Honorable Wm. J. Burke                     Opinion No. ww-192
Executive Director
State Board of Control                    Re:   Questions concerning bid llst-
Austin, Texas                                   lng, bid fee, bids and con-
                                                tracts with political   subdivi-
Dear Sir.:                                      sions below State level.
             Your request           for   an opinion    reads   as follows:

              “In reviewing bid lists    it has just come to
        my attention   that Gregg County, Texas, owns and
        operates an asphalt plant and that under date of
        December 10, 1956, Gregg County asphalt Plant,
        through Mr. W. R. Scrogglns,     Gregg County Rngi-
        neer, filed an application    for listing    as a bidder
        to supply the State with asphaltlc      concrete.
              llSlnce Gregg County is a political subdivi-
        sion and might at any time in the future submit
        an apparent low and acceptable   bid, we need your
        opinion on the following   points at your earliest
        convenience :
             “1)   Can political   subdivLsLons below the
        State level (such as counties,     cities,   towns, etc.)
        apply for listing    on State bid invitation    lists
        for any commodity7
               “2) Can the Board of Control accept the ap-
        plication  and the class and item booklet fee identi-
        fying commodities on which bids may be submitted
        from such political   subdivision?
                  If such lesser political
                 “3)                       subdivision
        should submit a bid and it is a low bid, can the
        Board of Control make an award on the bid?”
                 iirtlcle   634a,    Vernon’s   Civil    Statutes   provides   as fol-
lows:
                 “Sec. 1.    The Board of Control shall In all
        public     contracts   to be let or awarded by it invite
Honorable   Vm. J. Burke,   page 2   W-192)



     bids and furnish proposals      to those desirous
     of bidding on such forms as it may deem proper.
     Said Board may place any person, firm or cor-
     poration so desiring    on a State mailing list
     which said list   shall entitle    said holder to a
     copy of the proposal on any contract that is to
     be let.   To be entitled   to receive such State
     mailing list,   said holder shall first     pay in ad-
     vance an annual service    charge, to be determined
     by the Board of Control     which same shall not
     be less than Five (jT.Ob) Dollars nor more than
     Seven Dollars and Fifty    ($7.50) Cents.
           Sec.   2.  Where any bidder or prospective
     bidder,   other than those appearing on said State
     mailing list,   desires to bid on any contract    to
     be let by said ijoard, he shall pay such amount
     for the proposal    or proposals furnished to him,
     ds said Board may determine is just and neces-
     sary; provided,    huMever, in the event said Board
     finds that a service     charge may work a hardship
     on some particular    bidder or class of bidders,
     it may forego such charge and shall be author-
     ized to furnish such proposals.
            “Sec. 3.    All amounts collected from the
     annual service     charge of those on the State mail-
     ing list    or from proposals  furnished shall be
     deposited    in the State Treasury, in the name of
     the ‘State board of ,Control Special Service Ac-
     count’,   and enough of s;:id funds so collected
     shall be used by said Doard and paid out as other
     funds are to. defray all necessary expenses and
     charges in connection with the making and furn-
     ishing of said proposals.n
            The above quoted provisions     will be repealed on the
effective   date of Senate Bill 169, .-icts of the 55th Legislature.
Subdivision    (b) oi Section 8 of Senate Bill 189~provides that
the Board of Control shall maintain a bidders’ list.           It is to
be noted that under neither the provisions         of Article 634a nor
the provisions    of Senate Bill 18.9, would the State board of
Control be prohibited    from awarding contracts      to a county.   How-
ever, since the Board of Control is required under both Acts to
determine the capacity     of a prospective    bidder to perform the
contract   as awarded, your question necessarily       involves the au-
thority   of the Commissioners * Court of Gregg County to furnish
asphaltic   concrete  to the State of Texas if it is a successful
bidder on a purchase contract..
Honorable   Wm. J. Burke, page 3     (WW-192)


            The Commissioners’ Court is a court of limited jur-
isdiction   end has only such powers as are conferred upon it
by express terms or by necessary implication.       Childress Countv
v. State, 127 Tex. 343, 92 S.W.2d 1011 (1936);       Von Rosenbera v.
Lovett    173 S.U. 508 (Tex.Civ.ipp.   1915, error ref.);
&&&, 380 S.W. 289 (Tex.Civ.ipp.      1925); Hill v.
S.W.2d 766 (Tex.Civ.App.    1952, error ref. n.r.e.1.
            ‘.ie know of no’ provisions   which would authorize the
County to enter into contracts with the State, whereby the County
is to furnish the State with concrete asphalt.             It is further
our opinion that such contract is not the performance of a gov-
ernmental function necessary to county business.              In this con-
nection,  it is the duty of the Commissioners Court, the engi-
neers, and those in charge of road building          projects    of Gregg
County to reasonably anticipate        the amount of asphalt and other
material needed for road building projects.            If, by reason of
unforeseen circumstances      there should remain surplus material
after projects     are completed, then the surplus could be sold by
Gregg County.      However, Gregg County cannot engage in the as-
phalt business.      If Gregg County were to attempt to engage in
the asphalt or the road building business,          then it would be en-
gaging in proprietary     functions    not authorized.       See Miller v.
Zl Paso County 136 Tex. 370, 150 S.W.2d 1000 (1941); Bennett
v. Eirown Count; I$ater Control and Imorovement District            Ro. l.,
153 Tex. 599, 275 5.X.2d 498 (1954);holding that a county can
perform only governmental functions.         To the same effect       see
 Attorney General’s Opinions S-55 (1953) and v-763 (1949).
           You are, therefore, advised that the application  for
listin,- as a bidder to supply the State with asphalt concrete
submitted by the Gregg County bsphalt Plant, acting by and
through the Gregg County dnginee,r, cannot be honored by the
State 3o:ird of Control.


             Gregg County does hot have authority to enter
      into supply contracts   with the State of Texas where-
      by it will furnish the State with asphaltic    con-
      Crete.
                                      Yours very truly,
                                         WILL WILSON
                                         &torney General     of Texas



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                                            Assistant
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  Honorable   Wm. J. Burke, page 4   (W&192)


   APPROVdD:

  OPINION COMMITTB
  3. Grady Chandler,    Chairman
   _I iz. Richards
  L.
  john Lennan
  Marvin Thomas


  BY:     Geo. P. BlacKLurn
