Texas Attorney General Opinion: GA-0247 Page: 8 of 11
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The Honorable David R. Austin - Page 8
C. The Commissioners Court's Authority to Provide a Basis for Contract
Payments
You ask several questions about a commissioners court's authority to provide a basis
for a county auditor to approve contract payments even though the claim was not "incurred as
provided by law." TEX. Loc. Gov'T CODE ANN. 113.065 (Vernon 1999).
You ask about the commissioners court's authority to ratify the contract: "[W]hat action, if
any, could be taken by the County in order for the County Auditor to lawfully approve a claim for
payment to [the TPA] for future services under the contract? For example, could the Court in some
way ratify a contract that did not comply with competitive bidding statutes?" Request Letter, supra
note 1, at 3 (question 4). In a related question you ask whether the fact that a contract that does not
comply with the County Purchasing Act is voidable rather than void affects the commissioners
court's authority to ratify it. See id. (question 5) ("Is a contract that does not comply with the
Purchasing Act void or voidable, and does the determination make a difference in whether or not a
contract can be ratified?").
A commissioners court lacks authority to ratify a contract expressly made void by law, such
as a competitive bidding law providing that a contract made in violation of its terms is void. See,
e.g., Wyatt Metal & Boiler Works v. Fannin County, 111 S.W.2d 787, 790 (Tex. Civ.
App.-Texarkana 1937, writ dism'd) ("These purchases having been made in violation of the
provisions of the articles requiring competitive bids, the [commissioners court] was without
authority to ratify same, for this would grant them a power to do something indirectly they could not
do directly."); Limestone County, 234 S.W. at 134 (a commissioners court could not ratify a contract
awarded in violation of competitive bidding requirements).
But authority to ratify does not depend on the contract being void rather than voidable. The
authority to ratify is premised on the authority to enter into the contract in the first place. See
Stratton v. Liberty County, 582 S.W.2d 252, 254 (Tex. Civ. App.-Beaumont 1979, writ ref'd n.r.e.)
("That which the Commissioners' Court could authorize in the first instance could be ratified by it
at a subsequent date."); Angelina County v. Kent, 374 S.W.2d 313, 317 (Tex. Civ. App.-Beaumont
1963, no writ) ("what the Commissioners Court could approve in the first instance, it may ratify");
Cameron County v. Fox, 61 S.W.2d 483, 487 (Tex. Comm'n App. 1933, holding approved) ("What
the commissioners' court could have authorized in the beginning, that court could subsequently
ratify."). Conversely, a commissioners court may not subsequently ratify a contract that it lacked
authority to make. See Jack v. State, 694 S.W.2d 391, 397 (Tex. App.-San Antonio 1985, writ refd
n.r.e.) ("Ratification may not be used to justify the making of an illegal contract. A contract which
is made in violation of a statute is illegal and void and therefore not subject to ratification."); Tex.
Att'y Gen. Op. Nos. JM-1027 (1989) at 8 ("[The purchase] cannot be 'ratified' by the commissioners
court since the commissioners court cannot bind the county by ratification ofa contract the court
itself had no authority to make in the first place."), H-1237 (1978) at 1 ("The authority of the
commissioners court to regulate county fiscal matters has been circumscribed by article 1580, and
since the court was powerless to make the contract initially, it was equally powerless to ratify it.").(GA-0247)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0247, text, September 8, 2004; (https://texashistory.unt.edu/ark:/67531/metapth275143/m1/8/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.