Case Information
*1 Opinion No. O-2418 Hon. Dan W. Jackson Rer Interpretation of Article Criminal District 32718 Vernon’s Annotated Civil Attorney Statutes, relating to the prac- Houston, Texas
tice of professional englneer- Attentlont Mr. Palmer lng .
Hutcheson, Jr.
Dear Sir:
This will acknowledge receipt of your letter of May 27,lw, requesting the opinion of this department lnterpret- lng Article 3271A, Vernon’s Annotated Civil Statutes, relating to the practice of professional englneerlng. Your questions are as follows:
“Bearing In mind the definition of professional engineering as given In Sect Ion 2 of Article 32718, and the penal provision ln Section 23, would an archl- If he tect be liable, under the penal provision, builds a store, an office building or a public bulld- lng with plumbing and lighting for the usual utllltles, without hiring the services of a engineer? 8, . . .
would a sales and service representative (not a registered engineer) of an air conditioning equlp- ment company be guilty, under Section 23 of Article 32718, If he Installed an air conditioning system in a hospital without employing a registered engineer? 1’. . .
“The third question arises from the practice, which is especially prevalent where large office buildings are concerned, of having plans prepared out of the State, with or without the advice of profes- sional engineers in other states, none of whom are In Texas, and sent into the state and used registered In construction of these buildings without the seal or approval of any engineer of the State of Texas. registered under the laws In this situation, 1s it the opinion of your honorable offlce that the penal pro- *2 Hon. Dan W. Jackson, page 2 (O-2418)
to any of the persons engaged ln the constructlon of such a building In Texas?”
In answer to your first question we call, your atten- tion to Section 11 of Article 249a, VernonIs hnnotated Civil Statutes, creating the Board of Architectural Zxamlners and regu- Iatlng the practice of architecture. This section reads as fol- lowsr
*Inny person, or firm, who for a fee or other direct compensation therefor, shall engage In the or supervising the construc- planning, tion of buildings or designing, to be erected or altered In this State, by or for other persons than themselves, as a profession or business, and shall represent or advertise themselves as architects, architectural or other titI,e of profession or business designers, using some form cf the word ‘architect,’ shall be considered as practicing the profession of architec- ture ln this State, and shall be required to comply with the provisions of this &t; and no person or firm shall engage In or conduct the practice of architecture as aforesaid ln this State unless a reg- istration certificate or certificates therefor have been duly Issued to such person or the members of such partnership shall engage In, or conduct, the practice of architecture as aforesaid within this State except by and through persons to whom registration certlfl- cates have been duly Issued, and which certificates are In full effect; but nothing In thls Act shall pre- vent draftsmen, students, clerks or works, superln- t endent s, or other employees or assistants of those legally practicing architecture under registration certq’i’ates as herein provided for, from acting un- “A.-r- der the Instruction, control, or supervision of such registered architects.
“Nothing ln this Act shall preve~nt qualified pro- engineers from planning and supervising work, such as railroads, hydro-electric work, Industrial plants, or other construction primarily intended for engineering use of structures incidental thereto, nor prevent said engFneers from planning, deSignIt%, or supervising the structural features of any bulldlng, but such engineers shall not employ the title ‘archi- tect’ In any way, nor represent themselves as such, nor shall any engineer practice the profession of archltec- ture as defined herein, unless he or she be registered as an architect under the provisions of this Act.
Hon. Dan W. Jackson, page 3 (o-2418)
An architect building or supervlslng the construction of a “store, an office building or a public building with plumb- ing and lighting for the usual utilitles’1 falls squarely within the regulatory provisions of Article 249a, Ver- non’s Annotated Civil Statutes, and Is not required to comply with Article 32718, Vernon’s Annotated Civil Statutes, regulat- ing the practice of professional engineering. Nor Is such archl- tect required This for the reason that the act regulating to employ the services of a professional engineer.
the practice of pro- engineering 1s aimed at those l~supervIslng~’ engineering work, “In responsible charge of such work*‘, or those holding themselves out as a professional engineer by offering their serv- or by preparing plans, estimates and ices for consultation, evaluations. “The mere execution, as a contractor, or work de- signed by a professional engineer, or the supervision of the construction enga lng ln the practice of such work as foreman or superintendent” is not Sect Ion
of professional engineering. See also State Board of Examiners Etc., 12(ff Article 32718. vs. Siandara Engineering Company (S.Ct. Term.), 7 S.W. (2j 47, holding that plumbers are not englneers under the provisions of a slmllar statute.
The only prohibition In Section 23 of Article 32714, Vernon’s Annotated Civil Statutes, Is against one practicing or offering to practice the profession of engineering without being registered or exempted in accordance with the terms of the Act, using the registration of another or giving false or forged evidence to the Board of Registration for Professional Engineers.
Wile the Act (Art. 32718, Vernon’s Winnotated Civil Statutes) requires an architect to hire no one, we do call your attention to Section 19 which requires the State, its political subdivisions, and any county, city, or town to employ a regis- tered professional engineer when It engages in the construction of public works under certain circumstances. This section reads as follows:
“After the first day of January, 1933, it shall be unltiiful for this State, or for any of its politi- cal subdivisions, for any county, city, or town, to en- gage In the construction of any public work involving engineering, where public health, public welfare or public safety is involved, unless the engl- neerlng plans and specifications and estimates have been prepared by, and the engineering construction Is to be executed under the direct supervision of a reg- istered professional engineer; provided, that nothing in this Act shall be held to apply to any public work wherein the contemplated expenditure for the completed project does not exceed Three Thousand ($3,000.00) Dollars. Provided, that thls Act shall not apply to *4 Hon. Dan W. Jackson, page 4 (O-241b)
any road maintenance or betterment work undertaken by the County Commlssloners~ Court .‘I
It Is therefore the oplnlon of this department, in answer to your first question that an architect duly registered under the provisions of Article 249a Vernon’s Annotated Civil Statutes ~111 not be amenable to Sec<lon 23 of Article j271A, Vernon’s Annotated Civil Statutes, In falling to employ the services store, of a registered professional engineer In building a
office building, or public building “with plumbing and lighting for the usual utllities.tl
Your second question Is whether or not a “sales and service representative (not 5 registered engineer) of an air conditioning eq’llpment company” would be guilty under Section 23 of violating A rtlcle j2718, Vernon’s Annotated Civil Stat- utes, If he ~%,stalled an air conditioning system ln a hospital wltho;lt employing a registered engineer.”
In this connection we call your attention to Section 20 (e) of Article 3271S, Vernon’s Annotated Civil Statutes, which reads in part as follows:
“Nothing in this Hct shall be construed to apply to persons doing the actual work of Installing . . .
air ccnditlon.ing equipment and systems . . .*I
It is therefore the opinion of this Department in an- swer to your second question, and you are respectfully advised that iirticle j2,71&, Vernon’s ¬ated Civil Statutes, does not apply to a sales and service representative of an air condltion- ing zompir;y installing an air ccnditionlng system in a hospital. You are further advised that the act does not require the em- ployment of a registered professional engineer in the installa- t Ion of such air conditioning system. Refer to the discussion of Section 23 above.
Your final question is tihether or not those persons engaged in ttrs construction oi buildings in this State pursuant to plans and specifications prepared by and with the advice of engineers in other states without the advice or approval 01’ any engineer registered are amenable to prosecution under the penal provisions under the laws of this State
of Sec- tion 23 of Article 3271A, Vernon’s Annotated Civil Statutes.
In answer to this question you are advised and It is clear that those engaged in the actual construction of such buildings are not within the purview of drticle 32718, Vernon’s iinnotated Civil Statutes, et al. As previously pointed out, “the mere execution, as a contractor, of work designed by a pro- engineer, or the supervision of construction of such *5 . .
I
Hon. Dan W. Jackson, page 5 (o-2418) is not engagin
work as foreman or superintendent" in the prac- tice of professional engineering. See Section 12 f), Article 'i 327.u.
Very truly yours HTTORNEY GENEilAL OF T&X&3 By /s/ Walter R. Koch Walter R. Koch, Assistant By /s/ James D. Smullen James D. Smullen APPROVED JUN Id, 1940
/s/ Gerald C. Xann
?.TTORXUJJY G5XiUlrL OF T&X&S
APPRO'JRD: OPIi'iIOK CCi%SITl'&&
BY: BWB, CHAIRM!QJ
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