Does a Texas county attorney's office count as a 'specialized local entity' under the county purchasing law, and what counts as a 'professional service' exempt from competitive bidding?

Texas AG Opinion JM-1136: County Attorney's Office and the "Specialized Local Entity" Purchasing Rules

Plain-English summary

House Bill 1434 created a new Local Government Code category, "specialized local entity," and required entities in that category to follow the same purchasing procedures as a county under Chapter 262. The Grayson County Attorney, whose office performs district-attorney-style duties under the Professional Prosecutors Act, asked whether his office fell within that definition. He also asked, assuming it did, whether a "skilled carpenter" hired by his office would qualify as a "professional service" exempt from the competitive-bidding requirement that otherwise applies to purchases above a set dollar threshold.

The Attorney General concluded that a county attorney's office is not a "specialized local entity." Section 140.003 defines that term to mean only a district or criminal district attorney, a juvenile board or probation office, or an adult probation office; a county attorney who happens to perform district-attorney-type duties does not become a "district or criminal district attorney" by virtue of that overlap. Because the first answer was no, the second question, about the carpenter, became irrelevant to the specialized-entity purchasing rules, but the opinion still explained the general standard for the professional-services exemption: whether a given contract counts as a "professional service" under section 262.024(a)(4) is a fact-specific inquiry (does the work call predominantly for mental or intellectual skill and special training, rather than physical or manual labor) that the opinion process cannot resolve without more facts.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Common questions

Is a Texas county attorney's office a "specialized local entity" under the Local Government Code?
No. The opinion held that section 140.003's definition of "specialized local entity" covers only district or criminal district attorneys, juvenile boards or probation offices, and adult probation offices, and a county attorney does not become a "district or criminal district attorney" merely by performing similar duties under the Professional Prosecutors Act.

How do you know if a contract for skilled labor, like carpentry, qualifies as an exempt "professional service"?
The opinion described it as a fact question decided case by case, looking at whether the work is predominantly mental or intellectual, requiring special knowledge, skill, and training, rather than physical or manual labor.

Did House Bill 1434 change the competitive-bidding dollar threshold?
Yes, according to the opinion's description of the bill: it raised the threshold in section 262.023(a) above which a county must use competitive bidding or competitive proposals, from an amount exceeding $5,000 to an amount exceeding $10,000.

Background and statutory framework

House Bill 1434 (Acts 1989, 71st Leg., ch. 1250, at 5046) added section 140.003 to the Local Government Code, defining "specialized local entity" as a district or criminal district attorney, a juvenile board, juvenile probation office, or juvenile department, or an adult probation office or department, and requiring those entities to follow the same purchasing procedures as a county under Local Government Code Chapter 262. The Grayson County Attorney performs the duties of a district attorney under the Professional Prosecutors Act (Gov't Code § 46.002), which the opinion found insufficient to bring the office within section 140.003's specific, enumerated categories.

On the professional-services exemption, the opinion noted that HB 1434 raised the competitive-bidding threshold in section 262.023(a) from $5,000 to $10,000, and that "professional service" contracts are exempt from that requirement under section 262.024(a)(4). Citing Attorney General Opinion JM-940 (1988), which addressed the same phrase in a different statute (Education Code § 21.907), the opinion reiterated that "professional services" has no fixed statutory definition and is not limited to lawyers, physicians, or clergy, but extends to other disciplines requiring special knowledge and a high order of skill and learning, quoting Maryland Casualty Co. v. Crazy Water Co., 160 S.W.2d 102 (Tex. Civ. App.-Eastland 1942, no writ) and Black's Law Dictionary's definition of "profession."

Citations

Statutory provisions:

• TEX. LOCAL GOV'T CODE §§ 140.003, 262.023(a), 262.024(a)(4)
• TEX. GOV'T CODE § 46.002 (Professional Prosecutors Act)
• Acts 1989, 71st Leg., ch. 1250, at 5046 (House Bill 1434)

Prior Attorney General opinion cited: JM-940 (1988).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1136
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1136.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

January 29, 1990

Honorable Robert T. Jarvis
Grayson County Attorney
Justice Center
Sherman, Texas 75090

Opinion No. JM-1136

Re: Applicability of House Bill 1434, Acts 1989, 71st Leg., ch. 1250, at 5046, which relates to purchasing by local units of government, to county attorneys, and related questions (RQ-1881)

Dear Mr. Jarvis:

You ask whether section 140.003 of the Local Government Code is applicable to the county attorney of Grayson County. You also ask whether a "skilled carpenter" comes within the "professional service" exception to the competitive bidding requirements of section 262.023 of the Local Government Code.

Section 140.003, as enacted by House Bill 1434, see Acts 1989, 71st Leg., ch. 1250, § 1, eff. Sept. 1, 1989, provides in pertinent part:

(a) In this section, 'specialized local entity' means:

(1) a district or criminal district attorney;

(2) a juvenile board, juvenile probation office, or juvenile department established for one or more counties; or

(3) an adult probation office or department established for a judicial district.

(b) A specialized local entity shall purchase items in accordance with the same procedures and subject to the same requirements applicable to a county under Subchapter C, Chapter 262 [Local Gov't Code § 262.021 et seq.]. For the purposes of this section, a specialized local entity is treated as if it were a county. A specialized local entity may make a contract with a county under which the county performs purchasing functions for the entity.

Section 262.023 of the Local Government Code requires a county to comply with specified competitive bidding or competitive proposal procedures before purchasing or otherwise acquiring one or more items under a contract that will require an expenditure exceeding a specified amount. Section 140.003 mandates that certain offices coming within the definition of "specialized local entity" purchase items in accordance with the same procedures applicable to counties.

The county attorney performs the duties of a district attorney in Grayson County and is subject to the provisions of the Professional Prosecutors Act. Gov't Code § 46.002. The office of county attorney is not one of the offices included in the definition of "specialized local entity" in section 140.003 of the Local Government Code. The fact that the county attorney performs the duties of a district attorney does not constitute the county attorney a "district or criminal district attorney." Consequently, the county attorney does not come within the definition of "specialized local entity" as that term is defined in section 140.003.

In your second question you ask us to assume that the "specialized local entity" provision applies in determining whether a "skilled carpenter" comes within the "professional service" exception to the competitive bidding requirements of section 262.023. You do not provide any information regarding the work required to be performed by the carpenter.

Section 262.023(a) of the Local Government Code, as amended by House Bill 1434, raised the amount of expenditure by a county to an amount exceeding $10,000 (previously $5,000) before the competitive bidding requirements become applicable. Included in the items exempt from the competitive bidding process listed in section 262.024 of the Local Government Code is a "professional service." Local Gov't Code § 262.024(a)(4).

The question of whether a contract for the services of a skilled carpenter is a contract for a "professional service" is a fact question that must be decided on a case-by-case basis. We cannot answer fact questions in the opinion process, but we can provide guidelines to use in determining whether the contract in question is a contract for "professional service."

In Attorney General Opinion JM-940 (1988) the matter of what constitutes "professional services" under section 21.907 of the Texas Education Code was considered. In Attorney General Opinion JM-940 it was stated:

Section 21.907 does not define the phrase 'professional services.' The courts have not adopted a universal definition of the term; however, several cases suggest that it comprehends labor and skill that is 'predominantly mental or intellectual, rather than physical or manual.' Maryland Casualty Co. v. Crazy Water Co., 160 S.W.2d 102 (Tex. Civ. App.-Eastland 1942, no writ). It no longer includes only the services of lawyers, physicians, or theologians, but also those members of disciplines requiring special knowledge or attainment and a high order of learning, skill, and intelligence. See Attorney General Opinion MW-344 (1981); Black's Law Dictionary 1089-90 (5th ed. 1979) (definition of 'profession').

Accordingly, this question must be determined on a case-by-case basis.

SUMMARY

The County Attorney of Grayson County is not a "specialized local entity" as that term is defined in section 140.003 of the Local Government Code. The question of whether a "skilled carpenter" comes within the "professional service" exception to the competitive bidding requirements of section 262.023 of the Local Government Code is a fact question that cannot be resolved in the opinion process.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General