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 then Bciard*s, paytng archfteetuxal ,feeees prkm 

to the exmmtfon of cchstructiun cmt,racts; neassstty of 

approval of architectural 

ccxtracts by the Board of Conixol. 

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 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 t&e 

the 

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 ?@tikthe State tax an cigarettes 

2,,Acts 5lst Leg.% 1st C.S. 

Tie amendment creates the State Hapltais 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 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 and equipping 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 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 review 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 contracts 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 architect a fee based on the estimated cost of the project, described 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; 

**Upon completion and approval by the 

Owner ,of specifications and general working drawings a sum sufficient to increase 

the payments to fifty per cent (5%) of 

the basic rate based on a reasonable estimated cost; 

“Upon awarding, of contract or if no 

contract is awarded within ten (10) days. 

of opening of bids a sum sufficient to increase the payments to sixty-five (65%) 

per cent of the basic fee based on the 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 <have found no legal objection to the provisions of Article 4 quoted above. The Board neces,sarily 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 answer your first question in the affirmative. 

We turn now to 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 amended in 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 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 approved by the Board.” 
. , 

Hon. Larry 0. Cox,-.Page 4, (v-1172) 

The change made in Article, 681 by the foregoing amendment was to exempt therefrom "the state 

educational institut%ons of higher learning and the 

Texas PrisonSystem, and the 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 and Special Schools undoubtedly had the exclusive 

authority to make contracts 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. 

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-1 as 

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 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 made by the Board with architects are not 

required to be reviewed and approved by the Board of Control. 

The Board for Texas State Hospitals l&d 

Special Schools may legally pay an architect 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,om which the cost 

the approo J 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 subject to review and approval of the State Board 

of Control. 

APPROVH): 

Jesse P. Luton, Jr. 

Reviewing Assistant 

Charles D. Mathews 

First ASSiStad 

BWB:wb 

Very truly yours, 

PRICE DANIRL 

Attorney General 

By";":-"t%Lj 

Bruce W. Bryant 

Assistant