Untitled Texas Attorney General Opinion ( 1961 )

THEATTORNEY GENERAL
OF-TEXAS
Ausnlv .a*.
TEXAS
WI& WILSON
ATTORNEY OENERAL
March 29, 1961
Honorable Charles A. Allen Opinion No. NW-1029
Criminal District Attorney
Harrison County Re': Whether, under
. . the man-
1 >
aatory provisions of the
P. 0. Box $949
Marshall, Texas Harrison County Road Law,
the Commissioners' Court
of Harrison County, Texas,
is required to employ and
have in Its constant em-
ploy a "registered profes-
Dear Mr. Allen: sional" civil engineer?
lettersof March 7, 1961, you request the
In your __.
opinion of this office on the following question:
"Under the mandatory provisions of the
Harrison County Road Law is the Commlssion-
ers' Court of Harrison County, Texas requir-
ed to employ and have In its constant employ
a 'registered professional' civil engineer?"
In Opinion No. V-1407, to which we adhere, this
office expressed the opinion that:
"House Bill No. 812, Acts 42nd Leg.,
Special Laws R.S. 1931, ch. 156, p. 303
(Harrison County Road Law), makes It manda-
tory for the commissioners' court of
Harrison County to employ a county engineer
and to have a county engineer in constant
employment with Harrison County."
Section 4 of House Bill No. 812, Acts 42nd Lee;.,
Special Laws, R.S. 1931, ch. 156, p. 303 requires that 'Said
County Engineer shall be a qualified Civil Engineer and a
resident of the State of Texas; . . . ' The question thus
evolves : Must the "qualified Civil Engineer" required by
Section 4 be a "registered professional" civil engineer?
Honorable Charles A. Allen, Page 2 (w-1029)
The duties of the county engineer are set forth in
Sections 2, 3 and 4 of the Harrison County Road Law, provid-
ing in part as follows:
"Sec. 2. The Commissloners~ Court
of Harrison County is hereby authorized and
empowered to employ a County Engineer, whose
duties, compensation and liabilities shall be
such as are imposed by this Act. The said
County Engineer shall devote his entire time
to the construction and maintenance of the
county roads.
"Sec. 3. That said County Engineer
shall be appointed by the Commissioners'
Court of said county within ninety (90) days
after the nassage of this Act at a Regular
Meeting or-Called Session thereof. That he
shall have charge of all public road con-
struction and public road maintenance, to-
gether with the building of bridges and cul-
verts, in his County except as is otherwise
herein expressly provided. . . .
“Sec. 4. Said County Engineer shall
be a qualified Civil Engineer and a resident
of the State of Texas; . . . That said County
Engineer shall subject to the orders of the
Commissioners' Court, have general supervision
over the construction and maintenance of all
public roads and highways of his county, toget-
her with the building of bridges and culverts;
he shall superintend the laying out of new
roads subject to the orders of the Commissioners'
Court, and shall forthwith make or cause to be
made a road map of the county showing the loca-
tion, mileage, and classification of the dif-
ferent roads and highways in said county, . . .'
(Emphasis added throughout)
The pertinent sections of Article 3271a, Vernon's
Civil Statutes, defining and regulating the practice of pro-
fessional engineering in the State of Texas, provide in part:
"Section 1. That In order to safeguard
life, health, and property, any person prac-
ticing or offering to practice the profession
Honorable Charles A. Allen, Page 3 (WW-1029)
of engineering as hereinafter defined shall
hereafter be required to submit evidence that
he is qualified so to practice and shall be
registered as hereinafter provided; and it
shall be unlawful for any person to practice
or offer to practice the profession of engi-
neering In this State, . . . unless such
person has been duly registered or exempted
under the provisions of this Act.
"DEFINITIONS
"Sec. 2. The term professional engineer
as used in this Act shall mean a person who,
by reason of his knowledge of mathematics, the
physical sciences, and the principles of en-
gineering, acquired by professional education
and practical experience, Is qualified to en-
gage in engineering practice as hereinafter
defined.
'The practice of professional engineering
within the meaning and Intent of this Act in-
cludes any professional service, such as con-
sultation, investigation, evaluation, planning,
designing, or responsible supervision of con-
struction in connection with any public or pri-
vate utilities, structures, bulldlnsts.machines.
equipment, processes, works, or projects, where:
in the public welfare, or the safeguarding of
life, health or property is concerned or involv-
ed, when such professional service requires the
application of engineering principles and lnter-
pretation of engineering data.
,t
. . .
"Sec. 19. After the first day of January,
1938, it shall be unlawful for this State, or
for any of its nolltlcal subdivisions. for any
county; city, or town, to engage in the con-
struction of any public work involving pro-
fessional engineering, where public health,
public welfare or public safety is involved,
unless the engineering plans and specifica-
tions and estimates have been prepared by,
Honorable Charles A. Allen, Page 4 (WW-1029)
and the engineering construction is to
be executed under the direct supervision
f a registered professional engineer;
zrovided that nothingln~ &isAct shall
be held io apply to any public work where-
in the contemplated expenditure for the
completed reject does not exceed Three
Thousand ($ 3,OOO.OO) Dollars. Provided,
that this Act shall not apply to any road
maintenance or betterment work undertaken
by the County Commissioners' Court."
(Fmphasis added throughout)
The term, "public works" is defined In Volume
34 of Texas Jurisprudence at page 731, as embracing "all
constructlorsand improvements--ordinarily of a fixed
nature--designed for public use, protection or enjoyment.
Clearly included among public works are bridges, school
buildings, waterworks, dams, sewers, canals and channels,
levees and seawalls, wharves and piers, irrigation, re-
clamation and drainage projects, and highways and streets.
Indeed, every work undertaken by the State, a county,
municipality, or other public agency Is necessarily, in
the broadest sense, a 'public work.'" The term "public
welfare" is defined as "the prosperity, well-being, or
convenience of the public at large, or of a whole community,
as distinguished from the advantage of an individual or
limited class." Black's Law Dictionary.
It is the opinion of this office that the duties
imposed upon the county engineer by the Harrison County
Road Law are encompassed by the definition of the practice
of professional engineering contained In Section 2 of Article
3271a.
In response to a request from the County Auditor
of Harrison County, relative to the authority of the Commls-
sioners Court to appoint a person not possessing the qualifl-
cations of a "professional engineer" as a superintendent of
maintenance and construction of county roads and other public
works, this office expressed the following opinion:
"It is the opinion of this department,
under the facts stated, that Section 19,
supra, does not prohibit the Commissioners'
Court from appointing a person not possess-
ing the qualifications of an engineer as
Honorable Charles A. Allen, Page 5 (WW-1029)
defined In Article 327la, V. A. C. S.,
as a superintendent In the construction
of public works where the contemplated
expenditure for the completed project
does not exceed $3,000.00; nor does said
section prohibit the Commissioners' Court
from appointing such a person to super-
vise any road maintenance or road better-
ment work undertaken by the county Commls-
sioners' Court.
"Where, however, the county Commis-
sioners' Court engages in the construction
of public works wherein the contemplated
expenditure for the completed project ex-
ceeds $3,000.00, and such work involves
public health, public welfare or public
safety, and also involves professional
engineering, it is the opinion of this de-
partment that, while a non-engineer could
be appointed as general supervisor of such
construction, Section 19 requires the
county to employ a registered professional
engineer to prepare the engineering plans
and specifications and estimates, and the
engineering construction, likewise, must be
executed under the direct supervision of
such engineer.
"Whether the construction of a parti-
cular public work involves 'professional
engineering' and whether 'public health,
public welfare or public safety' Is involv-
ed, are questions of fact, and consequently
not subject to being ruled on by this
department."
Copies of this opinion, No. o-3505, and of Opinion No. V-1407
are enclosed for your information.
SUMMARY
Under the mandatory provisions of the
Harrison County Road Law and the pro-
visions of Article 327la, Vernon's Civil
Honorable Charles A. Allen, Page 6 (NW-1029)
Statutes, the Commissioners Court of
Harrison County, Texas, is required
to employ and have In Its constant em-
ploy a "registered professional" civil
engineer.
Very truly yours,
WILL WILSON
Attorney General of Texas
J+&A&-yd.b
BY
Dudley D. McCalla
Assistant
DDM:hmc
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Jack N. Price
John Reeves
L. P. Lollar
John Leonarz
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbltt