Untitled Texas Attorney General Opinion ( 1952 )

AUEWIN ia. TEXAS
November 10, 1952
Honorable Larry 0. Cox Opinion No. V-153
Executive Director
Board for Texas State Hospl- Re: Authority of the Board
tals and Special Schools for Texas State Hospl-
Austin, Texas tals and Special Schools
to delegate to its
chairman the power to
award construction con-
tracts upon competitive
Dear Sir: bids.
Yourrequest for an opinion is as follows:
"We~desirethe opinion of your office
regarding the ~legalltyof the delegation of
certain authority by the Board for Texas
State Hospitals and special Schools to its
Executivedirector and to its Chairman.
"It Is necessary that our Board deter-
mine what buildings shall be constructed to
properly care for our inmates. This Is done
at a meeting of the Board Members. The
Board directs its Fxecutice Director to ad-
vertise for bids.
"It Is the opinion of several of the
Board Members of the Board for Texas State
Hospitals and Special Schools that the Board
may legally delegate to the Executive Dlrec-
tor the authority to prepare plans and speci-
fications, advertise for bids, fix date for
bid opening, open bids, and have the tabula-
tions thereof ready for action of the Board
in accepting or rejecting the bids at the next
Boar'dmeeting.
"It is also the opinion of several of the
Board Members of the Board for Texas State
Hospitals and Special Schools that the Board
may legally delegate to its Chairman the
authority to accept or award bids on construc-
tion contracts, if the contract entered Into
Hon. Larry 0. Cox, page 2 (V-1536)
Is within some reasonable amount (for Example,
$75,000.00 to $100,000.00).
'"However,there Is some doubt among some
of the Board Members as to the authority to
delegate any duties by'the Board; therefore,
your opinion is necessary on account of the
conflict of opinion.
"Please advise whether or not the Board
may legally delegate any of its duties as
set out in paragraphs three and four, above."
Section 2 of Article 3174b, Vernon's Civil
Statutes, prescribing the pokers and duties of the Board
for Texas State Ho$pltal%and Special Schools, pro0ldes:
'%pon the effective date of this Act,
the Governor shall appoint the.Board provid-
ed in 'thisAct and the Board shall proceed
to organi-ie'asrequired by Section 5 of this
Act and employ the Executive Director and
such other personnel neces~saryto 'carryout
the provisions of~this~Acti .Effectlve
September-~
1,~1949, the control and'manage-
m&t of, and all Fights, prlvlleges, powers,
and duties 'Incidentthereto~‘inciludlng
bulld-
ing, design and constructionof the Texas
State HoBpitals and Spe'cial.Schoolswhich
are notivested in and exercised by the State
Board of C-ontrolshall be tratiferredto,
vested In, and exercised by the Board for
Texas"State;Hospitals and Special Schools.
. . .
It 1s~noted that the Legislature has placed
the duty and power to execute the necessary contracts
incident to the constructionof hospital buildings in
the Board for Texas State Hospitals and Special Schools.
Arts. 3174b atid7047c-1, V.C.S.
In 34 Tex. Jur., 459, Public Officers, Sec.
79, it is stated:
"It is a general rule that public duties
must be performed and governmentalpowers
exercised by the officer or body designated
by law -~that they cannot be delegated to
others. This Is particularly'trueof duties
. .
Hon. Larry 0. Cox, page 3.~(Vi1536)
uhich are judicial in,thee nature, or which
,call fbr tKe exer,olseof Ceason or:Usare-
tlon, and which are regarded.aa a,@& of
the public trust assumed. Thus power g$ven
to an’prfiaer~formally ‘tostate.or .makea’
certifiaate.of certain fact‘e;~whii?h,
when
stated.,byhim as prescribed;.beaemg the
evidence-.of~
a llablllty,of’another person,
is a p?iblrctrust which’must begexercised
by the person and in the &de prescribed by
the law,that delegates the authorllty;and
the,apPFoVa1.by the affiaer ~6f‘acertlflcate
made b$~a’person having no authbrity to make
It is not ti’
compliance.withthe law confer-
ring the power.
~“Btit~a
board,may delegate tinlsterlal
or administrativefunctions~n6t calling for
the :exerel.si
of tieaeonor Mscre’tibn,by ap
point;lrrg~ag&nts
to perforniduties of that
character. It cannot, however,~confer upon
an officer or agent authority which it may
not ltaelf exercise.”
Orithe question’of delegation of powers it is
stated In 67 C.-J.S.373, Officers, Sec. 104:
“An offloer; to whom a power of dls-
cretion-la Intrusted, cannot delegate the
exercise ,thereofexcept as-prescribed by
statute. He may, however,’delegate the
performake of a mlnisti3rial’act, as where,
after the exercise of ‘discretion,he dele-
gates to another the perfcirmki~e of a
ministerial act to evldende the result of
his own act of discretion.”
Also see Horne Zoological Arena v. City of
Dallas, 45 S.W.2d Clv..App. 1931); &t-Yy ~3en.
Clearly, the awarding of constructioncontraate
involves the exercise of discretion on the part of the
Board. Therefore, you are advised that the Bawd for
Texas State’Hospitals and Specltil``Schools
cannot delegate
Its power to award constructioncontracts bo the Chairman,
Once an award is made by the Board, however, the minls-
terial act of executing the contract entered into (such
as signing the award and the contract form on behalf cf
Hon. Larry 0. Cox, page 4 (V-1536)
the Board) may be delegated~to the Chairman or some other
person. Llkeulbe, the.preparation of the plans and
speclflcatl~hs``I(after
the Board ha& decided on the nature
and location of.the bulldin& Xts size, general design,
etc.) the advertlamentand tabulation of bids, and other
necessary assembling of material from which the Board
bia may be delegated.
determines the lowest and ,bert-.
SUMMARY
The Board ~ofTexas State Hospitals and
Special Schools cannot Uelegate the power
to auayd x%onstructlon~contracts. The mlnls-
terial act of signing the auard and the con-
tract form may be delegated. Likewise, the
preparationof plans and specifications,the
advertisementand tabulation af bids,,and
other necessary assembling of material may
he del~egate,d.
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
J. C. Davis, Jr.
County Affairs Division
MarfiK. Wall
Reviewing Assistant
Charles D. Mathews
First Assistant
JR:am