The opinion
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