Untitled Texas Attorney General Opinion ( 1978 )

JOHN L. HILL
Attorney General
Honorable Joe Resweber OpilliOll NO. H- 1262
Harris County Attorney
1001 Preston Re: Whether a county may purchase
Houston, Texas 77002 radio equipment through a council of
governments.
Dear Mr. Resweber:
You inquire about the authority of the Harris County Commissioners
Court to purchase radios through a Council of Governments created under
article lOllm, V.T.C.S. The court informs us that it wants to purchase a radio
system for county constables and can do so at a substantial saving by
purchasing through the Houston-Galveston Area Council. You ask whether
competitive bidding provisions apply to this transaction. You also ask
whether the county purchasing agent must make the purchase.
Article 6889e, V.T.C.S., provides in part:
Section 1. In each county in this State having a
population of six hundred thousand (600,000)
inhabitants or more according to the last preceding
Federal Census, the Commissioners Court, in its
discretion, may furnish all constables and/or deputy
constables two-way radios to be used in connection
with the performance.of their official duties. . . .
Sec. 2. The cost of the two-way radios, the
installation and charges in connection therewith, all
necessary repairs that may be made thereon and other
expenses in connection therewith shall be paid out of
the general fund of the county.
This statute applies to Harris County and its commissioners court clearly has
authority to furnish the radios. See also Attorney General Opinion M-1021
(1971). Article 1580, V.T.C.S., permits the appointment of a county purchasing
agent in counties of 74,000 or more inhabitants by a board composed of the
district judges and county judge. Harris County has a purchasing agent
appointed according to these provisions. It is his duty “to make all purchases
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Honorable Joe Resweber - Page 2 (H-1262)
for such county of all supplies, materials and equipment required or used by such
county or by a subdivision, officer, or employee thereof, excepting such purchases
as may by law be required to be made by competitive bid. . . .‘I (Emphasis added).
Article 1659a, V.T.C.S., which applies to Harris County, requires the purchase on
competitive bids of “supplies of every kind, road and bridge material, or any other
material, for the use of said county” where the expenditure exceeds $2,000.
(Emphesis added). Similar language on the competitive bidding requirement for
supplies and materials which appears in article 1659, V.T.C.S., has been construed
narrowly. See Attorney General Opinion H-482 (1974). In Patten v. Conch0 County,
196 S.W.2d833 (Tex. Civ. App. - Austin 1946, no writ), the court determined that
road machinerv did not constitute “suoolies” or “materials” within article 1659. See
also Century Indemnity Co. of Chicago, Ill. v. Shunk Mfg. Co., 68 S.W.2d 772 (Ky.
1934) (cited in Patten v. Conch0 County). In our opinion, the radios would
constitute “equipment” within article 1580. V.T.C.S., and not supplies or materials
within article‘1659a. See Trinity Road & Bridge Co. v. J. C. Watson, 341 S.W.2d 956
(Tex. Civ. App. - Fort Worth 1960, writ ref’d n.r.e.) (road machinery was not
“materials supplied” within mechanics lien statute); Irwin v. Auto Finance Co., 40
S.W.2d 871 (Tex. Civ. App. - Waco 1931), rev’d on other grounds, 60 S.W.2d 192
(Tex. Comm’n App. 1933, jdgmt adopted) ( mortgage on automobile and “all
equipment” could include car radio); Connor v. Littlefield, 15 S.W. 217 (Tex. 1890)
(“supplies” means stores of food, etc. kept for daily use). But see Clayton vi
Bridgeport Mach. Co., 33 S.W.2d 787 (Tex. Civ. App. - Eastland 1931, writ ref’d
(tools used in drilling oil well are “supplies” within mechanics lien statute).
Consequently, the county purchasing agent must purchase the radios pursuant to
the provisions of article 1580, V.T.C.S.
We find no statute, however, that would prohibit the county purchasing agent
from cooperating with the Council of Governments in purchasing radios. The
council is a regional planning commission established under article lOEm, V.T.C.S.,
see Attorney General Opinion M-518 (19691, which permits local units of government
Fcooperate to improve the health, safety, and general welfare of their citizens.
V.T.C.S. art. lOllm, S 2. It is a political subdivision of the state, with authority to
purchase property and to contract with its member governments to perform any
service that the members could have a private entity perform. V.T.C.S. art. lOllm,
S 4(a), cc), (d).
A county and a regional planning commission may contract under the
Interlocal Cooperation Act, article 4413(32c), V.T.C.S. Attorney General Opinions
H-296 (1974); M-1278 (1972). Local governments, including counties, are expressly
authorized to contract for purchasing services under article 4413(32c). Sec. 3, 4(a).
We believe that article 1580, relating to the purchasing agent, can be construed in
harmony with the Interlocal Cooperation Act, so that counties may use the
opportunity to increase efficiency in purchasing provided by the latter statute. The
purchasing agent is the agent of the county for purchases governed by article 1580,
V.T.C.S., and the agent of the commissioners court for the particular purchase
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Honorable Joe Resweber - Page 3 (H-1262)
under consideration. We believe he would have authority to purchase the radios
through the Council of Governments at the direction of the commissioners court.
We note that Attorney General Opinion H-482 (1974) stated that the county
purchasing agent had control of contracts regulated by article 1580, V.T.C.S., and
that he was subject to the control of the special Board of Judges and not the
commissioners court. This opinion correctly states the need for compliance with
the procedures of article 1580 and notes the purchasing agent’s independence from
the court with respect to appointment and salary. V.T.C.S. art. 1580, S l(a), (f); see
Attorney General Opinion M-708 (1970). Nevertheless, he still remains the agent3
the county and, in our opinion, is subject to the court’s direction as to reasonable
specifications and maximum prices of the items he purchases. See Bertrand v.
Mutual Motor Co., 38 S.W.2d 417 (Tex. Civ. App. - Eastland 1931, wxref’d) (agent
is subject to principal’s control).
We are informed that the Houston-Galveston Area Council has carried on
joint purchasing activities since 1973, dealing with numerous county purchasing
agents in this regard. Counties belonging to other regional planning commissions
have engaged in similar activities. These transactions show that articles 1580 and
4413(32c) can be and have been harmonized in practice by the agencies responsible
for administering them. We believe this construction is entitled to ureat weieht.
510 S.W.2d 913 (Tex. 1974); Wagner v. City of Sai Angelo; >46
App. - Austin 1977, no writ).
You have also submitted the draft of an agreement between the commis-
sioners court and the Houston-Galveston Area Council and ask whether the court
may enter into it. Since the purchasing agent is not made a party to the
agreement, we do not believe it complies with article 1580, V.T.C.S. See Attorney
General Opinion H-482 (1974). We decline to propose specific contracTprovisions,
but advise you that the contract should be drafted in light of the guidelines stated
in this opinion.
SUMMARY
The Harris County Commissioners Court may direct the
County Purchasing Agent to purchase radios for constables
through the Houston-Galveston Area Council created under
article lOllm, V.T.C.S.
Aery truly yours, h ,
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Honorable Joe Resweber - Page 4 (H-1262)
Opinion Committee
jsn
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