Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 28, 2008
The Honorable Jesse Gonzales, Jr. Opinion No. GA-0604
Pecos County Attorney
103 West Callaghan Re: Whether a project financed in distinct phases
Fort Stockton, Texas 79735 is subject to the competitive bidding requirements
of the County Purchasing Act (RQ-0620-GA)
Dear Mr. Gonzales:
You ask with regard to certain purchases in Pecos County:
Whether the County Auditor may present for payment, an invoice for
labor, that in the opinion ofthe County Attorney, has been determined
to violate the County Purchasing Act? Specifically, can a project be
set up to be performed in "phases" that are each under $25,000 and
not be subject to the County Purchasing Act, if the entire project,
when completed, is over $25,000?1
You explain that a county commissioner "contracted with a local contractor for a concrete
slab in a county park." Request Letter, supra note 1, at 1. 2 You indicate that the concrete work is
described by the commissioner as "Phase I" of the project. Id. An invoice for the labor and
1See Letter from Honorable Jesse Gonzales, Jr., Pecos County Attorney, to Honorable Greg Abbott, Attorney
General ofTexas, at 1 (Sept. 7, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter "Request Letter"].
2y ou also indicate that "except for the invoices being submitted for payment, no action was taken through the
entire commissioners court regarding this project." Request Letter, supra note 1, at 2. Although you do not specifically
raise it, the absence of commissioner court approval raises additional concerns regarding the validity of these invoices.
Generally, "[t]he commissioners court may only validly act as a body; the acts ofa single commissioner do not bind the
court." Hays County v. Hays County Water Planning P'ship, 106 S.W.3d 349,360-61 (Tex. App.-Austin 2003, no
pet.) (citing Canales v. Laughlin, 214 S.W.2d 451,455 (Tex. 1948); Eastex Wildlife Conservation Ass'n v. Jasper, 450
S.W.2d 904,907 (Tex. Civ. App.-Beaumont 1970, writ refd n.r.e)); see also Tex. Att'y Gen. Op. No. GA-0229 (2004)
at 8 (" [I]n the absence of a statute authorizing another county official to enter into a contract, the commissioners court
has the sole authority to enter into contracts binding the county."). Absent a claim "incurred as provided by law," "[t]he
county auditor may not audit or approve a claim." TEX. Lac. GOV'T CODE ANN. § 113.065 (Vernon 1999). Thus an
auditor might, depending on the facts, have a duty to refuse to pay a claim where a county official unilaterally acts to
enter into a contract.
The Honorable Jesse Gonzales, Jr. - Page 2 (GA-0604)
materials totaled $8,775; it was "processed" by the auditor and then submitted to and approved for
payment by the commissioners court. Id.
You tell us a pavilion structure was subsequently constructed on the concrete slab in what
is described as "Phase II" ofthe project. Id. Two separate invoices were submitted by the contractor
for the Phase II work.Id. We understand that the first invoice, totaling $12,921.52, was submitted
to and approved for payment by the commissioners court. 3 The second invoice for the Phase II
work, totaling $12,000,4 brought the total cost of the Phase I and II work to $33,696.52. See supra
note 3. You explain that. all of the invoices "for either labor or materials were from the same
contractor by the same county official." Request Letter, supra note 1, at 2.
Pursuant to section 41.007, Government Code, you advised the county auditor that you find
no authority for her to submit the final Phase II invoice of $12,000 to the commissioners court for
approval because the final invoice would cause "the entire project to exceed $25,000[], and because
the job was not bid in compliance with the County Purchasing Act."s Id.; see also TEX. GOV'T CODE
ANN. § 41.007 (Vernon 2004) ("A district or county attorney, on request, shall give to a county or
precinct official of his district or county a written opinion or written advice relating to the official
duties ofthat official."). "Accordingly, she has refused to submit the remaining [$12,000] invoice"
to the commissioners court. Request Letter, supra note 1, at 2.
You first ask whether the county auditor may present the final invoice for payment to the
commissioners court in light of your advice. Id. We begin by examining relevant duties of the
county auditor under state law. Chapter 113, Local Government Code, provides that "[a] claim, bill,
or account may not be allowed or paid until it has been examined and approved by the [county]
auditor." TEX. Loc. GOV'T CODE ANN. § 113.064(a) (Vernon 1999). Under Local Government
Code section 112.006(b), "[t]he county auditor shall see to the strict enforcement of the law
governing county finances." I d. § 112.006(b). "The county auditor may not audit or approve a claim
unless the claim was incurred as provided by law." Id. § 113.065. Thus, an auditor has a mandatory
duty to examine the lawfulness of a claim against the county before the claim is considered for
payment by the commissioners court. Crider v. Cox, 960 S.W.2d 703,706-07 (Tex. App.-Tyler
3See Letter attached to Request Letter from Honorable Jesse Gonzales, Jr., Pecos County Attorney, to Kay
Hardwick, Pecos County Auditor, at 2 (Aug. 31, 2007) ("To date, only $21,696.52 has been paid from County funds.").
4y ou tell us that the second invoice for the Phase II work was originally $13,500 but was subsequently adjusted
by the contractor to $12,000. Request Letter, supra note 1, at 1. Had the original invoice been correct, we note that
Phase II alone would have exceeded $25,000.
SWe assume for the purposes of this opinion that the project at issue is subject to the purchasing requirements
ofthe County Purchasing Act, Local Government Code sections 262.021-.036. See, e.g., TEX. Lac. GOV'T CODE ANN.
§§ 262.023(b) (Vernon Supp. 2007) (explaining that section 262.023(a)'s competitive bidding requirements "apply to
contracts for which payment will be made from current funds or bond funds or through anticipation notes authorized by
Chapter 1431, Government Code, or time warrants[, but] [c]ontracts for which payments will be made through
certificates ofobligation are governed by" subchapter C, chapter 271, Local Government Code); 262.024-.0241 (Vernon
2005 & Supp. 2007) (setting out certain discretionary and mandatory exemptions); 271.111-.121 (setting out alternative
project delivery methods when entering into a contract for the construction of a "facility").
The Honorable Jesse Gonzales, Jr. - Page 3 (GA-0604)
1997, writ denied) (explaining the auditor's role in the legislative scheme of checks and balances that
control county funds); Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App.-Dallas 1976, writ
dism' d) (addressing articles 1660 and 1661, the statutory predecessors to Local Government Code
sections 133.064-.065). And while we find no case law directly addressing the issue, this office has
previously concluded that a county auditor may not approve a claim for payment on a contract that
was not awarded in compliance with a competitive bidding law. Tex. Att'y Gen. Ope No. GA-0247
(2004) at 5; cf Kaufman County v. Crow, 176 S.W.3d 921, 926 (Tex. App.-Dallas 2005, pet.
denied) (indicating in the facts that the auditor refused to approve payment ofa claim because ofthe
failure to comply with the County Purchasing Act but not addressing whether the refusal was proper
under section 113.065).
In determining whether to approve a claim, bill, or account, a county auditor may tum to the
county attorney for an opinion or advice under section 41.007, Government Code: "A ... county
attorney, on request, shall give to a county or precinct official of his ... county a written opinion or
written advice relating to the official duties of that official." TEX. GOV'T CODE ANN. § 41.007
(Vernon 2004); see, e.g., Crider, 960 S.W.2d 703 at 707 (indicating that the auditor sought the
opinion ofboth the county criminal district attorney and the attorney general in deciding whether to
approve paymentof a bill for legal services). This provision imposes a duty on county attorneys to
provide advice and opinions to officials on request. Guynes v. Galveston County, 861.S.W.2d 861,
863-64 n.2 (Tex. 1993).
We do not believe, however, that the duty imposed on the county attorney under section
41.007 to provide advice and opinions binds the county auditor to act in accord with the opinion or
advice received from the county attorney. The opinion of a county attorney has no force of law.
Travis County v. Matthews, 235 S.W.2d 691, 696 (Tex. Civ. App.-Austin 1950, writ refd n.r.e.).
Moreover, the auditor has an independent duty to examine the lawfulness of a claim and generally
cannot delegate her duties to other county officials. Smith v. Flack, 728 S.W.2d 784, 790 (Tex.
Crim. App. 1987) ("[T]he Legislature has not provided a county auditor with any authority to
delegate [the] duty [to make an independent examination of a claim and approve it] to another legal
entity or office."); Crider, 960 S.W.2d 703 at 706-07 (hold"ing that the county auditor had to
examine the lawfulness of a claim independent of the commissioners court); Comm'rs Court v.
Fullerton, 596 S.W.2d 572,578 (Tex. Civ. App.-Houston [1st Dist.] 1980, writrefdn.r.e.) ("The
county auditor ... cannot delegate his official duties to another, other than his duly appointed
deputies."). It is ultimately the auditor's duty under the statutory mandates of her office to decide
whether to approve a claim, bill, or account. TEX. Loc. GOV'T CODE ANN. §§ 113.064(a), .065
(Vernon 1999).6
6In Joe v. Two Thirty Nine Joint Venture, the court explains that "[t]o determine whether a public official has
acted in good faith, we use an objective standard, asking whether a reasonably prudent official, under the same or similar
circumstances, could have believed that his conduct was justified based on the information he possessed when the
conduct occurred." 145 S.W.3d 150, 164 (Tex. 2004). In light of such judicial standards, a county auditor might, under
certain circumstances, be well-advised to follow the opinion or advice of the county attorney.
The Honorable Jesse Gonzales, Jr. - Page 4 (GA-0604)
We tum next to your question whether a project can "be set up to be performed in 'phases'
that are each under $25,000 and not be subject to the County Purchasing Act, if the entire project,
when completed, is over $25,000[.]" Request Letter, supra note 1, at 1.
The County Purchasing Act (the "Act"), Local Government Code chapter 262, subchapter
C, generally requires counties to make certain purchases using competitive bidding. Section
262.023(a), Local Government Code, provides that
[b]efore a county may purchase one or more items under a contract
that will require an expenditure exceeding $25,000, the
commissioners court of the county must:
(1) comply with the competitive bidding or competitive
proposal procedures prescribed by this subchapter;
(2) use the reverse auction procedure, as defined by Section
2155.062(d), Government Code, for purchasing; or
(3) comply with a method described by Subchapter H, Chapter
271.
TEX. Loc~ GOV'T CODE ANN. § 262.023(a) (Vernon Supp. 2007). In the Act, the term "item" is
defined to mean "any service, equipment, good, or other tangible or intangible personal property,
including insurance and high technology items." Id. § 262.022(5) (Vernon 2005). In applying
section 262.023 (a), "all separate, sequential, or component purchases ofitems ordered or purchased,
with the intent of avoiding the requirements ofthis subchapter, from the same supplier by the same
county officer, department, or institution are treated as if they are part of a single purchase and of a
single contract." Id. § 262.023(c) (Vernon Supp. 2007). Section 262.022 defines "component
purchases," "separate purchases," and "sequential purchases" in the following manner:
(2) ."Component purchases" means purchases ofthe component parts
ofan item that in normal purchasing practices would be purchased in
one purchase.
(7) "Separate purchases" means purchases, made separately, ofitems
that in normal purchasing practices would be purchased in one
purchase.
(8) "Sequential purchases" means purchases, made over a period, of
items that in normal purchasing practices would be purchased in one
purchase.
Id. § 262.022(2), (7)-(8) (Vernon 2005).
The Honorable Jesse Gonzales, Jr. - Page 5 (GA-0604)
Having set out the relevant law, we conclude we cannot answer your second question because
it would require us to resolve fact questions. For instance, it may have been more appropriate to
undertake this purchase in compliance with the Act because certain facts you relay, such as (1) the
invoices came from the same contractor and were delivered to the same commissioner, and (2) the
invoices resulted from what is characterized as Phase I and Phase II of a single project, raise
questions as to whether this purchase violates the Act. These facts are not, however, dispositive.
Section 262.023(c) applies when "separate, sequential, or component purchases" are undertaken
"with the intent of avoiding the requirements" of the Act. Id. § 262.023(c) (Vernon Supp. 2007)
(emphasis added); see also ide § 262.034(a) (Vernon 2005) ("A county officer or employee commits
an offense if the officer or employee intentionally or knowingly makes or authorizes separate,
sequential, or component purchases to avoid the competitive bidding requirements of Section
262.023."). Moreover, in determining whether a separate, sequential, or component purchase has
taken place, one must determine if the purchase would "in normal purchasing practices" be made
as a single purchase. Id. § 262.022(2), (7)-(8) (emphasis added). Determining whether the requisite
intent is present and what constitutes a normal purchasing practice with respect to a particular item
requires the taking of evidence and finding of facts that cannot be performed in the opinion process.
Tex. Att'y Gen. LO-94-087 (1994) at 2 (concluding that a determination of whether purchases by
Smith County of culverts and road sign components would fall within the prohibitions of the Act
involves questions of fact that cannot be resolved in an opinion).
As previously discussed, it is the county auditor who must determine whether a contract was
awarded in violation of the Act. TEX. Loc. GOV'T CODE ANN. §§ 113.064(a), .065 (Vernon 1999);
see also Tex. Att'y Gen. Ope No. GA-0247 (2004) ("[I]fa county auditor determines that a contract
was awarded in violation of the County Purchasing Act, section 113.065 of the Local Government
Code prohibits the auditor from approving the claim."); 36 DAVID B. BROOKS, TEXAS PRACTICE:
COUNTY AND SPECIAL DISTRICT LAW § 19.1 (2d ed. 2002) (explaining that it is the county auditor's
"duty to disapprove expenditures of county funds he believes to be unlawful. . . . [which] may
require the auditor, who is very seldom an attorney, to reach a legal decision based upon the
examination and interpretation of state law").
The Honorable Jesse Gonzales, Jr. - Page 6 (GA-0604)
SUMMARY
It is a county auditor' s duty under the statutory mandates of
that office to decide whether to approve a claim, bill, or account. A
county auditor is not, therefore, bound by the advice or opinion of the
county attorney regarding the lawfulness of a claim, bill, or account
against a county.
In order to conclude that a project financed in distinct phases
violates the competitive bidding requirements of the County
Purchasing Act ("Act"), one must consider the facts, including
whether the purchase is undertaken with the intent of avoiding
the requirements of the Act and whether the purchase would in
normal purchasing practices be made as a single purchase. These
considerations involve questions of fact that cannot be resolved in an
attorney general opinion.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Christy Drake-Adams
Assistant Attorney General, Opinion Committee