                             December   19, 1974


The Honorable Tom Hanna                     Opinion No. H- 482
Criminal District Attorney
Jefferson County                            Re:     Whether a commissioners
P. 0. Box 2553                                      court may ratify a contract
Beaumont, Texas 77704                               for the purchase of materials
                                                   ,and labor when competitive
                                                    bids were not taken, and
Dear Mr.   Hanna:                                   related questions.

     According to your letter, a member of the Commissioners      Court of
Jefferson County ordered approximately     $900 worth of supplies and labor
(without consulting the~court or the Pu;chasing    Aient) in order to repair
the county asphalt plant which produces’ asphalt foi county roads.     The
person who supplied the tiaterials   and labor pressnted a bill therefor which
the Commissioners      Court wirhes to pay. However~, the Purchasing Agent
for the County and the County Auditor believe the contract was illegal and
not subject to ratification.   They have retired  to take steps toward pay-
ment of the claim.

   You ask If the claim may be paid.

    Article V, section 18 of the Texas Constitution states that the commi,s-
sioners court “shall exercise    such powers and jurisdiction    over all
county business, was is conferred by this Constitution and the laws of the
State . . . ” Article 2351. sections 6 and 7, V.,T.C.S.,      grants the.
commissioners    court general control over all roads anal authority to keep
in repair all necessary public buildings.   Since the asphalt plant in
question falls within the area of control outlined by Article 2351, the
commissioners    court of most counties would have the authority to make
decisions regarding the repair of the plant.    A commissioners      court is

       . . . ths general business and contracting agency of
       the county, and it alone has authority to make contracts
       binding on the county, unless othsrwise   specificaliy
       provided by statute.   Anderson v. Wood, 152 S. W. 2d
       1084, 1085 (Tex. 1941).




                                  p. 2184
,     ’




    The Honorable   Tom Hanna,   page 2 (H-482)




        But Article 1580. V. T. C. S., as amended by Acts 1971. 62nd Leg.,
    ch. 837, p. 2550, provides that counties of a population of 74.000 or
    more may have a purchasing agent appointed.     Jefferson County. falls
    into that group and such an officer has been appointed for it. The
    statute reads:

               Section 1 (a) In all counties . . . having a
           population of seventy-four    thourand (74.000) or
           more inhabitants . . . a majority of a Board
           composed of the judges of the District~Courts      and
           the County Judge . . . , may appoint a . . ..
           county purchasing agent for such county, who shall
           hold office, unless removed by said judges, for a
           period of two (2) years . . . who shall execute a
           bond in the sum of Five Thousand Dollars ($5,000)
           . . . for the faithhrl performance   of his duties.

               (b) It shall be the duty of such agent to make
           all purchases for ruch county of all supplies,
           materials and equipment required or used by such
           county or by a subdivision,   officer,  or employee
           thereof, excepting such purchases aa may by law
           be required to be made by competitive      bid, and to
           contract for all repairs t.o Droperty used by such,
           county. its subdivisions.   officers,  and emplovees,
           except such as by law are required,to be contracted
           for by comnetitive bid. . .

                (c) It shall be unlawfu.1 for any person, firm
            or corporation,  other than, such purchasing agent,
            to purchase any supplies, materials and equipment
            for, or to contract for any’ repairs to property used
            bv such countv or subdivision,    officer, or employee
            thereof, and no warrant   shall be drawn by the county
            auditor or honored by the cJunly treasurer of any
            such county for any purchases except by such agent
            and those made by competitive     bid as now provided
            by law; . . .
            (Emphasis added)




                                      p. 2185
The Honorable    .Tom Hanna, page 3        (H-482)




      Articles    1659, 1659a. 1659b and 2368a, V. T. C. S., all have to do
with competitive bidding requirements,            but none of them apply.     Article
1659 is applicable       only to ‘tsupplies and material” used in a more narrow
8 ense.      Patten v. Conch0 County, 196 S. W. 2d 833 (Tex. Civ. App. --Austin
1946, no writ).       Articles   1659a hand 1659b apply only to counties of populations
and assessed-valuation         brackets larger than thee e of Jefferson County.
Article 2368a does not apply to purchases of less than $3,000.
           .
      We do not believe that the contract of repair purportedly made by the
individual Commissioner          complied with Article 1580 and we do believe
that the Auditor and Treasurer          of the’county are prohibited by Article 1580
from drawing or honoring warrants            for purchases which are neither made
by the Purchasing Agent nor made by competitive                bid.. As we understand
it, the Commissioners          Court concedes the original invalidity of the
contract but contends that it may nevertheless            ratify it and that after
 ratification it becomes the duty of the Purchasing Agent to sign the pur-
chase order so that a warrant therefor.may             properly issue.

     The power of the Commissioners      Court to regulate county fiscal matters
hab been altered by Article 1580 where it app1ie.s. Attorney General Opinions
M-708 (1970). WW-980 (1961). While it is axiomatic that the Commissioners
Court may ratify any action which it could have originally authorized,      the
Commissioners     Court of Jefferson County may not originally authorize
purchases not made in accordance with Article 1580, V. T. CS.         By virtue
of that statute, control of county contracts not regulated by Article 1659,
Article 2368a, or a similar statute requiring competitive bidding, is in
the County Purchasing Agent.      Control of that officer is in the special Board
of Judges created by Article 1580, not in the Commissioners       Court of
Jefferson County.    We do not believe the illegal contract can be ratified by
the Commissioners     Court.

    Though the illegal contract cannot be ratified,   where a county receives
benefits under a contract not made in conformity with the statutes, it is
sometimes held liable under a theory of unjust enrichments - - a contract
implied in law - - for the value of the benefits received.  Wyatt Metal &
Boiler Works v. Fannin County, 111 S. W.2d 787 (Tex.Civ.App.       -- Texar-
kana 1938, writ dism’d. ), Whether or not, such would be the case here
depends upon matters not before us, and we venture no opinion on the question.




                                      p. 2186
The Honorable   Tom Hanna, page 4           (H-482)




                         SUMMARY

            The Commisrioners      Court    of Jefferson County cannot
       ratify an illegal contract made       in violation of Article 1580,
       V.T.C.S.,     for the repair of a    county building, though it
       may be liable upon a different        theory for the benefits
       received.

                                            Very truly yours,




                                            JOHN L. HILL
                                  (/        Attorney General    of Texas

APPROVED:




DAVID M. KENDALL,       First   Asrietant




C. ROBERT HEATH.    Chairman
Opinion Committae .




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