Untitled Texas Attorney General Opinion ( 1953 )

A~JST~N 11. TEXAS JOEIN BEN SHEPPICRD A3"cORN~Yn=NsRAL February 26, 1953 Hon. Robert S. Calvert Comptroller of Public Accounts Capitol Station Austin, Texas Opinion No. S-13 Re: Legality of the same person being paid both as consulting 'architect and as associate archi- tect in connection with the Basic Science Build- ing for Southwestern Dear Sir: Medical School. You have requested an opinion on the follow- ing questions: "Can the same person act in the ca- pacity of Consulting Architect and also as Associate Architect and charge fees there- for in connection with the erection of the Basic Science Building for the Southwestern Medical School, Dallas, Texas? "If you answer the foregoing question 'inthe affirmative; then can the Consulting Architect's fees and the associate Archi- tect's fees exceed the amounts;..sbhedfll~d'~in the appropriation bill?" Section 3 of Article VI, Chapter 499, Acts 52 nd Legislature 1951, page 1228, at page 1478 provides that the State will furnish the architect "a limited cons.ultingservice consisting of a complete site survey, soil analysis, and a program of the work authorizing in detail the space requirements and their general arrange- ments, and the standards& types of construction and Desip". This consulting service must be furnished the associate architect in order for him to properly carry o~uthis duties. We have been informed by officials of the University of Texas and the State Board of Control that thevarIous: State,agencies;:donoit-,havb the:pehsonnel to Hon. Robert S. Calvert, page 2 (S-13) furnish architects with this service. Therefore, the consulting service required to be furnished by the State must be provided by one of the following methods: 1. The State agency contracts with a q,ualified "consulting architect" to conduct the necessary tests, and the information obtained is furnished the 'associate architect" in charge of the actual construction. 2. The architect in charge of the actual con- struction ("associate architect") contracts directly with a qualified "consulting architect" to conduct the necessary tests, and is reimbursed by the State for the expenses so incurred. 3. If the "associate architect" is q,ualifled to conduct the tests, he will do so, and charge the State for such services in addition to his regular architect fees. It has not been questioned that the first and second methods constitute an expense authorized by the General Appropriation Act. It is noted that such con- tracts have not been limited by the Legislature. The limitation of the amount of architect's fees that may be charged refers only to the fees for servicesrendered for the following: "(A) The necessary conferences, and the preparation of preliminary studies. "(B) The production of complete archi- tectural, mechanical, and struct,uraldraw- iw , and specifications, and then proper correlation. "(C) The General Administration and supervision of the work." The voucher for the "consulting architect" is for services rendered under contract dated July 13, 1951. The services rendered under this contract were those consulting services which must be furnished by the State to the regular architect in charge of construction (the "associate Architect"). The voucher for the "associate architect" was for services rendered ,underthe contract dated April 16, 1952. Since the contracts create an "independent con- tractor' relationship, Sections 33 and 40 of Article XVI _ Hon. Robert S. Calvert, page 3 (S-13) of the Constitution of Texas.,prohibiting the payment of compensation ,toa person holding at the same time more than one.office or position of emolument have no application to your question. Att'y Gen. Op. 2671 (1927) found in the biennial report of the Attorney General 1926-1928 at page 406 and Att'y Gen. Op. V-345 (1947) . We cannot determine any conflicting interests in the two contracts,siricenei@er the %onsultlng architect" nor the "associate arghitect" exercise any supervision over the other, neither job is subordinate to the other, neither job duplicates the other, neither is antagonis'ticto the other, peither has 'any power to appoint or remove any employee of the other, and neither audits the books of the other. Therefore, there is no incompatibility in the work of hconsulting architect" and "associate architect", Att'y'Gen. Op. V-345 (1947). (Copies of such opinions are enclosed.) In view of the foregoing it Is our opinion that the services to be performed under the existing contracts may be performed ,by the same person. If the same person acts In the capacity of "consulting archi- tect" and also as "associate architect" the fees that may be paid him can exceed the amounts scheduled in Section 3 of Article VI, Chapter 499, Acts 52nd Legis- lature 1951, page 1228, provided the fees for services rendered as "assoclate,~architect"do not exceed the amounts so scheduled. You are therefore advised that you are authorized to issue warrants in payment of the two voucher claims enclosed with your request. SUMMARY Contracts for the:~performanceof ser- vices as "consulting architect" and "as- sociate architect" in connection with the .constr,uctionof 'a building for the ~‘South- western Medical School of the University of Texas may be entered into by the same architect. If the same person'acts in the capacity of "consulting,architect" and also as "associate architect" the fees that may be paid him can exceed the amounts scheduled in Section 3 of Article VI, Chap- ter 499, Acts 52nd Legislature, 1951, page Hon. Robert S. Calvert, Page 4 (S-13) 1228, provided the fees for services rendered as "associate architect" do not exceed the amounts so scheduled. Yours very truly, APPROVED: JOHN BEN SHEPPERD Attorney General J. C. Davis, Jr. County Affairs Division Willis E. Gresham Reviewer Assistant Robert S. Trotti Flrst Assistant John Ben Shepperd Attorney General JR:am