Untitled Texas Attorney General Opinion ( 1974 )

THE ATTORNEYGENERAL
OF TEXAS
AUSTIN. TSXAS 78711
August 15, 1974
The Honorable James W. Kirby, Chairman Opinion No. H- 372
State Board of Registration for
Professional Engineers Re: Whether the Texas
200 John H. Reagan Bldg. Engineering Practice Act
Austin, Texas 78701 prohibits (1) a private associa-
tion of engineers from accredit-
ing and certifying persons: (2)
use of membership or accredita-
tion in an association of engineers
by an individual not a registered
engineer.
Dear Mr. Kirby:
Your office has requested our opinion as to whether the Texas
Engineering Practice Act, Art. 32710, V. T. C. S., prohibits certain
activities of a private association.
We understand that the National Association of Corrosion Engineers
is a private organization incorporated under the Texas Non-Profit Corpora-
tion Act with headquarters in Houston, Texas. The membership of the
Association includes both registered professional engineers and those who
are not. The Association has established and conducts an accreditation
program through which it issues certificates to members recognizing them
to be qualified under Association standards in four categories: “Corrosion
Technician, “Corrosion Technologist, ” “Corrosion Specialist in Training, ”
and “Corrosion Specialist. ” You provided a sample certificate on which
the name of the Association is prominently displayed and which states:
“National Association of Corrosion Engineers Certifies that [name] has
satisfied the requirements for accreditation as a NACE Corrosion Specialist
[or other category]. ” The certificate bears the year, corporate seal of
p. 1747
The Honorable James W. Kirby. page 2 (H-372)
the Association, and has blanks for an accreditation number and the
signature of the executive secretary.
Your questions in regard to this matter may be stated as follows:
1. Does the Texas Engineering,Practice Act
prohibit a private association from establishing.
an accreditation program and issuing certificates
in connection with such a program?
2. Does the Texas Engineering Practice Act
prohibit an individual who is not a registered pro-
fessional engineer from displaying or making public
his membership in or accreditation by an associa-
tion of engineers?
The Texas Engineering Practice Act establishes a comprehensive
regulatory scheme whereby the practice of engineering and the use of the
term engineer and its variations are limited, to persons licensed and
registered by the State Board of Registration for Professional Engineers.
Art. 3271a, V. T. C. S.
Section 1.1 of the Act states the purpose of the Act at length, and
provides in part:
[I]n order that the state and members of the public
may be able to identify those duly authorized to practice
engineering in this, state and fix ‘responsibility ‘for work
done or services or acts performed in the practice of
engineering, only licensed and registered persons shall
practice, offer or attempt to practice engineering or
call themselves or be otherwise designated as any kind
of an “engineer” or in any manner make use of the term
“engineer” as a professional, business or commercial
identification, title, name, representation, claim or
asset. . . .
p. 1748
The Honorable James W. Kirby page’ 3 (H-372)
Section 1.2 prohibits a number of activities by persons who are
not registered engineers:
Sec. 1; 2 From and after the effective date of this
Act, unless duly licensed and registered.in accordance
with the provisions of this Act, no person in this state
shall:
(1) Practice, continue to practice, offer ,or attempt
to practice engineering or any branch or part thereof.
(2) Directly or indirectly, employ, use, cause to be
used or make use of any of the following terms or any
combinations, variations or abbreviations thereof as a
professional, business or commercial identification,
title, name, representation, claim, asset or means of
advantage or benefit: “engineer, ‘I “professional engineer, ”
“licensed engineer, ” “registered engineer, ” “registered
professional engineer, ” “licensed professional engineer, ”
“engineered. ”
(3 ) Directly or indirectly, employ, use, cause to be
used or make use of any letter, abbreviation, word,
symbol, slogan, sign or any combinations or variations
thereof; which in any manner ~whatsoever ‘tends ,.or is
likely to create any impression with the public or any
member thereof that any person is qualified or authorized
to practice engineering unless such person is duly licensed,
registered under and practicing in accordance with the
provisions of this Act.
(4) Receive any fee or compensation or the promise of
any fee or compensation for performing, offering or
attempting to perform any service, work, act or thing
which is any part of the practice of engineering as defined
by this Act.
p. 1749
The Honorable James W. Kirby page 4 (H-372)
Within the intent and meaning and for all purposes
of this Act, any person, firm, partnership, associa-
tion or corporation which shall do, offer or attempt
to do any one or more of the acts or things set forth
in numbered paragraphs (l), (2), (3), (4) of this Section
1.2 shall be conclusively presumed and regarded as
.engaged in the practice of engineering.
In regard to the first question. we find no provision in the Act
which would prohibit an organization made up of registered engineers
from establishing professional recognition standards and accrediting
its registered engineer members as to their specialized training or
knowledge in an area within the field of engineering.
The Act makes no reference to specialization. The qualifications
for registration refer generally to engineering training and experience in
engineering work without further specification. Sec. 12, Art. 3271a, V. T.
c. s.
Section 8 of the Act authorizes the Board to establish standards of
conduct and ethics for registered professional engineers. In the absence
of a standard limiting or restricting claims of specialization, we do not
believe that a private association of engineers would be prohibited from
establidiing on accreditation program in ,a specialieed area for its registered
engineer members, and issuing certificates in connection with such a
program.
However, in view of the comprehensive regulatory scheme established
by the Act, and the reservation of the use of the term “engineer” to those
licensed and registered by the Board, it is clear that the Board’s authority
to license and certify persons as engineers is exclusive, and a private
organization may not certify persons as engineers.
On the facts presented, while ,the accreditation and certification
program does not directly designate persons as engineers, the use of the
p. 1750
The Honorable James W. Kirby page 5, (H-372)
name of the association in connection with the program seems misleading.
In our opinion, the use of the name “National Association of Corrosion
Engineers” on a certificate purporting, to recognize a person as having
special qualifications probably would constitute a violation of $1.2(3) of
the Act, which prohibits the direct or indirect use of any abbreviation,
word, symbol, slogan, sign “which in any manner whatsoever tends or
is likely to create any impression with the public or any member thereof
that any person is qualified or authorized to practice engineering unless
such person is duly licensed, registered under and practicing in accordance
with the provisions of this Act. ”
Thus, the answer to the first question is that, underthe facts
given us, Sec. 1.2(3). Art. 3271a. V. T. CS., would prohibit the National
Association of Corrosion Engineers from using “engineers” in a manner
that tends to create an impression that those certified by it are engineers.
The second question is concerned with the ,display or use of member-
ship in or,accreditation by an association of engineers by an individual who
is not a registered engineer.
Section 1. 2 (2) of the Act, set out above, prohibitslany person other
than a registered engineer from making any use of the term “engineer” or
any variation thereof “as a professional, business or commercial identifi-
cation, title, name,~ representation , claim. a,seet or means of advantage
or benefit . . . . ”
Section 1. 2 (3) prohibits the use of any word, symbol, .sign, etc.9
which tendsor is likely to create an impression that any person is quali-
fied or authorized to practice engineering.
Section 18 prohibits any firm, partnership, association, corporation
or other business entity from holding itself out to the public as being engaged
in the practice of engineering or from using the term “engineer’! or any
variation thereof on, in or as a part of any “sign, directory, listing, contract,
document, pamphlet, stationery, letterhead, advertisement,~ signature, trade
name, assumed name, corporate or other business name” unless engaged in
p. 1751
The Honorable James W. Kirby page 6 (H-372)
the practice of engineering performed by registered engineers.
In Tackett v. State Board of Registration for Professional Engineers,
466 S.W. 2d 332 (Tex. Civ. App. --Corpus Christi, 1971, no writ), the
court held that the use of the business name “Television Engineering
Company” by a person not registered engineer was a violation of the Texas
Engineering Practice Act.
In State Board of Registration for Professional Engineers v. Wichita
Engineering Company, 504 S.W.2d 606 (Tex. Civ. App. --Ft. Worth,
1973, writ ref’d, n. r. e.), the court held that Section 18 of the Act is a
valid exercise of the State’s police power, and that a corporation that did
not provide engineering services could be enjoined from using the name
“Wichita Engineering Company. ”
In Attorney General Opinion No, C-691 (1966), this Office held that
the use of designations such as “sales engineer, ” “moving engineer, ”
“safety engineer, I’ “tax engineer, ” or similar designations on stationery,
building directories, telephone directories, business cards, advertisements
or other means of communication by individuals not registered to practice
engineering would be a violation of the Engineering Practice Act, specifically
citingmsec. 1.2 (2) and (3) of the Act.
In Attorney General Opinion No. M-1090 (1972), this Office considered
a provision in the Public Accountancy Act, Sec. 8 (c), Art. 41a, V. T. C. S.,
which restricts the use of the title or designation “public accountant. ” In
that Opinion, it was held that the listing of an accounting organization member-
ship on one’s stationery would be a violation of that Act unless the person was
licensed public accountant.
The language of the provision in the Public Accountancy Act is very
similar to that used in Sets. 1.2 (3) and 18 of the Texas Engineering Practice
Act, and the purpose of the provisions of both Acts is the same: to prevent
the public from being misled by the use of a term tending to indicate that the
individual is licensed when he is not.
p. 1752
The Honorable James W. Kirby page 7 (H-372)
On the facts presented to us, in view of the comprehensive prohibi-
tion of Sets 1. 2 (2) and (3), 18, supra, and in light of their interpretation
and application by the authorities cited, it is our opinion that these piovi-
sions prohibit an individual who is not a registered engineer from display-
ing, using or claiming membership in, or certification by, The National
Association of Corrosion Engineers in his professional, business, or
commercial activities.
SUMMARY
Article 3271a, V. T. C. S., prohibits the ,National
Association of Corrosion Engineers from using !‘engineers”
in a manner that tends to create an impression that those
certified by it are engineers.
An individual who is not a registered engineer may not
display or use membership in or certification by an
association using the term “engineer” in its name in
his professional, business, or commercial a.ctivities.
Sections 1.2 (2), (3), I8, Article 3217a, V. T. C.S.
Very truly yours,
Attorney General of Texas
AP OVED:
IT
e-qst RRY F. YORK, Assistant
DAVID M. KENDALL, Chairman
Opinion Committee
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p. 1753