Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEYGENERALOF TEXAS
GREG ABBOTT
November 23,2004
Ms. Dale Beebe Farrow Opinion No. GA-0274
Executive Director
Texas Board of Professional Engineers Re: Validity of engineering documents prepared
1917 M-35 South and sealed by a licensed engineer who is employed
Austin, Texas 78741 by an unregistered firm (RQ-0235GA)
Dear Ms. Farrow:
At the request of the Texas Board of Professional Engineers (the “Board”), the former
executive director asked about the validity of engineering documents prepared and sealed by a
licensed engineer who is employed by an unregistered firm.’ You also ask whether, assuming that
the documents are invalid, the documents may be validated if the firm registers with the Board
within 30 days of receiving a notice from the Board. See Request Letter, supra note 1, at 2.
Chapter 1001 of the Occupations Code, the Texas Engineering Practice Act (the “Act”), see
TEX. OCC.CODEANN. 5 1001.001 (Vemon2004) (“Short Title”), governs thepracticeofengineering
in Texas. For purposes of chapter 1001, the phrase “practice of engineering” is defined to mean
public or private service or creative work requiring special knowledge of the mathematical, physical,
or engineering sciences. See id. 5 1001.003(b); see also id. 5 1001.003(c) (listing tasks included
within the practice of engineering). The Board may “adopt and enforce any rule . necessary to
regulate the practice of engineering,” see id. 5 1001.202; 29 Tex. Reg. 1568-1613 (2004),
adopted 29 Tex. Reg. 4868-84 (2004) (codified at 22 TEX. ADMIN. CODE pt. 6), and may establish
standards of conduct and ethics, consistent with chapter 1001, for persons licensed to practice
engineering, or “engineers.” See TEX. Oct. CODE ANN. 4 1001.207 (Vernon 2004); see also id.
1001.002(2) (defining the term “engineer”).
With certain exemptions that you do not suggest are relevant here, see id. ch. 1001, subch.
B, only individuals licensed under chapter 1001 may practice engineering in the State of Texas.
Id. 5 1001.301(a). Each licensed engineer holds a Board-designed seal showing the licensee’s
“name and the legend ‘Licensed Professional Engineer’ or ‘Registered Professional Engineer.“’
Id. 5 1001.401(a); see 29 Tex. Reg. 1603-04 (2004), adopted 29 Tex. Reg. 4881 (2004) (codified
‘See Letter from Victoria J.L. Hsu, P.E., ExecutiveDirector,Texas Board of ProfessionalEngineers,to
HonorableGregAbbott,TexasAttorneyGeneral(June2,2004)(on file withtheOpinionCommittee, alsoavaihble at
http://www.oag.state.tx.us)
[hereinafterRequestLetter].
Ms. Dale Beebe Farrow - Page 2 (GA-0274)
at 22 TEX. ADMIN. CODE 5 137,31(b), (d)). Section 1001.401 requires an engineer to seal, as well
as sign, each “plan, specification, plat, or report” that the engineer issues. TEX. OCC. CODE ANN.
§ 1001.401(b) (Vernon 2004); see 29 Tex. Reg. 1604 (2004), adopted 29 Tex. Reg. 4881 (2004)
(codified at 22 TEX. ADMIN. CODE 5 137.33(f)). “The purpose ofthe engineer’s seal is to assure the
user of the engineering product that the work has been performed or directly supervised by the
professional engineer named and to delineate the scope ofthe engineer’s work.” 29 Tex. Reg. 1604
(2004), adopted 29 Tex. Reg. 4881 (2004) (codified at 22 TEX. ADMIN. CODE 4 137.33(a)). Upon
sealing an engineering document, the engineer “take[s] full professional responsibility for that
work.” Id. (codified at 22 TEX. ADMIN. CODE § 137.33(b)). An official of the state or a political
subdivision “who is responsible for enforcing laws that affect the practice of engineering” may
accept an engineering document only if it is sealed. TEX. OCC. CODE ANN. 5 1001.402 (Vernon
2004). In addition, the state and its political subdivisions may not construct a public work
“involving engineering in which the public health, welfare, or safety” is implicated unless an
engineer has prepared-and presumably signed and sealed in accordance with section 1001.401 -the
engineering plans, specifications, and estimates. Id. 5 1001.407(l); see also id. 5 1001.401(b)
(requiring that an engineering document issued by an engineer bear the engineer’s seal).
In addition to the licensure of individual engineers, chapter 1001 requires business entities
that engage in the practice of engineering to register with the Board. Under section 1001.405(b), a
business entity, which includes sole proprietorships, firms, partnerships, corporations, andjoint stock
associations, may not engage in the practice of engineering unless:
(1) the business entity is registered with the board and
(2) the practice is carried on only by engineers.
Id. 5 1001.405(b); see also id. 5 1001.405(a) (defining the term “business entity”). To register, a
business entity annually must complete an application listing, among other things, “the name and
address of each officer or director. and each engineer who engages in the practice of engineering
on behalf of the business entity.” Id. 3 1001.405(c). See generally 29 Tex. Reg. 1597-98 (2004),
adopted 29 Tex. Reg. 4878 (2004) (codified at 22 TEX. ADMIN. CODE $5 135.1, .3, .5). An
unregistered business entity “may not represent to the public that it is engaged in the practice of
engineering or use or cause to be used” terms such as “engineer,” “licensed professional
engineer,” or “registered professional engineer.” TEX. Oct. CODE ANN. 5 1001.405(e) (Vernon
2004); see also 29 Tex. Reg. 1607 (2004), adopted 29 Tex. Reg. 4882 (2004) (codified at 22 TEX.
ADMIN. CODE 5 137.71). Despite the registration requirements, the Board may adopt a rule
permitting an unregistered business entity “that is engaged in the practice of engineering in violation
of’ section 1001.405(b) to avoid disciplinary action if the business entity registers within 30 days
after the Board notifies it, in writing, of the registration requirement. TEX. Oct. CODE ANN.
5 1001.405(g) (Vernon 2004). Under Board rules, “a business entity that offers or is engaged in
the practice of engineering in Texas and is found to not be registered with the [Bloard shall register
. . within 30 days of written notice from the [Bloard.” 29 Tex. Reg. 4882 (codified at 22 TEX.
ADMIN. CODE 3 137.77(d)). Failure to register within 30 days is considered a violation of chapter
1001 and Board rules, and violators “will be subject to administrative penalties.” Id. (codified at 22
TEX. ADMIN. CODE 5 137,77(e)).
Ms. Dale Beebe Farrow - Page 3 (GA-0274)
A person who violates the Act or Board rules adopted under the Act may be subject to Board
discipline and administrative penalties, up to $3,000 per violation per day. See TEX. OCC. CODE
ANN. $5 1001.452(l), .501-,502 (Vernon 2004); see also 29 Tex. Reg. 4882 (2004) (codified at
22 TEX. ADMIN. CODE 137.77(e)) (stating that an unregistered business entity “will be subject to
administrative penalties”). The Board may order an engineer to pay restitution to an injured
consumer. See TEX. Oct. CODEANN. 5 1001.4526(a) (Vernon 2004). The Board may sue to enjoin
violationsofchapter 1001 orBoardrules,see id. 3 1001.551(a), and aviolationofchapter 1001 may
constitute a criminal offense, see id. 5 1001.552.
The request letter indicates that, in some cases, “a licensed professional engineer employed
by the [unregistered business entity] has prepared either plans, specifications[,] or other related
construction documents and affixed the engineer seal to the project documents.” Request Letter,
supra note 1, at 2. “[Tlhe Board is uncertain as to the status ofthe engineering documents”prepared
and sealed by a licensed engineer employed by an unregistered firm. Id. The request therefore
expressly asks whether these documents are “valid,” although the request letter stipulates that the
engineer’s “licensure and competency is not in question.” Id. We are told that the issue has
implications in the building permitting process, as well as in the insurance and liability contexts.’
You have not submitted any sample building permit ordinances or insurance contracts, nor described
any possible litigation, that would illustrate the importance of the engineering documents with
respect to your question.
We assume that preparing plans, specifications, and related construction documents
constitutes the practice of engineering for purposes of the Act. The Act expressly defines the
practice of engineering to include the “design of engineering works or systems,” the
“development. ofplans and specifications for engineering works or systems,” and “engineering
for construction of real property.” See TEX. Oct. CODE ANN. 5 1001.003(c) (Vernon 2004).
Whether performing this task, or any particular task, constitutes the practice of engineering is a fact
question that cannot be determined in the opinion process. See Tex. Att’y Gen. Op. No. GA-0156
(2004) at 10 (stating that fact questions cannot be answered in the opinion process); see also Tex.
Att’y Gen. Op. No. JC-0020 (1999) at 2 (stating that determining whether a “site evaluator” engages
in the practice of engineering would require the resolution of fact questions).
Neither the statutes nor the Board’s rules expressly address the “validity” of sealed
engineering documents. Seegenerally TEX. Oct. CODEANN. ch. 1001 (Vernon 2004); 29 Tex. Reg.
1607 (2004), adopted 29 Tex. Reg. 4882 (2004) (codified at 22 TEX. ADMIN. CODE 5 137.71);
29 Tex. Reg. 4882 (codified at 22 TEX. ADMIN. CODE $ 137.77). The Board has no authority to
declare engineering documents invalid in any circumstances, and the Board’s rulemaking authority
does not encompass the adoption of rules declaring documents invalid. See TEX. Oct. CODE ANN.
$5 1001.201-.207 (Vernon 2004) (delineating the Board’s rulemaking authority); see also R.R.
Comm ‘n v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992) (quoting State Bd. ofIns.v.
Deffebach, 631 S.W.2d 794,798 (Tex. App.-Austin 1982, writ refd n.r.e.)) (stating that an agency
‘See TelephoneConversation
withPaulD. Cook,AssistantExecutiveDirector,TexasBoardof Professional
Engineers(Sept. 14,2004).
Ms. Dale Beebe Farrow - Page 4 (GA-0274)
may adopt “‘only such rules as are authorized by and consistent with its statutory authority”‘). In
addition, the Act does not impose a penalty for issuing an engineering document in this circumstance
(except to the extent that the unregistered business entity may have been engaged in the unlawful
practice of engineering).
Moreover, an engineer’s seal warrants that the construction plans are sound, given the
particular building site. See George Thomas Homes, Inc. v. S. K Tension Sys., Inc., 763 S.W.2d 797,
800 (Tex. App.-El Paso 1988, no writ). Seals “carry with them the [engineer’s] representation of
personal accountability independent of any employment contract with [his or her] employer.” Id.
The Act plainly authorizes public officials of the state or a political subdivision to accept a sealed
plan, without requiring that the firm that employs the engineer be properly registered, and section
1001.407 authorizes the state or a political subdivision to construct a public work involving
engineering if the engineering documents bear the requisite seal, without requiring that the
employing firm be registered. See TEX. Oct. CODEANN. $5 1001.402, .407 (Vernon 2004); see also
id. 5 100 1.40 1(b) (requiring that an engineering document issued by an engineer bear the engineer’s
seal).
For all ofthese reasons, we conclude that the employing firm’s registration status is irrelevant
to the validity of engineering documents properly sealed by an engineer for the purposes of the Act.
Properly sealed documents issued by an engineer employed by an unregistered firm are not invalid
under the Act. A particular contract or building permitting regulations may require an engineering
document to be issued by a registered firm, as well as to bear a licensed engineer’s signature and
seal, and our conclusion does not affect those requirements. Having concluded that the engineering
documents are not invalid under the Act, we do not address your second question, which assumes
that the documents are invalid. See Request Letter, supra note 1, at 2.
Ms. Dale Beebe Farrow - Page 5 (GA-0274)
SUMMARY
An engineering document issued by an engineer and properly
sealed is not invalid under the Texas Engineering Practice Act,
Occupations Code chapter 1001, regardless of the registration status
of the firm employing the engineer.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee