Untitled Texas Attorney General Opinion ( 1939 )

Hon. A. J. Bryan, Jr.
Criminal District Attorney
Hillsboro, Texas
Dear Sir: Opinion NO. 0-1685
Re: May the bommissioners~ court
rent road machinery at a
monthly rental for use on a
jY; P. A. project without first
advertising for bids for the
rental of same?
We have received.your request for an opinion on the following
situation:
“Will you please advise us whether or not the commis-
sioners' court may rent road machinery at a monthly
rental for use on a W.P.A. project, without first ad-
vertising for bids for the rental of the same.
"Briefly, the facts are as follows: In may, 1939,
certain road machinery was purchased or rented by the
Court without having advertised for bids, the rental
contract including an option to purchase the machinery.
The monthly rental was $185.00. Later the question of
the validity of this transaotion.was raised and the
option to purchase was stricken from the contract.
Later the question of advertising was raised and the
Court then advertised for bids and on October 29th,
19391 opened and read the bids on the machinery. The
machinery was in possession of Hill County all of this
time and was in actual use by the county. Only two
bids were received. One of these bids was from the
Company who had rented or sold the machinery to the
county in May, 139. The other bid was for a smaller
amount by about 9
.l,OOO.OO, but did not include a
monthly rental on the machinery. The higher bid pro-
viding for a monthly rental was accepted, this bid
being on the machinery already in possession of the
county as aforesaid.
"During the time the quastrofi'of'advertisingwas raised
and the present time two or three monthly rental
Hon. A. J. Bryan, Jr., page 2, O-1685
payments have accrued and the question is whether
or not these rentals may be paid, these particular
rentals having accrued just prior to the date of
advertising for bids~and one payment just after the
acceptance of the above described bid."
Article 2351, Vernon's Annotated Civil Statutes, constitutes
the general grant of power to the commissioners court of a
county.
Among other things it provides:
“3. Lay out and establish, change and discontinue
public roads and highways.
"5. Appoint road'overseers and apportion hands.
“6. Exercise general control over all roads, highways,
ferries and bridges in their counties."
The power expressly given to the commi.ssioners'court to lay out
and establish public roads carries with it by implicationall such
other powers as are reasonably necessary to carry into effect the
granted authority.
Lasater v. Lopei, 202 S.W; 1039
Owen v. Fleming-Stilaer Road Building Company,
250 S.'ry..1038.
The commissioners' court of a county has express authority under
Art. 6751, Revised Civil.Statutes, 1925, to lease, rent or hire
necessary road machinery, tools, implements, etc. for grading,
draining, or repairing the roads of the county.
Article 675’1,supra, reads as -follows:
"The commissioners court of any such county is authorized
to purchase or hire all necessaryroad machinery, tools,
implements, teams and labor required to grade, drain, or
repair the roads of such county, and said court is
authorized and empowered to make all reasonable and
necessary rules, orders and regulations not in conflict
with law for laying out, working and otherwise improving
the public roads, and to utilize the labor and money
expended therecn, and to enforce the same.’
On thebasis of the above authorities ~itis our opinion that the
county commissioners1 court has both express and implied authority
Hon. A. J. Bryan, Jr., page 3, O-1685
to rent or lease road machinery for necessary uses on county
roads.
The question now presents itself as to.whether or not the
commissionersl court may rent or lease road machinery without
first advertising for bids for the rental.
Article 165'9,Revised Civil Statutes 1925, provides for
competitive bid advertisements for purchase of road and bridge
material. As pertinent hereto, it reads as follows:
wSupplies‘of every kind, road andbridge material or
any other material, for the use of said county, or any
of its officers, departments, or institutions must be
urchased on competitive bids, the contract tobe
Pawarded to the party wh in the judgment of the
commissioners1 court, hzi submitted the lowest and best
bid." (Underscoring ours)
Article 1659, aupra, does not apply to rentals or leases of road
machinery by the county. This is evident from its own terms. It
is to be noted moreover that it was enacted subsequent to Article
67% supra, (Acts 1891, p. 149, General and Special Laws 22nd
Leg.) authorizing the commissioners' court to..."hire
all necessary
road machinery, etc." (Art. 1659 was originally Acts, 1905,
p. 384, amended Acts-1921, p. 185).
We have reached the conclusion that it was not the intention of
the Legislature to require advertisement for bids in the leasing
or renting of road machLnery by the county commissioners1 court.
It is our opinion and you are so advised that the commissioners'
court of a county has the authority to rent road machinery at a-
monthly rental for use on a W.P.A. project without first adverA
tising for bids for the rental of said machinesy.
your attention is called to Opinion O-7117 of this department to
Hon. Wm. J. Fanning to Hon. T. K. Wilkinson, County Auditor,
Hill County,-Hillsboro, Texas, holding that the commissioners'
court cannot lease or rent, with the option to purchase, road-
machinery, pickups or trucks, warehouses for the storage of
equipment.
We note that in the penultimate paragraph of your letter you
refer to the fact that "two or three monthly rental payments
"the question is whether or not
have accrued" and st,a_te,that
these rentals may be paid." The answer to this question depends
upon whether therentals accrued under the old lease contract
including the option to purchase or a subsequent lease contract
omitting the option provision. We refrain from passing upon this
Hon. A. J. Bryan, Jr., page 4, O-1685
phase of the matter because of insufficient information.
The bid requirement of Afticle 16.59,supra, _is applicable to
any purchase of road machinery or equipment by a county commls-
sioners' court and cannot be avoided in any manner.
Trusting that we have fully answered your inquiry, we are
Yours very truly
ATTORNEY GENER.ALOF TEXAS
s/ Dick Stout
BY
Dick Stout
.Assistant
DS:jm/cge
APPROVED DECEMBER 16, 1939
s/.Gerald.G..Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee
By BWB, Chairman