Untitled Texas Attorney General Opinion ( 1958 )

Honorable Hubert W. : Ureen, Jr.
Crlmlnal .Matrlot Attorney
Bexar County: Courthoa8e
San Antonio .!5, Texas
Opinion No. WW-406
Re: Authori+? of
..a.- County
-- Auditor
to Pay 03r443.09for addl-
tlonal work .ar%sing rrom
unexpeoted dtffihultles
,,under a .oontriot ~-and $1,238.22
for extra~,wo?$c~..qot lnoluded
under .the :.oontraat j. applloa-
tion of Artlole i&659 and
Dear Mr. Ureen: Artlole 236& to Bexar County.
.,.
your requert for an opinion of thi.8 ofSloe.:haa .been
reoelved . lhe folloulng faots are quoted from your letter:
:
“One County Commli*lonel, aought~.to have..tuo ..:.
parking areaa In hla oounty park resurfaoed with
asphalt .and:oertaln ourblng and 8ldeualks .lnrtalled.
me projeot uaa properly,.advertlaed and bidswere
reoelved on a unlt+prloe.oontraot:basilri. ,Ime total
oost. :of the .,projeot .advertlsed, based upon’~the
approximate number .of .unltr required;uaa in the,
total amount OS $ ‘Ihe ‘prloe per unit was
aooepted Andybeoame. =%Pi* 0 asis of -the odntraot
entered into.
,“Hhen the bill was .gresented upon qompletlon
OS .:the ..woi-k, it .wad ln’+he amount ;of $10,621.5x and
war, aooompanled bf ‘a ‘lettir from’: the Commls’alo~er
for whom.$he work.wan done whloh read, :ln .part, a8
f 0llowe t .,
: ,-
'ytDurlng the prooeae of the pa&&(the.
County hglneer~s offloe) dlsoovered:the``neoesslty
for lnoreaslng the thloknesa of the asphalt to be
u8ed as a’new surfroe;’ In addition, I lnstruoted
the oontraotor to’pave about two..‘thoueand square
fret that *as not inoluded’ln the briglnal oon-
traot . *” I’
Honorable Hubert W. Green, Jr., Page 2 (``-406).
The questions you submit are as followa:
"1. May the County Auditor lawfully pay an
additional $1,443.09 on a unit-price contract of
$7,939.20 because of unforeeeen and unexpeoted
dlfflcultles not reasonably anticipated when the
contract was made?
"2. May the County Auditor lawfully pay an
additional $1,238.22 which waa~not In oontempla-
tlon originally but was for material aotually
furnished and work actually done In addition to
and not lnoluded in, bu$.in connection with, a
unit-price contract for.$7,93$?.20?
“3. Do the provisions of Article 1659
Vernon's Texas Statutes, requir'ingthe purchase of
supplles and material by lowest and best bid, con-
ti?olIn Bexar County rather than the provision8 of
Article 2368a, Seotlon 2a, due to the fact that
the population of Bexar Count{ exceeds 350,000
according to the 1950 cenaua?
Consideration of your third question will faolll-
.tate the answers to questions one and two,
Section 2 of Article 2368a of Vernon's Annotated
Texas Civil Statutes reads In pa& as follows:
11. . . Provided, however,,that the provl-
alons of this Act shall not apply to counties
having a population of more than three hundred
fifty thousand (350,000) Inhabitants aooorfllngto
the last preoedlng or any future Federal Censure;"
Article 1659, Vernon's Annotated Texas Civil Statutee;
reads In part a8 follows:
"Suppllee of every kind, road and bridge
material, or any other material, for the use of
said county, or any of Its offloer8, departments,
_ _lnatitutlons must be purchased on oompetltlve
or
blCl8, the contract to be awarded to the party who,
In the judgment of the commleslonera court& has
submitted the lowest and best bid. . . .
(Emphasis oure).
Since Article 2368a applies only to counties having
a population of 350;000, or less, and since Bexar County haa
more than 350,000 Inhabitants, it ia clear that Article 2368a
does not apply to your situation. We are of the further
Honorable Hubert W. Green, Jr., Page 3 (w-406).
.
opinion that Article 1659, Vernon's Annotated Texas Civil
Statutes, does not apply for the reason that the terms
"supplies" and "materials" do not encompass the paving ser-
vices Involved In your request. These terms have been
defined In Patton v. Con&o County 196 S.W.2d 833 (Tex.Clv.
App. 1946), wherein the Court refe:red to the definition set
out In Century Indemnity Co. of Chicago, Ill. v. Shunk Mfg.
CO., 253 0. 30, bo S.W.2d 772 (1934), "materials" Is
Ere defined as ' . . . something that becomes a part of the
finished structure; something thatgoes Into and forms.a part
of the finished structure."
The word "supplies" Is there defined as " .. . .
articles furnished for carrying on work which, from Its
nature, are necessarily consumed by the use in the work." We
do not think the paving contract comes under the definition
of either supplies or materials, It follows that competitive
bids are not required under the terms of Article 1659, Ver-
non's Annotated Texas Civil Statutes.
Accordingly, It Is our opinion that under the facts
neither Article 1659, Vernon's Annotated Texas Clvll~Statutes,
nor Article 2368a, Vernon's Annotated Texas Civil Statutes,
required competitive bidding In this case.
Because of the similarity of questions one and two
stated above, we will answer them together.
Section 53 of Article III of the Constitution of
Texas reads as follows:
"The legislature shall have no power to grant,
or to authorize any county or municipal authority
to grant, any extra compensation, fee or allowance
to a public officer, agent, servant or contractor,
after service has been rendered, or a contract has
been entered Into, and performed In whole or in
Dart: nor oav. nor authorize the oayment of, any
3ZY.m creaiei*agalnst any county or-munlclpallty
of the State, under any agreement or contract,
made without authority of law." (Emphasis added).
This provision of the Constitution of Texas pre-
cludes the grant of any extra compensation, over and above
the contract price, to a contractor after the contract has
been performed in whole or In part. Shelby County v. Gibson,
44 S.W. 302 (Clv.App. 1898, error ref.).
In Dallas County v. Lively, 106 Tex. 364, 167 S.W.
219 (1914) at page 220, we find:
Honorable Hubert W. Green, Jr., Page 4 (WW-406). .
. . The Constitution does not forbid the
fixing of compensation after service rendered, but
forbids Increasing the agreed or prescribed sum
after service rendered or work performed. . . . II
The $1,443.09 Item referred to In your first ques-
tion Is claimed for labor and materials used or expended by
the contractor In Increasing the thickness of the asphalt
paving of the area covered by the contract. This expenditure
for the additional thickness was over and above the terms of
the contract between the Commissionerst Court and the contrac-
tor, and the sum claimed for this additional thickness, there-
fore, does not constitute "extra compensation" for the services
rendered under the contract within the meaning of the above
quoted constitutional provision. The $1,238.22 Item mentioned
In your second question Is clearly In addition to and over and
above the original contract, and Its payment would not constl-
tute "extra compensation" under the terms of the above quoted
constitutional provision. The only question Involved with
regard to these two Items Is the binding effect of the authorl-
zatlon to the contractor upon the Commissioners' Court. mat
Is to say, are the directions given to the contractor by the
County Engineer and by one County Commissioner binding on the
Commissioners1 Court In this Instance? In 11B Texas Jurlspru-
dence, Counties, Section 137, page 206, It Is stated:
"A contract which the commissioners court Is
shown to have had authority to make may be blndlnf
by virtue of subsequent acts of the court; . . .
Roydstun v. Rockwall County, 86 Tex. 234, 24 S.W.
72 693). Galveston County v. Gresham, 220 S.W.
560 &.v.App. 1920, error ref.}.
As we have stated, competitive bidding was not
required in a contract of this type by the Commissioners'
Court'of Bexar County under either Article 2368a or Article
1659, Vernon's Annotated Texas Civil Statutes. Therefore,
the Commissioners1 Court had the power and authority to con-
tract for the extra work which was performed by the contractor.
Having such authority, the Commissioners' Court could ratify
unauthorized agreements made on Its behalf for such paving.
We, therefore, answer your questions one and two In the
affirmative.
SUMMARY
Neither Article 2368a nor Article 1659,
Vernon's Annotated Texas Civil Statutes,
applies to a contract by the Commissioners'
Court of Bexar County with a contractor
for the paving of certain areas in a county
, .I*-
Honorable Hubert W. Green, Jr:, Page 5 (``-406).
.. '
park. Article 2368a does not apply beoauae
Bexar County, having more than 350,000
Inhabitants, Is excluded therefrom. Since,
In our opinion, the paving contract does
not constitute either "supplies" or "mater-
ials", Article 1659 does not apply. Pay-
ment for paving done over and above that
required and called for In the oontract
would not constitute "extra compensation"
within the prohibition of Section 53, Arti-
cle III of the Texas Constitution. Slnoe
the Commissioners' Court had authority to
contract for the extra paving work which
was done It may, by subsequent action,
ratify the acts of the County Engineer and
County CormnlsslonerIn directing additional
paving work to be done.
Yours very truly,
WILL WILSON
Attorney General of Texas
Ld
By cg
W. 0. Shultz
Assistant
WOS:wb:jl
APPROVED:
OPINION COMMITTEB
Geo. P. Blackburn, Chairman
J. Mark McLaughlin
,J. Milton Richardson
John Ii.Mlnton
REVIEXEDFORTHE A'M'OFiNEYffENERAL
BY:
w. v. Geppert