Untitled Texas Attorney General Opinion

AUEWIN ia. TEXAS November 10, 1952 Honorable Larry 0. Cox Opinion No. V-153 Executive Director Board for Texas State Hospl- Re: Authority of the Board tals and Special Schools for Texas State Hospl- Austin, Texas tals and Special Schools to delegate to its chairman the power to award construction con- tracts upon competitive Dear Sir: bids. Yourrequest for an opinion is as follows: "We~desirethe opinion of your office regarding the ~legalltyof the delegation of certain authority by the Board for Texas State Hospitals and special Schools to its Executivedirector and to its Chairman. "It Is necessary that our Board deter- mine 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 ad- vertise 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 Dlrec- tor the authority to prepare plans and speci- fications, advertise for bids, fix date for bid opening, open bids, and have the tabula- tions thereof ready for action of the Board in accepting or rejecting the bids at the next Boar'dmeeting. "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 construc- tion 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 provid- ed in 'thisAct and the Board shall proceed to organi-ie'asrequired by Section 5 of this Act and employ the Executive Director and such other personnel neces~saryto 'carryout the provisions of~this~Acti .Effectlve September-~ 1,~1949, the control and'manage- m&t of, and all Fights, prlvlleges, powers, and duties 'Incidentthereto~‘inciludlng bulld- ing, design and constructionof the Texas State HoBpitals and Spe'cial.Schoolswhich are notivested in and exercised by the State Board of C-ontrolshall be tratiferredto, 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 constructionof hospital buildings in the Board for Texas State Hospitals and Special Schools. Arts. 3174b atid7047c-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 governmentalpowers exercised by the officer or body designated by law -~that they cannot be delegated to others. This Is particularly'trueof duties . . Hon. Larry 0. Cox, page 3.~(Vi1536) uhich are judicial in,thee nature, or which ,call fbr tKe exer,olseof Ceason or:Usare- tlon, and which are regarded.aa a,@& of the public trust assumed. Thus power g$ven to an’prfiaer~formally ‘tostate.or .makea’ certifiaate.of certain fact‘e;~whii?h, when stated.,byhim as prescribed;.beaemg the evidence-.of~ a llablllty,of’another person, is a p?iblrctrust which’must begexercised by the person and in the &de prescribed by the law,that delegates the authorllty;and the,apPFoVa1.by the affiaer ~6f‘acertlflcate made b$~a’person having no authbrity to make It is not ti’ compliance.withthe law confer- ring the power. ~“Btit~a board,may delegate tinlsterlal or administrativefunctions~n6t calling for the :exerel.si of tieaeonor Mscre’tibn,by ap point;lrrg~ag&nts to perforniduties of that character. It cannot, however,~confer upon an officer or agent authority which it may not ltaelf exercise.” Orithe question’of delegation of powers it is stated In 67 C.-J.S.373, Officers, Sec. 104: “An offloer; to whom a power of dls- cretion-la Intrusted, cannot delegate the exercise ,thereofexcept as-prescribed by statute. He may, however,’delegate the performake of a mlnisti3rial’act, as where, after the exercise of ‘discretion,he dele- gates 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-Yy ~3en. Clearly, the awarding of constructioncontraate 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 constructioncontracts bo the Chairman, Once an award is made by the Board, however, the minls- terial 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 advertlamentand tabulation of bids, and other necessary assembling of material from which the Board bia may be delegated. determines the lowest and ,bert-. SUMMARY The Board ~ofTexas State Hospitals and Special Schools cannot Uelegate the power to auayd x%onstructlon~contracts. The mlnls- terial act of signing the auard and the con- tract form may be delegated. Likewise, the preparationof plans and specifications,the advertisementand tabulation af bids,,and other necessary assembling of material may he del~egate,d. Yours very truly, APPROVED: PRICE DANIEL Attorney General J. C. Davis, Jr. County Affairs Division MarfiK. Wall Reviewing Assistant Charles D. Mathews First Assistant JR:am