**AUEWIN ia.**  TEXAS

November 10, 1952

Honorable Larry 0. Cox Opinion No. V-153 ExecutiveDirector Board for Texas State Hospl- Re: tals and Special Schools Austin, Texas

Dear Sir: Authority of the Board for Texas State Hospltals and Special Schools to delegate to its chairman the power to award constructioncontracts upon competitive bids.
Yourrequest for an opinion is as follows:
"We~desirethe opinion of your office regarding the ~legallty of the delegationof certain authorityby the Board for Texas State Hospitals and special Schools to its Executivedirector and to its Chairman.

"It Is necessary that our Board determine what buildings shall be constructedto properly care for our inmates. This Is done at a meeting of the Board Members. The Board directs its FxecuticeDirector to advertise 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 ExecutiveDlrector the authority to prepare plans and specifications,advertise for bids, fix date for bid opening, open bids, and have the tabulations thereof ready for action of the Board in accepting or rejecting the bids at the next Boar'd meeting.

"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 construction contracts, if the contractentered IntoHon. Larry 0. Cox, page 2 (V-1536)

Is within some reasonableamount (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.
"Pleaseadvisewhether or not the Board may legally delegateany of its duties as set out in paragraphsthree and four, above."
Section 2 of Article 3174b, Vernon's Civil Statutes, prescribingthe pokers and duties of the Board for Texas State Ho$pltal%and Special Schools,pro0ldes:

'%pon the effectivedate of this Act, the Governor shall appoint the. Board provided in 'this

Act and the Board shall proceed to organi-ie'as

requiredby Section 5 of this Act and employ the ExecutiveDirector and such other personnelneces~sary to 'carry

out the provisionsof~this~ Acti .Effectlve September-~

1,~ 1949, the control and'managem&t of, and all Fights, prlvlleges,powers, and duties 'Incident thereto~‘inciludlng

bullding, design and constructionof the Texas State HoBpitals and Spe'cial.Schools which
are notivested in and exercisedby the State Board of C-ontrol

shall be tratiferredto, vested In, and exercisedby the Board for Texas"State;

Hospitalsand Special Schools.

. . . It 1s~ noted that the Legislaturehas 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 atid 7047c-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 performedand governmentalpowers exercisedby the officer or body designated by law -~that they cannot be delegatedto others. This Is particularly'true of duties. .

Hon. Larry 0. Cox, page 

### 3.~(Vi1536)

uhich are judicial in,thee nature, or which ,callfbr tKe exer,olse of Ceason or:

Usaretlon, and which are regarded.aaa,@& of the public trust assumed. Thus power g$ven to an’ prfiaer~

formally ‘tostate.

or .make

a’ certifiaate.

of certain fact‘e;

~whii?h, when stated.,by

him as prescribed;. beaemg the evidence

-.of~ a llablllty ,of’

another person, is a p?iblrc

trust which’

must beg

exercised by the person and in the &de prescribedby 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.with

the law conferring the power.
~“Btit~a

board,maydelegate tinlsterlal
or administrativefunctions ~n6tcalling for the :exerel.si

of tieaeon

or Mscre’tibn,

by ap point;lrrg~ag&nts

to perforni

duties of that character. It cannot,however,~ confer upon an officer or agent authoritywhich it may not ltaelf exercise. ”
Orithe question’ofdelegationof powers it is stated In 67 C.-J.S. 373, Officers,Sec. 104:

“An offloer; to whom a power of dlscretion-

la Intrusted,cannot delegate the exercise ,thereof

except as-

prescribedby statute. He may, however,’ delegate the performake of a mlnisti3rial’act, as where, after the exercise of ‘discretion, he delegates to another the perfcirmki~e of a ministerialact to evldende the result of his own act of discretion.”

Also see Horne ZoologicalArena v. City of Dallas, 45 S.W.2d Clv.. App. 1931); &t-Y

y ~3en.

Clearly, the awarding of constructioncontraate involves the exercise of discretionon the part of the Board. Therefore,you are advised that the Bawd for Texas State’

Hospitalsand Specltil~~Schools cannot delegate Its power to award constructioncontractsbo the Chairman, Once an award is made by the Board, however, the minlsterial act of executingthe contract entered into (such
as signing the award and the contract form on behalf cfHon. Larry 0. Cox, page 4 (V-1536)

the Board) may be delegated~ to the Chairman or some other person. Llkeulbe, the. preparationof the plans and speclflcatl~hs~~I(after the Board ha& decided on the nature and locationof.the bulldin& Xts size, general design, etc.) the advertlament and tabulationof bids, and other necessary assemblingof material from which the Board determinesthe lowest and ,bert bia may be delegated.
-. SUMMARY
The Board ~of

Texas State Hospitals and Special Schools cannot Uelegate the power to auayd x%onstructlon ~contracts.The mlnlsterial act of signing the auard and the contract form may be delegated. Likewise, the preparationof plans and specifications, the advertisement

and tabulationaf bids,,and other necessaryassemblingof materialmay he del~egate,d.

Yours very truly,

APPROVED:

J. C. Davis, Jr. County Affairs Division PRICE DANIEL Attorney General

Marfi K. Wall ReviewingAssistant

CharlesD. Mathews First Assistant

JR:am