Untitled Texas Attorney General Opinion ( 2004 )

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ATTORNEY GENERALOFTEXAS
GREG ABBOTT
August 25,2004
Ms. Sandy Smith Opinion No. GA-0239
Executive Director
Texas Board of Professional Land Surveying Re: Whether the Board of Professional Land
7701 North Lamar, Suite 400 Surveying may establish a “retired status” category
Austin, Texas 78752 for its registrants, set a reduced renewal fee, and
waive continuing education requirements for those
individuals (RQ-0 19 1-GA)
Dear Ms. Smith:
You ask whether the Board of Professional Land Surveying (the “Board”) may establish a
“retired status” category for its registrants, set areduced renewal fee, and waive continuing education
requirements for those individuals.’
Chapter 1071 of the Occupations Code, the Professional Land Surveyors Practices Act,
governs the regulation of the practice of land surveying. Subchapter B thereof establishes the Texas
Board of Professional Land Surveying, composed ofnine members, including a commissioner, who
is “the commissioner of the General Land Office.” TEX. OCC. CODE ANN. $5 1071.002(2), .05 l(a)
(Vernon 2004). The remaining eight members of the Board are appointed by the governor based
“on the recommendation of the commissioner,” and “with the advice and consent of the senate.” Id.
5 1071.05 l(b). The Board is authorized to “adopt and enforce reasonable and necessary rules and
bylaws to perform its duties under this chapter . to establish standards of conduct and ethics for
land surveyors” and to “set fees in amounts reasonable and necessary to cover the costs of
administering” chapter 1071. Id. 5s 1071.151(a), .1526.
Chapter 1071 provides that “[a] person may not engage in the practice of professional
surveying unless the person is registered, licensed, or certified as provided in this chapter.” Id.
5 1071.25 I(b). Subchapter F describes the registration, licensing, and certification requirements for
an individual who wishes to perform professional land surveying. See id. $5 1071.251-.263.
Subchapter G sets forth the requirements for license renewal, as well as those relating to continuing
professional education. Id. 55 1071.301, ,305. You indicate that the license renewal fee is set by
the Board at $150 per year. See Request Letter, supra note 1, at 1. In addition, section 1071.1521
establishes an additional renewal fee of $200. See TEX. Oct. CODE ANN. 4 1071.1521 (Vernon
2004). Finally, section 1071.263 creates an “inactive status” category. That section provides:
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‘Letter fromSandy Smith, Executive Director, Texas Board ofProfessional Land Surveying, to Honorable Greg
Abbott, Texas Attorney General (Mar. 8, 2004) (on tile with the Opinion Committee, also available at
http:iiwww.oag.state.tx.us) [hereimfier Request Letter].
Ms. Sandy Smith - Page 2 (GA-0239)
(a) A registered professional land surveyor may request
inactive status at any time before the expiration date of the person’s
certiticateofregistration. Aregistration holderoninactive statusmay
not practice surveying.
(b) A registration holder on inactive status must pay an
annual fee set by the board.
(c) A registration holder on inactive status is not required to:
(1) comply with the professional development
requirements adopted by the board; or
(2) take an examination for reinstatement to
active status.
(d) To return to active status, aregistration holder on inactive
status must file with the board a written notice requesting
reinstatement to active status.
Id. 5 1071.263. You state that the Board has set the renewal fee for a person on “inactive status” at
$37, “which does not include the $200 increase.” Request Letter, supra note 1, at 1. Your question
is whether the Board may establish a further category of “retired status,” in order to reduce the fees
paid by registered land surveyors over the age of 65, and to eliminate the continuing education
requirements for those individuals. See id. A person in such status would be permitted to practice
professional land surveying.
The authority of a state governmental agency is derived entirely from legislative enactment.
See Corzelius v. R.R. Comm ‘n, 182 S.W.2d 412,415 (Tex. Civ. App.-Austin 1944, no writ). Such
an agency may exercise only those powers expressly conferred, together with those that may
necessarily be implied from the powers expressly granted. See Pub. UfiI. Comm’n v. City Pub.
Serv. Bd. of San Antonio, 53 S.W.3d 310,316 (Tex. 2001). An agency may not exercise what is
effectively a new power on the theory that such an exercise is expedient for the agency’s purposes.
See id.
Chapter 1071 of the Occupations Code does not expressly authorize the Board to create a
“retired status” category. Nor, in our opinion, may the authority to do so be inferred from any
provision of chapter 1071. By contrast, chapter 1001 of the Occupations Code, which relates to
professional engineers, expressly provides for reduced license fees and annual renewal fees for
engineers who are at least 65 years of age. See TEX. OCC. CODEANN. 5 1001.205(b) (Vernon 2004).
This provision indicates that the legislature knows how to authorize reduced fees for licensees over
the age of 65. It has done so in the case of professional engineers; it has not done so in the case of
professional land surveyors. As a result, we conclude that the Board ofProfessional Land Surveying
may not establish a “retired status” for its registrants, set a reduced renewal fee, and waive
continuing education requirements for those individuals.
Ms. Sandy Smith - Page 3 (GA-0239)
SUMMARY
The Board of Professional Land Surveying may not establish
a “retired status” for its registrants, set a reduced renewal fee, and
waive continuing education requirements for those individuals.
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
Rick Gilpin
Assistant Attorney General, Opinion Committee
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