                   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
