Hon. George J. Jennings, Jr.     Opinion No. C-267
County Attorney
Swisher County                   Re: Whether the Commission-
Tulia, Texas                         ers' Court of Swisher
                                     County has authority 'to
                                     execute a contract call-
                                     ing for services to be
                                     rendered to the Board of
                                     Equalization of Swisher
                                     County in connection
                                     with the evaluation of
                                     real property within
                                     Swisher County, and
Dear   Mr. Jennings:                 related questions.

         You have regueated an opinion from this office
con'cerning the validity of a proposed contract whereby the
Board of Equalization of Swisher County would be given pro-
fessional assistance in the evaluation of real property in
connection with a revaluation program.

         Your letter states that it is now proposed that
the following steps be takenr

           "1. The county would give notice of its
               intetition to authorize the execu-
               tion of a contract with   . . . for
               the perforaiance of services outlined
               in the contract, and of the county's
               intention to issue interest Bearing
               time warrants in payment of all or a
               part of the contract price.     The
               notice would be published in the time
               and manner'prwided   by Article  2368a.
               V.A.T.C.S., and,contain the informa-
               tion therein required.



                             -1273-
Bon. George J. Jenninga. Jr., page 2 (C-267)



         "2, At the time and place provided in the
             notice - if no referendum petition
             is presented - the Court would au-
             thorize the issuance of the time war-
             rants. The warrants would remain in
             the custody of the County Clerk,
             County Treasurer and County Judge for
             delivery to the contractor upon esti-
             mated approval by the Commissioners'
             Court as the work progressed. At the
             time the warrants were to be authorized,
             provisions would be made for the payment
             thereof in accordance with the provi-
             sions of Article XI, Section 7. of the
             Constitution of Texas, as well as Article
             2354 and Article 1212, V.A.T.C.S."


         We understand your use of the phrase "upon esti-
mated approval by the Commissioners"Court"  in "2" above,
to mean approval by the Commissioners" Court of an esti-
mate of work completed.

         In' connection with the foregoing you have posed
several questions, the first of which is:

         "1. hoes Swisher County have the authority
             to execute a contract to appraise and
             value real property within the county?"

         Article 7206, Vernon's Civil Statutes, provides,
in part, thats

             "Each Commissioners0 Court shall con-
              vene and sit as a board of egualiaa-
              tion a a OoD

         Article 7212, Vernon's Civil Statutes,   provides

that:




                           -.1274-
    r    ,




    Hon. George J. Jennings, Jr., page 3 (C-267)



             “(A).   The Boards of Equalization shall
                     have the power and it is made their
                     official duty to supervise the as-
                     sessment of their respective coun-
                     ties and if satisfied that the
                     valuation of such property is not
                     in accordance with the laws of the
                     State to increase or diminish the
                     same and to affix the proper valu-
                     ation thereto as provided for in
                     the preceding Article and when any
                     assessor in the State shall have
                     furnished the said Board with a
                     rendition as provided for in the
                     preceding Article it shall be the
                     duty of such court to call before
                     it such persons as in its judgment
                     may know the market value or true
                     value of such property, as the case
                     may be, by proper process, who shall
                     testify under oath the character,
                     quality, quantity of such property
                     as well as the value thereof. Said
                     Court after hearing the evidence
                     shall fix the value of such property
                     in accordance with the evidence so
                     introduced and as provided in the
                     preceding Article and their action in
                     such case or cases shall be final:
                     provided, however, the Commissioners'
                     Court of any countv mav emplov an
                     individual, firm or corporation deemed
                     to have special skill and experience
,
                     ~to comnile taxation data for its use
                     while sittinq as a Board of Equaliza-
                     tion and to provide for the wvment of
                     the compensation for such professional
                     services out of the uroner fund or funds
                     of the countv.




                                -1275-
                                                          ,   .




    non. George J. Jennings, Jr., page 4 (C-267)

i

             "(B) To pay any contractual obligation
                  to b&incurred  for professional
                  services, under the provisions
                  hereof, the Commissioners' Courts
                  are herebv authorized to issue
                  time warrants payable from the
                  general fund of the countv in the
                  manner provided bv the Bond and.
                  Warrant Law of 1931: provided,
                  however, the warrants so issued
                  shall mature within six (6) years
                  from their resnective dates."
                  (Emphasis added)

             Prior to the amendments made to Article 7212 by
    the Legislature in 1963, Acts of 1963, 58th Leg., p. 1256,
    Ch. 481, Sec. 1, it had been stated by this office in At-
    torney General's Opinion No. C-63 (April 23, 1963) that:

                  "It has been definitely decided by
                  our courts, however, that the Com-
                  missioners O Court has the implied
                  power to employ independent assist-
                  ants to assist in arriving at the
                  value to be fixed by the Commission-
                  ers' Court as a Board of Equalization
                  where technical or special knowledge
                  is necessary and which knowledge the
                  Commissioners' Court would not be
                  presumed to possess . 0 SW

    The above statement in Attorney General's Opinion No. C-63
    had for its basis such cases as Roper v, Hall, 280 S.W.289
    (Tex.Civ,App,l926); Simkins v, Citv of Corsicana, 86 S.W.Zd
    792 (Tex.Civ,App. 193,5);Marsuart v, Barris Countv, 117
    S.w.Zd 494(Tex.Civ.App. 1938, error dism.): Pritchard and
    Abbott v. McRenna, 162 Tex.617, 282 S,W.Zd 378 (1955).

             In view of the foregoing authority and the ex-
    press language contained in Article 7212 as amended by
Hon. George J. Jennings, Jr., page 5 (c-267)



the Legislature in 1963, we are of the opinion that Swisher
County, acting through its Commiasioners' Court may con;
tract with and employ individuals, firms or corporations
to compile taxation data to be used by the Commissioners'
Court while sitting as a Board of Equalization.

        Your second question, as set out in your     letter,
is:

         "2. Assuming an affirmative answer to ques-
             tion number one, the followingr

             (a) May such a contract be entered
                 without receipt of competitive
                 bids?

             (b) Does the proposed contract con-
                 travene the provisions of Article
                 7264(a), V.A.T.C.S., or Article
                 7335, V.A.T.C.S., or Article
                 7335a, V.A.T.C.S.?

             (c) Does the proposed contract usurp
                 the powers vested in the Tax As-
                 sessor?"

         The provisions of Sec. 2 of Article 2368a, Ver-
non's Civil Statutes, are, in part, as followst

         "No county, acting through its commission-
         ers ' court . D D shall hereafter make any
         contract calling for or requiring the ex-
         penditure or payment of Two Thousand
         ($Z,OOO.OO) Dollars or more out of any fund
         or funds . D s without first submitting such
         proposed contract to competitive  bids . . .
         and provided further, that it shall not be
         applied to contracts for wrsonal or profes-
         sional services e D *I' (Emphasis added)
Hon. George J. Jennings, Jr., page 6 (C-267)



          In Attorney General's Opinion No. R-2315 (1951),
this office had before it the question of the validity of
a contract for engineering services which was let by Com-
missioners' Court without competitive bids, and in such
opinion it is stated that:

         w . . . even before Article 2768 WS)R nnndr-




Ron. George J. Jennings, Jr., page 14(C-267)



         7264(a), 7335, or 7335a, Vernon's Civil
         Statutes.  Pritchard & Abbott v. McRenna,
         162 Tex. 617, 350 S.W.28 333, (1961).

         Article 7212 (as amended by the Legis-
         lature in 1963, Acts of 1963, 58th Leg.,
         p. 1256, ch. 481, Sec.l)is  constitu-
         tional insofar'as it provides forpay-
         ment of such obligations by time war-
         rants payable from the general fund of
         the county.

         The Commissioners' Court of Swisher County
         canentrr into a contract fork appraisal
         services which contains provisions for
         payment similar to those approved by the
         court in the case'of White v. Thomas Y.
         Pickett & Company, 355 S.W.28 848 ~(Tex.
         Civ.App., 1962), error ref.  n.r.e.) if
         the wording is changed to properly reflect
         that payment is to be made from the gen-
         eral fund of the county.

         Where payment of a contractual obligation
         is to be made,from current funds it is
         sufficient that the proper constitutional
         fund of the county contain sufficient
         money on hand or within reasonable anti-
         cipation of being on hand during the year
         in which the contract is made.


                                    Very truly yours,
Hon. George J. Jennings, Jr., page 7 (C-267)~



          Furthermore, the services to be performed under
the provisions of Article 7212 are specifically referred
to in the statute itself as requiring "special skill and
experience" and as "professional services under the pro-
visions hereof."    Therefore, in answer to your question,
.the services to be performed in the instant situation
would be the type of services exempted from the competi-
tive bid provisions of Article 2368a.

         Articles 7264a, 7335, and 7335a, Vernon's Civil
Statutes, all pertain to various aspects of the collection
of delinquent taxes. As the contract in the situation you
have here posed deals merely with services to be rendered
to the Commissioners' Court sitting as a Board of Equalisa-
tion in the evaluation of property for tax purposes, we are
of the opinion that the proposed contract between the Com-
missioners' Court of Swisher County and the party to render
these services to the Commissioners' Court would not con-
flict with or contravene the provisions of Articles 7264a.
1335, or 7335a.   This question was before the Supreme
Court of Texas in the case of Pritchard & Abbott v. McEenna.
162 Tex. 617, 350 S.W.Zd 333 (1961), and the court held
that a contract of the type here considered was not the
type of contract or activity subject to the provisions of
Articles 7264a, 7335, and 7335a.

         In this same connection the case of Pritchard &
Abbott v. McEenna, sunra, also decided the question of
whether a contract of the nature we have before us usurps
the powers, duties and responsibilities of the Tax Asses-
sor and Collector.  The court in its opinion stated that:
         Di
              D  We quite agree that the County
                  0   D


         Conunissioners" Court is not charged with
         the management and control of all the
         County's'business affairs. Each of the
         various elected officials, including the
         Assessor-Collector, has the sphere that
         is delegated to him by law and within
        ,which the Commissioners' Court may not
         interfere or usurp, But that is not to
         say that the functions of the Board of


                           -1279..
Hon. George J. Jennings, Jr., page 8 (C- 267)



         Equalization and those of the Assessor-
         Collector are so diverse  that information
         may not be lawfullv contracted for and
         obtained bv the Equalization Board be-
         cause it may likewise be of aid to the
         Assessor  in the performance of his
         duties . . ." (Emphasis added)

         Your third question reads as follows8

         "3. Are the provisions of paragraph VI
             of the contract a legally and suf-
             ficient provision for payment, if at
             the time of execution of the con-
             tract provision has been made for
             the issuance of the interest bear-
             ing time warrants?*

         Section VI of the proposed contract provides for
payment to the party performing the evaluation services
for the Commissioners' Court sitting as a Board of Equa-
lization by the issuance and delivery of interest bearing
time warrants which have been authorized by an order of
the Commissioners' Court. Such time warrants are to be
dated February 1, 1964, are to bear interest at the rate
of 5% per annum and are scheduled to mature in five equal
installments   - the first maturing on December 1, 1964,
and thereafter on the same date of each succeeding year
through 1968, The order authorizing the time warrants and
the levying of the tax for payment of the principal and
interest is incorporated by reference and made a part of
the contract,

          Section B of Article  7212, Vernon's Civil Statutes.
which is set out in its entirety elsewhere in this opinion,
provides. specifically that time warrants may be issued by
a Commissioners' Court for this purpose in the manner pro-
vided for in the Bond and Warrant Law of 1931,~but with the
additional limitation that warrants so issued shall   mature
within six years from their respective dates,




                           -1280-
     ,




Ron. George J. Jennings, Jr., page 9 (C-267)



         Since nothing in Section VI of the proposed con-
tract conflicts with the provisions of the Bond and Warrant
Law of 1931 or with the provisions of Article 7212, and pre-
suming that the Bond and Warrant Law of 1931, i.e., Article
256Sa, Vernon's Civil Statutes, is fully complied with in
authorizing the warrants and levying the tax for payment
thereof, your question number three is answered in the af-
firmative.

         In your next question you inquire as followsx

         “4.   Is   Article
                          7212 (as amended by Chap-
               ter 481, Acts of the 58th Legislature,
               Regular Session, 1963) constitutional
               insofar as it provides that warrants
               are to be payable from the general
               fund of the county?"

         Section 9 of Article VIII of the Constitution of
Texas reads, in part, as follows:

         H D 0 D at the time the Commissioners'
         Court meets,to levy the annual tax rate
         for each county it shall levy whatever
         tax rate may be needed for the four (4L
         constitutional purposes: namely, ceneral
         fund, permanent improvement fund, road
         and bridse fund and iurv fund." (Emphasis
         added)

         It is clear that the county can levy a tax in this
instance only for the benefit of one of the above enumerated
constitutional funds. The contractual obligation for which
these warrants are to be issued would seem clearly to con-
stitute an operating expense of the county and therefore
properly chargeable to the general fund. Certainly it can
not be said that these warrants are to be issued to pay for
permanent improvements or roads and bridges or in payment
of juries.

         Article 7212 was amended by the Legislature in 1949,
Acts of 1949, 51st Legislature, p* 1196, ch. 607, Sec. 1, to


                              -1281-
 Hon. George J. Jennings, Jr., page 10 (C-267)

                                                                  f


  provide payment for such services "- 0 D on a pro rata
' basis from each county fund receiving any taxes derived
  from such valuation",  Prior to that time there was no
  valid statutory provision regarding payment of such obli-
  gations, but various Attorney General's Opinions upheld
  the legality of contracts which provided that such obli;
  gations were payable from the general fund. Enclosed is
  a copy of Attorney General's Opinion No. O-4114 (November.
  7, 1941) which deals directly with this specific question.
  The 1963 amendment to Article 7212 repealed the 1949 amend-~
  ment and gave statutory recognition to the rule that had
  been consistently followed by this officeuntil  the 1949
  amendment.

          In the opinion of this office the specific pro-
 vision in Article 7212 to the effect that'these warrants are
 to be paid from the general fund of the county simply a-
 mounts to an enunciation of what would be properly construed
 as a constitutional requirement and therefore is not itself
 violative of the Constitution.

           your letter further sets out, as a fifth question,
  the follwingr

           $'5.May such a contract be entered into
               without giving notice of County's
               intention to'do so where general
               fund warrants are to be used to pay
               for services?"

           Article 7212 specifically authorizes the county to
  enter into such a contract but is entirely silent as to any
  requirement of notice of intention to enter into same, al-
  though it does provide that time warrants authorized there-
  under shall be issued '#inthe manner provided by the Bond
  and Warrant Law of 1931",

           We must, therefore, look to   the provisions of
  Article 2368a for any requirement as   to notice of intention
  to contract, Section 2 of said Act,    the pertinent,portion
  of'which is,quoted herein at page 5,   gives the provisions




                             -1282-
Hon. George J. Jennings, Jr., page 11 (C-267)



as to notice under the Act, The only other provision
pertinent to the question of notice is Section 3, which
prov'idese

         ""Sec. 3, When it shall be the intention
         of the Commissioners' Court . . . to issue
         time warrants for the payment of all or any
         part of the proposed contract, the notice
         to bidders required under Section 2 of this
         Act shall recite that fact. setting out the
         maximum amount of the proposed time warrant
         indebtedness, the rate of interest such
         time warrants are to bear, and the maximum
         maturity date thereof".   (Emphasis added)

         Since Section 3, by its own terms, applies only
where notice is required under Section 2, and since we
have already held in answering your question 2(a) above,
that no notice to bidders is required in the instant case
because Section 2 specifically exempts contracts for "per-
sonal or professional service' from its terms, we answer
your question number five in the affirmative, i.e., the
proposed contract can be entered into without giving notice
of intention to do=   when time warrants are to be used to
pay for the services contracted for,

         your sixth question isz

         "'6q Should the Commissioners" Court of
              Swisher County desire to do so may
              they enter into a contract such as
              enclosure contract #2 which calls for
              the performance of appraisal services
              over a two year period and payment out
              of General Fund monies at the end of
              each of the designated two years, pro-
              vided the percentage of work is com-
              pleted by appraiser as prescribed in
              contract?"

         This question, as well as question seven, concerns
an entirely different contract than that considered in the
first five questions and relates to the manner in which

                          -1283-
lion. WOtge   J. Jennings, Jr., page 12 (C-267)



provision has been xade for payment of the amount to become
due the appraiser for work performed thereunder.    Our re-
view of proposed contract nuxber two has been limited  to
this aspect only.

         It should be observed at the outset that the mu-
tract referred to doem not make reference to payxent out
of the "General Fundm, es your question itself does, but
rather to "the proper fund or funds of Swisher County" and
to "said proper county fund or funds". Article 7212 pro-
vides specifically that paymnts for such services are to
be made frox the general fund and we have affirmed in this
opinion in answer to your guestion four that this is the
constitutional fund properly to be charged with much ex-
penditure.  Therefore, the wording of enclosure contract
numbei two should be changed accordingly.

         In all other relevant rempects enclosure contract
number two is easentially identical in forx to a conttact
entered into between the Cormniecrionerm Court of Aransaa
County and Thoxas Y. Pickett & Company, Snc., which in-
volved similar services to the county~and similar provi-
eions as to payxent for such services, and which was upheld
by the courts in the case of mite v.,Thoxas Y. Pickett and
company, 355 S.W.2d 848 (Tex.Civ.App.,1962, error ref.
n.r.e.1.

          Therefore,our answer to your sixth question fs~tbat
the Conmissioners' Court of Swisher County can enter into a
contract containing provisions for payment for apprai8al
services performed thereunder such am is found in your en-
closure contract nuxber two, provided that the wording is
changed SO as to correctly reflect that payments thereunder
shall be xade frox the genmral fund of the county.

         We interpret your seventh and final question to xean
tbe follwinga   Mere an obligation incurred under a contract
is to be paid out of current funds, must the County Treasury
actually contain, at the time the contract is signed. suffi-
cient funds to satisfy the obligation or is it necessaxy only
that money in the Treasusy, taxes in the process of collec-
tion during such tax year, and all other revenue8 which may


                            -1204-
   , .




Hon. George J. Jennings, Jr., page 13(C-267)



be anticipated with reasonable certainty during such tax
year be sufficient to pay the obligation?

         It has been held that no debt is created within
the meaning of Section 7 of Article 11 of the Constitution
of Texas if a valid appropriation is made for the payment
of the total amount due from funds on hand or funds within
reasonable anticipation of beinc on hand during the current
year in which the contract is made. McNeil1 v. City of Waco,
89 Tex. 83, 33 s-w.322 (1895): Citv of Ft. Worth v. Bobbitt,
121 Tex,14, 41 s.w.Zd 228 (1931).

         Thus, in answer   to the question posed above it would
not be necessary that at   the time the contract is signed the
County Treasury actually   contain the money to pay the obli-~
gation but only that the   proper constitutional fund contains
sufficient money on hand   or within reasonable anticipation of
being onhand during the    year in which the contract is made.




         Swisher County, acting through its Com-
         missioners' Court,'may contract with and
         employ individuals, firms or corporations
         to compile taxation data to be used by
         the Commissioners0 Court while sitting as
         a Board of Equalization, under' the.provi-
         sions of Article  7212, Vernon's Civil
         Statutes.

         Such a contract may be entered into with-
         out receipt of ccmpetitive bias or giving
         notice of intention to contract even when
         general fund time warrants issued under
         the provisions of the Bona and Warrant Law
         of 1931, are to be used to pay for ~the
         services to be rendered,

         The Cosanissioners' Court can enter into
         such a contract without usurping the powers
         vested in the Tax Assessor and without con-
         travening the provisions of Articles

                            -1285-
Hon. George 3. Jennings, Jr., page 14(C-267)



            7264(a), 7335, or 7335a, Vernon's Civil
            Statutes.  Pritchard & Abbott v. McKenna,
            162 Tex. 617, 350 S.W.28 333 (1961).

            Article 7212 (as amended by the Legis-
            lature in 1963, Acts of 1963, 58th Leg.,
            p. 1296, ch. 481, Sec.1) ~i.sconstitu-
            tional insofar'as it provides for pay-
            ment of such obligations by time war-
            rants payable from the general fund of
            the county.

            The Commissioners' Court of Swisher County
            canenter into a contract for'appraisal
            services which contains provisions for
            payment similar to those approved by the
            court in the case of White v. Thomas Y.
            Pickett & Companv, 355 S.W.2d 848 (Tex.
            Civ.App., 1962), error ref. n.r.e.1 if
            the wording is changed to properly reflect
            that payment is to be made from the gen-
            eral fund of the county.

            Where payment of a contractual obligation
            is to be made ~from current fun& it is
            sufficient that the proper constitutional
            fund of the county contain sufficient
            money on hand or within reasonable anti-
            cipation of being on hand during the year
            in which the contract is made.


                                       Very truly yours,

                                       WAGGONER CARR
                                       Attorney General




                                           Assistant
Jns-s
Enclosure

                             -1286-
     . .




Hon. George.3. Jennings, page 15 (C-267)



APPROVED:
OPINION COMMITTEE

W. V. Geppert, Chairman

Howard W. Mays
J.   C.    Davis
Robert Smith
Howard Fender

APPROVED FOR TIIE ATTORNEY GENERAL

By: Stanton Stone




                           -1287-
