissioners*Court for some parti-
:ular work in whf ch theL profassix&. or scientific ability is
leeded. Galveston County V. Sresham, 220 S. :;.560; ~.-illian3     vs.
)eFee, 77 S. 1:;‘. (2nd) 729; Hackett v. btiddleton,280 S.Z.. 563;
ialvestonCounty vs. Ducie, 49 S. “i. 798.
          The Courts have also held that contracts calling exclusively
for the personal employment of persons because of professionalor
xientific ability, training or efficiency do not come within the
neaning of Article 2368a, R. S. 1925, requkin competitivebids.
iunter v. Xhitaker & ?iashlngton,230 S. \i.109f ; Gulf Bitulithlc Co.
Is. Bueces County, 11 S. 5. (2nd) 305.
           Therefore, your first question is answered in the affirm-
Itive; that the Codssionerst    Court did have the power to employ an
mginesring   firm to perfom such work.
          How the question arises whether or not the contract betueen
the CommisslonersgCourt snd the engineering firm of Rohler & Shipley
uas a valid one.
          The facts submitted in your letter do not disclose whether
or not the payment to the engineers was contin&entupon the passage
OS the bond issue. Of course if such were the case, the contract
irouldbe conditional and said condition nould not have been fulfilled
,&henthe bonds failed to pass.
          Ue gN1    however, consider your request relying on the
assumption that sAd engineers were r&a&d     to perfonn the described
services regardless of the outcoms of the bond issue election.
          The fact that there was no written contract, but nerely.an
oral contract between the engineers and each of the Commissioners,
ma or may not have resulted in an enforceable contract,but we
bePieve the following excerpt frm the minutes of the Court 18 con-
trolling:
Hon. Shelby ii.Long - Taze 4


     be authorised by the Court as amendnenta to the
     ori$nal bu&et. . . ,n
          Our   2OWt8   have construed the above statute fn Dancy v.
                                error refused, and in Liatlsyv. Dexsr

              In the case of Dauey 'I*Davidson the question involved
was whether the Comlsrionors~ Court of Csneron County could purchase
f'fom:~irs.   EaU a tract of land and pay her $37,500.00, ssid land to he
used for county                The court said that the propert be3ng tpur-
cfitsedcould be r--' el;aJly-purchasedbythe county andthatt K e Cocmis-
sionters'    Court had the power to enter into  the oontract relative theroto.
'r'hc   Court of Civil hppals rt San Antonio, opeaking   tehrou&Jude
Xorvell, however s clfically held that since there xas no iten in the
county budget x&at !e           phase
                        ve to the           of the land fr.questiou;the
county &id not have tha auth ty to pay for sass3snd r=eo,ti.ereEore,
?ro*rly enjoined frolppaying same*
          In the case of Xstley Y. Bexar Smnty, l&J+;$. (2d) 695, the
qxs.im arose M to &ether the county could wchaso zutouatic votiaz
sxiines, or ,psndingthe purchaas thereof xnt 8c.m tr',th  t.e o%ion to
yrchaso . The aotit, after quotl.n&ths budget l&w, Art. 46&l,
                                                          J        s+pci-
                                                   aachinos
Sictily heid that the court could ::otpay for s&ICI.         or the
renting thereof until or unless sam uere embraced in the budGet, r;r?d
Leld that the attesqted amendfnentof the county budget v?acnot suffi-
ciont to eubrace these item.
          The :juprsaeCowt zran;cd a wit of brro~ in s&d cause, end
held that the cmndod budget as made by Begs County was sufficient
ti therefore the voting mxhl.zxe~could be reuted, subject to the &ht
OS the county thereafter -topurohxse sme.
          The effect, however,of the Sug-mmeCoartqs i;oldq we think
is to tfMnn the o inlon of the Court of Civil Appesls that unless the
itea was embraced % the ori&ta.l budget or the mended bud&get,the
same could not Se paid.
          ir, the inforvmtios furnished,It ap.mars that Jefferson
Co-Lqtyh&d m     bond elections and that each of the proposed bond isSUe
Were defeated. ‘v&ether the contractwas m&de tith the en&mers before
or after the first election, or Lofors or a--r the last electfon, and
the emct, mount ti-,ereof ia not definitely revealed by the evidence *Cur-
nished.  In your  letter you state the contract price v:as.,20,3XJ. The
Order of the Ccmdsgionera~ Court pssoed on October 21, 1946,st~tes     t&t
Hon.   Shelby K. Long - We   5


“the Co6daslonere~ Court hereby confirms and ratifies, and in all
things approves the qreement heretofore,enteredinto” to     y the
engineers a total of q16,500.00,less ~3,CCO.OO that had aIteady
been paid. In comection with this order it aeem6 the Commlssionerst
Court had placed in the minutes of said Court a copy of a letter
showing the 36,5#.00 to be the minimum fees that the Texas Society
of Professional Engineer6 had adopted relative to work similar to
that done by the engineersfor JeffersonCounty.
          In view of the various statementsmade%  the infometion
furnished,it is Impossible for u6 to amiwercategoricallyyour ques-
tion as to whether the warrant should be paid,
          Ve trust the authoritierabove discus6ed and the suggestions
made will be sufficient for you, as Count httorney, to determine the
legality of the warrant in question and uiether It should be paid.
The fact6 may be so complicated and disputed that only a Court of
proper jurisdiction can determine sane. TNs department of course
cannot determine controvertedissues of fact.
                                       Very truly yours
                                   ATTOREX GZGRAL OF TZ.iiS




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