Untitled Texas Attorney General Opinion ( 1984 )

.
The Attorney General of Texas
Cfctober 24, 1984
JIM MATTOX
Attorney General
Mr. Philip D. Cm?::, PAIA Opinion No. JM-217
Supreme Court Buitdina
P. 0. Box 12548 Executive Directo.:
Austin. TX. 7871% 254S The Texas Board of Architectural Re: Authority of a landscape
512,4752501 Examiners architect under article 249c.
Telex 9101874-1367
8213 Shoal Creek :3:Lvd., Suite 107 V.T.C.S.
Telecopier 51214750268
Auetln. Texas 7W58
714 Jxkson. Suite 700 Dear Mr. Creer:
Dallas. TX. 752024505
2141742-8944
You ask whet,ter the landscape architect for the city of Corpus
Christ1 Mayo
4824 Alberta Ave.. Suite 150
El Paso, TX. 799052793 develop detailed plans and specificatloas for
915/5333484 retainill!! walls, park shelters, decks, viewing
platfonw, elevated boardwalks, etc. under the
001 Texas. suits 700
definit ton of the practice of landscape
Houston, TX. 77002.3111 archite,::ure as set out in article 249c. V.T.C.S.
713/22%5M8
We conclude that a landscape architect may not develop plans and
specifications fcmr such structures when their preparation requires
SO8 Broadway, Suite 312
Lubbock. TX. 79401.3479
skills vhich fall within the definitions of the practices of
8081747.5238 engineering, archL:ecture, or public surveying. Whether the design or
construction of 4~ particular improvement constitutes an exercise of
engineering, archlzecture, or public surveying is a question dependent
4309 N. Tsnth. Suite B
McAllen. TX. 78501-1585
upon the facts of azach case. This office is not authorized to resolve
512/882.45d7 such matters in t:w opinion process.
The practice of landscape architecture. defined In article 249c.
200 Main Plus. Suite ro0
section 1 (b) , includes the
San Antonlo. TX. 78205.2797
512/2254191
preparat:Lon of . . . detailed design plans,
studies L specifications, and responsible
An Equal Opparlunityl supervialon in connection with the development of
Affirmative Action Emplow land awas where, and to the extent that, the
princip,*l purpose of such service is to arrange
and modify the effects of natural scenery for
aesthetl,: effect, considering the use to which the
land i:; to be put. Such services concern the
arrangammt of natural forms, features, and
plantings. including the ground and water forms,
vegetat Loa. circulation. walks, and other
landsca ?a~ features to fulfill aesthetic and
p. 972
Mr. Philip D. Creer - Page ;I (JM-217)
functional requirments but shall not include any
services or funct:lona within the definition of the
practice of eng&eering, uublic surveying, or
architecture as duliined by the laws of this state.
(Emphasis added).
In light of this definiticn. your question Is In essence whether a
landscape architect may perform the aforementioned services without
engaging in the practice:1 of engineering. public surveying, or
architecture.
The practice of enginefc?ing is defined as
any service or cr’r;%tive work . . . the performance
of which requires engineering education, training
and experience ln the application of special
knowledge of th: mathematical, physical, or
engineering sciences to such services or creative
work.
V.T.C.S. art. 3271a. §2(4). Public surveying is the practice of
“determining the boundaries or the topography of real property or of
delineating routes, spaces, or sites in real property” by the use of
“relevant elements of law * research, measurement. analysis,
computation, mapping, and land description writing.” V.T.C.S. art.
5282c, $2(l). The practiw of architecture is defined in article
249a. section 10(a). V.T.C.S., as
any service or creative work . . . applying the
art and science of developing design concepts,
planning for functional relationships and intended
uses, and estahl.ishing the form, appearance,
aesthetics, and construction details, for any
building or buildings, or environs, to be
constructed, enl.arged or altered, the proper
application of which requires architectural
education. training and experience.
The statutes regulat:lng the practices of engineering, public
_ .
surveying, and architecture each contain language expressing the
objective of safeguarding life, health, property and public welfare.
See V.T.C.S. arts. 249a. IL; 3271a, 11.1; 5282~‘ $3. Article 249c
ztains no such language!; we do not, however, infer any lesser
concern for the public from this omission. The statutes regulating
engineering, public surveying, and architecture reflect the state’s
overriding interest in px,cmoting safety and competence in design,
measurement, and construction while discouraging confusion and
deception of the public b>, unlicensed practitioners. See Parrish v.
Phillips. 401 S.W.2d 347 I,‘l’ex. Civ. App. - Houston 1966. writ ref’d
n.r.e.); Farha v. Elam, 3(;5 S.W.Zd 692 (Tex. Civ. App. - Fort Worth
p. 973
Mr. Philip D. Creer - Page 3 (JM-217)
1964. writ ref’d n.r.e.); Habry v. Prime=, 333 S.W.Zd 684 (Tex. Civ.
APP. - Houeton 1960). $?. onL other grounds. 338 S.W.2d 704 (Tex.
1960). We believe that 4ZIcle 249c promotes corresponding interests.
-See Attorney General Opinion R-814 (1976).
The laws pertaining to the practice of the four professions
discussed in this opinior~ each provide exemptions for certain
individuals othervise satlaf!ying the requirements of regulation. See
V.T.C.S. arts. 249s. 110; i49c. 16; 3271a. 121; 5282~. 04. Arti=
249c, section 2, exempts professional engineers, land surveyors, and
architects from the provisions of the act. Landscape architects, on
the other hand, are not er,empted from compliance with articles 249a,
3271a. snd 5282~. As a goneral matter, the creation of a statutory
exception by the 1egislatu::c “makes plain the intent that the statute
should apply in all cssel not excepted.” State v. Richards, 301
S.W.2d 597. 600 (Tex. 1957).
It has been suggested :hst landscape architects may be permitted
to perform services within t,he practices of engineering, architecture.
and public surveying as long as they do not represent themselves to
the public as members of those professions or employ the titles of the
respective professions. It is true that lo Attorney General Opinion
R-814 (1976) this office concluded that non-licensed persons could
perform services involving ,zlements of landscape architecture as long
as they did not hold thenselves out as landscape architects. This
conclusion though, was predicated on the applicability of the
exemptions contained in article 249c. Similarly. In Attorney General
Opinion M-545 (1969). this office held that certain structural designs
could be prepared by pertcns not registered under article 3271a as
long as they do not represent that they are licensed and registered.
This conclusion, too, presumed the applicability of exemptions
contained in article 327:``. With regard to landscape architects,
there is no exemption upt’c, which we may rely. Accordingly, it has
been concluded on prior occasions that landscape architects are not
excused, by agreement or otlervise, from the licensing requirements of
statutes from which they are not specifically excepted. Attorney
General Opinions E-890 (1976); H-495 (1975). The question you ask
does not require a diffewnt answer. On the contrary, because the
services in question are to be performed for the city of Corpus
Christi, we answer your question in the negative. See, e.g., art.
3271a. 919 (plans and specifications for any public work whose cost
exceeds $3000 must be p::c!pared by and construction supervised by
registered professional engineer).
SUMMARY
A landscape architect may not, under the
definition of :.andscape architecture, develop
detailed plans and specifications for certain
structures when their preparation requires skills
p. 974
hr. Philip D. Crcer - Page 4 (JM-217)
which fall withjo, the practices of engineering,
public surveying, or architecture. Whether the
development of much plans and specifications
constitutes au csercise of engineering, public
surveying, or a::t:hitecture is a factual matter
that this office i.s not authorized to resolve.
i
JIM MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney Gweral
DAVID R. RICRARDS
Executive Assistant Attorney General .
RICK GILPIN
Chairman, Opinion Committe~r
Prepared by Rick Gilpia
Assistant Attorney General
APPROVED: :
OPINION COMWITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 975