Did a Texas county have to competitively procure a private company's microfilming and indexing services for the county clerk?

Texas AG Opinion JM-890: Microfilm Services Required Competitive Procurement

Plain-English summary

Brazos County asked whether its contract with a private company to microfilm and index county-clerk records had to follow the County Purchasing Act. The company supplied and maintained the camera, developed the clerk's daily film, kept an archival print, returned the original microfilm, and produced bound indices. The annual cost exceeded $100,000.

The Attorney General concluded that the contract was not exempt as a personal service. A personal-service contract required the commissioners court to choose a particular person who would perform the work. This contract instead called for a company to supply services through personnel who were largely unknown to the court.

It was not a professional service either. Older cases protected contracts for work such as legal, medical, teaching, engineering, or architectural services, where selection solely by low bid would ignore advanced learning and professional judgment. Microfilming and indexing did not fit that category merely because the work involved equipment and technical skill.

The County Purchasing Act also expressly treated high-technology items as subject to competitive bidding or the alternative competitive-proposal procedure. If listed technologies such as electronic control and microwave systems were not exempt professional services, the lower level of technology described in the microfilm contract was not exempt.

The county therefore had to use the competitive bidding or competitive proposal procedures in the act.

Currency note

This opinion was issued in 1988. 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, deadline, or remedy mentioned here.

Common questions

Was the microfilm contract a personal service?

No. The commissioners court did not select particular individuals to perform the work; the company supplied its own personnel.

Was it a professional service because it required technical skill?

No. Technical work did not automatically become a professional service within the statutory exception.

What kinds of services did the older cases treat as professional?

The opinion discussed law, medicine, teaching, civil engineering, and architecture as examples requiring education, judgment, and professional skill that could not sensibly be selected by lowest bid alone.

Did the contract have to use sealed competitive bidding?

It had to comply with competitive procurement. Depending on the statutory category, the act allowed competitive bidding or the alternative competitive-proposal procedure.

Why did the high-technology provisions matter?

They showed that the Legislature expected technically sophisticated items to remain inside the competitive procurement system rather than fall automatically within the professional-services exception.

Background and statutory framework

Section 262.023 required competitive bidding or competitive proposals for county purchases above the statutory threshold. Section 262.024(a)(4) allowed the commissioners court, by order, to exempt a personal or professional service.

Hunter et al. v. Whiteaker & Washington et al., 230 S.W. 1096, 1097-98 (Tex. Civ. App. - San Antonio 1921, writ ref'd), rejected low-bid selection for civil engineers and explained why professional judgment mattered. Gulf Bitulithic Co. v. Nueces County, 11 S.W.2d 305, 309 (Tex. Comm'n App. 1928, judgment adopted), treated skilled construction supervision as a professional service.

For personal services, Attorney General Opinion JM-486 (1986) had applied Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex. 1962). Work performed by a specifically selected individual could qualify; a corporation's agreement merely to provide workers did not.

The code defined high-technology items, including information-processing equipment and related services, and allowed competitive proposals for those items. The opinion read those provisions as evidence that the professional-services exception did not swallow technology contracts.

Citations

Statutory authority:
- Local Government Code sections 262.021 through 262.024
- Local Government Code sections 262.022(3) and 262.030
- V.T.C.S. articles 2368, 2368a, and 2368a.5

Cases:
- Hunter et al. v. Whiteaker & Washington et al., 230 S.W. 1096, 1097-98 (Tex. Civ. App. - San Antonio 1921, writ ref'd)
- Gulf Bitulithic Co. v. Nueces County, 11 S.W.2d 305, 309 (Tex. Comm'n App. 1928, judgment adopted)
- Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex. 1962)

Prior Attorney General materials referenced: MW-344 (1981) and JM-486 (1986).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-890
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0890.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

April 11, 1988

Honorable Bill Turner
Opinion No. JM-890
Brazos County Courthouse
300 E. 26th Street, Suite 310 Re: Whether a contract for
Bryan, Texas 77803
microfilming of records of
county clerks office is subject to competitive bidding (RQ-1280)

Dear Mr. Turner:

You ask:

[Wlhether the use of a private company to microfilm records for the County Clerk's Office of Brazos County must comply with the competitive bidding requirements of Local Government Code, Sec. 262.021 et seq., County Purchasing Act, or whether said item is a personal or professional service under Sec. 262.024(4), supra, and thus need not be competitively purchased.

You describe such services as follows:

The County Clerk has contracted with a company in Dallas to microfilm legal instruments filed in the county clerk's office. The company furnishes the county clerk with a camera, film, and provides maintenance for the camera. Every day the county clerk microfilms the instruments filed in his office. At the end of each day he splices the film and sends it to the company in Dallas where it is developed.
The company makes an archival print of the film which it keeps and returns the original microfilm back to the county clerk's office.
The company also makes indices of the clerk's records, binds the indices and sends it to the county clerk's office. The annual

p. 4356

Honorable Bill Turner - Page 2 JM-890)

cost for this service is slightly more than $100,000.
-,
Section 262.023(a) of the Local Government Code provides that, for county contract purchases requiring expenditures over $5,000, the commissioners court "must comply with the competitive~ bidding or competitive proposal procedures prescribed by this subchapter."

Section 262.024 of the Local Government Code provides in pertinent part:

(a) A contract for the purchase of any of the following items is exempt from the requirement established by section 262.023 if the commissioners court by order grants the exemption:

. . . .

(4) a personal or professional service.

The "personal or professional service" exception currently codified as section 262.024(a)(4) remains --, substantially unchanged from that in the section's predecessor provisions, article 2368a.5, section 4(a)(4), V.T.C.S. (Acts 1985, 69th Leg., ch. 641, §1, at 2377) and article 2368a, section 2, V.T.C.S. (Acts 1931, 42nd Leg., ch. 163, at 270-71).

Prior to the codification of the "personal professional service" exception in 1931, the competitizz bidding statute provided the sole statutory exception to its operation for "work done under the direct supervision of the county commissioners and paid for by the day." V.T.C.S. art. 2368 (Acts 1923, 38th Leg., ch. 127, at 262, repealed by Acts 1931, 42nd Leg., at 269); and V.T.C.S art. 2368a (Acts 1917, 35th Leg., ch. 141, §1, at 349, repealed in part by Acts 1987, 70th Leg., ch. 149, §49(1), at 2545). Hunter et al v. Whiteaker & Washington et al, 230 S.W. 1096 (Tex. Civ. App. - San Antonio 1921, writ ref'd) considered the latter statute as applied to engineering services:

There is but one question of law in this case, and that is whether a commissioners' court has the legal power and authority to enter into a contract with engineers for their technical and professional services in connection with the construction and

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Honorable Bill Turner - Page 3 JM-890)

maintenance of public highways and roads in their county, without advertising for compe- titive bids' for such services.

. . . .

To hold that the act would require that the services of a man belonging to a profession such as that of the law, of medicine, of teaching, civil engineering, or architecture should be obtained by a county only through competitive bidding would give a ridiculous meaning to the act, and require an absurdity.

. . . .

Such a construction would require the selection of attorneys, physicians, school teachers, and civil engineers by competitive bids, the only test being the lowest bid for the services of such men. Such a test would probably be the best that could be conceived for obtaining the services of the least competent man, and would be most disastrous to the material interest of a county.

Civil engineering is a profession, requiring years of education and service to obtain perfection in it, and calling, in its application, for a high order of intelli- gence and extraordinary skill and learning, and it was never contemplated by the Legis- lature that the money of the citizens of a county, raised for road purposes, should be expended upon the advice of a civil engineer who had obtained his employment by underbid- ding his competitors, and without regard to his ability to fill the position.

Id. at 1097-98.

Gulf Bitulithic Co. v. Nueces County, 11 S.W.2d 305 (Tex. Comm’n App. 1928, judgm't adopted) ruled on the P applicability of the competitive bidding requirements imposed by article 2368a, to the services of a company engaged by the county to supervise the construction of county roads. Stressing that the county itself directly paid the cost of labor and material for the projects, and P that "[t]he company was not employed as contractor or

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Honorable Bill Turner - Page 4 (JM-890)

materialman but as agent" the court, in holding such services within the "personal or professional services" exception, reasoned as follows:

To hold that contracts for the supervision of work done directly by the county must be let to the lowest bidder would result in the county obtaining the least competent supervision, as those possessing the necessary skill, experience, and business judgment to supervise a large construction program in the most efficient and economical manner could not hope to successfully compete with those of lesser skill, experience, or business judgment.
(Emphasis added.)

Id. at 309.

McCall v. Commissioners' Court of Madison County, 281 S.W. 593 (Tex. Civ. App. - Waco 1926), rev'd on other grounds, 15 S.W.2d 535 (Tex. 1929), considered a county
contract with a company for various services such as making abstracts of property upon which taxes were delinquent, making a map and plat system or block map of all land in the county, surveying where necessary br agreed, and making reports of such to the commissioners court, and held that:

Some of the things embraced in the con- tract in this case would perhaps require technical knowledge and some would not, and those that do not would be controlled by [the competitive bidding requirements of] said statute.

Id. at 595.

Attorney General Opinion MW-344 (1981) pointed out
that the pre-1931 cases established an exception for services involving "special skills," but that the language of the exception adopted in 1931 for "personal or professional services" does not on its face appear to be a mere codification of that prior court-created exception.

"Personal services" in its ordinary meaning, for -
example, would include other sorts of services than only those involving "special skills." Recently, Attorney General Opinion JM-486 (1986), in seeking to elucidate the scope of the personal service exception, referred to a ?

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Honorable Bill Turner - Page 5 (JM-890)

definition of personal services developed by Van Zandt v.
Fort Worth Press, 359 S.W.2d 893 (Tex. 1962) which had
- considered the applicability of a statute providing for
recovery of attorneys fees by persons "having a valid
claim . . . for personal services rendered." Attorney
General Opinion JM-486 concluded with respect to the
question of the applicability of the competitive bidding
statute to janitorial services:

            Someone who claims to have        rendered
         'personal services' must have performed   the
         services himself. The claimant's employees,
         in contrast, may have rendered    'services.'
         If the contract you ask about requires      a
         specific person    to   perform    janitorial
         services, it is a contract      for personal
         services.  If the contract merely requires a
         person or corporation to provide persons who
         will perform janitorial services, it is not
         a contract for personal services.

       It is our opinion that the microfilm services which
  are the subject of your request are not           "personal

.c, services" within the scope of section 262.024(a)(4) of the
Local Government Code, because from your description of
such services they are not to be rendered by a person or
persons chosen specifically by the commissioners court,
but rather by personnel of the service company, many or
most of whom are unknown to the commissioners.

       The next question is:      Are the microfilm    services
  "professional services?" Webster's     definitions of "pro-
  fessional" range from "of relating to, or characteristics
  of a profession"    to "engaged in one of the learned
  professions" and "characterized    by or conforming to the
  technical or ethical standards of a profession."          The
  definition of profession     includes "a calling   requiring
  specialized   knowledge  and    often long and      intensive
  academic preparation"   as well as "a principal     calling,
  vocation,   or employment."      See Webster's    Ninth   New
  Collegiate Dictionary (1985).

       Black's Law Dictionary (5th Ed. 1979)     contains   the
  following entry under "profession":

            A vocation   or   occupation  requiring
         special, usually advanced, education   and
         skill: e.g. law or medical professions.

r Also refers to whole body of such profes-
sion.

                           p. 4360

Honorable Bill Turner - Page 6 (JM-890)

The labor and skill involved in a profession is predominantly mental or intellectual, rather than physical or manual.

The term originally contemplated only theology, law, and medicine, but applications of science and learning a:: extended to other departments of affairs, other vocations also receive the name, which implies professed attainments in special knowledge as distinguished from mere skill.

Marvland Casualtv Co. v. Crazv Water Co., 160 S.W.Zd 102 (Tex. Civ. App. - Eastland 1942, no writ) interpreted the meaning of "professionalV' services as found in an insurance policy rider and found that the services of the bath house operator policy holder were not "professional" services, the labor and skill required for the latter sorts of services being "predominantly mental or intellectual, rather than physical or manual." Id. at
105. Marvland Casualtv Co. was cited in Attorney General
Opinion MW-344 (1981), which held that a contract for the services of a container terminal operator was not one for "professional services."

 A more recent indication by the legislature as to the

present scope of the "professionall* service exception it created 57 years ago is found in two other sections of the County Purchasing Act:

   §262.022.          Definitions

      In this subchapter:

      .   .   .   .

      (3) *High technology    item'       means  a
   service, equipment,  or good of        a highly
   technical nature, including:

          (A) data processing   equipment   and
      software and firmware used in conjunction
      with data processing equipment;

          (B) telecommunications,      radio,   and       ?
      microwave systems:


                                                          ?




                             p. 4361

,
Honorable Bill Turner - Page 7 (JM-890)

P

(C) electronic distributed control systems, including building energy management systems: and

(D) technical services related to those items.

Local Gov't Code §262.022.

§262.030. Alternative Competitive Proposal Procedure for Insurance or High Technology Items

(a) The competitive proposal procedure provided by this section may be used for the purchase of insurance or high technology items. Quotations must be solicited through a request for proposals. Public notice for the request for proposals must be made in the same manner as provided in the competitive bidding procedure. The request for proposals must specify the relative importance of price and other evaluation factors. The award of the contract shall be made to the responsible offeror whose proposal is determined to be the lowest evaluated offer resulting from negotiation, taking into consideration the relative importance of price and other evaluation
factors set forth in the request for
proposals.

Local Gov't Code §262.030.

In providing for "high-technology items." a "competi- tive proposal" procedure alternative to the competitive bidding procedure set out in the Act, section 262.030 clearly contemplates that such high technology items are covered by the requirement of section 262.023 that certain items be purchased in compliance with the "competitive bidding or competitive proposal procedures." The legislature therefore could not have considered such "high technology" items to be exempted from the coverage of section 262.023 by the provisions of section 262.024 which provide for the "personal or professional service" and ,r-‘ other exceptions to the operation of section 262.023.

It is our opinion that since the legislature intended such high technology items to be covered by the competi- tive bidding or competitive proposal requirements and not

p. 4362

Honorable Bill Turner - Page 8 JM-890)

to fall within the section 262.024 exceptions, it would not have considered the microfilm services in question here as exempted from coverage. If services requiring such high skills and technical expertise as "electronic distributed control systems," "microwave systems," and the other examples of high technology services listed in
§262.022(3) are nevertheless not "professional" services within the meaning of §262.024(a)(4), then it is clear that the microfilm services which, from your description, involve a lower level of technology, are not "professional services."

We conclude therefore that the microfilm services you described are subject to the competitive bidding or competitive proposal requirements of the County Purchasing Act, Local Gov't Code §262.021, et seq.

SUMMARY

A contract for microfilm services does not fall within the "personal or profession- al service" exception of Local Government Code section 262.024, and therefore must be let under the competitive bidding or competitive proposal procedures set forth in the County Purchasing Act, Local Government Code section 262.021, et seq.

Very truly yours,
I

JIM
““~
Lb+& hc 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
‘7

Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General

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