Honorable William J. Burke Opinion No. WW-646 

Executive Director 

State Board of Control Re: Questions relating 

Austin, Texas to Engineering Fee 

for Design of Filter 

Systems for Swimming 

Pools in three State 

Parks for the State 

Dear Mr. Burke: Parka Board. 

You have requested an opinion of this office in 

regard to questions you have predicated upon the following 

facts: 

On or about October 1, 1957, the State Parks Board 

requested the Board of Control to select an architect and/or 

engineer to design swimming pool filter systems for the 

Abilene, Bastrop and Lockhart State Parks. 

Roger L. Erickson, consulting engineer and architect, 

was selected and a contract entered Into whereby he was to 

prepare plans and specifications for the filter systems. 

Upon completion of plans and specifications for the filter 

systems, Mr., Erickson received partial payment for his 

services at the rate provided for in his contract. Payment 

was based upon vouchers which showed on their face an estimated cost of $30,200 for the three filter systems. 

Bids were called for by the Board of Control and were 

opened and tabulated on August 20, 1958. The low bids received for the filter systems, based on Mr. Erickson's plans 

and specifications, totaled $70,471.00. The appropriation 

available to the State Parks Board was $32,194.00, therefore, 

the bids were rejected by the Board of Control. 

After the bids were rejected, Mr. Erickson forwarded 

to the Board of Control, at the request of the Board, his 

final pencil estimates which totaled $77,035.00 for the three 

filter systems. 
Honorable William J. Burke, page 2 (~~-646) 

After rejection of the bids, Mr. Eriokson received 

warrants from the Comptroller of Public Accounts for 

additional engineering fees calculated on the basis of the 

lowest bona fide bid received. The vouchers upon which 

these warrants were Issued were approved by the State Parka 

Board, but were not approved by the Board of Control. Mr. 

Erickson still holds these warrants at this time. 

The questions you submit are as follows: 

"1. In view of the fact that the 

lowest bona fide bid received would overrun the available funds and, therefore, 

no award could be made, la an engineering 

fee based on the lowest bona fide bid received a legal obligation accruing to an 

engineer and payable on that basis? 

"2. In view of the fact that Mr. 

Erickson now has in his possession warrants issued payable to him that were 

based upon the lowest bona fide bida received, should Mr. Erickson now return 

those warrants to the Comptroller for 

cancellation?" 

In considering your first question, we look to the 

appropriation bill by whioh the expenditures for filter 

systems were authorized. In the General and Special Laws, 

55th Legislature, Regular Seaaion, 1957, House Bill No. 

133, we quote from the appropriations to the State Parks 

Board line items Nos. 25, 29, and 57: 

"25. Abilene State Park For the years ending 

Aug. 31,1g58 Aug.31,1959 

b. Improvements, including 15 concrete Picnic 

units, and filter eystern for swimming pool . . . . ..$9.894 $1,000 

"29. Bastrop State Park 

b, Improvements, including filter system for 

swimming pool, repair 

of 11 cabins, rest 

rooma, tables and 

grill8 q.................... $9,800 $3,765 
Honorable William J. Burke, page 3 (~~-646) 

“57. Lockhart State Park 

For the years ending 

Aug. 31,1958 Aug. 31,1959 

b. Improvementa, 

Including construction of 

filter and circulating system 

for pool, garage 

and storeroom, 

fencing of swimming pool area, 10 

picnic tables and 

grills, and the 

construction and 

equipping of playground area. . . . . . . . . $12,500 $5,625” 

It is well settled in Texas, that the contract of 

an agent or agency of the State made In excess of an 

amount appropriated by the Legislature is void and no subsequent action of the Legislature may validate a claim 

arising thereunder. Such a claim, not having been provided for by pre-existing law, is prohibited by Section 44 

of Article III of the Constitution of Texas. Ft. Worth 

Calvary Club, Inc. v. Sheppard, Comptroller, 125 Tex. 339, 

83 S.W.2d bb0 (1935); Nichols v. State, 32 S.W. 452 (Tex. 

Civ. App. 1895, error ref.) The bids, based upon the plans 

and specifications of Mr. &.ckson, were called for, received, opened and tabulated prior to the time the 1959 

appropriation became available. Therefore, the total sum 

available under pre-existing law at all times here in question was $32,1'#.00, and a contract for the expenditure of 

a sum in excess of this amount would be invalid, 

Mr. Erickson's contract, called an "Engineering 

Agreement" by the parties thereto, provided in part as 

follows: 

“4. Paym~~",sheeP~~~~~t~et~a~~ea~~~:~oe~~, 

on account of 

subject to the provisions of Article 3 hereof: 

"Upon completion and approval by the Owner 

of preliminar studies, a sum equal to twenty 

per cent (20% T of the basic rate computed upon, 

a reasonable estimated cost; 
Honorable William J. Burke, page 4 (ww-646) 

"Upon completion and approval by the 

Owner of specifications and general working, 

drawings, a sum sufficient to increase the 

payments to fifty per cent (50s) of the basic 

rate based on a reasonable estimated cost; 

"Upon awarding of the contract, or if 

no contract is awarded within ten (10) days 

of opening of bids, a sum sufficient to increase the payments to seventy-five per cent 

(75%) of the basic fee, based on the lowest 

bona fide bid. (Emphasis ours) 

"It is understood that the above-mentioned 

estimated cost shall, in no event, exceed the 

amount of the appropriation (from whatever 

source) for the work." 

Mr. Erickson bases his claim for compensation on 

the above underlined clause of his contract in spite of 

the fact that the lowest bona fide bid exceeded the 

appropriation available and no contract for the filter 

systems could be entered into. 

In considering the legal consequences of the 

contract and the facts presented, we must of necessity 

be governed by the basic fact that Mr. Erickson was not 

dealing with an individual but with an agency of the 

State which was limited in its authority to make expenditures. 

In Volume 6, Corpus Juris Secundum, Architects, 

Section 14, page 310, it is stated as a general rule: 

"Where plans are required for a 

building not to aost more than a certain 

SW, or are accepted on condition that 

it can be erected for a given amount, 

there can be no recovery by the architect 

unless the building can be erected for 

the sum named, or at least for a sum substantially within the limit, unless the 

increased cost is due to special circumstances, or to change of p;ans by the 

owner's directions. (Rnphasis ours) 

E2nmerson v. Kneezell, '66 S.W. 551 (Tex.Civ. 

Dudley v. Strain, 130 S.W. 778 

tF%.%?&p. 1910); Capitol Hotel Co., Inc. 
. . , 

Honorable William J. Burke, page 5 (~-646) 

et al v. Rittenberry, 41 S.W.2d 697 (Tex. 

c A 1931 W it dismissed); Stratton v 

C:E; %*Detroit,r246 Mich. 139, 224 N.W. b49 

(1929). 

Quoting further from the same source and page, 

we find: 

"Where the architect knows or should 

know of the authorized 11 it the rule 

applies, although he is dtal;ng with a 

legislative committee or with a municipars (Emphasis ours) Clas v. State, 196 

Wis. 430, 220 N.W. 185 (1928) Brickle v. 

England, 25 Del. 16, 78 Atl. i38 (1910) . 

The Wisconsin Supreme Court, in Clas v. State, 220 

y;, ;85 (19281, a case where the bids based on the archi13 plans exceeded the appropriated amount, denied that 

the architect was entitled to any compensation and, on page 

185, had this to say about the limiting nature of an appropriated sum on a state agency and those dealing therewith: 

II 

. . . the expenditure of the public 

moneys . . . is strictly limited to the 

sums appropriated by the Legislature for 

a given purpose. . . . it is incumbent 

not only upon the department to take cognizance thereof and to act in accordance 

therewith, but every individual or corporation transacting business with the 

department is legally governed thereby, 

whether a contract provides for it or not." 

(Emphasis ours) 

Regardless of whether or not Mr. Erickqon had actual 

knowledge of the amount of the appropriation for the filter 

systems involved, such appropriation8 are a matter of public 

record and the authority OE the agencies with which he was 

dealing was limited thereby, therefore, he was bound to know 

or should have ascertained the amount of such appropriation. 

Cooper v. City of Derby 83 Conn. 40, 75 Atl. 140 (1910); 

Xorgan & Slattery v. Ciiy of New York, 114 App.Div. 555, 

100 N.Y S btl (190b) Pierce v. Board of Education, 125 

Misc. 5&-% N Y Su p; 

787, 214 N.Y. supp: 90 E 

788 ffi d 1 21b A 

[1926j;'Cla?t. 

pp.Div. 

Gate, 196 Wis. 

430, 220 N.W. 185 (1928); See Bernstein et al v. City of 
Honorable William J. Burke, page 6 (~~-646) 

?%%i?- New York, Dickey, 143 App.Div. 74 Tex. 543, 61, 127 11 N.Y.Sup S.W. 10 t 9 987 (1889). (1911); 

Indeed the last paragraph of that portion of Mr. 

Erickson's contract quoted above apprises him of the 

fact that there is some appropriated amount limiting the 

project. The burden was on him to find out what it was. 

In view of the foregoing authorities, it Is our 

opinion that where an architect contracts with an agency 

of the State to furnish plans and specifications for some 

objective for which the amount to be expended Is governed 

by .a Legislative appropriation, the architect shall be 

deemed to have knowledge of the amount of the appropriation and the law will imply, as a condition in his contract, that the objective be capable of accomplishment 

within the appropriated amount by use of the plans and 

specifications furnished or else he is not entitled to 

compensation for his work. We do not mean to say that 

there would not be Instances where the architect would 

be allowed to make minor revisions to bring the plans 

and specifications within the appropriated amount and thus 

fulfill his contract, but where this can not be done, the 

architect has not complied with the contract. Such is the 

situation in the case at hand. 

Mr. Erickson furnished plans and specifications 

upon which the lowest bids received totaled $70,471.00. 

The amount appropriated was less than one-half this amount, 

to-wit Mr Ericke3;'194.00. * Indeed the pencil estimates made by 

at some date unknown, but which were not given 

to-the Board'of Control until after bids were received, came 

to a total of $77,035.00. The bids were well within the 

pencil estimates of Mr. Erickson, but were far in excess of 

the appropriation to the State Parks Board for the filter 

systems; so far in excess that minor revisions could not 

bring the plans and specifications within the appropriated 

funds. Therefore, it is our opinion, that since the lowest 

bona fide bid received was greatly in excess of the appropriation available and no legal contract could be let, Mr. 

Erickson did not fulfill his contract and no legal obligation based on the lowest bona fide bid accrued to him. 

Consequently, your first question is respectfully answered 

in the negative. 

The answer to your second question follows as a 

matter of course from our answer to your first question. 

Since Mr. Erickson did not fulfill the condition in his 
Honorable William J. Burke, page 7 (~~-646) 

contract implied by law, no legal obligation arose 

thereunder. Therefore, in our opinion, the warrants 

now,in the possession of Mr. Erickson should be returned to the Comptroller for cancellation since they 

were not issued in payment of a legal claim or obligation. Your second question is, therefore, answered in 

the affirmative. 

SUMMARY 

Where an architect is employed to 

prepare plans and specifications 

for filter systems for swimming 

pools located in three State parks, 

he Is required by law to know or 

ascertain the amount appropriated 

to the State Parks Board for that 

purpose. Where the lowest bona 

fide bid, based upon the plans and 

specifications submitted, was 

$70,471.00 and the amount of the 

appropriation to the State Parks 

Board was $32,19&.00, no legal 

contract for the filter systems 

could be entered into and the architect Is not entitled to a fee based 

on the lowest bona fide bid under 

these circumstances. Warrants now 

in the possession of the architect 

for an engineering fee based on a 

low bona fide bid which exceeded the 

appropriation are not in payment of a 

legal obligation and should be returned to the Comptroller for cancellation. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

wos:zt:rm 
Honorable William J. Burke, page 8 (~~-646) 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Blackburn, Chalrman 

Robert T. Lewis 

C. Dean Davis 

J,. Arthur Sandlln 

Henry Go. draswell 

RFXIEWED FOR THE ATTORNEY GENERAL 

BY: W, V. Geppert