Untitled Texas Attorney General Opinion ( 1966 )

AUSTIN. TEXAS 7S)7111
December 28, 1966
Honorable J. W. Edgar Opinion MO. C-791
Commissioner of Education
201 East 11th Street Re: Application of Section 19
Austin, Texas of Article 3271a, Vernon's
Clvll Statutes, to public
school plant plannlng and
construction and related
Dear Mr. Edgar: questions.
Your request for an opinion on the above subject matter
asks the following questions:
"1. What does a proper compliance by a
school dlstrlct with Section 19 require or en-
tall?
"2. As and if applicable to public school
plant planning and construction, what is a 'pub-
lic work Involving profeaslonal engineering, where
public, . . .health . . .or safety is Involved',
as used In Section lg?
“3. What Is the meaning and llmltatlon to
be given the phrase: 'and the engineering cons-
truction Is to be executed under the direct super-
vlsiQn,of a registered professional engineer'?"
Section 19 of Article 3271a, Vernon's Civil Statutes,
provides as follows:
Vet. 19. After the first day of January,
1938, It shall be unlawful for this State, or for
any of Its polltlcal subdivisions, for any county,
city, or town, to engage In the construction of
any public work Involving professional engineering,
where public health, public welfare or public safety
Is Involved, unless the engineering plans and speclfl-
cations and estimates have been prepared by, and the
-3795-
(. ,-
Hon. J. W. Edgar, page 2 (C-791)
engineering construction Is to be executed under
the direct supervision of a registered professional
engineer; provided, that nothing in this iBet shall
be held to avvly to an.vvubllc work wherein the
contemplated-expenditure-for the completed project
does not exceed Three Thousand ($3,000.00) Dollars.
Provided, that this Act shall not apply to any road
maintenance or betterment wof;kundertaken by the
County Commissioners' Court. (Emphasis added)
The term "practice of engineering" Is defined In Sec-
tion 4 of Article 3271a, Vernon's Civil Statutes, as follows:
"(4) 'Practice of engineering,' or 'practice
of professional engineering' shall mean any service
or creative work, either public or private, the per-
formance of which requires englneerlng education,
training and experience In the application of special
knowledge of the mathematical, physical, or engineer-
ing sciences to such services or creative work.
Professional engineer Is defined as a person who has
been duly licensed and registered by the Board of Registration
for Professional Engineers.
Section 10 of Article 249a, Vernon's Civil Statutes,
provides as follows:
y person, or firm, who for a fee
or otZZ)dlr%. compensation therefor, shall engage
‘inthe planning, or designing, or supervising the
construction of buildings to be erected or altered
‘inthis State, by or for other persons than them--
selves, as a vrofesslon or business, and shall rev-
resent-or advertise themselves as architects, -
architectural designers, or other title of profession
or business using some form of the word 'architect'
shall be considered as practicing the profession
of architecture In this State, and shall be required
to comply with the provisions of thl A t' d
verson or firm shall enezageIn or co~du~t't% v%tlce
of architecture as aforesaid In this State unless
a registration certificate or certificates therefor
have been duly issued to such person or the members
of such firm as provided for by this Act, and no
firm or partnership shall engage in, or conduct,
the practice of architecture as aforesaid within
this State except by and through persons to whom
registration certificates have been duly Issued,
-3796-
Hon. J. W. Edgar, Page 3 (C-791)
and which certificates are In full etfect; but
nothing In this Act shall prevent draftsmen,
students, clerks of works, superintendents, or
other employees or assistants of those legally
practicing architecture under registration certlf'i-
cates as herein provided for from acting under ,the
instructions, control, or supervision of such
registered architects.
uall~l``. Nothing In this Act shall prevent
q professional engineers from planning
and 'supervisingwork, such as railroads, hYdro-
Zleatric work, lnoustrlal plants, or other cons-
truction primarily Intended for engineering use
or structures Incidental thereto, nor Prevent said
englneers from planning, designing, or supervising
the structural features of any build1 g b t such
engqneers shall not employ the title Ifaichitect'.
In any way, nor represent themselves as suoh, 'nor
shall any engineer practice the profession of
architecture as defined herein, unless he or she
be registered as an architect under the ,proviSions
of this Act." (hphasls added),
Pursuant to the provisions of Article 2654-3, Vernon's
Civil Statutes, the Texas Education Agency established certain
pol$cles concerning plant planning and made the following recom-
mendation concerning Plans and specifications for public school
bulldings: *.
"It Is recommended by the Texas Education
Agency that the plans and specifications for cons-
truction of, adding to; 'or structural changes In
zany Public school building be prepared by a registered
arahitect. Experience has Indicated that this ex-
pense Is more than justified by better planning and
aonstruct10n." Texas Education Agency Bulletin 543
(RevUed 1962) p. 5.
In 1965 the 39th Legislature amended the Texas Englneer-
lng Practice Act (Article 3271a, Vernon's Civil Statutes) leaving
uncha ed the provisions of Section 19, above quoted. Senate
"& , Acts of the 59th Legislature, Regular Sesslon, ch. 85,
Bill 7
p. 207.
Furthermore, the 59th Legislature enacted the State
Bulldlng Construction AdmInistrationAct (Article 678f, Vernon's
Civil Statutes) applying to all building construction projects
undertaken by the State Building Commission with certain exceptions.
-3797-
Hon. J. W. Edgar, page 4 (c-791)
Subdivision (I) of Section 2 of Article 678f, Vernon's Civil
Statutes, provides:
"(1) 'Architect/engineer'means a person
registered as an architect pursuant to Acts of
the 45th Legislature, Re ular Session, 1937,
Chapter 478, as amended 7compiled as Article
249a of Vernon's Texas Civil Statutes) and/or
a person registered as a professional engineer
pursuant to Acts of the 45th Legislature, Regular
Session, 1937, Chapter 404, as amended (compiled
as Article 3271a of Vernon's Texas Civil Statutes)
'employed to provide professional architectural or
engineering services and having overall responsibility
for the design of a project. The term 'Architect/en-
gineer f standing by Itself may, unless the dontext
clearly Indicates otherwise, mean either an architect/
engineer employed by the Commission on a salary basis
or an archltect/englneer.ln private practice retained
for a specific project under a contractual agreement
with the Commission. The term 'private architect/
engineer, shall specifically and exclusively'refer
to a reglstered architect or a registered engineer
in private practice retained for a specific project
under a contractual agreement with the Commission."
We construe your recommendation contained In the
Bulletin 543 to be In addition to the requirement of Section 19
of Article 3271a. Thus, while the services of a registered
architect, In addition to the services of a registered engineer,
Is deemed advisable, Section 19 of Article 327la does not require
the services of a registered architect but only the services of
a registered engineer. The services performed by an architect
and the services performed by an engineer frequently overlap.
82 A.L.R. 2d 1026. It Is generally held, however, that designing
a building for another or the furnishing of plans and speclflca-
tlons for such building constitutes architectural services while
engineering services require the application of structural,
electrical or mechanical engineering principles and data. 82
A.L.R.W 1014-1029.
In view of the foregoing, your questions are answered
as follows:
(1) Proper compliance of Section 19 of Article 3271a,
Vernon's Civil Statutes, requires that the engineering plans and
specifications (which Includes the application of structural,
electrical or mechanical engineering principles) must be prepared
by, and executed under, the directions of a professional engineer.
-3798-
Hon. J. W. Edgar, page 5 N-791)
The overall plans and specifications for a building should, in
accordance with the recommendation of the Texas Education Agency,
be prepared by a registered architect.
(2) 'Public work Involving professional engineering,
where public health, public welfare or public safety Is involved"
includes any school plant construction. It is Inconceivable
that any SChOQl plant could be constructed that did not Involve
either structural, electrical or mechanical englneering principles.
All school plants affect public health, public welfare or public
safety.
In response to your third question, we are unable to
enumerate In detail and with certainty all duties to be performed
by a registered professional engineer In the direct supervision
of engineering construction under Section 19 of Article 3271a.
In the absence of a speolflc factual situation, we can only state
that he must be in a posltlon to Inspect and control, as each
progresses, the various phases of the construction project which
involve the "practice of engineering" as defined In SectLon 2
(4) of Article 3271a of Vernon's Civil Statutes.
SUMMARY
Section 19 of Article 3271a 1s applicable to
all structural8 electrical and mechanical englneerlng
phases of all.school plant construction by the various
school districts of this State.
Yours very truly,
WAGGONER CARR
Attorney General
JR:mh:mk.h
APPROVED:
OPINION COMMITTEE
W. 0. Shulte, Chairman
Malcolm Quick
Kerns Taylor
Paul Martin
APPROVED FOR TIiRATTORNEY GENERAL
By: T. B. Wright
-3799-