GENE-I.


PRICE  DANIEL
ATTORNEYGENERAL

                                   April   27, 195X

          Hon. Larry 0. Cox
          $geoutiva Dlreator
          Board for Texas Stat,e Bospi-
            talsand  Special Schools
          Austin, Texas~
                                 0pinfon      Bo. v-IX&?
                                     Be:   LegaliIiy of then Bciard*s, pay-
                                           tng archfteetuxal   ,feeeesprkm
                                           to the exmmtfon of cchstruc-
                                           tiun cmt,racts;   neassstty   of
                                           approval of architectural
                                           ccxtracts  by the Board of Con-
                                           ixol.
          Dear Sir:
                      You have requested     the op,iuion cf this   office
          on the following   questions:
                      I. May the Board for Texas. State Hosgltals
          and Special Schools pay an arch&ted    a part of MS fers
          for preparing plans and.specffic&ions    far a building
          prior to the time it executers a contract for ccmstruc-
          tlon of the bunding,   out of its apprcpr%at~cm of $!?i,COaQ,-
          000 for the current biennium and&g August 3% lm         the
          appropriation  from which the cost of comstrm&.ng t&e
          building will be paid?
                     2. Must a~chftectural coufracts  entered f&to
          by the Board for Texas State Hosp%tals and Special schools
          be reviewed and approved by the Board. of ControlSI
                     The Legislature in 1969 created the Board for
          Texas State Hospitals and Spaatal Schools     hersia&fter
          referred to as the Board, and gresctihed   iEs p@eus and
          duties in K.B. 1, Acts, &t   Leg., R.S. 19k3, ch. 3x6,,   p.
          gsa (Art-~
                   3174b,V.C*S*)',
                                      Legfslature    a&s&d A??tMk ?@tik-
                                             the State tax an cigarettes
                                             2,,Acts   5lst Leg.% 1st C.S.
                                   Tie amendment creates the State Ha-
          pltais   and S,pecial   School~s Buildkg    Fuud and provfdestit
      hon. Larry O. Cox - Page 2       (V-1172 >


      a specified   portion of the net revenue derived from
      cigarette   taxes through August 31, 1957, shall be
      credited to this, fund the amount for the biennium
      ending August 31 19d not to exceed $5;000,000.
      Section 3 of Article    7d47c-1,as amended, further pro-
      vides:
                  “All funds credited to the State Hos-
           pitals and Special Schools Building Fund
           under this Act are ,hereby appropriated       to
           the Board for Texas State Hospitals and
           Special Schools for the purpose of construc-
           ting, repairing     and equipping such build-
           ings as In the opinion of the Board are
     ,.    necessary to the proper care of those com-
           mitted or to be committed to such hospi;;is
           and special     schools according to law.         -
           vided however, the fees paid to an architect
           shall not exceed six per cent (6%) for the
           plans, specifications       and supervisions   of
           said buildings     and all contracts    made for
           and the final acceptance in connection with
           such construction      other than the plans and
           specifications,      shall be subject to the re-
           view and approval of the Board of Control.”
                  You have furnished us with a printed form of
      the contracts generally used by the Board in making con-
      tracts with architects       for professional   services,    which
      include the preparation        of plans and specifications     and
      preliminary    estimates of cost of the project         general
      administration     of the business      and supervislon    of the
      work.   A contract executed on {his form between the Board
      and an architect     obligates    the Board to pay to the archi-
      tect a fee based on the estimated cost of the project, de-
      scribed therein.      The “basic rate” of the fee Is fixed
      at five ‘per cents of the first       $200 000 of the cost of the
      project  and is thereafter       graduated downward on a fixed
      schedule as the cost of the project, increases.
,.               Article   4 of., the contract   provides,   in part:
                                .    Payments to the Architect
            on account of his fee shall be,made as follows;
            subject to the provisions     of Article 3 hereof:
                                   I
                  “Upon completion’and    approval by the Owner
            of preliminary  studies a. sum equal to twenty
Hon. Larry 0. cox - Page 3      (v-1172)


     per cent (20%) of the basic     rate computed
     upon a reasonable estimated     cost;
          **Uponcompletion and approval by the
     Owner ,of specifications   and general work-
     ing drawings a sum sufficient    to increase
     the payments to fifty    per cent (5%) of
     the basic rate based on a reasonable esti-
     mated cost;
           “Upon awarding, of contract or if no
     contract is awarded within ten (10) days.
     of opening of bids a sum sufficient    to in-
     crease the payments to sixty-five   (65%)
     per cent of the basic fee based on the low-
     est bona fide bid.
           ItIt is understood that the above-men-
     tioned estimated oost shall in no event ex-
     ceed the amount of the appropriation    (from
     whatever source) for the work.”
           We <have found no legal objection    to the pro-
visions  of Article   4 quoted above.   The Board neces,sar-
ily must have plans and specifications      for a particular
building  or project   before it can call for bids or award
a contract for its construction.      Consequently,  we an-
swer your first    question in the affirmative.
          We turn now to your second question    concern-
ing approval by the Board of Control of archiJectura1
contracts  entered into by the Board for Texas State Hos-
pitals and Special Schools.
             Article 681, V.C.S., as amended in 1949 (Acts
51st Leg.,    R.S. 1949, ch. 323, p. 6061, provides:
            “The State Board of Control     through
     its chief of such division       shali design all
     public buildings    erected a8 the expense of
     the state where designing Is not otherwise
     provided by law or by its appropriation       bill;
     but in no instance shall plans or designs be
     adopted by the head of any department, board,
     institution,    or school,  other than the state
     educat lonal instltut ions of higher learning
     and the Texas Prison System, and the Texas
     State Board for hospitals     and special   schools,
     unless such design and plans have been approv-
     ed by the Board.”
                                                           .      ,




Hon. Larry 0. Cox,-.Page    4, (v-1172)


            The change made in Article, 681 by the fore-
going amendment was to exempt therefrom "the state
educational   institut%ons     of higher learning and the
Texas PrisonSystem,      and the Texas State Board for hos-
pitals and special     schools.n
           Prior to February 28 1950 the effective
date of House Bill 2, the Boara for Texas State Hospi-
tals and Special Schools undoubtedly had the exclusive
authority to make contracts with architects       to prepare
plans and specifications     for buildings   to be construct-
ed for the respective    institutions   under its control
and to approve the plans and specifications       so prepared.
The Board still    has such authority,   unless it has been
vested in the State Board of Control by the following
specific  provision   in Section 3 of Article    7047c-1as
amended by House Bill 2 (Acts !%st Leg., 1st C.S. 1950,
ch. 1, p. 1):
            "Provided however, the fees paid to an
     architect    shall not exceed six per cent (6%)
     for the plans      specifications  and supervisions
     of said buildings     and all contracts  made for and
     the final acceptance in connection with such
     construction    other than the plans and specifica-
     tions,    shall be subject to the review and appro-
     val of the Board of Control.e
             This proviso excepts contracts   for plans and
specifications    from the requirement of approval by the
Board of Control.      It is our opinion that the exception
also embraces the architect's     estimates,  supervision,
and other services     set out in the contract form which ycu
have submitted to US. Therefore,       you are advised that
such contracts    made by the Board with architects     are not
required to be reviewed and approved by the Board of Con-
trol.


            The Board for Texas State Hospitals l&d
     Special Schools may legally    pay an architect  a
     part of his fees for preparing plans and specl-
     fications   for a building prior to the time it
     executes a contract for construction     of the
     building,   out of its appropriation  for the cur-
     rent biennium ending August 31 1951 the appro-
     priation ,fr,om which the cost oJ cons c rutting
     the building is to be paid.
.   -




        Hon. Larry 0. Cox - Page 5     (v-1172)



                   Contracts made by the Board for architects'
             services  to be paid from the State Hospitals
             and Special Schools Bullding Fund are not sub-
             ject to review and approval of the State Board
             of Control.
        APPROVH):                    Very truly   yours,
        Jesse P. Luton, Jr.         PRICE DANIRL
        Reviewing Assistant        Attorney General
        Charles D. Mathews         By";":-"t%Lj
        First ASSiStad
                                    Bruce W. Bryant
        BWB:wb                     Assistant