### GENE-I.

PRICE DANIEL ATTORNEY

GENERAL April 

### 27,195X

Hon. Larry 0. Cox $geoutiva Dlreator Board for Texas Stat,e Bospitalsand Special Schools Austin, Texas~ 0pinfon Bo. v-IX&?

Dear Sir: Be: LegaliIiy of thenBciard*s,paytng archfteetuxal ,feeeesprkm to the exmmtfon of cchstructiun cmt,racts; neassstty of approval of architectural ccxtracts by the Board of Conixol.

Youhave requested the op,iuion cf this office onthe following questions:

I. Maythe Board for Texas.State Hosgltals and Special Schools pay anarch&ted a part of MS fers for preparing plans and.specffic&ions far a building prior to the time it executers a contract for ccmstructlon of the bunding, out of its apprcpr%at~cm of $!?i,COaQ,- 000 for the current biennium and&g August 3% lm appropriation from which the cost of comstrm&.ng tðe building will be paid?



### 2. Musta~chftectural coufracts entered f&to by the Board for Texas State Hosp%tals and Special schools be reviewed andapproved 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 ?@tikthe State tax ancigarettes 2,,Acts 5lst Leg.% 1st C.S. Tie amendmentcreates the State Hapltais andS,pecial School~sBuildkg Fuudandprovfdestithon. 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 amountfor the biennium ending August 

### 31 19d not to exceed $5;000,000. Section 

### 3of Article 

### 7d47c-1, as amended, further provides:

“All funds credited to the State Hospitals 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 constructing, repairing andequipping such buildings as In the opinion of the Board are

,. necessary to the proper care of those committed or to be committed to such hospi;;is and special schools according to law. - vided however, the fees paid to anarchitect shall not exceed six per cent 

### (6%)for the plans, specifications and supervisions of said buildings and all contracts madefor andthe final acceptance in connection with such construction other than the plans and specifications, shall be subject to the review andapproval of the Board of Control.” Youhave furnished us with a printed form of the contracts generally used by the Board in makingcontracts 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. Acontract executed on{his form between theBoard andanarchitect obligates the Board to pay to the architect a fee based onthe estimated cost of the project, described therein. The “basic rate” of the fee Is fixed at five ‘per centsof the first $200 000 of the cost of the project and is thereafter graduated downwardon a fixed schedule as the cost of the project, increases.

,. Article 4 of.,the contract provides, in part:

. Payments to the Architect onaccount of his fee shall be,made as follows; subject to the provisions of Article 

### 3hereof: I

“Uponcompletion’and approval by the Owner of preliminary studies a.sumequal to twenty

### Hon.Larry0.cox-Page 

### 3 (v-1172)

per cent (20%) of the basic rate computed upon a reasonable estimated cost; **Upon completion andapproval by the Owner,of specifications and general working drawings a sumsufficient to increase the payments to fifty per cent (5%) of the basic rate based ona reasonable estimated cost;

“Uponawarding, of contract or if no contract is awardedwithin ten (10) days. of opening of bids a sumsufficient to increase the payments to sixty-five 

### (65%) per cent of the basic fee based onthe lowest bona fide bid. ItIt is understood that the above-mentioned estimated oost shall in no event exceed the amount of the appropriation (from whatever source) for the work.” We<havefound nolegal objection to the provisions of Article 4 quoted above. TheBoard neces,sarily musthave plans and specifications for a particular building or project before it can call for bids or award a contract for its construction. Consequently, weanswer your first question in the affirmative.

Weturn nowto your second question concerning approval by the Board of Control of archiJectura1 contracts entered into by the Board for Texas State Hospitals and Special Schools.

51st Leg., Article 

### 681,V.C.S., as amendedin 

### 1949(Acts

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 a8the 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 educatlonal instltut ions of higher learning andthe Texas Prison System, andthe Texas State Board for hospitals and special schools, unless such design and plans have been approved by the Board.”. ,

Hon. Larry 0. Cox,-.Page 

### 4, (v-1172)

The change madein Article, 

### 681by the foregoing amendmentwas to exempt therefrom "the state educational institut%ons of higher learning andthe Texas PrisonSystem, andthe Texas State Board for hospitals and special schools.n

Prior to February 

### 28 1950 the effective date of House Bill 2, the Boara for Texas State Hospitals andSpecial Schools undoubtedly hadthe exclusive authority to makecontracts with architects to prepare plans and specifications for buildings to be constructed for the respective institutions under its control and to approve the plans and specifications so prepared. TheBoard still has such authority, unless it has been vested in the State Board of Control by the following specific provision in Section 

### 3of Article 

### 7047c-1 as amendedbyHouseBill 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 andall contracts madefor and the final acceptance in connection with such construction other than the plans and specifications, shall be subject to the review and approval 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 madeby the Board with architects are not required to be reviewed and approved by the Board of Control.

TheBoard for Texas State Hospitals l&d Special Schools maylegally pay anarchitect a part of his fees for preparing plans and speclfications for a building prior to the time it executes a contract for construction of the building, out of its appropriation for the current biennium ending August 31 1951 priation ,fr,omwhich the cost the approo J conscrutting the building is to be paid.. -

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

Contracts madeby the Board for architects' services to be paid from the State Hospitals and Special Schools Bullding Fundare not subject to review andapproval of the State Board of Control. APPROVH): Jesse P. Luton, Jr. Reviewing Assistant Charles D. Mathews First ASSiStad

BWB:wb Very truly yours, PRICEDANIRL Attorney General
By";":-"t%Lj
Bruce W. Bryant Assistant