                              K3y 12, 1987




Honorable Mark W. Stiles           Opinion No.   JM-693
Chairman
County Affairs Committee           Re: Whether the Engineering Practice
Texas Rouse of Representatives     Act, article 3271a. V.T.C.S., applies
P. 0. Box 2910                     to work done by licensed air condi-
Austin. Texas   78769              tioning contractors under article
                                   8861. V.T.C.S.

Dear Representative Stiles:

     As chairman of the House Committee on County Affairs, you request
our opinion regarding the proper interpretation of article 8861,
V.T.C.S.. the Air   Conditioning Contractor License Law, and article
3271a, V.T.C.S.. the Engineering Practice Act.  You inform us that, in
some instances, the Engineering Practice Act has been construed to
apply to work done by licensed air conditioning contractors. You
assert that, In some cases, air conditloaing cotitractorshave been
required to obtain the seal of a registered professional engineer for
design work chat thhy have performed under the Air Conditioning
Concraccor License Law. You ask whether the Engineering Practice Act
applies to design work performed by licensed air conditioning
contractors as authorized by article 8861, V.T.C.S. Because article
8861, V.T.C.S., serves as an exception to article 3271a, V.T.C.S.,
with regard to "design" of air conditioning systems. we conclude that
the answer is "no."

     Article 8861. V.T.C.S., governs the regulation and licensure of
air conditioning contractors. The commissioner of the Texas Department
of Labor and Standards is empowered to adopt rules for the practice of
air conditioning contracting, including, inter alia. the method and
content of examinations administered under the act and insurance
requireplentsfor persons licensed under the act. V.T.C.S. arc. 8861.
13.  Sectiop 4(a) of the act provides that there are two classes of
air conditioning contractor licenses. A Class A license entitles the
licensee to "install. repair. or alter summer or winter envirotiental
air conditioning systems of any size or capacity." A Class B license
entitles the licensee to "install, repair, or alter an environmental
air conditioning system that develops a coral of not more than 25 tons
cooling capacity and not more than 1.500,OOO British thermal units per
hour output heating capacity."




                               p. 3209
Honorable Mark W. Stiles - Page 2             (JM-693)




     Section 2 of the act sets foreh the following relevant defini-
tions:

             Sec. 2.          In this Act:

             .   .   .    .

            (2)  'Air conditioning contractor' means a
         person licensed under    this Act who designs,
         installs,   COnsc.NCts,    maintains,  services,
         repairs, alters, or modifies any heating, veuti-
         lating, or air conditioning product, system, or
         equipmenr.

            (3) 'Air    conditioning   contracting'   means
         designing, installing. constructing. maintaining.
         servicing, repairing. altering, or modifying any
         heating, ventilating, or air conditioning product,
         system or equipmenr. The term does not include
         the design. installation. construction. Uldn-
         teuauce, service, repair, alteration, or wodifica-
         tion of a portable or self-contained ductless air
         conditioning or heating product that has a cooling
         capacity of three tons or less or a heating
         capacity of 36,000 British thermal units or less.

             . . . .

             (5)         'Person' meaus an individual.

            (6)  'Air conditioning maintenance work' means
         repair work and all other work required for the
         continued normal performance of a heating, venti-
         lating, or air conditioning system. The term does
         not include the Installation of a total replace-
         ment of the system or the installation of boilers
         or pressure vessels that must be installed by
         licensed persons pursuant to rules and regulations
         promulgated by the Texas Department of Labor and
         Standards under the Texas boiler inspection law,
         Chapter 436. Acts of the 45th Legislature. Regular
         .Session. 1937 (Article 5221c, Vernon's Texas Civil
         Statutes). (Emphasis added).

Section 6 specifically exempts persons who are licensed as profes-
sional engineers from the licensing requirements of article B&61.
V.T.C.S. IC further provides that no person licensed under article
8861 way perform or offer to perform any act, service, or function




                                    p. 32LO
Honorable Mark W. Stiles - Page 3        ON-693)




chat is defined as the practice of engineering by the Engineering
Practice Act:

            Sec. 6.          (a) This Act does not apply to s
         person who:

             . . . .

            (6) perform    air   conditioning maintenance
         work if the person is licensed as a professional
         engineer under The Texas Engineering Practice Act
         (Article 3271a. Vernon’s Texas Civil Statutes),
         the work is performed in connection with the
         business in which the person is employed, and the
         person does not engage in the occupation of air
         conditioning contracting for the general public.

             .   .   .   .

            (c) A person licensed under this Act may not
         perform or offer or attempt to perform any act,
         service. or function that is defined as the
         practice of engineering by The Texas Engineering
         Practice Act, as amended (Article 3271a. Vernon’s
         Texas Civil Statutes). This Act does not apply to
         a person licensed in this state as a professional
         engineer and engaged in business as a professional
         engineer. (Emphasis added).

     The Engineering Practice tact,  article 3271a, V.T.C.S.. creates
the State Board of Registration for Professional Engineers and
provides for the licensing and regulation of professional engineers.
Sdction 1.2 of the act prohibits certain conduct or the performance of
certain acts by persons not duly licensed by the board:

            Sec. L.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 Co practice engineering or any branch or
         part thereof.

             .   .   .   .

            (4) Receive any fee or compensation or the
         promise of any fee or compensation for performing.
         offering or attempting co perform any service,




                                   p. 3211
lionorableMark W. Stiles - Page 4   W-693)




         work, act or thing which is any part of the
         practice of engineering as defined by this Act.

            Within the intent and meaning and for all
         purposes of this Act, any person, firm, partner-
         ship, association or corporation which shall do,
         offer or attempt to do any one or more of the acts
         or things set forth in numbered paragraphs (1).
         (2)' (3)' or (4) of this Section 1.2 shall be
         conclusively presumed and regarded as engaged in
         the practice of engineering.

Section 2(4) of the act contains an extremely broad definition of the
practice of engineering:

         'Practice of engineering.' or 'practice of pro-
         fessional engineering' shall mean any service or
         creative work. either public or private, the
         performance of which requires engineering educa-
         tion. training and experience in the applica-
         tion of special knowledge of the mathematical,
         physical, or engineering sciences to such services
         or creative work.

     Section 20 of the Engineering Practice Act sets forth exemptions
from its reach and provides the following in part:

            Sec. 20. The following persons shall be exempt
         from the provisions of this Act,    provided that
         such persons are not represented or held out to
         the public as duly licensed and registered by the
         Board to engage In the practice of engineeriug:

             .   .   .   .

            (e) Nothing in this Act shall be construed
         to apply to persons doing the actual work of
         installing. operaring, repairing, or servicing
         locomotive or stationary engines. steam boilers,
         Diesel engines, internal combustion engines,
         refrigeration compressors and systems. hoisting
         engines, electrical engines, air couditioning
         equipment and systems, or mechanical and elec-
         trical, electronic or communications equipment and
         apparatus; nor  shall this Act be construed to
         prevent any citizen from identifying himself
         in the nsme and trade of any engineers' labor
         organization with which he may be affiliated.
         Provided, however, that nothing in this Act shall




                              p. 3212
Eonorable Mark W. Stiles - Page 5   UN-6931




         be construed as permitting any person other than a
         licensed professional engineer affixing his
         signature as such co engineering plans. or
         specifications. (Emphasis added).

     It is clear that, by the very terms of the Engineering Practice
Act. persons who install. operate, repair, or service air coudicioning
equipment and systems do uot fall within its reach. It. ia not so
clear, however,  with regard to persons who "design" such systems.
Article 8861, V.T.C.S., specifically includes persons who design such
systems within its definition of "air conditioning contractor." Also,
the act specifically prohibits its licensees from engaging in or
offering to engage in any practice thae is defined as the practice of
engineering by the Engineering Practice Act. The conflict arises wirh
respect to the expansive definition of "practice of engineering,,set
forth in section 2(4) of the Engineering Practice Act. It is suggeste~d
that "practice of englneerlng”-is sufficiently broad to include within
its ambit the "design" of air conditioning systems. As a matter of
law, absent the Air Conditioner Contracting License Law, the design of
such systems would fall within the Engineering Practice Act. YOU
suggest that. since the more specific act passed after the more
general Engineering Practice Act, the Air Conditioning Contractor
License Law serves as an exception to the Engineering Practice Act.
We agree.

     We are required to construe the two statutes in such a way that
both, if possible, will be effective; they must be construed in pari
mareria. Calvert v. Fort   Worth National Bank, 356 S.W.2d 918. 921
(Tex. 1962); Conley v. Daughters of the.Republic, 156 S.W.   197, 201
(Tex. 1913). The specific statute will.control over the general.
State v. Mauritz-Wells Co., 175 S.W.2d 238 (Tex. 1943); San Antonio h
A.P. Railway Co. v. State, 95 S.W.Zd 680 (Tex. 1936).

          The general rule is that when the law makes a
          general provision, apparently for all cases, and a
          special provision for a particular class, the
          general must yield to the special in so far as the
          particular class is concerned. [Citation omitted].
          This rule is based upon the principal that all
          acts and parts thereof must stand, if possible,
          each occupying its proper place, and that the
          intention of the Legislature is more clearly
         'reflected by a particular statute than by a
          general one.    Accordingly, a specific act is
         properly regarded as an exception to, or qualifi-
          cation of, a general law on the same subject
          previously enacted. In such a case both sratutes
          are permitted to stand, the general one being




                              p. 3213
Honorable Mark W. Stiles - Page 6       (JM-693)




           applicable to all cases except the particular one
           embraced in the specific act. [Citation omitted].

Sam Bassett Lumber Co. v. City of Houston, 198 S.W.2d 879, 881 (Tex.
1947); see also Forwood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948).
The Enalneerlnn Practice Act was first enacted in 1937. The act was
amended in 1961 to define "practice of engineering." Acts 1961, 57th
Leg., ch. 282. at 590. The Air Conditioning Contractor License Law
was first enacted in 1983. Acts 1983, 68th Leg., ch. 555, at 3228.
The relevant provisions have not been amended since the act’s passage.

     We conclude that, with respect to the design of air conditioning
systems that licensed air conditioning contractors are permitted to
perform under article 8861, V.T.C.S.. serves as an exception to the
Engineering Practice Act. Accordingly. the Engineering Practice Act,
article 3271a. V.T.C.S.' does not apply to design work performed by
licensed air conditioning contractors under article 8861, V.T.C.S.,
the Air Conditioning Contractor License Law.

                              SUMMARY

               The Engineering Practice Act, article 3271a.
          V.T.C.S., does uot apply to design work done by
          licensed air     couditioaing contractors under
          article 8861, V.T.C.S., the Air Conditioning
          Contractor License Law.

                                          very)tru~y   your4 J


                                                                      -v

                                          JIM     MATTOX
                                          Attorney General of Texas

JACK EIGRTOWER
First Assistant Attorney   General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STF,AKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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