AUEWIN ia. TEXAS 

November 10, 1952 

Honorable Larry 0. Cox Opinion No. V-153 

Executive Director 

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 construction contracts upon competitive 

bids. 

Yourrequest for an opinion is as follows: 

"We~desire the opinion of your office 

regarding the ~legallty of the delegation of 

certain authority by the Board for Texas 

State Hospitals and special Schools to its 

Executive director and to its Chairman. 

"It Is necessary that our Board determine 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 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 Executive Dlrector 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 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 provided in 'this Act and the Board shall proceed 

to organi-ie'as required by Section 5 of this 

Act and employ the Executive Director and 

such other personnel neces~sary to 'carry out 

the provisions of~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 construction of the Texas 

State HoBpitals and Spe'cial.Schools which 

are notivested in and exercised by the State 

Board of C-ontrol shall be tratiferred to, 

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 construction of 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 performed and governmental powers 

exercised by the officer or body designated 

by law -~ that they cannot be delegated to 

others. This Is particularly'true of duties 
. . 

Hon. Larry 0. Cox, page 3.~(Vi1536) 

uhich are judicial in,thee nature, or which 

,call fbr tKe exer,olse of Ceason or: Usaretlon, and which are regarded.aa a,@& of 

the public trust assumed. Thus power g$ven 

to an’ prfiaer~ formally ‘to state. 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 prescribed by 

the law,that delegates the authorllty; and 

the, apPFoVa1. by the affiaer ~6f ‘a certlflcate 

made b$~ a’ person having no authbrity to make 

It is not ti’ compliance.with the law conferring the power. 

~“Btit~a board,may delegate tinlsterlal 

or administrative functions ~n6t calling 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 authority which it may 

not ltaelf exercise. ” 

Ori the question’of delegation of 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- prescribed by 

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 

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-Y y ~3en. 

Clearly, the awarding of construction contraate 

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 construction contracts bo the Chairman, 

Once an award is made by the Board, however, the minlsterial 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 advertlament and tabulation of bids, and other 

necessary assembling of material from which the Board 

determines the 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 

preparation of plans and specifications, the 

advertisement and tabulation af bids,,and 

other necessary assembling of material may 

he del~egate,d. 

Yours very truly, 

APPROVED: 

J. C. Davis, Jr. 

County Affairs Division 

PRICE DANIEL 

Attorney General 

Marfi K. Wall 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

JR:am