Case Information

*1 The Attorney General of Texas December 22, 1982 MARK WHITE

Attorney General Telecopier

Supreme Telex 5121475.2501 Austin, P. 0. Box 12546 9101674-1367 TX. 76711. Court Building 5121475.0266 ^[2546] Austin, Texas Mr. W. T. Satterwhite, Texas Board of Land Surveying 1106 Clayton Lane, Suite 210~ 78723 Chairman must be Re: whether Land Surveyor’s Practices Opinion No. MW-541 of 1979 under surveyor Act the Dear Mr.. Satterwhite: 1607 Main St., Suite 1400 Dallas, TX. 75201-4709 You have asked two questions ‘concerning the application the 2141742.6944 Land Surveying Practices Act of 1979. article 5282~. V.T.C.S.: 4624 Alberta Ave.. Suite 160 1. Can a surveyor engage in El Paso, TX. 79905-2793 as defined 9151533.3464 Act of 1979 without being a surveyor to the requirements 1220 Dallas Ave.. Suite 202 of the act? Houston. TX. 77002-6986 7131650-0666 2. Is a person required to be a registered

surveyor under the Land Surveying Practices Act of 606 Broadway. Suite 312 1979 in order to become a candidate for the office Lubbock. TX. 79401.3479 of county surveyor? 6061747-5238

As yet there are no appellate court interpreting the new enactment which consolidated the State Board of Registration 4309 N. Tenth. Suite B McAllen, TX. 76501-1665 Public Surveyors and the Board of Examiners of Licensed State Land 5121662.4547 Surveyors into the Texas Board oft Land Surveying. the answer

to your first question is provided in a straightforward manner by section 4, subsections (1) and (2) of the new statute. 200 Main Plaza. Suite 400 San Antonio, TX. 78205-2797 5121225.4191 Section the act makes it unlawful “for any person or offer land surveying” in the state unless individual is duly registered, licensed, or exempted under the act. An Equal Opportunity/ But subsections (1) and (2) of section 4 read: Affirmative Action Employer

Sec. 4 The provisions of this Act do not apply to any of the following: a county in an official

capacity as authorized by law in counties 25,000 population, but only until term of persons such office;

p.1962 (MW-541) an officer of a state, (except as provided by Subsection (1) of this section when applicable), city, or other political subdivision whose official duties include land surveying when in his official capacity, but only ux tetm of persons holding such office.... (Emphasis added).

It is apparent from this language that a county surveyor cannot engage the private land surveying without either a or a licensed state land surveyor under the act, even though the unexpired term of the county surveyor’s office may have commenced prior to the effective date of the act. It is equally clear that a county surveyor who is neither nor registered and whose unexpired term commenced prior to the effective date of the act may continue to discharge his official duties until his term expires.

The Land Surveying Practices Act of 1979 purports to both regulate and establish qualifications for the public office of county land surveyor. The obvious intent of the legislation is to require that county surveyors be the act in order to hold office, exempting during the unexpired portion their terms only those office at the time the act took effect. Cf. Attorney General Opinion O-3940 (1941).

Statutes respecting the office of county surveyor. generally, are now found in the Natural Resources Code, chapter 23. The place of a surveyor’s residence and office location are specified, but licensure are not. Article XVI, section 44 of the Texas Constitution, which establishes the office, does not itself specify any qualifications for it.

Statutory restrictions on the right to hold public are strictly construed, Willis V. Potts, 377 S.W.Zd 622 (Tex. 1964), and it was held in Burroughs V. Lyles, (Tex. 1944).

where the constitution prescribes qualifications for an office, it beyond the legislative power to change or add to those qualifications, unless the constitution gives that power. Where the constitution does not itself prescribe any qualifications for an office it creates, legislature may prescribe however, more recent suggest See Phagan ‘I. State, 510 S.W.Zd 655 (Tex. Civ. APP. - Fort Worth 1974,Tit ref’d n.r.e.); Green V. County Attorney of Anderson County, 592 S.W.Zd 69 - Tyler 1979, no writ).

Both the Green and Phagan cases involved licenses law. Green and Phagan were district attorneys. Both were disbarred while still in office. Article V, section the constitution creates district attorney but specifies no *3 Mr. W. T. Sattewhite - Page 3 (MW-541) for holding article 332, V.T.C.S.,

provides that only duly licensed attorneys are eligible to the office.

Both the Phagan and Green courts held that loss of their licenses made the men ineligible for the office, ipso facto.

The constitutional issue was not expressly addressed in either case, but the action of the supreme court in refusing a writ of error in the Phagan case with a "no reversible error" notation leads us to conclude that the legislature may validly require, as a qualification for office, that surveyors he either licensed

pursuant to article 5282c, V.T.C.S.

In Kothmann V. Daniels, 397 S.W.Zd 940 - San the court concluded that in the absence Antonio 1965, no writ), specification, "eligibility" for public refer to time a person assumes office rather than to time of his election, where the disqualification is of such a nature its continuation or termination is not within the control the person seeking office. See also Rose V. White, 536 S.W.Zd 395 (Tex; Civ. APP. - Dallas 1976, no writ). Cf. Mills V. Bartlett,

(Tex. 1964) (residence reauirement). Whether a disaualification is of "such a na&&e" is often a quest& fact, which *this office cannot resolve in its opinion process.

We therefore advise you that a county surveyor may not engage land surveying without being registered or licensed pursuant to the Land Surveying Practices Act of 1979, nor is a person eligible to election as county surveyor unless at the time he takes office he is registered or licensed pursuant to the act. Cf. V.T.C.S. art. 5282c, 625(b).

SUMMARY A county surveyor may not engage in the private without registered or pursuant Act of 1979, nor is a person

eligible to election as county surveyor unless at time he takes he or to the act. A -MARK WHITE Attorney General of Texas JOHN W. FAINTER, JR.

First Assistant Attorney General (Mw-541)

RICHARD E. GRAY III

Executive Assistant Attorney General

Prepared by Bruce Youngblood

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

Susan L. Garrison, Chairman

Rick Gilpin

Patricia Hino-josa

Margaret McGloin

Jim Moellinger

Bruce Youngblood