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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




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