Untitled Texas Attorney General Opinion

TRE A’ITORNEY GENERAL
OF -XAS
January 8, 1974
The Honorable Donald C. Klein, P. E. Opinion No. H- 201
Executive Director
Texas State Board of Registration Re: Reconsideration of
for Professional Engineers Attorney General Opinion
Room 200, 1400 Congress M-1149 (1972) - whether
Austin, Texas 78701 county is obligated to
employ licensed profes-
sional engineer as a county
road engineer.
Dear Mr. Klein:
Your opinion request concerns whether Bexar County is required to
employ a licensed professional engineer as the County Road Engineer or
whether it may continue to employ the services of a Road Administrator
under Article 6716-1, V. T. C. S. , known as “The Optional County Road
Law of 1947”.
You advise us of the following facts in your letter:
“The Texas State Board of Registration for Profes-
sional Engineers has registered in the state of Texas
approximately 28, 000 licensed Professional Engineers
Of these between 700 and 1,000 reside in Bexar County
in or around San Antonio. Bexar County employs a
county road administrator rather than a licensed Profes-
sional Engineer at a monthly salary of $1, 500. 00. The
matter of the failure of a county with a population the
size of Bexar County to fail to employ a licensed Profes-
sional Engineer when it undoubtedly could employ a
licensed Professional Engineer in the capacity of county
road engineer has for some time been a source of
dissent and controversy between the County Commis-
p. 945
The Honorable Donald C. Klein, page 2 W-201)
sioners of Bexar County and the licensed Profes-
sional Engineers of the state of Texas, and
particularly Bexar County. As a result of this
controversy, the County, in June of 1972,, decided
to request an Attorney General’s Opinion on the
relevance and interpretation of Article 6716-l
V. C. S. as it relates to Bexar County, and in
June of 1972, Opinion M-1149 answered the question
in favor of the County Commissioners and allowed
Bexar County to continue to employ a road admin-
istrator rather than a county road engineer. ‘I
Article 6716-1, 5 5. V. T. C. S. I originally provided in part:
“The Coiinty Road Engineer shall be appointed
by the Commissioners Court shallbe a
licensed professional engineer, elrpxnced in
road construction and maintenance, who shall
meet the qualifications required by the State
Highway Department for its county engineers. .
.~ * I1(Emphasis added)
i /
, :
Section 5 was amended, (Acts, 1957, 55th Leg., ch. 176, p. 371) to
add the following language:
‘1. . . If the Commissioners Court is not able to
employ a licensed professional en&neer for .any
reason, then the Commissioners Court is authorized
to employ a qualified road administrative officer,
who shall be known as the County Road Administrator,
to perform the duties of the County Road Engineer.
The County Road Administrator shall have had
experience in road building. or maintenance or
other types of construction work qualifying him to
perform.the duties imposed upon him, but it shall
not be necessary that he have had any fixed amount
of professional training or experience in engineering
work. . . . ” (Emphasis added)
p. 946
The Honorable Donald C. Klein, page 3 (H-201)
Section 2 of the 1957 Act was the “emergency clause” and provided
in part as follows:
“The fact that the scarcity of professional engineers
and the salary limitation in the Optional County
Road Law makes it practically impossible for some
counties to employ a licensed professional engineer
to serve as County Road Engineer, as now required ’
in that law, creates an emergency. . . . ‘I
Article 6716-1 indicates a Legislative intent that a licensed professional
engineer shall be hired unless the Commissionerst Court is not able to find
or pay one. Ordinarily “shall” is of mandatory effect, 53 Tex. Jur. 2d,
Statutes. $16. The word “any” as used in the phrase “for any reason” has
been construed to mean each, every, or all. Hime v. City of Galveston,
268 S.W.2d 543, (Tex. Civ. App. Waco, 1954, writ ref., n. r. e. ). ‘Hime
enumerates three specific tests to be followed in the interpretation of any
civil statute. They are:
1. Ascribe ordinary significance to the words used.
2. Look to the legislative intent as expressed in the
act.
3. Construe the act liberally and in keeping with the
expressed purposes to promote justice.
The intention of the Legislature, as evidenced by the “emergency
clause”, was to provide an alternative to a county road engineer for counties
which were not able to hire a licensed professional engineer. “For any
reason”, therefore. would mean any reason having to do with inability to
hire a professional engineer who is qualified according to the standards set
by the Commissioners’ Court. Where it can be shown that a licensed profes-
sional engineer, who meets the standards authorized by the Commissioners’
Court, is available and willing to accept the job, it may be an abuse of
discretion for the Commissioners’ Court to hire a road administrator.
Article 3271a, V. T. C. S., known as the Texas Engineering Practice
Act, is the general Act regulating activities of professional engineers. Section
19 makes it unlawful for the State or any political subdivision to engage in
p. 947
The Honorable Donald C. Klein, page 4 (H-201)
construction of public works where the public health, welfare and safety
are involved unless engineering plans and specifications are drawn up by
a professional engineer and the work being done is supervised by a pro-
fessional engineer. Section 19 further provides, in part:
II . . . Provided, tbat this Act shall not apply
to any road maintenance or betterment work
undertaken by the County Commissioners’ Court. ‘I
Further, public policy embodied in Article 3271a should be liberally
construed, as oppo,sed to the proviso which should be strictly construed,
53 Tex. Jur. 2d, Statutes, 194, 201. The need for licensed professional
engineers to design today’s modern superhighways underlies such a policy.
Certainly, the design of new highways is a “construction of any public
work. . . where public welfare and safety are involved” which would require
.that the engineering plans be drawn by licensed engineers in accordance
with Section 19. It is therefore our opinion that the more logical inter-
pretation of “road maintenance and betterment work”is apply such descrip-
tive terms to the more routine maintenance and betterment work carried out
under the Commi ssioners Court direction rather than apply such’descriptive
terms to traditional engineering work involving design, drawings, and super-
vision requiring professional engineering expertise.
SUMMARY
In accordance with Article 6716-1. V. T. C. S., a county
commissioners court is required, if able, to employ a
licensed professional engineer as the County Road Engineer
if one meets the requirements set by the c ommissioners
court.
Very truly yours,
p. 948
: L
,’ .
.I -
The Honorable Donald C. Klein, page 5 (H-291)
DAVID M. KENDALL, Chairman
Opinion Committee
p. 949