Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEYGENERAL OF TEXAS
GREG ABBOTT
December 23,2004
Ms. Dale B. Farrow, P.E. Opinion No. GA-0287
Executive Director
Texas Board of Professional Engineers Re: Whether the seal of a professional engineer
1917 M-35 south licensed in Texas may be placed on engineering
Austin, Texas 78741 plans, specifications, and other documents relating
to projects not to be constructed in Texas
(RQ-0244-GA)
Dear Ms. Farrow:
On behalf of the Texas Board of Professional Engineers (the “Board”), the former Acting
Executive Director inquired about the requirement that a licensed engineer place his seal on the
engineering documents he issues.’ See TEX. OCC. CODEANN. 5 1001.401 (Vernon 2004). The
Board wishes to know whether the sealing requirement applies only to engineering documents
related to projects designed and constructed in Texas. See Request Letter, supra note 1, at 1.
Pursuant to the Texas Engineering Practice Act (the “Act”), TEX.OCC.CODEANN. ch. 1001
(Vernon 2004), the Board regulates the practice of engineering and licenses engineers. See id.
$5 1001.201-.202, .301-,308. The Act provides that a licensee, on receiving a license, “shah obtain
a seal in a design authorized by the board, showing the license holder’s name and the legend
‘Licensed Professional Engineer’ or ‘Registered Professional Engineer.“’ Id. $$1001.401(a)? A
license holder’s seal must appear on a “plan, specification, plat, or report issued” by the license
holder. Id. 5 1001.401(b). See&o id. 5 1001.401(c) (ifthe license ofthe person named on the seal
has expired or has been suspended or revoked, the seal may not be placed on a document). The
sealing requirement assures the user ofthe engineering product that the professional engineer named
on the seal has performed or directly supervised the work. See 29 Tex. Reg. 1603, 1604 (2004),
adopted 29 Tex. Reg. 4878 (2004) (codified at 22 TEX.ADMIN.CODE$ 137.33(a)) (Tex. Bd. Of
Prof 1 Engineers, Seal Specifications).
‘Letter from Paul D. Cook, Acting Executive Director, Texas Board of Professional Engineers, to Honorable
Greg Abbott, Texas Attorney General (June 28, 2004) (on tile with Opinion Committee, also available at
hnp://www.oag.state.tx.us) [herein&m Request Letter].
‘The term “Registered Professional Engineer” derives from a former version of the Engineering Practice Act.
Wbentbe Act was adopted in 1937, the credential issued to engineers was a “certificate ofregistration.” See Act ofMay
18,1937,45thLeg., RX, ch. 404,@ 12,15,1937 Tex. Gen. Laws 816,820-21. A 1997 enactment updatedthe Act’s
languagebyreplacing“register”and‘~egistration”with“licensing”anditsvariants. SeeActofMay 13,1997,75thLeg.,
RX, ch. 344, $5 l-2,30, 1997 Tex. Gen. Laws 1462, 1463, 1473.
Ms. Dale B. Farrow, P.E. - Page 2 (GA-0287)
The Board reads section 1001.401(b) as pertaining only to sealing documents for projects
designed and constructed in Texas. “We believe that the Texas seal should only be placed on Texas
projects and if projects are to be constructed in other jurisdictions, a license should be obtained in
that jurisdiction.” Request Letter, supra note 1, at 2. A license holder has complained to the Board
that if a project is designed in Texas for construction in another state, country, or international
waters, the Texas license holder must affix a Texas seal to his design plans. See id. In this case, an
international client requested a Texas firm to design an offshore oil platform, to be fabricated in
Norway and erected in international waters. See id.
Whether an engineer licensed in Texas may practice in another jurisdiction without being
licensed there depends upon the other jurisdiction’s laws. Generally, each state requires licensing
under its laws to practice engineering in that state. See STEVENG. M. STEIN,CONSTRUCTION LAW,
1 l.Ol[l][b], at 1-15 (MatthewBender&Co. ed., June 1998). Somestates, however,providelimited
exemptions from their licensingrequirements for an engineer licensed in another state. For example,
New York allows a person licensed as an engineer in another state to practice as a professional
engineer during the time his application for licensure in New York is pending before the State Board
for Engineering and Land Surveying. See N.Y. EDUC.LAW5 7208(b) (McKimrey 2001). See also
63 PA. CONS.STAT. 5 152(b) (West 1996) (nonresident qualified to practice engineering in state of
residence may practice in Pennsylvania for up to thirty days aggregate per year, if standards of his
state at least equal those of Pennsylvania); TEX. OCC. CODEANN. § 1001.310(b) (Vernon 2004)
(Board “may issue a provisional license to an applicant currently licensed in anotherjurisdiction who
seeks a license in this state’?. Where the law of another state includes such exceptions, a Texas
licensee in effect practices under his Texas license in that state.
Section 1001.401 provides that “[a] plan, specification, plat, or report issued by a license
holder must include the license holder’s seal placed on the document.” TEX. OCC. CODEANN.
5 1001.401(b) (Vernon 2004). The requirement applies to plans, specifications, plats, and reports
issued by an engineer licensed under Texas law, without excepting any such documents. A court
will not write exceptions into a statute to make it inapplicable in circumstances not mentioned in the
statute. SeePub. Util. Corm ‘n of Tex. v. Gofer, 754 S.W.2d 121,124 (Tex. 1988); Jefferson County
Drainage Dist. No. 6 v. Gary, 362 S.W.2d 305,307-08 (Tex. 1962). Section 1001.401 applies to
engineering documents prepared under the authority of a Texas license to practice engineering, not
merely to documents for projects designed and constructed in Texas. The seal of a professional
engineer licensed in Texas must be placed on all plans, specifications, plats, and reports he issues
under authority of his Texas license, even if the project will not be constructed in Texas. Whether
documents prepared and sealed by a Texas engineer under authority of his Texas engineering license
may legally be used for construction in another state or country depends upon the laws of that
jurisdiction.
Ms. Dale B. Farrow, P.E. - Page 3 (GA-0287)
SUMMARY
A professional engineer licensed in Texas must place his seal
on engineering plans, specifications, plats, and reports prepared
under authority of his Texas license, even if the project will not be
constructed in Texas. Whether documents prepared and sealed by an
engineer under authority of his Texas license may legally be used for
construction in another state or country depends upon the laws of that
jurisdiction.
very truly yours,
/@4$&&r
GREG ABBOTT
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee