Untitled Texas Attorney General Opinion ( 1973 )

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: TRH ATWRNEY GENERAL
OWTEXAE
November 29, 1973
The Honorable John Park Davir Opinion No. H- 163
County Attorney
Montague County Re: Application of Article
Montague, Texan 76251 236&, V. T. C. S., to
purchare if paid for
with funda on hand,
creating no obligation
Dear Mr. Davis: or debt for county
Your request for an opinion porer the following question: Are bid@
for road machinery coating over $2,000.00 required if it will be paid for
out of county fundr on hand and the purchare ir not being made out of funds
creating an obligation or liability on the county7
The controlling rtatute ir Article 236&, ( 2, Vernon’r Texar Civil
Stetutee, which provider in part:
“No county, acting through itr Commiraionerr
Court, , , . rball hereafter make any contract calling
for or requiring the expenditure or payment of Two
Thouaand Dollars ($2,000.00) or more out of any fund
or funds of any . , . county or subdivirion of any county
creating or imposing an obligation or liabilitv of any
nature or character upon ouch countvor any subdivirion
of ruch county, . . . without firrt ebmitting much pro-
pored contract to competitive bids. . . . Provided,
however, that the provieions of thin Act shall not apply
to counties having a population of more than three hun-
dred fifty thourand (350,000) inhabitant8 according to
the lart preceding or any future Federal Cenaur.”
Section 2b provider:
p. 754
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The Honorable John Park Davh, pago 2 (H-169
“Contracta for the purchare of machinery for
the conrtruction and/or maintenance of roadr and/or
rtreetr, may be made by the governing bodier of all
countier and citier within the State in accordance with
the proviaionr of thir Section. The order for purchase
and notice for bid* rhall provide full rpecification of
the machinery desired and contract8 for the purchare
thereof ahall be let to the lowert and bert bidder.”
Your quertion indicate8 an interpretation of the above quoted language
wherein the phrare “creating or imporing an obligation or liability. , . ‘I
would refer to “fund or fundr. . . .I’ We disagree.
The worda of Article 2368a, $2, “creating or imposing an obligation
or liability . . . upon ouch county . . . . ‘I, referr to the contract and not
to the fund. The word8 “out of any fund or fundr of any . . . county or any
rubdivi#ion of any county” were not included in $2 until it was amended in
1947 (Actr 1947, 50th Leg., p. 283, ch. 173). A reading of $2 leaving out
those words maker it clear that the phrare “creating or imporing an obli-
gation or liability of any nature or character upon ruch county. . . .‘I muat
have originally referred to the word “contract. ”
Moreover, a contract by ita very nature create8 an obligation or
liability wherear a fund doer not.
Our conrtruction ir bolrtered by the language of 5 5 of Article 236ga
which provides:
“The notice required in Section 2 . . . shall
not be applicable to expenditures payable out of
current fundr. . . .‘I
If bidding were not required for expenditures out of current funds, it would
be fruitlera to specifically eliminate the notice requirement for ruch expen-
diturer. See Attorney General Opinicnr M-172 (19671, V-1082 (1950).
It ir our opinion that competitive bidding ir required for road machinery
costing over $2000 which ir paid out of fundr on hand.
p. 755
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The Honorable John Park Davlr, pago 3 (H-163)
SUMMARY
Bidr for road machinery carting $2,000 or
more are required even if it will be paid for out of
county fundr oa hand.
V ry truly youra,
A
APPROVED:
Opinion Committee
p. 756