                                                                                           ACCEPTED
                                                                                       03-14-00552-CV
                                                                                               5174167
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                   5/6/2015 1:02:39 PM
                                                                                     JEFFREY D. KYLE
                                                                                                CLERK
                              No. 03-14-00552-CV

                         IN THE COURT OF APPEALS                      FILED IN
                          FOR THE THIRD DISTRICT               3rd COURT OF APPEALS
                                                                   AUSTIN, TEXAS
                              AUSTIN, TEXAS                    5/6/2015 1:02:39 PM
                                                                 JEFFREY D. KYLE
                            RAGHUNATH DASS, P.E.,                      Clerk
                                 Appellant,

                                       v.

             TEXAS BOARD OF PROFESSIONAL ENGINEERS,
                             Appellee.
    On Appeal from the 201st Judicial District Court, Travis County, Texas;
    Cause No. D-1-GN-14-000568, before the Honorable Stephen Yelenosky.


                              APPELLEE’S BRIEF

KEN PAXTON                           JENNIFER L. HOPGOOD
Attorney General of Texas            State Bar No. 24073010
                                     Assistant Attorney General
CHARLES E. ROY                       Administrative Law Division
First Assistant Attorney General     Office of the Texas Attorney General
                                     P.O. Box 12548, Capitol Station
JAMES E. DAVIS                       Austin, Texas 78711-2548
Deputy Attorney General for          Telephone: (512) 475-4200
Civil Litigation                     Facsimile: (512) 320-0167

DAVID A. TALBOT, JR.                 Attorneys for Appellee,
Chief, Administrative Law            Texas Board of
Division                             Professional Engineers

                   ORAL ARGUMENT NOT REQUESTED

                                   May 6, 2015
                  IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties, as well as the names and addresses
of all counsel.

Plaintiff/Appellant                            Appellate Counsel

Raghunath Dass, P.E.                           Jimmy Alan Hall, P.L.L.C.
                                               4600 Mueller Boulevard, Suite 2121
                                               Austin, TX 78723-3372
                                               Facsimile: (512) 857-9195
                                               jahall@fbjah.com

                                               J. Woodfin Jones
                                               Alexander Dubose Jefferson
                                               & Townsend LLP
                                               515 Congress Avenue, Suite 2350
                                               Austin, Texas 78701-3562
                                               Facsimile: (512) 482-9303
                                               wjones@adjtlaw.com




Defendant/Appellee                             Appellee Counsel

Texas Board of                                 Office of the Attorney General
Professional Engineers                         Jennifer L. Hopgood
                                               Administrative Law Division
                                               P.O. Box 12548
                                               Austin, TX 78711-2548




                                          ii
                                                     TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................................. ii
TABLE OF CONTENTS ............................................................................................................... iii
INDEX OF AUTHORITIES........................................................................................................... v
STATEMENT OF THE CASE...................................................................................................... xi
ISSUES CORRECTED ................................................................................................................ xii
STATEMENT REGARDING ORAL ARGUMENT................................................................... xii
APPELLEE’S BRIEF ..................................................................................................................... 1
STATEMENT OF FACTS CORRECTED .................................................................................... 2
SUMMARY OF THE ARGUMENT ........................................................................................... 16
STANDARD OF REVIEW .......................................................................................................... 16
ARGUMENT ................................................................................................................................ 18
   I.          The only issue before this Court is whether the district court properly granted the
               Board’s motion for summary judgment, dismissing Mr. Dass’s lawsuit; however,
               because Mr. Dass has failed to raise this issue in his Appellant’s Brief, he has
               waived error..................................................................................................................... 18
         A.         Mr. Dass has waived error, and the Court should affirm the district court’s
                    granting of the Board’s motion for summary judgment. ............................................. 18
         B.         Even on the merits, the district court properly granted the Board’s motion for
                    summary judgment. ..................................................................................................... 19
              1.       Mr. Dass’s second motion for rehearing failed to preserve error. ........................... 20
              2.       When Mr. Dass dismissed his first appeal, the doctrines of res judicata and
                       collateral estoppel precluded Mr. Dass from relitigating those same claims. ......... 24
              3.       The Board's Amended Final Order complied with the Final Judgment in the
                       first suit. ................................................................................................................... 27
   II.         Mr. Dass fails to preserve error for his Issues Nos. 1-6 and his bill of exception
               issue. ................................................................................................................................ 27
         A.         Mr. Dass also waived his Issues Nos. 1, 2, and 3 because he failed to raise these
                    issues in either his motion for rehearing or district court, and these three issues
                    do not implicate subject-matter jurisdiction. ............................................................... 29
              1.       Mr. Dass’s Issue No. 1 is waived because even if the Board’s issuance of the
                       Amended Final Order was erroneous, Mr. Dass failed to raise this issue in his
                       motion for rehearing. ............................................................................................... 32
              2.       Although Mr. Dass’s Issue No. 2 is waived, even on the merits Mr. Dass’s
                       argument would fail to show how the Board may not fix responsibility for
                       services performed in the practice of engineering. ................................................. 34
                   a. Broad definition of “practice of engineering.” ........................................................ 35

                                                                           iii
                b. CME and the reports. .............................................................................................. 36
           3.       Although Mr. Dass’s Issue No. 3 is waived, even on the merits the ALJ
                    correctly ruled that Mr. Dass failed to follow the legally required bidding
                    process for a public works project. .......................................................................... 38
      B.         Mr. Dass has waived his right to complain of the CME Advisory Opinion (Mr.
                 Dass’s fourth issue). .................................................................................................... 39
      C.         Mr. Dass has also waived his fifth and sixth issues because his complaint that
                 the substantial evidence standard was not met must have been brought in his
                 first appeal, which he withdrew. ................................................................................. 41
   D.       Because Mr. Dass failed to brief his issue regarding the exclusion of evidence and
            has thus waived this point of error, the Court should not consider documents not
            properly before the Court. ............................................................................................... 43
CONCLUSION AND PRAYER .................................................................................................. 44
CERTIFICATE OF COMPLIANCE ............................................................................................ 46
CERTIFICATE OF SERVICE ..................................................................................................... 46




                                                                      iv
                                          INDEX OF AUTHORITIES

Cases

Amstadt v. U.S. Brass Corp.,
  919 S.W.2d 644 (Tex. 1996)..................................................................................................... 25

Barr v. Resolution Trust Corp.,
  837 S.W.2d 627 (Tex. 1992)..................................................................................................... 24

Burke v. Cent. Educ. Agency,
  725 S.W.2d 393 (Tex. App.—Austin 1987, writ ref’d n.r.e.) ................................. 21, 22, 23, 39

Carpenter v. First Tex. Bancorp, No. 03-12-00004-CV,
  2014 WL 2568494 (Tex. App.—Austin June 5, 2014, pet. filed) ............................................ 18

Carrizales v. Tex. Dep't Prot. & Reg. Servs.,
  5 S.W.3d 922 (Tex. App.—Austin 1999, pet. denied).............................................................. 31

Centeq Realty Inc. v. Siegler,
  899 S.W.2d 195 (Tex. 1995)..................................................................................................... 20

Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res. Conservation Comm’n,
  124 S.W.3d 844 (Tex. App.—Austin 2003, pet. denied).......................................................... 33

Citizens Ins. Co. of Am. v. Daccach,
  217 S.W.3d 430 (Tex. 2007)..................................................................................................... 24

City of Celina v. Dynavest Joint Venture,
  253 S.W.3d 399 (Tex. App.—Austin 2008, no pet.) ................................................................ 33

City of Houston v. Clear Creek Basin Auth.,
  589 S.W.2d 671 (Tex. 1979)..................................................................................................... 28

Concho Residential Servs., Inc. v. MHMR Servs. for the Concho Valley,
  No. 03-98-00022-CV, 1999 WL 644727 (Tex. App.—Austin Aug. 26, 1999, pet. denied) .... 19

Crider v. Crider, No. 01-10-00268-CV,
  2011 WL 2651794 (Tex. App.—Houston [1st Dist.] July 7, 2011, pet. denied) (mem. op.) ... 19

Dreyer v. Greene,
  871 S.W.2d 697 (Tex. 1993)..................................................................................................... 31

El Paso Hosp. Dist. v. Tex. Health & Human Servs. Comm’n,
  247 S.W.3d 709 (Tex. 2008)..................................................................................................... 41

Hamamcy v. Tex. State Bd. of Med. Exam’rs,
  900 S.W.2d 423 (Tex. App.—Austin 1995, writ denied) ................................................... 21, 22
                                           v
Hamilton v. Wilson,
  249 S.W.3d 425 (Tex. 2008) (per curium)................................................................................ 17

Hill v. Bd. of Trs.,
  40 S.W.3d 676 (Tex. App.—Austin 2001, no pet.) .................................................................. 22

Ingersoll-Rand Co. v. Valero Energy Corp.,
  997 S.W.2d 203 (Tex. 1999)..................................................................................................... 24

John Gannon, Inc. v. Gunnarson Outdoor Adver., Inc., No. 03-08-00404-CV,
  2010 WL 3192536 (Tex. App.—Austin Aug. 11, 2010, pet. denied) ...................................... 19

Krot v. Fid. Nat’l Title Co., No. 03-14-00250-CV,
  2014 WL 7464084 (Tex. App.—Austin Dec. 31, 2014, no pet. hist.) (mem. op.) ................... 28

Lear Sieglar, Inc. v. Perez,
  819 S.W.2d 470 (Tex. 1991)..................................................................................................... 17

Loftin v. Lee,
  341 S.W.3d 352 (Tex. 2011)..................................................................................................... 31

Mack Trucks, Inc. v. Tamez,
 206 S.W.3d 572 (Tex. 2006)..................................................................................................... 43

Mansfield State Bank v. Cohn,
 573 S.W.2d 181 (Tex. 1978)..................................................................................................... 28

Mapco, Inc. v. Carter,
 817 S.W. 686 (Tex. 1991)......................................................................................................... 30

Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Merchs. Fast Motor Lines, Inc.,
  939 S.W.2d 139 (Tex. 1997)..................................................................................................... 24

Pub. Util. Comm’n v. Allcomm Long Distance, Inc.,
  902 S.W.2d 662 (Tex. App.—Austin 1995, writ denied) ......................................................... 31

Pub. Util. Comm’n v. City Pub. Serv. Bd. of San Antonio,
  109 S.W.3d 130 (Tex. App.—Austin 2003, no pet.) ................................................................ 30

Schanzle v. JPMC Specialty Mortg., No. 03-09-00639-CV,
  2011 WL 832170, (Tex. App.—Austin Mar. 11, 2011, no pet.) (mem. op.) ............................ 28

Suburban Util. Corp. v. Pub. Util. Comm’n,
  652 S.W.2d 358 (Tex. 1983)............................................................................................... 21, 24

SWEPI LP v. R.R. Comm’n,
  314 S.W.3d 253 (Tex. App.—Austin 2010, pet. denied).......................................................... 30

                                                                 vi
Sysco Food Servs. Inc. v. Trapnell,
  890 S.W.2d 796 (Tex. 1994)..................................................................................................... 25

Tex. Emp’t Comm’n v. Int’l Union of Elec., Radio & Mach. Workers, Local Union No. 782,
  352 S.W.2d 252 (Tex. 1961)..................................................................................................... 30

Tex. Gen. Land Office v. Crystal Clear Water Supply Corp.,
  449 S.W.3d 130 (Tex. App.—Austin 2014, pet. filed) ............................................................. 30

Tex. Highway Comm’n v. Tex. Ass’n of Steel Importers,
  372 S.W.2d 525 (Tex. 1963)..................................................................................................... 33

Tex. State Bd. of Pharm. v. Witcher,
  447 S.W.3d 520 (Tex. App.—Austin 2014, pet. filed) ............................................................. 41

United States v. Utah Constr. & Mining Co.,
  384 U.S. 394, (1966) ................................................................................................................. 25

Williams v. Geeslin, No. 03-05-00450-CV,
  2006 WL 2032570 (Tex. App.—Austin July 21, 2006, no pet.) (mem. op.) ............................ 23

Statutes

Tex. Gov’t Code § 2001.145......................................................................................................... 20

Tex. Gov’t Code § 2001.146......................................................................................................... 20

Tex. Gov’t Code § 2001.174............................................................................................. 30, 31, 41

Tex. Gov’t Code § 2001.174(2)(B)............................................................................................... 29

Tex. Gov't Code § 2001.1775 ..................................................................................... 29, 32, 33, 34

Tex. Gov’t Code § 2254.002(1)(B)........................................................................................... 6, 38

Tex. Gov’t Code § 2254.002(2)(A)(vii) ................................................................................... 6, 38

Tex. Gov’t Code § 2254.002(2)(B)(vii) .................................................................................... 6, 38

Tex. Gov’t Code § 2254.004(a)(1) ........................................................................................... 7, 39

Tex. Gov’t Code § 2254.004(a)(2) ........................................................................................... 7, 39

Tex. Occ. Code ch. 1001 ................................................................................................................. 3

Tex. Occ. Code § 1001.003 .......................................................................................................... 36

Tex. Occ. Code § 1001.003(b) .................................................................................................. 3, 35

                                                                   vii
Tex. Occ. Code § 1001.003(c)(1) ............................................................................................. 4, 35

Tex. Occ. Code § 1001.003(c)(12) ........................................................................................... 4, 36

Tex. Occ. Code § 1001.004(a) ........................................................................................................ 4

Tex. Occ. Code § 1001.004(b)(1) ............................................................................................. 3, 35

Tex. Occ. Code § 1001.004(b)(3) ............................................................................................. 3, 35

Tex. Occ. Code § 1001.004(d) .................................................................................................. 4, 36

Tex. Occ. Code § 1001.021(a) ........................................................................................................ 5

Tex. Occ. Code § 1001.053 ............................................................................................................ 6

Tex. Occ. Code § 1001.202 ............................................................................................................ 4

Tex. Occ. Code § 1001.252(a) ........................................................................................................ 5

Tex. Occ. Code § 1001.252(f) ........................................................................................................ 5

Tex. Occ. Code § 1001.407(1) .................................................................................................. 6, 38

Tex. Occ. Code § 1001.451(2) ........................................................................................................ 5

Tex. Occ. Code § 1001.451(3) ........................................................................................................ 5

Tex. Occ. Code § 1001.451(4) ........................................................................................................ 5

Tex. Occ. Code § 1001.452(1) ........................................................................................................ 5

Tex. Occ. Code § 1001.454 ............................................................................................................ 5

Tex. Occ. Code § 1001.501 ............................................................................................................ 6

Tex. Occ. Code § 1001.502 ............................................................................................................ 6

Tex. Occ. Code § 1001.601(a) .................................................................................................. 7, 40

Tex. Occ. Code § 1001.601(b) ........................................................................................................ 7

Tex. Occ. Code § 1001.602(1) .................................................................................................. 8, 40

Tex. Occ. Code § 1001.602(2) .................................................................................................. 8, 40

Rules

Tex. R. App. P. 38(f)..................................................................................................................... 18
                                                                    viii
Tex. R. App. P. 38(i) ..................................................................................................................... 18

Tex. R. App. P. 38.1(g) ................................................................................................................... 2

Tex. R. App. P. 38.2(a)(1)(B) ................................................................................................... xii, 2

Tex. R. Civ. P. 166a(c) ................................................................................................................. 27

Texas Administrative Code

22 Tex. Admin. Code § 131.101 ............................................................................................... 7, 40

22 Tex. Admin. Code § 131.103 ............................................................................................... 7, 40

22 Tex. Admin. Code § 131.105 ............................................................................................... 8, 40

22 Tex. Admin. Code § 131.109 ............................................................................................... 8, 40

22 Tex. Admin. Code § 137.33(b) .......................................................................................... 10, 11

22 Tex. Admin. Code § 137.33(f) ................................................................................................. 11

22 Tex. Admin. Code § 137.53(a) ............................................................................................ 6, 38

22 Tex. Admin. Code § 137.53(b) ............................................................................................ 6, 38

22 Tex. Admin. Code § 137.63(b)(2) ................................................................................. 6, 11, 39

22 Tex. Admin. Code § 139.11 ....................................................................................................... 5

22 Tex. Admin. Code § 139.17 ....................................................................................................... 5

22 Tex. Admin. Code § 139.31 ....................................................................................................... 5

22 Tex. Admin. Code § 139.35 ....................................................................................................... 5

22 Tex. Admin. Code § 139.47 ....................................................................................................... 5

22 Tex. Admin. Code § 139.49 ....................................................................................................... 5

Legislative Analysis

Bill Summ., Tex. S.B. 277, 78th Leg., R.S. (2003) ........................................................................ 7

Senate Comm. on Licensing & Admin. Procedures, Comm. Report (Unamended), Bill Analysis,
  Tex. S.B. 277, 78th Leg., R.S. (2003)......................................................................................... 3

Senate Research Ctr., Bill Analysis, Tex. S.B. 277, 78th Leg., R.S. (2003) .................................. 3

                                                                     ix
Tex. S.B. 277, 78th Leg., R.S. (2003)............................................................................................. 7

Other Authorities

Black’s Law Dictionary 870 (8th ed. 2004).................................................................................. 30




                                                                 x
                            STATEMENT OF THE CASE


Nature of the case:         This is an appeal from a final judgment by the Travis
                            County District Court granting the Texas Board of
                            Professional Engineer’s (“Board”) motion for summary
                            judgment and dismissing Raghunath Dass, P.E.’s (“Mr.
                            Dass”) suit for judicial review. Order Granting Def.’s
                            Mot. for Summ. J., C.R. at 465, copy attached at
                            Appendix 1.

Trial Court:                201st Judicial District Court of Travis County, in Cause
                            No. D-1-GN-14-000568, The Honorable Stephen
                            Yelenosky, Presiding.

Trial Court Proceeding: Appellant Mr. Dass filed his suit in district court, C.R. at
                        4-20, seeking judicial review of the Board’s Amended
                        Final Order. Id.1 The Board filed a motion for summary
                        judgment, seeking to dispose of all claims. C.R. at 334-
                        406. After considering the pleadings of the parties, the
                        district court granted the Board’s summary judgment
                        motion and dismissed Mr. Dass’s lawsuit. C.R. at 465.

Trial Court Disposition: The district court rendered a final order granting the
                         Board’s motion for summary judgment and dismissing
                         Mr. Dass’s lawsuit. See Order Granting Def.’s Mot. for
                         Summ. J., C.R. at 465. Mr. Dass appeals this final order.
                         Notice of Appeal, C.R. at 472.




1
        Mr. Dass previously filed a suit for judicial review, seeking review of the Board’s
original Final Order, in Dass v. Tex. Bd. of Prof’l Eng’rs, Cause No. D-1-GN-12-003397 (419th
Dist. Ct., Travis County, Tex.). Mr. Dass appealed the Final Judgment in that suit but then
dismissed his appeal. See Appellant’s Mot. to Withdraw Appeal, C.R. at 370-71.
                                             xi
                               ISSUES CORRECTED 2

I.    Whether the trial court properly granted the Board’s motion for
      summary judgment, dismissing Mr. Dass’s suit.

II.   Whether Mr. Dass fails to preserve error for both his Issues Nos. 1-6
      and his bill of exception.




              STATEMENT REGARDING ORAL ARGUMENT

      Although the Board does not believe any issues on the merits are before the

Court and oral argument is not needed, if the Court grants oral argument the

Board’s counsel respectfully asks to participate in the oral argument.




2
      See Tex. R. App. P. 38.2(a)(1)(B).
                                           xii
                               No. 03-14-00552-CV
                         IN THE COURT OF APPEALS
                          FOR THE THIRD DISTRICT
                              AUSTIN, TEXAS

                           RAGHUNATH DASS, P.E.,
                                Appellant,

                                         v.

              TEXAS BOARD OF PROFESSIONAL ENGINEERS,
                              Appellee.
    On Appeal from the 201st Judicial District Court, Travis County, Texas;
    Cause No. D-1-GN-14-000568, before the Honorable Stephen Yelenosky.


                              APPELLEE’S BRIEF


TO THE HONORABLE THIRD COURT OF APPEALS:

      The trial court properly granted the Board’s motion for summary judgment,

dismissing Mr. Dass’s suit. Because Mr. Dass fails to brief this issue in his

Appellant’s Brief (“Dass Brief”), he has waived any complaint about the district

court’s granting of the Board’s summary judgment motion. Thus, the district

court’s granting of the Board’s motion, dismissing Mr. Dass’s suit, should be

affirmed by the Court.

      None of Mr. Dass’s other issues (his Issues Nos. 1-6) are properly before

this Court because Mr. Dass failed to raise the issues in his response to the Board’s

summary judgment motion or, alternatively, either in his trial court brief or his
motion for rehearing. And because Mr. Dass also fails to brief his bill of exception,

and because there is no fundamental error in the district court excluding the

documents referenced in Mr. Dass’s bill of exception, the district court’s ruling, to

exclude the administrative record (“A.R.”) from the first suit for judicial review,

should be affirmed.

                      STATEMENT OF FACTS CORRECTED

       Mr. Dass’s statement of facts contains reference to documents not properly

before the Court and contains argument and incorrect assertions not supported by

the record. 3 Therefore, the Board submits this corrected Statement of Facts. See

Tex. R. App. P. 38.2(a)(1)(B); Tex. R. App. P. 38.1(g).

       The Parties.

       Appellee the Texas Board of Professional Engineers (“Board”) “was

established to license professional engineers, enforce the Texas Engineering

3
        Because the “facts” in paragraphs 4, 7, 9, and 11 in Dass’s Brief are not properly before
the Court, the Court would first have to review the district court’s ruling in which the court
excluded certain documents, including the administrative record from the first appeal; however,
Mr. Dass has failed to brief this issue. See infra at section II.D for discussion on Mr. Dass’s
failure to brief his bill of exception in his appellant brief. Thus, any of Mr. Dass’s references in
his brief to “A.R.” and any assertions relying on “A.R.” are not properly before the Court. See
also Dass Brief at p. 1 n. 1 (explaining that his references to “A.R.” refer to the administrative
record in the first suit for judicial review).
       The Board intends to file a separate motion to strike Mr. Dass’s Exhibits 6 and 7,
attached to his appellant’s brief, because these documents are not properly before the Court.
       Also, the argument and incorrect assertions contained in these paragraphs would be
improper even if the additional documents had been admitted and were properly before the
Court.


                                                 2
Practice Act [Tex. Occ. Code ch. 1001], [and] resolve complaints.” Senate

Research Ctr., Bill Analysis, Tex. S.B. 277, 78th Leg., R.S. (2003). Copy attached

as Appendix 2.

      Appellant Raghunath Dass, P.E., is a licensed professional engineer who

holds a professional license issued by the Board. Am. Final Order, Finding of Fact

(“FoF”) 1, C.R. at 224. He was the sole licensed professional engineer employed

by Trinity Soils Investigation Laboratories, Inc. (“Trinity Soils Lab”). Id.

      The Legislature has tasked the Board to protect the public health, safety
      and welfare of the citizens of Texas.

      “The [Board] was created in 1937, after an explosion at the New London

School killed nearly 300 students and teachers.” Senate Comm. on Licensing &

Admin. Procedures, Comm. Report (Unamended), Bill Analysis, Tex. S.B. 277,

78th Leg., R.S. (2003), copy attached at Appendix 3. The purpose of the Texas

Engineering Practice Act is to “protect the public health, safety, and welfare” and

“fix responsibility for work done or services or acts performed in the practice of

engineering.” Tex. Occ. Code Ann. §§ 1001.004(b)(1), (3) (West 2012).

      The term “practice of engineering” is broad. See Tex. Occ. Code

§ 1001.003(b) (“‘practice of engineering’ means the performance of or an offer or

attempt to perform any public or private service or creative work, the adequate

performance of which requires engineering education, training, and experience in


                                          3
applying special knowledge or judgment of the mathematical, physical, or

engineering sciences to that service or creative work.”). The practice of

engineering also “includes . . . consultation, investigation, evaluation, analysis,

planning, . . . engineering for testing or evaluating materials for construction or

other engineering use”). Tex. Occ. Code § 1001.003(c)(1). The list of activities that

the Legislature considers engineering services includes a catchall provision: the

practice of engineering “includes . . . any other professional service necessary for

the planning, progress, or completion of an engineering service.” Tex. Occ. Code

§ 1001.003(c)(12).

      To assist the Board in meeting these serious responsibilities, the Legislature

has delegated to the Board the authority to “adopt and enforce any rule or bylaw

necessary to perform its duties, govern its proceedings, and regulate the practice of

engineering.” Tex. Occ. Code § 1001.202. The Legislature also “recognizes the

vital impact that the rapid advance of knowledge of the mathematical, physical,

and engineering sciences as applied in the practice of engineering has on the lives,

property, economy, and security of state residents and the national defense.” Tex.

Occ. Code § 1001.004(a).

      Also, the Act “shall be liberally construed to carry out the intent of the

legislature.” Tex. Occ. Code § 1001.004(d).



                                         4
      The Board investigates complaints, enforces the Act, and may assess
      sanctions and penalties for any violations.

      The Board “shall administer and enforce” the Texas Engineering Practice

Act (“Act”). Tex. Occ. Code § 1001.021(a); see also 22 Tex. Admin. Code

§ 139.31 (2015) (Tex. Bd. of Prof’l Eng’rs, Enforcement Actions for Violations of

the Act). The Board must receive and investigate complaints against licensed

engineers. Tex. Occ. Code § 1001.252(a); 22 Tex. Admin. Code § 139.11

(Complaints—General). After receiving a complaint, the Board “shall determine

whether the board has the authority to resolve the complaint.” Tex. Occ. Code

§ 1001.252(f); see also 22 Tex. Admin. Code § 139.17 (Investigating a

Complaint).

      After the Board determines that a licensed engineer has violated the Act or a

board rule, the engineer is subject to disciplinary action by the Board. Tex. Occ.

Code § 1001.452(1). The Board may suspend an engineer’s license, probate the

suspension of the license, or formally reprimand a license holder. Tex. Occ. Code

§§ 1001.451(2), (3), (4). See also 22 Tex. Admin. Code §§ 139.35 (Sanctions &

Penalties), .47 (Probation), .49 (License Suspension/Revocation Based on License

Holder’s Status Review). If the Board recommends suspension of an engineer’s

license, that person is entitled to a hearing. Tex. Occ. Code § 1001.454. The Board




                                        5
may also impose administrative penalties against an engineer who has violated the

Act or Board rules. Tex. Occ. Code §§ 1001.501, .502.

       Public works projects have special requirements.

       The Act prohibits a political subdivision of the state from “construct[ing] a

public work involving engineering in which the public health, welfare, or safety is

involved, unless . . . the engineering plans, specifications, and estimates have been

prepared by an engineer.” Tex. Occ. Code § 1001.407(1). 4 Additionally, a licensed

engineer may not “submit or request” a “competitive bid to perform professional

engineering service” unless specifically authorized. 22 Tex. Admin. Code

§ 137.53(a) (Engineer Standards of Compliance with Professional Services

Procurement Act). Competitive bidding includes “submission of any monetary cost

information in the initial step of selecting engineers.” Id. at (b). A professional

engineer is responsible for ensuring that his associates do not violate the Act. 22

Tex. Admin. Code § 137.63(b)(2) (Engineers' Responsibility to the Profession)

       The Professional Services Procurement Act (“PSPA”) is found at Texas

Government Code chapter 2254. The PSPA applies to counties and professional

engineering services provided by a professional engineer. Tex. Gov’t Code Ann.

§§ 2254.002(1)(B), (2)(A)(vii), (2)(B)(vii) (West 2008). A county may only select

4
       There are exemptions to this public works provision, but none of the exemptions applied
in the project in which Mr. Dass was involved. See Tex. Occ. Code § 1001.053 (listing
exemptions from the public works requirements).
                                              6
a provider based on qualifications and then must attempt to negotiate a contract

with that provider at a “fair and reasonable price.” Tex. Gov’t Code

§§ 2254.004(a)(1), (2).

      The Board shall prepare and publish advisory opinions.

      In 2003, the Legislature required the Board to issue advisory opinions. Bill

Summ., Tex. S.B. 277, 78th Leg., R.S. (2003) (“The bill requires the board, on its

own initiative or at the request of any interested person, to prepare and maintain

advisory opinions about the interpretation or application of the Texas Engineering

Practice Act and to make that information available on the board’s Internet

website.”), copy attached as Appendix 4. Senate Bill 277 created subchapter M,

entitled “Advisory Opinions” and added four related sections. See excerpt of Tex.

S.B. 277, 78th Leg., R.S. (2003), at pp. 34-35 (showing the addition of subchapter

M), attached as Appendix 5.

      The Legislature tasked the Board with the following duty: “On its own

initiative or at the request of any interested person, the board shall prepare a

written advisory opinion about (1) an interpretation of this chapter; or (2) the

application of this chapter to a person in regard to a specified existing or

hypothetical factual situation.” Tex. Occ. Code § 1001.601(a). See also id. at (b)

(requiring the Board to issue advisory opinions upon request); 22 Tex. Admin.

Code §§ 131.101 (Subject of an Advisory Opinion), .103 (Request for an Advisory

                                        7
Opinion), .105 (Board Initiated Opinion) (“When a majority of the board

determines that an opinion would be in the public interest or in the interest of any

person or persons within the jurisdiction of the board, the board may on its own

motion issue an advisory opinion.”).

      The Board also must “number and classify each advisory opinion” and

“annually compile a summary of the opinions in a single reference document that

is available on the Internet.” Tex. Occ. Code § 1001.602(1), (2); see also 22 Tex.

Admin. Code § 131.109 (Compilation of Advisory Opinions).

      The Board investigated a complaint against Mr. Dass and then brought
      a contested case against him for violations of the Act.

      In 2009 Mr. Dass’s employer, Trinity Soils Lab, submitted a proposal “to

perform construction material testing” for a public works project for San Patricio

County (“County”), specifically regarding the construction of a horse barn

(“Project”) at the County’s fairgrounds. FoF nos. 5, 6, C.R. at 225. The County

hired Trinity Soils Lab to perform the testing. Trinity Soils Lab submitted sixteen

construction materials testing reports to the County, but all of the reports lacked a

signature or seal of a licensed professional engineer. FoF nos. 7, 8, C.R. at 225.

Mr. Dass “did not perform or directly supervise” any of the testing reflected in the

sixteen construction materials testing reports Trinity Soils Lab submitted to the

engineering firm of record during the period of February 17, 2009 to April 7, 2009.


                                         8
FoF no. 9, C.R. at 225. Nor, prior to April 17, 2009, did Mr. Dass have any

knowledge of either the County’s Project or the sixteen reports submitted to the

County. FoF no. 10, C.R. at 225.5

       Mr. Dass, however, on April 20, 2009, after the reports had already been

submitted to the County without his review or analysis, “added his undated

signature and seal to copies” of the sixteen reports and “resubmitted” the reports to

the County. See FoF no. 11, C.R. at 225. Subsequently, the County terminated its

contract with Trinity Soils Lab. Proposal for Decision (“PFD”) at p. 2, C.R. at 344.

The engineer subsequently hired by the County to complete the testing work filed a

complaint with the Board against Mr. Dass. Id.

       After notice and hearing, a contested case hearing was held at the State

Office of Administrative Hearings (“SOAH”). Mr. Dass represented himself pro

se. PFD, C.R. at 343. The Board presented evidence regarding the bidding process

and the manner in which both the testing and the submitting of the reports was

done. Regarding the bidding, the Board’s Director of Compliance and

Enforcement, C.W. Clark, testified that a professional engineer “must use

reasonable care and diligent effort to ensure that persons or firms associated with


5
        The engineering firm of record for the Project subcontracted with Trinity Soils Lab for
the construction materials testing. C.R. at 349. The senior engineer of the engineering firm of
record, Lewis Shrier, testified at the contested case hearing that he became concerned that the
submitted reports needed to have an engineering seal and shared this concern with the non-
engineer at Trinity Soils Lab who had created the sixteen reports. C.R. at 349.
                                              9
the engineer do not engage in conduct which, if done by the engineer, would

violate the [Act] or any Board rule, including the PSPA.” C.R. at 348. Mr. Clark

also testified that “by not demonstrating reasonable care or diligence to prevent his

employer from submitting a competitive bid for the public works project, Mr. Dass

committed a violation.” C.R. at 348.

      Mr. Clark further testified that “when engineering work is released, it must

either be signed, sealed, and dated, or be marked as preliminary.” C.R. at 348.

Here, Mr. Dass failed to sign and seal the reports before the reports were submitted

to the engineering firm of record, and this failure to sign and seal was a violation of

Board rule 137.33(b). And lastly, Mr. Clark testified “anytime a professional

engineer creates or signs a document reflecting engineering work, the licensed

engineer must affix his seal before the document is released from [his] control.”

C.R. at 348. Thus, “a licensed engineer is not allowed to release engineering work

without it being signed and sealed and then later, go back and add his signature and

seal to the document.” C.R. at 348.

      The SOAH Administrative Law Judge (“ALJ”) then issued the PFD. C.R. at

343-59, dated June 13, 2012. The ALJ found that Mr. Dass committed the

following violations:

   • Conclusion of Law No. 5: Mr. Dass violated 22 Tex. Admin. Code
     § 137.33(b) (Sealing Procedures) “when he failed to supervise the


                                          10
       performance of the CMT testing.”6 This conclusion was supported by
       FoF No. 14 (Mr. Dass “failed to exercise reasonable care and
       diligence to prevent [Trinity Soils Lab] from performing construction
       material testing for the Project without having the tests performed or
       directly supervised by a licensed professional engineer.”).

    • Conclusion of Law No. 6: Mr. Dass violated 22 Tex. Admin. Code
      § 137.33(f) (Sealing Procedures) “when he allowed [Trinity Soils
      Lab] to release the CMT reports without having signed, dated, and
      sealed the CMT reports before they were released.”7 This conclusion
      was supported by FoF No. 15 (Mr. Dass “failed to exercise reasonable
      care and diligence to prevent [Trinity Soils Lab] from submitting
      [construction material testing] reports for the Project without the
      signature and seal of a licensed professional engineer.”).

    • Conclusion of Law No. 7: Mr. Dass violated 22 Tex. Admin. Code
      § 137.63(b)(2) (Engineers' Responsibility to the Profession) “when he
      failed to exercise reasonable care and diligence to prevent TSI from
      submitting a competitive bid for professional engineering services in
      violation of the PSPA.” 8 This conclusion was supported by FoF No.
      13 (Mr. Dass “failed to exercise reasonable care and diligence to
      prevent [Trinity Soils Lab] from submitting a proposal for
      construction material testing for the Project which included a price
      bid.”).




6
        “License holders shall only seal work done by them, performed under their direct
supervision as defined in § 131.81 of this title, relating to Definitions, or shall be standards or
general guideline specifications that they have reviewed and selected. Upon sealing, engineers
take full professional responsibility for that work.” 22 Tex. Admin. Code § 137.33(b).
7
       “License holders shall affix their seal and original signature or electronic seal and
signature with the date on the final version of their engineering work before such work is
released from their control.” 22 Tex. Admin. Code § 137.33(f).
8
  The engineer shall . . . exercise reasonable care or diligence to prevent the engineer's partners,
associates, and employees from engaging in conduct which, if done by the engineer, would
violate any provision of the Texas Engineering Practice Act, general board rule, or any of the
professional practice requirements of federal, state and local statutes, codes, regulations, rules or
ordinances in the performance of engineering services. 22 Tex. Admin. Code § 137.63(b)(2).
                                                 11
PFD, C.R. at 357-59. The ALJ recommended the following sanctions and penalty:

fully probated suspension of Mr. Dass’s engineering license for two years, a formal

reprimand, and an administrative penalty of $4,000.00.

      The Board adopted the PFD in its entirety. See Final Order, dated Aug. 16,

2012, a copy is attached at Appendix 6.

      First suit for judicial review.

      Mr. Dass filed a suit for judicial review in Travis County District Court,

seeking review of the Board’s Final Order. Dass v. Tex. Bd. of Prof’l Eng’rs, No.

D-1-GN-12-003397 (419th Dist. Ct., Travis County, Tex.), The Honorable Gisela

Triana presiding. Mr. Dass appeared pro se during the briefing and hearing on the

merits. See, e.g., cover letter for Initial Brief, with Mr. Dass acting pro se, copy

attached at Appendix 7. The court issued the Final Judgment, ruling that “Findings

of Fact No. 16 and 17 and Conclusion of Law No. 8 in the Board’s Final Order

[we]re not supported by substantial evidence.” Final J., dated Sept. 27, 2013, C.R.

at 365. The court also ruled that the “remaining findings of facts and conclusions

of law in the Board’s Final Order [we]re supported by substantial evidence.” The

court noted, “In light of the Court’s decision to strike limited portions of the Final

Order, the Court remands this matter to the Board for any further action it deems

appropriate given the ruling.” The Final Judgment “dispose[d] of all claims and all

parties” and was “final and appealable.” C.R. at 365.

                                          12
      Appeal of Final Judgment and Amended Final Order.

      After the district court issued its Final Judgment, Mr. Dass filed an appeal of

the Final Judgment. Notice of Appeal, dated Oct. 23, 2013, copy attached at

Appendix 8.

      The Board subsequently adopted the Amended Final Order. Am. Final

Order, dated Nov. 21, 2013, C.R. at 223-27. The Amended Final Order conformed

the Final Order to the district court’s Final Judgment by dropping the two findings

of fact and one conclusion of law that the court ruled were not supported by

substantial evidence. And while the district court found substantial evidence to

support the administrative penalty from the Final Order, in the Amended Final

Order the Board reduced the administrative penalty to be assessed against Mr.

Dass. See Am. Final Order, C.R. at 227 (reducing the penalty from $4,000 to

$1,500.00).

      On December 3, 2013, again acting pro se, Mr. Dass filed his Motion to

Withdraw Appeal, seeking to dismiss his appeal to the Third Court of Appeals,

stating that he “believe[d]” his appeal “ha[d] become moot due to the Amended

Final Order from Appellee.” C.R. at 370-78. This Court issued an order dismissing

Mr. Dass’s appeal. C.R. at 379.

      On December 10, 2013, Dass filed his Motion for Rehearing. C.R. at 380-

406. His motion was overruled by operation of law.

                                         13
      On December 18, 2013, this Court dismissed Mr. Dass’s appeal. C.R. at 379.

      Second Suit for Judicial Review.

      On February 27, 2014, Mr. Dass filed a second suit for judicial review,

seeking review of the Board’s Amended Final Order. Dass v. Tex. Bd. of Prof’l

Eng’rs, No. D-1-GN-14-000568 (201st Dist. Ct., Travis County, Tex.), The

Honorable Stephen Yelenosky presiding. The Board then filed a motion for

summary judgment on May 29, 2014. C.R. at 334-406. The court granted the

Board’s summary judgment motion. Order Granting Def.’s Mot. for Summ. J.,

C.R. at 465, copy attached at App. 1. The Order disposed of all other claims and

was final and appealable. Id. Dass subsequently filed the instant direct appeal of

the District Court’s order. See Notice of Appeal (“appeal[ing] from the Order

Granting Defendant’s Motion for Summary Judgment), C.R. at 472.

      Bill of Exception.

      The administrative record for the suit for judicial review underlying the

instant case contains only the following four documents: (1) Board's Amended

Final Order; (2) Respondent's Motion for Rehearing; (3) Staff Memorandum to

Board Members on Motion for Rehearing; and (4) Notice to Respondent

Overruling Motion for Rehearing.

      Mr. Dass filed a motion seeking to have the Board file with the district court

the transcript from the contested case hearing underlying the first suit for judicial

                                         14
review. See Mot. for Def. to File SOAH Tr. with Dist. Clerk, dated Apr. 21, 2014,

C.R. at 59-61. The Board opposed this motion. C.R. at 99-202. Then, on April 22,

2014, Mr. Dass filed an assortment of documents including offers made by Board

staff to settle the case that was the subject of his first suit for judicial review. 9

None of these documents were part of the administrative record, and the district

court properly granted the Board’s motion to strike these documents.

       The district court denied both Mr. Dass’s motion to supplement the record

with the SOAH transcript and PFD and his supplemental motion seeking the same

supplementation. C.R. at 316, 318. The court also granted the Board’s Amended

Motion to Strike. C.R. at 317.

       Mr. Dass then filed a bill of exception, seeking to have this Court determine

whether the administrative record in the first suit could be considered by the Court.

Supp. C.R. II at 12-13.




9
       The District Clerk sua sponte included these documents in the Clerk’s Record. The
documents are labelled C.R. 62-84. Because these documents are not properly before the Court,
the Board respectfully requests that the Court disregard these documents.
                                             15
                       SUMMARY OF THE ARGUMENT

      Mr. Dass failed to raise as an issue in the instant appeal whether the district

court properly granted the Board’s summary judgment motion, dismissing Mr.

Dass’s suit. Mr. Dass has, therefore, waived this point of error, and the Court

should affirm the district court’s order dismissing Mr. Dass’s suit. But even on the

merits, the trial court properly granted the Board’s motion for summary judgment.

      No other issue is properly before this Court. Mr. Dass’s Issues Nos. 1-6 were

not raised in his response to the Board’s motion for summary judgment and are

waived. Moreover, Mr. Dass failed to raise his purported Issue Nos. 1, 2, and 3 in

the district court, and these issues are thus further waived. As for his Issue No. 4,

while Mr. Dass claims to have raised issue 4 in his motion for rehearing, if he did

raise this issue, he failed to provide a legal basis for doing so and thus waived the

issue on appeal. Also, his Issues Nos. 5 and 6, in which he claims lack of

substantial evidence to support findings of fact and conclusions of law, were

already ruled on by the district court in the first suit for judicial review, and by

dismissing his first appeal Mr. Dass is thus precluded from raising these issues in

the instant appeal. And he failed to raise as an issue the exclusion of evidence.

                            STANDARD OF REVIEW

      A district court properly grants a traditional motion for summary judgment

when a movant establishes that there are “no genuine issue[s] of material fact” and

                                          16
that the movant is entitled to judgment as a matter of law. Lear Sieglar, Inc. v.

Perez, 819 S.W.2d 470, 471 (Tex. 1991)). Summary judgment in response to a

“no-evidence” motion is proper when the nonmovant fails to produce evidence

“raising a genuine issue of material fact.” Hamilton v. Wilson, 249 S.W.3d 425,

426 (Tex. 2008) (per curium).




                                       17
                                  ARGUMENT

I.    The only issue before this Court is whether the district court properly
      granted the Board’s motion for summary judgment, dismissing Mr.
      Dass’s lawsuit; however, because Mr. Dass has failed to raise this issue
      in his Appellant’s Brief, he has waived error.

      A.     Mr. Dass has waived error, and the Court should affirm the
             district court’s granting of the Board’s motion for summary
             judgment.

      When a party’s brief “wholly fail[s] to raise any issues, arguments, or

citations to the record with respect to the trial court’s summary judgment in favor

of [the appellee], he has waived error as to the judgment in favor of that

defendant.” Carpenter v. First Tex. Bancorp, No. 03-12-00004-CV, 2014 WL

2568494, at *1 (Tex. App.—Austin June 5, 2014, pet. filed) (holding that appeal of

granting of summary judgment waived where nonmovant-appellant failed to raise

on appeal issue of summary judgment regarding one of two defendants) (citing

Tex. R. App. P. 38(f), (i)).

      The appeal before this Court concerns only the district court’s summary

judgment. Order Granting Def.’s Mot. for Summ. J. (having considered Board’s

motion and Mr. Dass’s response), C.R. at 465. The court rendered judgment,

granting the motion in all respects and denying all other relief, and the judgment

was final and appealable. Id. Mr. Dass filed appeal of the summary judgment.

Notice of Appeal, C.R. at 471. In his brief on appeal, however, Mr. Dass has failed

to assert that the district court erred by granting the Board’s motion for summary
                                        18
judgment, and he has thus waived error. The Court should, therefore, affirm the

district court’s order granting summary judgment.

      Even when a party does raise on appeal the granting of summary judgment,

the appellant must provide adequate briefing. See, e.g., Concho Residential Servs.,

Inc. v. MHMR Servs. for the Concho Valley, No. 03-98-00022-CV, 1999 WL

644727, at *19-20 (Tex. App.—Austin Aug. 26, 1999, pet. denied) (affirming

district court’s granting of summary judgment when appellant-nonmovant failed to

address grounds asserted for summary judgment by appellee-movant); Crider v.

Crider, No. 01-10-00268-CV, 2011 WL 2651794, at *[4] (Tex. App.—Houston

[1st Dist.] July 7, 2011, pet. denied) (mem. op.) (“A party who fails to support his

or her contentions with authority or citations to the record when appropriate waives

the issue due to inadequate briefing.”). Here, Mr. Dass fails to challenge any of the

possible bases for the district court’s granting of the summary judgment, and, so,

he has waived error.

      B.     Even on the merits, the district court properly granted the
             Board’s motion for summary judgment.

      The reviewing court will “take as true evidence favorable to the nonmovant,

making every reasonable inference and resolving all doubts in the nonmovant’s

favor.” John Gannon, Inc. v. Gunnarson Outdoor Adver., Inc., No. 03-08-00404-

CV, 2010 WL 3192536, at *2 (Tex. App.—Austin Aug. 11, 2010, pet. denied)


                                         19
(citing Centeq Realty Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). Because

the court did not specify the exact ground for granting the Board’s summary

judgment, Mr. Dass has the burden to “negate all grounds on appeal.” Id. (noting

that “if summary judgment may have been granted, properly or improperly, on a

ground that an appellant does not challenge, we must affirm it”). Here, the Board

raised three possible reasons the court should grant summary judgment: (1) failure

to preserve error by filing an inadequate motion for rehearing; (2) res judicata or

collateral estoppel; or (3) that the Board’s Amended Final Order conformed to the

Final Order in the first suit for judicial review.

             1.     Mr. Dass’s second motion for rehearing failed to preserve
                    error.

      The Board issued an Amended Final Order, and Mr. Dass timely filed a

motion for rehearing, which was overruled by operation of law. See Am. Final

Order, C.R. at 223-27; Mot. for Reh’g, C.R. at 380-406. Mr. Dass then filed his

second suit for judicial review asking the district court to review the Board's

Amended Final Order.

      Under the Administrative Procedure Act, as a prerequisite to judicial review,

a litigant must file a motion for rehearing with the agency. Tex. Gov’t Code

§§ 2001.145, .146. The rationale behind this requirement is to give the agency an

opportunity to correct or defend any errors claimed by the litigant. Suburban Util.


                                           20
Corp. v. Pub. Util. Comm’n, 652 S.W.2d 358, 365 (Tex. 1983). But a motion for

rehearing is not a mere legal formality prior to judicial review. Because the motion

is designed to give the agency notice, it must carry certain substance. Specifically,

the motion must identify the erroneous action taken by the agency, and analyze the

legal basis for the claim of error. Hamamcy v. Tex. State Bd. of Med. Exam’rs, 900

S.W.2d 423, 425 (Tex. App.—Austin 1995, writ denied).

      A motion for hearing must “set forth succinctly at least two elements

pertaining to each contention of error: (1) the particular finding of fact, conclusion

of law, ruling, or other action by the agency that the complaining party asserts was

error; and (2) the legal basis upon which the claim of error rests.” Burke v. Cent.

Educ. Agency, 725 S.W.2d 393, 397 (Tex. App.—Austin 1987, writ ref’d n.r.e.)

(“Without these irreducible elements, we do not conceive that any assignment of

error will apprise the agency of the error claimed so that it may correct the error or

prepare against the contention that it is error.”).

      Mr. Dass’s motion for rehearing, however, failed to satisfy either element.

See Mot. for Reh’g, C.R. at 380-406. For example, the first three pages consisted

only of a recitation of facts and his interpretation of those facts; Mr. Dass also

failed to state any legal or statutory basis for his general assertion that the Board

came to the wrong conclusion. Id. His points of error did not refer to any

conclusions of law or legal principles and were so broad that they provided no

                                           21
notice to the Board to allow it to correct or defend against the contention of error.

Moreover, the motion failed to provide any legal basis on which the unspecified

errors rested. See Burke, 725 S.W.2d at 397; see also Hamamcy, 900 S.W.2d at

425 (holding that “a motion for rehearing can be so indefinite, vague, and general

so as to constitute no motion for rehearing at all”); Hill v. Bd. of Trs., 40 S.W.3d

676, 678 (Tex. App.—Austin 2001, no pet.) (adequacy of motion for rehearing

goes to question of whether plaintiff had preserved error).

      Such was Mr. Dass’s “motion.” In his seven points of error, he only cited to

one finding of fact, no. 17, and only quoted it, never stating why it might support

his motion or amount to an error by the Board. (Point 2) He complained that the

Board members interrupted him (Point 7); he asserted he was not responsible

(Point 6) and that Board members ignored his “strong exceptions” (Point 4); and,

he made some general complaints about Board policy (Point 1), Board

interpretation of engineering concepts (Point 3), and made a general complaint that

the Board failed to understand why his seal was on the reports (Point 5).

      His motion was nothing more than a general attack, among other matters, on

the Board's 2005 Policy Advisory Opinion on Construction Materials Testing

(“CME Advisory Opinion”), copy attached at Appendix 9. Rather than stating the

specific errors in the Board's Amended Final Order and explaining the legal basis

for the alleged errors, as required in a motion for rehearing, Mr. Dass focused

                                         22
much of his motion for rehearing on identifying alleged deficiencies in the CME

Advisory Opinion. See C.R. at 380-406. The Findings of Fact and Conclusions of

Law in the Board's Amended Final Order did not rely on or address this 2005

Advisory Opinion. See C.R. at 223-27. Moreover, Mr. Dass had previously raised

this issue at the contested case hearing, and the ALJ dismissed this argument as

erroneous. See PFD at page 12, C.R. at 343-59.10

       Mr. Dass’s points of error alleging bias and unfairness by the Board

members were entirely baseless. At all stages of the proceeding, Mr. Dass was

afforded due process and opportunities to address the Board when appropriate. Mr.

Dass’s claim that the Board acted in a biased and unfair manner, simply because it

disagreed with Mr. Dass' arguments, lacked a valid legal basis for a rehearing.

       Not only did Mr. Dass’s motion fail to provide notice to the Board, it failed

as a substantive motion altogether. The motion for rehearing elements “may not be

supplied solely in the form of generalities.” Burke, 725 S.W.2d at 397. See also

Williams v. Geeslin, No. 03-05-00450-CV, 2006 WL 2032570 (Tex. App.—Austin

July 21, 2006, no pet.) (mem. op.) (holding that trial court properly granted

summary judgment for agency in suit for judicial review because motion for

rehearing was insufficient to preserve any error).
10
        “Based on the plain reading of the CME Advisory Opinion, the ALJ finds it sufficiently
informative to put a professional engineer on notice that material testing for a public works
project requires the involvement of a licensed engineer and compliance with the [Professional
Services Procurement Act] and corresponding Board rules.”
                                             23
      Mr. Dass had a statutory obligation to apprise the Board of the alleged errors

of which he intended to complain in his suit for judicial review and the legal basis

for his challenge. Because he failed to provide the Board with the opportunity to

correct or defend any error, he failed to preserve error through his purported

motion for rehearing. See Suburban, 652 S.W.2d at 365. He did not establish the

statutory prerequisites to go forward with his lawsuit; the district court correctly

granted summary judgment because Mr. Dass had no viable cause of action. See

Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Merchs. Fast Motor Lines, Inc., 939

S.W.2d 139, 141 (Tex. 1997).

            2.     When Mr. Dass dismissed his first appeal, the doctrines of
                   res judicata and collateral estoppel precluded Mr. Dass
                   from relitigating those same claims.

      “Res judicata generally bars claims or defenses that, through diligence,

could have been litigated in the earlier suit but were not.” Ingersoll-Rand Co. v.

Valero Energy Corp., 997 S.W.2d 203, 206 (Tex. 1999); see also Citizens Ins. Co.

of Am. v. Daccach, 217 S.W.3d 430, 448 (Tex. 2007) (conversely res judicata will

not bar “claims that cannot be litigated through diligence”). The doctrines of res

judicata and collateral estoppel maintain the integrity of court decisions, prevent

vexatious litigation, and maximize judicial economy. Barr v. Resolution Trust

Corp., 837 S.W.2d 627, 629 (Tex. 1992).



                                        24
      Res judicata requires: (1) “a prior final judgment on the merits by a court of

competent jurisdiction”; (2) “identity of parties or those in privity with them”; and

(3) “a second action based on the same claims as were raised or could have been

raised in the first action.” Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.

1996). To invoke collateral estoppel, a party must establish (1) “the facts sought to

be litigated in the second action were fully and fairly litigated in the first action”;

(2) “those facts were essential to the judgment in the first action”; and (3) “the

parties were adversaries in the first action.” Sysco Food Servs. Inc. v. Trapnell, 890

S.W.2d 796, 801 (Tex. 1994). See also United States v. Utah Constr. & Mining

Co., 384 U.S. 394, 421-22 (1966) (holding that res judicata may be applied in the

administrative context when an administrative agency is acting in a judicial

capacity; res judicata bars subsequent litigation following the agency's decision).

      The elements for res judicata and collateral estoppel were met in this case.

The parties in the case were identical to the parties in the first suit for judicial

review. The first suit for judicial review was properly filed in Travis County

District Court, which rendered a Final Judgment. See Final J., C.R. at 365-66. In

the Final Judgment, the court ruled that Findings of Fact numbers 16 and 17 and

Conclusion of Law number 8 in the Board's Final Order were not supported by

substantial evidence. See C.R. at 365-66. The district court also ruled that “the



                                          25
remaining findings of fact and conclusions of law in the Board’s Final Order are

supported by substantial evidence.” See C.R. at 365-66.

      The Board did not appeal the Final Judgment. Rather, at its next quarterly

board meeting, the Board adopted an Amended Final Order that conformed with

the Final Judgment by striking Findings of Fact numbers 16 and 17 and Conclusion

of Law number 8. C.R. at 223-27 The Board also reduced the administrative

penalty assessed against Mr. Dass from $4,000 to $1,500. See C.R. at 223-27. The

Board made no other changes to the original Final Order.

      Mr. Dass, again acting pro se, appealed this final judgment but then

withdrew that appeal. See Notice of Appeal, dated Oct. 23, 2013, copy at App. 8.

A mere twelve days after the Board approved the Amended Final Order, Mr. Dass

withdrew his appeal because he “believe[d]” the appeal “ha[d] become moot due to

the amended Final Order from Appellee.” See Mr. Dass’s Mot. to Withdraw

Appeal, dated Dec. 3, 2013, C.R. at 370-78. The Third Court of Appeals granted

Mr. Dass’s motion to dismiss his appeal. C.R. at 379.

      When Mr. Dass abandoned his appeal, he lost his opportunity to challenge

both the findings of fact and conclusions of law made by the Board and the district

court’s ruling that the remaining findings of facts were supported by substantial

evidence became final.



                                        26
      In the second suit for judicial review of the same agency decision, Mr. Dass

failed to state that he raised any additional or new issues in his second suit. Mot.

for Reh’g, C.R. at 380-406.

            3.     The Board's Amended Final Order complied with the Final
                   Judgment in the first suit.

      Because Mr. Dass dismissed his first appeal, and raised no new issues in his

second suit for judicial review, the only live issue in the second suit was whether

the Board's Amended Final Order conformed with the Final Judgment in the first

suit for judicial review. A side-by-side comparison of the original Final Order and

the Amended Final Order shows that in the Amended Final Order the Board only

deleted Findings of Fact 16 and 17 and Conclusion of Law No. 8 and reduced the

penalty. Compare Am. Final Order, C.R. at 223-27, with Final Order, copy at App.

6. Therefore, the district court could properly grant the Board’s motion for

summary judgment under this third reason.

      Because Mr. Dass fails to challenge these three possible bases for the court’s

granting summary judgment, the judgment should be affirmed.

II.   Mr. Dass fails to preserve error for his Issues Nos. 1-6 and his bill of
      exception issue.

      Mr. Dass has waived his Issues Nos. 1-6 for three reasons. First, Mr. Dass’s

Issues Nos. 1 to 6 are waived because these issues were not raised in his response

to the Board’s motion for summary judgment. See Tex. R. Civ. P. 166a(c) (“Issues

                                        27
not expressly presented to the trial court by written motion, answer or other

response shall not be considered on appeal as grounds for reversal.”); see City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (noting that

when challenging a summary judgment appellant may only raise for first time on

appeal issue of legal sufficiency). See also Krot v. Fid. Nat’l Title Co., No. 03-14-

00250-CV, 2014 WL 7464084, at *2 n.2 (Tex. App.—Austin Dec. 31, 2014, no

pet. hist.) (mem. op.) (argument made for first time on appeal waived because

nonmovant “failed to assert” the argument “as a bar to summary judgment” in its

trial court briefing in responding to appellee’s motion for summary judgment);

Schanzle v. JPMC Specialty Mortg., No. 03-09-00639-CV, 2011 WL 832170, *3

(Tex. App.—Austin Mar. 11, 2011, no pet.) (mem. op.) (issue waived “because it

was not properly presented to the trial court as . . . ground for denying summary

judgment”). See Resp. to Def.’s Mot. for Summ. J., C.R. at 407-15.

       Second, Mr. Dass failed to raise these issues in his suit for judicial review.

See Mot. for Reh’g, C.R. at 380-406. And third, Mr. Dass’s Issues Nos. 1-6 all

relate to issues in the original Final Order. When Mr. Dass withdrew his first

appeal of the first suit for judicial review that judgment became final and he was

precluded from raising these issues in a later suit. 11

11
        See generally Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978)
(“Litigants who represent themselves must comply with the applicable procedural rules, or else
they would be given an unfair advantage over litigants represented by counsel.”).
                                             28
      A.     Mr. Dass also waived his Issues Nos. 1, 2, and 3 because he failed
             to raise these issues in either his motion for rehearing or district
             court, and these three issues do not implicate subject-matter
             jurisdiction.

      None of Mr. Dass’s issues implicate subject-matter jurisdiction; and,

therefore, because he failed to raise these issues in the district court, or in his

motion for rehearing, he has waived his ability to raise these issues on appeal. As

to his first issue, Mr. Dass fails to show that the Board violated Texas Government

Code section 2001.1775, or, alternatively, how an erroneous order is somehow

automatically void and not just subject to reversal upon challenge—the latter

which potential issue he waived by failing to raise this issue in the district court.

      In his Issues Nos. 2 and 3, Mr. Dass erroneously conflates subject-matter

jurisdiction with a suit for judicial review regarding the scope of an agency’s

regulatory powers. See Tex. Gov’t Code § 2001.174(2)(B) (in a suit for judicial

review a court “shall reverse or remand the case for further proceedings if

substantial rights of the appellant have been prejudiced because the administrative

findings, inferences, conclusions, or decisions are . . . in excess of the agency’s

statutory authority”). He asserts, without citing any authority, that his

2001.174(2)(B) claims implicate subject-matter jurisdiction; they do not. See Dass

Br. 11, 16. Rather, subject-matter jurisdiction is “[j]urisdiction over the nature of

the case and the type of relief sought; the extent to which a court can rule on the


                                           29
conduct of persons or the status of things.” Black’s Law Dictionary 870 (8th ed.

2004). 12

       If, in a suit for judicial review, a party contends that the agency exceeded its

statutory authority, the only available remedy is for the district court to either

“reverse or remand the case.” Tex. Gov’t Code § 2001.174 (emphasis added). See

also, e.g., SWEPI LP v. R.R. Comm’n, 314 S.W.3d 253, 259 (Tex. App.—Austin

2010, pet. denied) (reversal by district court is proper remedy); Tex. Gen. Land

Office v. Crystal Clear Water Supply Corp., 449 S.W.3d 130 (Tex. App.—Austin

2014, pet. filed) (same).

       Mr. Dass also fails to cite any authority for his request that the Court find the

Amended Final Order void. Indeed, the remedy the Court could grant Mr. Dass

would be to remand to the Board for further proceedings. See Tex. Gov’t Code

§ 2001.174; see also, e.g., Pub. Util. Comm’n v. City Pub. Serv. Bd. of San

Antonio, 109 S.W.3d 130, 137-38 (Tex. App.—Austin 2003, no pet.) (holding that




12
        The two cases Mr. Dass cites in support of this argument are inapposite. In TEC, the issue
was whether the district court was without jurisdiction where the amount in controversy
exceeded the maximum allowed for the court to have jurisdiction. Tex. Emp’t Comm’n v. Int’l
Union of Elec., Radio & Mach. Workers, Local Union No. 782, 352 S.W.2d 252, 253 (Tex.
1961). And in Mapco, the court held that a party may raise for the first time on appeal the
jurisdictional issue of whether the “owelty award entered against it was erroneous because it was
not a party in the trial court”). Mapco, Inc. v. Carter, 817 S.W. 686, 687 (Tex. 1991). Neither
case discusses, or relies on, section 2001.174.


                                               30
trial court not authorized to vacate order when agency exceeded its authority,

where section 2001.174 authorizes only reversal or remand).

      A party waives error on appeal when it fails to raise the issue in the trial

court. Loftin v. Lee, 341 S.W.3d 352, 356 n.11 (Tex. 2011); Dreyer v. Greene, 871

S.W.2d 697, 698 (Tex. 1993) (“As a rule, a claim . . . must have been asserted in

the trial court in order to be raised on appeal.”); see also Carrizales v. Tex. Dep't

Prot. & Reg. Servs., 5 S.W.3d 922, 925 (Tex. App.—Austin 1999, pet. denied)

(quoting Dreyer, 871 S.W.2d at 698). Because Mr. Dass failed to raise these two

issues in either his motion for rehearing or in the district court—by adding, for

example, a cause of action for either declaratory or injunctive relief, the Court

should overrule his Issue Nos. 2 and 3. See, e.g., Pub. Util. Comm’n v. Allcomm

Long Distance, Inc., 902 S.W.2d 662, 666 (Tex. App.—Austin 1995, writ denied)

(where party alleges that agency acted beyond the scope of its statutorily conferred

powers, suit for declaratory or injunctive relief [filed in the trial court] will lie).

Here, Mr. Dass suggests he failed to brief his Issue Nos. 2 and 3 in the district

court; and these issues, therefore, are waived. See Dass Br. 11, 16 n.3. Because of

this failure to raise these issues in his suit for judicial review, the Court should

overrule Mr. Dass Issues Nos. 1, 2, and 3. See Carrizales, 5 S.W.3d at 925.




                                          31
             1.    Mr. Dass’s Issue No. 1 is waived because even if the Board’s
                   issuance of the Amended Final Order was erroneous, Mr.
                   Dass failed to raise this issue in his motion for rehearing.

      For the first time, Mr. Dass, in his Appellant Brief to this Court, asserts that

Texas Government Code section 2001.1775 has been violated. Dass Br., C.R. at 7-

10. Even if the Amended Final Order was issued in violation of Texas Government

Code section 2001.1775, this error does not make the Amended Final Order void.

An order is void if it is rendered by a body that lacked jurisdiction to render it.

Here, the Board had jurisdiction to render the Amended Final Order. If the

Amended Final Order was issued erroneously, Mr. Dass had a duty to raise that

error in both his motion for rehearing and his second suit for judicial review. Mr.

Dass provides only conclusory arguments for his assertion that the Amended Final

Order is somehow void and also fails to provide any explanation or substantiation

as to why an order issued in violation of section 2001.1775 is void.

      Section 2001.1775 states that “an agency may not modify its findings or

decision in a contested case after proceedings for judicial review of the case have

been instituted under section 2001.176 and during the time that the case in under

judicial review.” Tex. Gov’t Code § 2001.1775. Mr. Dass does not cite any




                                         32
authority for the proposition that an order issued in violation of section 2001.1775

is void. 13

       After a hearing on the merits in the first suit for judicial review, the court

issued the Final Judgment, in which the court concluded that “Findings of Fact

Nos. 16 and 17 and Conclusion of Law No. 8 in the Board’s Final Order [we]re not

supported by substantial evidence.” C.R. at 365. The court also ruled that the

“remaining findings of facts and conclusions of law in the Board’s Final Order are

supported by substantial evidence” and remanded the matter to the Board “for any

further action it deem[ed] appropriate given the ruling.” Id. The Final Judgment

“finally dispose[d] of all claims and all parties, and is final and appealable.” Id.

       The Board then issued the Amended Final Order. C.R. at 223-27. This order,

in following the court’s ruling contained in the Final Judgment, deleted Findings of

Fact Nos. 16 and 17 and Conclusion of Law No. 8. And while the court found that

the sanction and administrative penalty were supported by substantial evidence, the

Board, on its own volition, reduced the penalty from $4,000 to $1,500. The Board

made no other modifications.

13
       The three cases Mr. Dass cites are inapplicable because none rely on or relate to Texas
Government Code section 2001.1775. See Tex. Highway Comm’n v. Tex. Ass’n of Steel
Importers, 372 S.W.2d 525, 530 (Tex. 1963) (holding that minute orders made contract void);
Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res. Conservation Comm’n, 124
S.W.3d 844, 853 (Tex. App.—Austin 2003, pet. denied) (addressing statutory permitting
requirements of the Texas Natural Resources Commission); City of Celina v. Dynavest Joint
Venture, 253 S.W.3d 399, 403 (Tex. App.—Austin 2008, no pet.) (relying on water code).


                                             33
      The only point of error that Mr. Dass might raise is whether the Board’s

reduction of the penalty in the Amended Final Order was in violation of section

2001.1775. The district court, however, found that the penalty of $4,000.00 was

supported by substantial evidence; the Board merely reduced the penalty by

$2,500—from $4,000 in the original Final Order to $1,500. An error regarding this

reduction is either waived or is harmless. When Mr. Dass dismissed his appeal of

the Final Judgment, he waived any appeal from the Final Order. Moreover, he

failed to raise as an issue in his motion for rehearing in the second suit the Board’s

change in the penalty amount in the Amended Final Order. Therefore, even if he

could have raised the penalty amount in the second suit, he did not preserve this

issue for review. Alternatively, this reduction in penalty, even if it were a violation

of section 2001.1775 is harmless because the Board reduced the penalty assessed

against Mr. Dass.

      At most, the Amended Final Order was erroneous; Mr. Dass, however,

waived this issue, and the Court should, therefore, overrule Mr. Dass’s Issue No. 1.

             2.     Although Mr. Dass’s Issue No. 2 is waived, even on the
                    merits Mr. Dass’s argument would fail to show how the
                    Board may not fix responsibility for services performed in
                    the practice of engineering.

      The purpose of the Texas Engineering Practice Act is to “protect the public

health, safety, and welfare” and “fix responsibility for work done or services or


                                          34
acts performed in the practice of engineering.” Tex. Occ. Code §§ 1001.004(b)(1),

(3). The Board found that Mr. Dass violated a provision regarding bidding on a

public works project, failing to oversee tests conducted to create reports, and

failing to prevent Trinity Soils Lab from submitting the reports without the

signature and seal of its licensed engineer Mr. Dass. See PFD, C.R. at 225.

      Mr. Dass makes several erroneous assertions in his argument regarding his

second issue. See Dass Br.10-15. First, the Board’s Amended Final Order was not

wholly dependent on or limited to construction material testing. One of the

violations was Mr. Dass’s failure to prevent competitive bidding by his

engineering firm, Trinity Soils Testing. Conclusion of Law No. 7, C.R. at 226.

                   a.    Broad definition of “practice of engineering.”

            The term “practice of engineering” is broad. See Tex. Occ. Code

§ 1001.003(b) (“‘practice of engineering’ means the performance of or an offer or

attempt to perform any public or private service or creative work, the adequate

performance of which requires engineering education, training, and experience in

applying special knowledge or judgment of the mathematical, physical, or

engineering sciences to that service or creative work.”). The practice of

engineering also “includes . . . consultation, investigation, evaluation, analysis,

planning, . . . engineering for testing or evaluating materials for construction or

other engineering use”). Tex. Occ. Code § 1001.003(c)(1). The list activities that

                                        35
the Legislature considers engineering services includes a catchall provision: the

practice of engineering “includes . . . any other professional service necessary for

the planning, progress, or completion of an engineering service.” Tex. Occ. Code

§ 1001.003(c)(12). Also, the Act “shall be liberally construed to carry out the

intent of the legislature.” Tex. Occ. Code § 1001.004(d).

      Mr. Dass’s narrow interpretation of section 1001.003, or his assertion the

Board has no authority to determine the scope of construction materials

engineering testing (“CME”), is not supported by the plain language of the statute

or the intention of the Legislature for the Board to liberally construe the Act in

enforcing policy. See Dass Br. 12-14.

                   b.    CME and the reports.

      CME “includes collecting samples, performing well-defined test procedures,

and reporting of data.” CME Advisory Opinion, Aug. 20, 2009, at p. 1, copy

attached at App. 9. “On construction projects, engineers are called upon to assess

the quality, appropriateness and acceptability of the materials that are used.” Id.

Construction materials testing (“CMT”), “within the context of CME includes

collecting samples, performing well-defined test procedures, and reporting of

data.” While CMT typically falls within the scope of CME activities, sometimes

CMT is not considered a CME activity. CME Advisory Opinion, at p. 1, at App. 9

(“In certain situations, performing tests and sampling by using well-defined

                                         36
engineering specifications may not be considered engineering activities.”).

Nevertheless, “if analysis of test data [i.e., CMT] is done or a determination is

made that a material is acceptable, these activities would be considered to be

CME.” Id. The last sentence of the fourth paragraph is of particular importance:

“Because the engineer is responsible for accepting the public works project,

acceptance or rejection of materials or work, the direct supervision by an engineer

of CMT for those acceptance decisions is needed.” Id. This sentence means that the

engineer, in the instant case Mr. Dass, should have directly supervised the testing

because he had responsibility as the sole engineer for Trinity Soils Lab to analyze

the test data performed and gathered by the non-engineer Mr. Tater, and thus

ensuring that the engineering aspect of the work was properly done by an engineer

(and not by Mr. Tater a non-engineer). In sum, the non-engineer could run or

perform the tests, but the licensed engineer had to analyze the data.

      Under the broad definition of “engineering service,” the Board’s

clarification of the relationship between CME and CMT, as articulated in its CME

Advisory Opinion, is well within the Board’s authority. Moreover, the Board’s

determination that the reports conducted by Trinity Soils Lab was CME was well

within the Board’s discretion to determine. The ALJ ruled that the Board’s




                                         37
determination was correct, and the district court found substantial evidence for the

ALJ’s findings and conclusions. See PFD, C.R. at 343-59; Final J., C.R. at 365. 14

       The Court should, if it reaches the merits of Mr. Dass’s second issue,

overrule the issue.

              3.      Although Mr. Dass’s Issue No. 3 is waived, even on the
                      merits the ALJ correctly ruled that Mr. Dass failed to
                      follow the legally required bidding process for a public
                      works project.

       The Act states that a political subdivision of the state “may not construct a

public work involving engineering in which the public health, welfare, or safety is

involved, unless . . . the engineering plans, specifications, and estimates have been

prepared by an engineer. Tex. Occ. Code § 1001.407(1). Additionally, a licensed

engineer may not “submit or request” a “competitive bid to perform professional

engineering service” unless specifically authorized. 22 Tex. Admin. Code

§ 137.53(a) (Engineer Standards of Compliance with Professional Services

Procurement Act). Competitive bidding includes “submission of any monetary cost

information in the initial step of selecting engineers. Id. at (b). The PSPA applies to

counties and professional engineering services provided by a professional

engineer. Tex. Gov’t Code §§ 2254.002(1)(B), (2)(A)(vii), (2)(B)(vii). A county


14
        Mr. Dass’s mischaracterizes Findings of Fact Nos. 5 and 7 when he asserts that only
CMT was performed. Dass Br. at 15 n.2 & 3. Rather, the ALJ found that Mr. Dass violated the
Act when he failed to oversee the testing done to create the reports. Conclusion of Law No. 5,
C.R. at 226.
                                             38
may only select a provider based on qualifications, and then attempt to negotiate a

“fair and reasonable price.” Tex. Gov’t Code §§ 2254.004(a)(1), (2).

       Here, the ALJ found that Mr. Dass had violated the Board’s rules when he

failed to “exercise reasonable care and diligence to prevent [Trinity Soils Lab]

from submitting a competitive bid for professional engineering services in

violation of the PSPA.” Conclusion of Law No. 5, C.R. at 226 (citing Board rule

137.63(b)(2)).15 And the district court ruled that substantial evidence supported this

conclusion of law. Final J., C.R. at 365. The Board did not act outside the

authority, indeed responsibility, the Legislature granted the Board. If the Court

should reach the merits of Mr. Dass’s third issue, the issue ought to be overruled.

       B.     Mr. Dass has waived his right to complain of the CME Advisory
              Opinion (Mr. Dass’s fourth issue).

       For the same reasons cited above for Mr. Dass’s second and third issues, his

fourth issue is not properly before the Court. Mr. Dass claims he raised his issue

regarding the CME Advisory Opinion in his motion for rehearing; however, as the

Board noted in section I, supra, his motion for rehearing was so vague and

indefinite so as to not preserve error. Burke, 725 S.W.2d at 397. For the first time,

Mr. Dass states a legal basis for his issue, section 2001.174.




15
        The paragraph on pages 17-18 of Mr. Dass’s brief lacks citation, and the assertions seem
to be based on documents and evidence not properly before the Court.
                                              39
      Also, Mr. Dass ought to have brought this point of error in his first appeal;

but because he dismissed his first appeal, he has waived his right to bring this point

of error in the instant appeal.

      However, even if Mr. Dass had not waived his point of error, it fails on the

merits. The Legislature tasked the Board with the duty of issuing advisory

opinions. Tex. Occ. Code § 1001.601(a) (“On its own initiative or at the request of

any interested person, the board shall prepare a written advisory opinion about (1)

an interpretation of this chapter; or (2) the application of this chapter to a person in

regard to a specified existing or hypothetical factual situation.”). See also 22 Tex.

Admin. Code §§ 131.101 (Subject of an Advisory Opinion), .103 (Request for an

Advisory Opinion), .105 (Board Initiated Opinion) (“When a majority of the board

determines that an opinion would be in the public interest or in the interest of any

person or persons within the jurisdiction of the board, the board may on its own

motion issue an advisory opinion.”).

      The Board also must “number and classify each advisory opinion” and

“annually compile a summary of the opinions in a single reference document that

is available on the Internet.” Tex. Occ. Code § 1001.602(1), (2); see also 22 Tex.

Admin. Code § 131.109 (Compilation of Advisory Opinions).




                                          40
       Mr. Dass cites to no particular sentence or section of the CME Advisory

Opinion that supports his assertion that it is a rule.16 Indeed, the majority of his

complaint is that the CME Advisory Opinion is too vague. The Board issued the

CME Advisory Opinion as a clarification of the Act and Board rules. Thus, the

Board did not act in violation of section 2001.174 when it prepared the CME

Advisory Opinion.

       C.      Mr. Dass has also waived his fifth and sixth issues because his
               complaint that the substantial evidence standard was not met
               must have been brought in his first appeal, which he withdrew.

       Mr. Dass complains that there was not substantial evidence to support the

ALJ’s finding that testing that Mr. Dass failed to oversee was CMT and not CME.

(Mr. Dass’s fifth issue). Dass Br. 21-23. Mr. Dass then complains that the Board

ought to have sought sanctions and penalties against the engineer who worked for

the principal engineering firm overseeing the Project. Dass Br. 23-26.

       Regarding Mr. Dass’s fifth issue, he seems to be making the same argument

as in his second issue—that the reports he failed to oversee and to which he added

his signature and seal after the reports had already been submitted to the principal

engineering firm, only involved CMT and not CME. For the reasons stated above


16
       And he fails to explain how the cases he cites relate to the facts in this case. See Tex.
State Bd. of Pharm. v. Witcher, 447 S.W.3d 520, 527 (Tex. App.—Austin 2014, pet. filed)
(regarding policy specific to that particularly agency regarding indefinite suspension of license);
El Paso Hosp. Dist. v. Tex. Health & Human Servs. Comm’n, 247 S.W.3d 709, 714 (Tex. 2008)
(HHSC violated rule regarding review of individual claims data).
                                                41
in section II.A.1, the ALJ ruled that the Board had shown by a preponderance of

the evidence that Mr. Dass had committed at least three violations of the Board’s

rules. The ALJ heard all the evidence and the testimony of live witnesses,

including Board witnesses and others from the San Patricio area, such as the

engineer in charge of the project Mr. Shrier, and held that the Board had proven its

case by a preponderance of the evidence. The Board adopted the ALJ’s findings of

fact and conclusions of law in its original Final Board Order. See Final Order, copy

at App. 6.

      Moreover, regarding his sixth issue, Mr. Dass fails to provide any citation to

the record before this Court. And, his argument disregards this essential fact: Mr.

Dass, and not the Project Engineer in charge (who was a totally different person

not employed by Mr. Dass’s firm), is the person who, after the reports were

prepared by a non-engineer employee of Trinity Soils Lab, signed his name to the

reports, the same reports he also admitted he did not directly supervise. In fact, Mr.

Dass testified he did not even know his company was engaged in preparing reports

for the San Patricio project, but he signed and sealed the reports anyway. See FoF

Nos. 9, 11, 12, 13, 14, 15, and 16, C.R. at 223-27. The district court in the first suit

for judicial review found that substantial evidence existed to support three of the

violations the ALJ found Mr. Dass committed. See Final J., at C.R. at 365. When



                                          42
Mr. Dass dismissed his first appeal, he waived the right to attack the Final

Judgment and the Board’s Amended Final Order.

      D.     Because Mr. Dass failed to brief his issue regarding the exclusion
             of evidence and has thus waived this point of error, the Court
             should not consider documents not properly before the Court.

      When a party complains of the exclusion of evidence, an appellate court

reviews the decision for an abuse of discretion. Mack Trucks, Inc. v. Tamez, 206

S.W.3d 572, 576 (Tex. 2006) (holding that the trial court did not abuse its

discretion in denying bill of exception and excluding evidence). Mr. Dass’s bill of

exception sought to include in the record before this Court the administrative

record from the first suit for judicial review. Bill of Exception, Supp. C.R. II at 12-

13. Mr. Dass, however, failed to brief the issue to this Court and explain why the

district court erred in excluding the administrative record from the first suit for

judicial review. There was no fundamental error in the district court’s exclusion of

the first administrative record because Mr. Dass merely sought to relitigate the

same issues in his second suit. And even if the issue of the evidentiary ruling were

before this Court, there was no abuse of discretion in excluding the evidence. See

generally section I, supra, regarding arguments in support of summary judgment.

The Court should, therefore, hold that the administrative record from the first suit

for judicial review is not properly before the Court and may not be considered.



                                          43
                        CONCLUSION AND PRAYER

      Mr. Dass failed to raise on appeal the issue of whether the district court

properly granted the Board’s motion for summary judgment. Nevertheless, even on

the merits, the district court’s ruling was correct. Also, Mr. Dass waived his six

issues on appeal and his bill of exception issue, and these issues should be

overruled.

      Appellee prays the Court will affirm the trial court’s final order granting the

Board’s summary judgment motion, dismissing Mr. Dass’s suit.

                                Respectfully submitted,

                                KEN PAXTON
                                Attorney General of Texas

                                CHARLES E. ROY
                                First Assistant Attorney General

                                JAMES E. DAVIS
                                Deputy Attorney General for Civil Litigation

                                DAVID A. TALBOT, JR.
                                Chief, Administrative Law Division

                                /s/ Jennifer L. Hopgood
                                JENNIFER L. HOPGOOD
                                State Bar No. 24073010
                                Assistant Attorney General
                                OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                                Administrative Law Division
                                P.O. Box 12548, Capitol Station
                                Austin, Texas 78711-2548
                                Telephone: (512) 475-4300
                                Facsimile: (512) 320-0167
                                         44
jennifer.hopgood@texasattorneygeneral.gov

Attorneys for the Texas Board of Professional
Engineers




        45
                     CERTIFICATE OF COMPLIANCE

      I certify that the brief submitted complies with Texas Rules of Appellate
Procedure 9 and the word count of this document is 9,628.

Date: May 6, 2015.
                               /s/ Jennifer L. Hopgood
                               JENNIFER L. HOPGOOD

                        CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing document has
been served on May 6, 2015, on the following by electronic service and by email:

Jimmy Alan Hall
Jimmy Alan Hall, P.L.L.C.
4600 Mueller Boulevard, Suite 2121
Austin, TX 78723-3372
Facsimile: (512) 857-9195
jahall@fbjah.com

J. Woodfin Jones
Alexander Dubose Jefferson
& Townsend LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701-3562
Facsimile: (512) 482-9303
wjones@adjtlaw.com

Counsel for Appellant

                               /s/ Jennifer L. Hopgood
                               JENNIFER L. HOPGOOD




                                       46
                                   APPENDIX

1. Order Granting Defendant’s Motion for Summary Judgment, dated June 25,
   2014.

2. Senate Research Center, Bill Analysis, Tex. S.B. 277, 78th Leg., R.S. (2003).

3. Senate Committee on Licensing & Administrative Procedures, Committee
   Report (Unamended), Bill Analysis, Tex. S.B. 277, 78th Leg., R.S. (2003).

4. Bill Summary, Tex. S.B. 277, 78th Leg. R.S., (2003).

5. Tex. S.B. 277, 78th Leg. R.S., (2003).

6. Final Order, dated Aug. 16, 2012.

7. Cover Letter for (Dass’s) Initial Brief, dated Mar. 26, 2013.

8. Notice of Appeal, dated Oct. 23, 2013.

9. Texas Board of Professional Engineer’s 2005 Policy Advisory Opinion on
   Construction Materials Testing, dated Aug. 20, 2009.
            Tab 1
 Order Granting Defendant’s Motion for
Summary Judgment, dated June 25, 2014
Fax Server                                6/10/2014 9:39:16 AM         PAGE        2/002      Fax Server
                                                 DC             BK14182 PG1746
Notice sent:
    Parties:   ______
                Final
                                    __.

    code: CVD I CLS ------+-'""'-'4~




                                                CAUSE NO. D-1-GN-14-000568

               RAGHUNATH DASS, P.E.,                             §               IN THE DISTRICT COURT
                       Plai11ti.Jf,                              §
                                                                 §
               v.                                                §
                                                                 §               TRi\.VIS COUNTY, TE:Xi\.S
                                                                 §
               TEXAS BOARD OF                                    §
               PROFESSIONAL ENGINEERS,                           §
                         Defendant.                              §               201': JUDICIAL DISTRICT

                                            ORDER GRANTING DEFENDANT'S
                                           MOTION FOR SUMMARY JUDGMENT

                        TI1e Court considered on submission the Motion of Defendant Texas Board of

               P::cfessional Engineers for Su'.Tlmary Judgcnent and the response filed by the Plaintiff.

                        ,'\f~er   considering the motions, the admissible summary judgment evidence, as1d the

               rr:a:ters and aut1iorit1es presented, the Court finds that the Defendant's Motion should be

               anc is hereby grantee.

                        It is L'1e::efore ORDERED, ADJUDGED, AND DECREED that Defendant's

               Motion for Summary Judgment 1s GRANTED in all respects.

                        Al relief not expressly granted 1s herein DENIED. This Order constitutes a.-rid is

               intended to be a fITTal and appealable judgment, disposing of all parties and claims.




                                                                                                                465
               Tab 2
Senate Research Center, Bill Analysis, Tex.
     S.B. 277, 78th Leg., R.S. (2003)
                                       BILL ANALYSIS


Senate Research Center                                                                   S.B. 277
78R902 SMH-D                                                                   By: Ellis, Rodney
                                                                        Government Organization
                                                                                       3/31/2003
                                                                                         As Filed


DIGEST AND PURPOSE

The Texas Board of Professional Engineers (TBPE) was established to license professional
engineers, enforce the Texas Engineering Practice Act, resolve complaints and register
engineering firms. As proposed, S.B. 277 continues TBPE for the standard 12-year period and
strengthens the enforcement process to enhance public protection.

RULEMAKING AUTHORITY

Rulemaking authority previously granted to the Texas Board of Professional Engineers is
modified in SECTION 11 (Section 1001.203, Occupations Code), and granted in SECTION 12
(Section 1001.2035, Occupations Code), SECTION 17 (Section 1001.252, Occupations Code),
SECTION 21 (Section 1001.304, Occupations Code), SECTION 26 (Section 1001.405,
Occupations Code), and SECTION 27 (Section 1001.4525, Occupations Code) of this bill.

SECTION BY SECTION ANALYSIS

SECTION I. Amends Sections 1001.005 and 1001.051, Occupations Code, as follows:

       Sec. I 001.005. Continues the Texas Board of Professional Engineers (TBPE) for the
       standard 12-year period until September 1, 2015.

       Sec. 1001.051. Provides that an exemption under this subchapter applies only to a
       person who does not offer, rather than one who is not directly or indirectly represented, to
       the public to perform, rather than being legally qualified to engage in the practice of,
       engineering services.

SECTION 2. Amends Section 1001.057(c), Occupations Code, to provide that a person who
claims an exemption under this section and who is determined to have offered to the public to
perform engineering services may not claim an exemption until the I 0th anniversary of the date
the person made that offer.

SECTION 3. Amends Section 1001.058(c), Occupations Code, to make conforming changes.

SECTION 4. Amends Section 1001.lOl(b), Occupations Code, to update standard Sunset
language requiring appointments to TBPE to be nondiscriminatory.

SECTION 5. Amends Section 1001.102(a), Occupations Code, to update standard Sunset
language prohibiting certain persons from membership on TBPE.

SECTION 6. Amends Section I 00 I. I 03, Occupations Code, to update standard Sunset language
relating to membership and employee restrictions.

SECTION 7. Amends Section 1001.106, Occupations Code, by amending Subsection (a) and
adding Subsection (c ), to update standard Sunset language relating to grounds for removal of a
TBPE member.

SECTION 8. Amends Section I 00 I. I 08, Occupations Code, to require the governor to designate
a member ofTBPE as the presiding officer of TB PE to serve in that capacity at the will of the

SRC-VRA S.B. 277 78(R)                                                                 Page 1 of6
governor. Deletes a reference to "presiding officer" from text.

SECTION 9. Amends Chapter 1001C, Occupations Code, by adding Section 1001.112, as
follows:

       Sec. 1001.112. TRAINING. Applies standard Sunset language relating to training of
       TBPE members.

SECTION 10. Amends Chapter 1001D, Occupations Code, by adding Sections 1001.153-
1001.156, as follows:

       Sec. 1001.153. DIVISION OF RESPONSIBILITIES. Applies standard Sunset language
       to require TBPE to develop policies that clearly separate the policy-making
       responsibilities ofTBPE members and management responsibilities ofTBPE staff.

       Sec. 1001.154. QUALIFICATIONS AND STANDARDS OF CONDUCT
       INFORMATION. Updates standard Sunset language requiring information on standards
       of conduct to be provided to members ofTBPE and TBPE staff.

       Sec. 1001.155. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT.
       Applies standard Sunset language requiring the executive director to develop an equal
       employment opportunity program.

       Sec. 1001.156. INFORMATION ON STATE EMPLOYEE INCENTIVE PROGRAM.
       Applies standard Sunset language requiring training on participation in the state employee
       incentive program.

SECTION 11. Amends Section 1001.203, Occupations Code, as follows :

       (a) Requires TBPE by rule to prescribe standards for compliance with Chapter 2254A,
       Government Code.

       (b) Provides that except as provided by Subsection (a), TBPE may not adopt rules
       restricting advertising or competitive bidding by a license holder except to prohibit false,
       misleading, or deceptive practices.

       (c) Provides that in its rules to prohibit false, misleading, or deceptive practices, TBPE
       may not include certain rules.

SECTION 12. Amends Chapter lOOIE, Occupations Code, by adding Section 1001.2035, as
follows:

       Sec. 1001.2035. RULES ON CONSEQUENCES OF CRIMINAL CONVICTION.
       Requires TBPE to adopt rules and guidelines as necessary to comply with Chapter 53.

SECTION 13. Amends Section 1001.204(a), Occupations Code, to require TBPE to establish
certain fees in amounts reasonable and necessary to cover the costs of administering this chapter.

SECTION 14. Amends Section 1001.210, Occupations Code, to require TBPE, rather than to
authorize it, to recognize, prepare, or administer continuing education programs for its license
holders. Requires a license holder to participate in the programs to the extent required by TBPE
to keep the person's license.

SECTION 15. Amends Chapter IOOlE, Occupations Code, by adding Sections 1001.214-
1001.216, as follows:

       Sec. 1001.214. TECHNOLOGY POLICY. Applies standard Sunset language requiring
       TBPE to develop and implement a technology policy.


SRC-VRA S.B. 277 78(R)                                                                  Page 2 of6
       Sec. 1001.215. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE
       RESOLUTION POLICY. Applies standard Sunset language requiring TBPE to develop
       and implement a policy to encourage the use of negotiated rulemaking and alternative
       dispute resolution procedures.

       Sec. 1001.216. JOINT ADVISORY COMMITTEE ON THE PRACTICE OF
       ENGINEERING AND ARCHITECTURE. (a) Provides that the Joint Advisory
       Committee on the Practice of Engineering and Architecture is an advisory committee to
       TBPE and to the Texas Board of Architectural Examiners (TBAE). Provides that the
       advisory committee consists of certain individuals.

              (b) Provides that members of the advisory committee serve staggered six-year
              terms with the terms of one member appointed by TBPE and one member
              appointed by TBAE expiring each odd-numbered year.

              (c) Requires the advisory committee to meet at least twice a year.

              (d) Requires the advisory committee to work to resolve issues that result from the
              overlap between activities that constitute the practice of engineering and those
              that constitute the practice of architecture. Requires the advisory committee to
              assist each agency in protecting the public rather than advancing the interests of
              either agency or the profession it regulates.

              (e) Requires the advisory committee to issue advisory opinions to TBPE and to
              TBAA on matters relating to the practice of engineering and the practice of
              architecture, including certain factors.

              (f) Requires an agency, ifthe advisory committee issues an advisory opinion to
              TBPE or TBAE on a matter, to notify the committee of the final action taken with
              regard to the matter. Requires the advisory committee to consider the action taken
              by the agency on the matter in any advisory opinion subsequently issued by the
              committee on a related matter.

              (g) Requires TBPE and TBAE to enter into a memorandum of understanding
              regarding the advisory committee that includes the composition and purpose of
              the committee.

SECTION 16. Amends Section 1001.251, Occupations Code, by adding Subsection (c), to
require TBPE to maintain on TBPE's Internet website certain information.

SECTION 17. Amends Sections 1001.252 and 1001.253, Occupations Code, as follows:

      Sec. I001.252. GENERAL RULES REGARDING COMPLAINT INVESTIGATION
      AND DISPOSITION. Updates standard Sunset language regarding complaints and
      disposition.

      Sec. 1001. 253. COMPLAINT INFORMATION. Updates standard Sunset language
      requiring information to be maintained on complaints.

SECTION 18. Amends Chapter IOOIF, Occupations Code, by adding Sections 1001.254 and
1001.255, as follows:

      Sec. 1001.254. STATISTICAL ANALYSIS OF COMPLAINTS. (a) Requires TBPE to
      develop and maintain a complaint tracking system to monitor the processing of
      complaints filed with TBPE.


             (b) Requires TBPE to include with TBPE' s annual financial report under Section
             2101.011, Government Code, a statistical analysis of the compl aints filed with

SRC-VRA S.B . 277 78(R)                                                              Page 3 of6
                TBPE during the preceding year, including certain information.

        Sec. 1001.255. PUBLIC PARTICIPATION. Applies standard Sunset language
        providing for public testimony meetings of the policymaking body.

SECTION 19. Amends Section 1001.301, Occupations Code, by amending Subsections (b) and
(c) and adding Subsection (f), as follows:

        (b) Makes a conforming change.

        (c) Makes a conforming change.

       (f) Provides that notwithstanding the other provisions of this chapter, a person who is
       exempt from the licensing requirements of this chapter is not prohibited from using the
       term "engineer" or a variation or abbreviation of that term as a professional, business, or
       commercial identification, title, name, representation, claim, asset, or means of advantage
       or benefit, including on a business card, cover letter, or other form of correspondence that
       is made available to the public, if the person does not offer to the public to perform
       engineering services. Provides that this subsection does not authorize a person to use a
       term listed in Subsections (b)(2)-(6) or a variation or abbreviation ofone of those terms.

SECTION 20. Amends Section JOOl.303, Occupations Code, to update standard Sunset
language relating to an application for licensure.

SECTION 21. Amends Section JOO I .3 04, Occupations Code, by adding Subsection ( d), as
follows:

       (d) Requires TBPE by rule to ensure that the examination is administered to applicants
       with disabilities in compliance with the Americans with Disabilities Act of I 990 (42
       U.S.C. Section 12101 et seq.), and its subsequent amendments.

SECTION 22. Amends Sections JOO 1.306, 1001.310, and 1001.3 I I, Occupations Code, to
update standard Sunset language requiring notice regarding examination results to persons
seeking TBPE licensure.

       Sec. JOO I .3 I 0. Updates standard Sunset language regarding temporary or provisional
       Ii censure.

       Sec. I 00 I .311. Updates standard Sunset language regarding the application of a
       nonresident for Iicensure.

SECTION 23 . Amends Section 1001.35 l(b), Occupations Code, to require TBPE, for the year in
which the license or registration expiration date is changed, to prorate license or registration fees
on a monthly basis so that each license or registration holder pays only that portion of the license
or registration fee that is allocable to the number of months during which the license or
registration is valid. Provides that on renewal of the license or registration on the new expiration
date, the total license or registration renewal fee is payable.

SECTION 24. Amends Sections 1001.352 and 1001.353, Occupations Code, to update standard
Sunset language regarding the notice of license expiration and the procedure for renewal.

SECTION 25. Amends Chapter JOOIH, Occupations Code, by adding Section 1001.354, as
follows:

       Sec. 1001.354. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
       PRACTITIONER. (a) Authorizes a person who was licensed in this state, moved to
       another state, and is currently licensed and has been in practice in the other state for the
       two years preceding the date of application to obtain a new license without
       reexamination.

SRC-VRA S.B. 277 78(R)                                                                    Page 4 of6
               (b) Requires the person to pay to TBPE a fee that is equal to two times the
               normally required renewal fee for the license.

SECTION 26. Amends Section 1001.405, Occupations Code, by adding Subsection (g), to
authorize TBPE by rule, notwithstanding the other provisions of this section, to provide that a
business entity that has not previously registered with TBPE and that is engaged in the practice of
engineering in violation of Subsection (b) is not subject to disciplinary action for the violation if
the business entity registers with TBPE not later than the 30th day after the date TBPE gives
written notice to the business entity of the registration requirement. Provides that this subsection
does not apply to a business entity whose registration has expired.

SECTION 27 . Amends Chapter lOOIJ, Occupations Code, by adding Sections 1001.4525-
1001.4527, as follows:

       Sec. 1001.4525. PROBATION. (a) Authorizes TBPE, if a person's license suspension is
       probated, to require the person to perform certain tasks.

               (b) Requires TBPE by rule to adopt written guidelines to ensure that probation is
               administered consistently.

       Sec. 1001.4526. RESTITUTION. (a) Authorizes TBPE, subject to Subsection (b), to
       order a person licensed or registered under this chapter to pay restitution to a consumer as
       provided in an agreement resulting from an informal settlement conference instead of or
       in addition to imposing an administrative penalty under this chapter.

               (b) Provides that the amount ofrestitution ordered as provided in an agreement
               resulting from an informal settlement conference may not exceed the amount the
               consumer paid to the person for a service regulated by this chapter. Provides that
               the board may not require payment of other damages or estimate harm in a
               restitution order.

       Sec. 1001.4527. RECUSAL OF BOARD MEMBER. (a) Provides that a TBPE member
       who participated in the investigation of a complaint or in informal settlement negotiations
       regarding the complaint:

               (I) may not participate in the discussion of or vote on the matter at a board
               meeting related to the complaint; and

               (2) must state at the meeting why the member is prohibited from participating in
               the discussion of or voting on the matter.

       (b) Requires a statement under Subsection (a)(2) to be entered into the minutes of the
       meeting.

SECTION 28 . (a) Requires TBPE, not later than January 1, 2004, to adopt the rules required by
Section 1001.2035, Occupations Code, as added by this Act.

               (b) Requires TBPE, not later than September 1, 2005, to adopt the written
               guidelines required by Section 1001.4525, Occupations Code, as added by this
               Act.

SECTION 29. (a) Effective date: September I, 2003 .

       (b) Provides that the changes in law made by Sections I 001.102 and I 00 I. I 03,
       Occupations Code, as amended by this Act and Section I 001.112, Occupations Code, as
       added by this Act, in the prohibitions on or qualifications of members of the Texas Board
       of Professional Engineers do not affect the entitlement of a member serving on the Texas
       Board of Professional Engineers immediately before September I, 2003, to continue to

SRC-VRA S.B. 277 78(R)                                                                  Page 5 of6
      serve and function as a member of the Texas Board of Professional Engineers for the
      remainder of the member's term. Provides that those changes in law apply only to a
      member appointed on or after September I, 2003.

      (c) Provides that the change in law made by Section 1001.108, Occupations Code, as
      amended by this Act, does not affect the entitlement of a person who was serving as
      presiding officer of the Texas Board of Professional Engineers immediately before
      September I, 2003, to continue to serve and function in that capacity for the remainder of
      the person's term as presiding officer. Provides that that change in law applies only to the
      designation of a presiding officer of the board after that person's term as presiding officer
      expires.

      ( d) Makes application to the changes in law made by this Act to Chapter I 00 I,
      Occupations Code, prospective.




SRC-VRA S.B. 277 78(R)                                                                 Page 6 of6
              Tab 3
  Senate Committee on Licensing &
 Administrative Procedures, Committee
Report (Unamended), Bill Analysis, Tex.
   S.B. 277, 78th Leg., R.S. (2003)
                                             BJLL ANALYSIS


                                                                                                  S.B. 277
                                                                                         By: Ellis, Rodney
                                                                     Licensing & Administrative Procedures
                                                                          Committee Report (Unamended)




BACKGROUND AND PURPOSE

The Texas Board of Professional Engineers was created in 1937, after an explosion at the New
London School killed nearly 300 students and teachers. The Board's main functions include: licensing
Professional Engineers; enforcing the Texas Engineering Practice Act, including investigating and
resolving complaints; and registering engineering firrns.
As part of the Self-Directed, Semi-Independent Licensing Agency Pilot Project, the Board raises
revenue from licensing fees to support agency functions and operates outside the appropriations
process. In fiscal year 2002, the Board operated with a budget of $1.5 million, and a staff of 25 FTEs.
The Board is subject to the Sunset Act and will be abolished on September 1, 2003, unless continued
by the Legislature. The Sunset review found that while regulation of engineers who offer their services
to the public is needed, the Board should make improvements to its enforcement process to strengthen
this regulation and enhance public protection.
S.B. 277 continues TBPE for the standard 12-year period and strengthens the enforcement process to
enhance public protection.



RULEMAKING AUTHORITY

Rulemaking authority previously granted to the Texas Board of Professional Engineers is modified in
SECTION I 1 (Section 1001.203, Occupations Code), and granted in SECTION 2 (Section
1001.057, Occupations Code), SECTION 12 (Section 1001.2035, Occupations Code), SECTION
17 (Section 1001.252, Occupations Code), SECTION 21 (Section 1001.304, Occupations Code),
SECTION 26 (Section 1001.405, Occupations Code), and SECTION 28 (Section 1001.4525,
Occupations Code) of this bill.



ANALYSIS

Amends Sections JOOl.005 and 1001.051, Occupations Code, as follows: Sec. 1001.005. Continues
the Texas Board of Professional Engineers (TBPE) for the standard 12-year period until September 1,
2015. Sec. JOO 1.051. Provides that an exemption under this subchapter applies only to a person who
does not offer, rather than one who is not directly or indirectly represented, to the public to perform,
rather than being legally qualified to engage in the practice of, engineering services.
Amends Section 1001.057, Occupations Code, as follows: Sec. 1001.057. EMPLOYEE OF
PRIVATE CORPORATION OR BUSINESS ENTITY. (a) Requires the Act to not be construed to
apply to the activities of a private corporation or other business entity, or the activities of the full-time
employees or other personnel under the direct supervision and control of the business entity, on or in
connection with certain conditions. (b) Prohibits a person who claims an exemption under this section
and who is determined to have directly or indirectly represented the person as legally qualified to
engage in the practice of engineering or who is determined to have violated Section JOO 1.30 I from
claiming an exemption until the I 0th anniversary of the date the person made that representation. (c)


S.B. 277 78(R)                                                                                    Page 1 of 5
Provides that this exemption does not prohibit certain actions from occurring by either a licensed
professional engineer or TBPE. The measure also adds "specifications" to clarify that a licensed
engineer working with manufactured products on public or other's property would not be prohibited
from requiring the manufacturer to have plans or specifications signed and sealed by a professional
engineer. (d) Redefines "products manufactured by the entity" for the purposes of this section.
Amends Sections 1001.058 (b) and (c), to make a conforming change.
Amends Section I 00 I. I 0 I (b), Occupations Code, to update standard Sunset language requiring
appointments to TBPE to be nondiscriminatoty.
Amends Section 1001. 102(a), Occupations Code, to update standard Sunset language prohibiting
certain persons from membership on TBPE. SECTION 6. Amends Section I 00 I. I03, Occupations
Code, to update standard Sunset language relating to membership and employee restrictions.
Amends Section 1001.106, Occupations Code, by amending Subsection (a) and adding Subsection
(c), to update standard Sunset language relating to grounds for removal ofa TBPE member.
Amends Section I00 I. I 08, Occupations Code, to require the governor to designate a member of
TBPE as the presiding officer ofTBPE to seive in that capacity at the will of the governor. Deletes a
reference to "presiding officer" from text.
Amends Chapter JOOIC, Occupations Code, by adding Section 1001.112, as follows: Sec. 1001.112.
TRAINING. Applies standard Sunset language relating to training ofTBPE members.
Amends Chapter IOOID, Occupations Code, by adding Sections 1001.1531001.156, as follows: Sec.
1001.153. DIVISION OF RESPONSIBILITIES. Applies standard Sunset language to require TBPE
to develop policies that clearly separate the policy-making responsibilities ofTBPE members and
management responsibilities ofTBPE staff Sec. 1001.154. QUALIFICATIONS AND
STANDARDS OF CONDUCT INFORMATION. Updates standard Sunset language requiring
information on standards of conduct to be provided to members ofTBPE and TBPE staff. Sec.
1001.155. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. Applies standard
Sunset language requiring the executive director to develop an equal employment opportunity program.
Sec. 1001.156. INFORMATION ON STATE EMPLOYEE INCENTIVE PROGRAM. Applies
standard Sunset language requiring training on participation in the state employee incentive program.
Amends Section I 001.203, Occupations Code, as follows: (a) Requires TBPE by rule to prescribe
standards for compliance with Chapter 2254A, Government Code. (b) Provides that except as
provided by Subsection {a), TBPE may not adopt rules restricting advertising or competitive bidding by
a license holder except to prohibit false, misleading, or deceptive practices. (c) Provides that in its rules
to prohibit false, misleading, or deceptive practices, TBPE may not include certain rules.
Amends Chapter JODIE, Occupations Code, by adding Section 1001.2035, as follows: Sec.
1001.2035. RULES ON CONSEQUENCES OF CRIMINAL CONVICTION. Requires TBPE to
adopt rules and guidelines as necessaty to comply with Chapter 53.
Amends Section JOOl.204(a), Occupations Code, to require TBPE to establish certain fees in amounts
reasonable and necessaty to cover the costs of administering this chapter.
Amends Section I 001 .210, Occupations Code, to update standard Sunset language requiring the
Board to develop continuing education programs for licensees. Prohibits the Board from requiring a
licensee to complete more than 15 hours of CE annually. Requires the Board to allow a license holder
to certify that the license holder has complied with continuing education requirements at the time the
license holder renews the license. Specifies the types of continuing education activities that the Board
must accept. Limits the number of credit hours a license holder may receive for self-directed study to
five credit hours annually.
Amends Chapter IOOlE, Occupations Code, by adding Sections 1001.2141001.216, as follows: Sec.
1001.214. TECHNOLOGY POLICY. Applies standard Sunset language requiring TBPE to develop
and implement a technology policy. Sec. 1001.215. NEGOTIATED RULEMAKING AND
ALTERNATIVE DISPUTE RESOLUTION POLICY. Applies standard Sunset language requiring
TBPE to develop and implement a policy to encourage the use of negotiated rulemaking and alternative
dispute resolution procedures. Sec. 1001.216. JOINT ADVISORY COMMITTEE ON THE


S.B. 277 78(R)                                                                                  Page 2 of 5
PRACTICE OF ENGINEERING AND ARCHITECTURE. (a) Provides that the Joint Advisory
Committee on the Practice of Engineering and Architecture is an advisory committee to TBPE and to
the Texas Board of Architectural Examiners (TBAE). Provides that the advisory committee consists of
certain individuals. (b) Provides that members of the advisory committee serve staggered six-year terms
with the terms of one member appointed by TBPE and one member appointed by TBAE expiring each
odd-numbered year. (c) Requires the advisory committee to meet at least twice a year. (d) Requires
the advisory committee to work to resolve issues that result from the overlap between activities that
constitute the practice of engineering and those that constitute the practice of architecture. Requires the
advisory committee to assist each agency in protecting the public rather than advancing the interests of
either agency or the profession it regulates. (e) Requires the advisory committee to issue advisory
opinions to TBPE and to TBAA on matters relating to the practice of engineering and the practice of
architecture, including certain factors. (f) Requires an agency, ifthe advisory committee issues an
advisory opinion to TBPE or TBAE on a matter, to notify the committee of the fmal action taken with
regard to the matter. Requires the advisory committee to consider the action taken by the agency on the
matter in any advisory opinion subsequently issued by the committee on a related matter. (g) Requires
TBPE and TBAE to enter into a memorandum of understanding regarding the advisory committee that
includes the composition and purpose of the committee.
Amends Section !001.251, Occupations Code, by adding Subsection (c), to require TBPE to maintain
on TBPE's Internet website certain information.
Amends Sections !001.252 and 1001.253, Occupations Code, as follows: Sec. 1001.252.
GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION.
Updates standard Sunset language regarding complaints and disposition. Sec. 1001. 253.
COMPLAINT INFORMATION. Updates standard Sunset language requiring information to be
maintained on complaints.
Amends Chapter IOOIF, Occupations Code, by adding Sections 1001.254 and 1001.255, as follows:
Sec. 1001.254. STATISTICAL ANALYSIS OF COMPLAINTS. (a) Requires TBPE to develop
and maintain a complaint tracking system to monitor the processing of complaints filed with TBPE. (b)
Requires TBPE to include with TBPE's armual financial report under Section 2IO1.011, Government
Code, a statistical analysis of the complaints filed with TBPE during the preceding year, including
certain information. Sec. 1001.255. PUBLIC PARTICIPATION. Applies standard Sunset language
providing for public testimony meetings of the policymaking body.
Amends Section 1001.301, Occupations Code, by amending Subsections (b) and (c) and adding
Subsection (f), as follows: (b) Makes a conforming change. (c) Makes a conforming change. (f)
Provides that notwithstanding the other provisions of this chapter, a regular employee of a business
entity who is engaged in engineering activities but is exempt from the licensing requirements of this
chapter under Sections 1001.057 or 1001.058 is not prohibited from using the term "engineer" on a
business card, cover letter, or other form of correspondence that is made available to the public ifthe
person does not perform certain actions. Provides that this subsection does not authorize a person to
use a term listed in Subsections (b)(2)-(6) or a variation or abbreviation ofone of those terms.
Amends Section 1001.303, Occupations Code, to update standard Sunset language relating to an
application for licensure.
Amends Section 1001.304, Occupations Code, by adding Subsection (d), as follows: (d) Requires
TBPE by rule to ensure that the examination is administered to applicants with disabilities in compliance
with the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.), and its subsequent
amendments.
Amends Sections 1001.306, 1001.310, and 1001.311, Occupations Code, to update standard Sunset
language requiring notice regarding examination results to persons seeking TBPE licensure. Sec.
1001.310. Updates standard Sunset language regarding temporary or provisional licensure. Sec.
1001.311. Updates standard Sunset language regarding the application of a nonresident for licensure.
Amends Section 1001.35 l(b), Occupations Code, to require TBPE, for the year in which the license
or registration expiration date is changed, to prorate license or registration fees on a monthly basis so
that each license or registration holder pays only that portion of the license or registration fee that is
allocable to the number of months during which the license or registration is valid. Provides that on

S.B. 277 78(R)                                                                                  Page 3 of 5
renewal of the license or registration on the new expiration date, the total license or registration renewal
fee is payable.
Amends Sections 1001.352 and 1001.353, Occupations Code, to update standard Sunset language
regarding the notice oflicense expiration and the procedure for renewal.
Amends Chapter lOOIH, Occupations Code, by adding Section 1001.354, as follows: Sec. 1001.354.
RENEWAL OF EXPIRED LICENSE BY OUT-OF-STA TE PRACTITIONER. (a) Authorizes a
person who was licensed in this state, moved to another state, and is currently licensed and has been in
practice in the other state for the two years preceding the date of application to obtain a new license
without reexamination. (b) Requires the person to pay to TBPE a fee that is equal to two times the
normally required renewal fee for the license.
Amends Section 1001.405, Occupations Code, by adding Subsection (g), to authorize TBPE by rule,
notwithstanding the other provisions of this section, to provide that a business entity that has not
previously registered with TBPE and that is engaged in the practice of engineering in violation of
Subsection (b) is not subject to disciplinary action for the violation ifthe business entity registers with
TBPE not later than the 30th day after the date TBPE gives written notice to the business entity of the
registration requirement. Provides that this subsection does not apply to a business entity whose
registration has expired.
Amends Section 1001.406, Occupations Code, as follows: Sec. 1001.406. GRADUATE
ENGINEERS. (a) Provides certain rights for a graduate of a university with certain credentials and
qualifications. (b) Authorizes a graduate engineer who is employed in a firm registered under this Act
and who is working under the direct supervision of a licensed professional engineer to use the term
"engineer" on the person's stationery or business cards or in personal communications of any character.
Amends Chapter 10011, Occupations Code, by adding Sections 1001.45251001.4527, as follows:
Sec. 1001.4525. PROBATION. (a) Authorizes TBPE, ifa person's license suspension is probated, to
require the person to perform certain tasks. (b) Requires TBPE by rule to adopt written guidelines to
ensure that probation is administered consistently. Sec. 1001.4526. RESTITUTION. (a) Authorizes
TBPE, subject to Subsection (b), to order a person licensed or registered under this chapter to pay
restitution to a consumer as provided in an agreement resulting from an informal settlement conference
instead of or in addition to imposing an administrative penalty under this chapter. (b) Provides that the
amount of restitution ordered as provided in an agreement resulting from an informal settlement
conference may not exceed the amount the consumer paid to the person for a service regulated by this
chapter. Provides that the board may not require payment of other damages or estimate harm in a
restitution order. Sec. 1001.4527. RECUSAL OF BOARD MEMBER. (a) Provides that a TBPE
member who participated in the investigation of a complaint or in informal settlement negotiations
regarding the complaint: (I) may not participate in the discussion of or vote on the matter at a board
meeting related to the complaint; and (2) must state at the meeting why the member is prohibited from
participating in the discussion of or voting on the matter. (b) Requires a statement under Subsection
(a)(2) to be entered into the minutes of the meeting.
Requires TBPE, not later than January I, 2004, to adopt the rules required by Section 1001.2035,
Occupations Code, as added by this Act. Requires TBPE, not later than September 1, 2005, to adopt
the written guidelines required by Section 1001.4525, Occupations Code, as added by this Act.

EFFECTIVE DATE

September 1, 2003. Provides that the changes in law made by Sections 1001.102 and 1001.103,
Occupations Code, as amended by this Act, and Section I001.112, Occupations Code, as added by
this Act, in the prohibitions on or qualifications of members of the Texas Board of Professional
Engineers do not affect the entitlement ofa member serving on the Texas Board of Professional
Engineers immediately before September 1, 2003, to continue to serve and function as a memberofthe
Texas Board of Professional Engineers for the remainder of the member's term. Provides that those
changes in law apply only to a member appointed on or after September l, 2003.




S.B. 277 78(R)                                                                                  Page 4 of 5
S.B. 277 78(R)   Page 5 of 5
        Tab 4
Bill Summary, Tex. S.B. 277,
   78th Leg. R.S., (2003)
                                                                                                 Page 1 of 1


 Legislative Session : 78(R)


 SENATE BILL 277                                       SENATE AUTHOR: R. Ellis
 EFFECTIVE: 9-1-03                                     HOUSE SPONSOR: Chisum et al.

        Senate Bill 277 amends the Occupations Code to continue the Texas Board of Professional
Engineers until September 1, 2015, and to include and update standard sunset provisions. The bill
authorizes full-time employees of certain corporations or graduate engineers to use the title "engineer"
on business cards and in correspondence if certain conditions are met, but restricts the use of the title
"professional engineer" or "licensed professional engineer" to an individual who holds a license from the
board. The bill exempts a business that provides products or services to the National Aeronautics and
Space Administration from the requirements of the Texas Engineering Practice Act, and it authorizes
employees of that business to use "engineer" or "engineering" in job titles or personnel classifications.

        The bill establishes the Joint Advisory Committee on the Practice of Engineering and
Architecture as an advisory committee to the board and the Texas Board of Architectural Examiners.
The bill requires the board and the Texas Board of Architectural Examiners to enter into a memorandum
of understanding to address any overlap of their respective professions, issue advisory opinions to the
board, and specify the composition and duties of the committee.

        Senate Bill 277 authorizes the board to amend certain rules and guidelines relating to licensing
requirements, fees, continuing education, and disciplinary actions. The bill authorizes the board to
establish an inactive license, prohibits the holder of such a license from certain practices, and sets out
conditions for reinstatement to active status.

         The board must maintain on its Internet website information relating to the filing of a complaint
with the board, and it must develop and maintain a complaint tracking system to monitor the processing
of complaints. The bill authorizes the board to order a person who violates these provisions to pay
restitution under a settlement agreement and provides for the recusal of a board member from a
complaint investigation if certain conditions exist. The bill requires the board, on its own initiative or at
the request of any interested person, to prepare and maintain advisory opinions about the interpretation
or application of the Texas Engineering Practice Act and to make that information available on the
board's Internet website. The bill establishes that reliance on the board's advisory opinions may serve as
a defense to prosecution or the imposition of a civil penalty.




http ://www.capitol.state.tx.us/BillLookup/BillSummary .aspx?LegSess=78R&Bill=SB277               4/28/2015
             Tab 5
Tex. S.B. 277, 78th Leg. R.S., (2003)
                                                                               S.B. No. 277



 1                                            AN ACT
 2   relating to the continuation and functions of the Texas Board of
 3   Professional Engineers and to the regulation of the practice of
 4   engineering.
 5          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 6          SECTION 1.     Subsection         ( e),   Section 1001. 004,           Occupations

 7   Code, is amended to read as follows:
 8          ( e)   This chapter does not:

 9                 (1)    prevent a person from identifying the person in

10   the name and trade of any engineers' labor organization with which
11   the person is affiliated;
12                 (2)    prohibit      or    otherwise       restrict    a    person      from
13   giving testimony or preparing an exhibit or document for the sole
14   purpose of being placed in evidence before an administrative or
15   judicial tribunal, subject to the board's disciplinary powers under
16   Subchapter J regarding negligence, incompetency, or misconduct in
17   the pr act ice of engineer inq;
18                 ( 3)   repeal or amend a law affecting or regulating a
19   licensed state land surveyor; or
20                 (4)    affect   or    prevent        the    practice       of    any   other
21   legally recognized profession by a member of the profession who is
22   licensed by the state or under the state's authority.
23         SECTION 2.      Sections          1001.005    and    1001.051,          Occupations
24   Code, are amended to read as follows:



                                                 1
                                                                                     S.B. No. 277

 1          Sec. 1001.005.            APPLICATION OF SUNSET ACT.               The Texas Board

 2   of Professional Engineers is subject to Chapter 325, Government

 3   Code (Texas Sunset Act).            Unless continued in existence as provided

 4   by that chapter, the board is abolished and this chapter expires

 5   September 1, 2015        [~).

 6          Sec. 1001. 051.           LIMITATION ON EXEMPTION.               An exemption under

 7   this subchapter applies only to a person who does not offer [is not

 8   direetly or indireetly represented)                   to the public to perform [-9-e-

 9   legally     ,ualified      to     engage       in    the   praetiee      of)     engineering

10   services.

11          SECTION 3.         Section 1001.057, Occupations Code,                       is amended

12   to read as follows:

13          Sec. 1001.057.            EMPLOYEE OF PRIVATE CORPORATION OR BUSINESS

14   ENTITY [OR ,",FFILL",TE).         (a)     This chapter shall not be construed to

15   apply to the activities of a private corporation or other business

16   entity ,   or   the    activities         of   the   full-time      employees        or   other

17   personnel under the direct supervision and control of the bus i n ess

18   entity, on or in connection with [A regular full time employee of a

19   private lausiness entity is enempt from the lieensing re,uirements

20   of this eh apt er if) :

21                   ( 1)    reasonable modifications to                existing buildings,

22   facilities,      or other fixtures to real property not accessible to

23   the   general     public    and     which      are    owned,      leased,      or   otherwise

24   occupied by the entity [the employee performs services eicelusively

25   for the lausiness entity or an affiliate of that entity); or

26                   (2)    activities          related         only    to     the        research ,

27   development,           design,          fabrication,         production,            assembly,



                                                     2
                                                                                                  S.B. No. 277
 1   integration, or service of products manufactured by the entity                                              [~

 2   OHlflloyee' s serviees 1

 3                                  ((A')      a r e o n a r i n e ol'ln e e t i en •,.• ith p r ope rt y1

 4                                          [ ( i)     e\1ned er leased hy the husiness entity

 5   or affiliate 1 or

 6                                          [(ii)        iR    Hhioh       the       htisiReoo          eRtity   or

 7   affiliate has aR iRterest, estate, er possessory riEJht1 or

 8                                  [(B)       affeot elleltioively the property, produeto,

 9   er iRtereots sf the husiRess eRtity er affiliate 1 aRd

10                         [ (3)     the eHlflleyee dees net have the fiRal autherity to

11   approve      1    or the ultiH1ate reopoRsihility for / eREJiReeriREJ deoi'JRS /

12   plaRo, er speoifioatioRo relatiR'J to the property er prodtiots that

13   are ts he         1


14                                  (( Al      iJrnerporated into a fix ee 'do r k, syste H1 1 er

15   faeility OR the property of aRether 1 er

16                                  [ (B)      H1ade availahle to the puhlie].

17               (b)       [This     eJreHlptieR       iRoltideo       the    tise    of    a    jel3    title   er

18   persenRel elassifieatioR hy the eH1pleyee if the eHlflleyee does not

19   -tl-S€+

20                         [ (1)     the title er elassifieatioR iR eoRneotion dith an                     1




21   offer te the puhlie to perform eREJineerin'j servioes1 aRd

22                         [ (2)     a naH1e    1    title,    er wore that tends to eew.rey the

23   iHlfl ressien         th.at     a   1:1erse R net        liee no e a     un d er      this     ehapter      is

24   efferin'j to the puh lie te perferHI eR'JiReer in'J oervioeo ,

25               [-f.€+)     A perso n who claims an exemption under this section

26   and who is determined to have directly or indirectly represented

27   the       person      as      lega ll y     qualified        to    engage       in    the    practice       of



                                                              3
                                                                                                S.B. No. 277
 1   engineering or who is determined to ha v e violated Section 1001 . 301
 2   may not claim an exemption until the 10th anniversary of the date
 3   the person made that representation.
 4            (c)    This exemption does not proh i bit :
 5                   (1)       a licensed professional engineer who intends to
 6   incorporate manufactured products into a fixed work, system, or
 7   fa c ility that is being designed by th e l icensee o n public property
 8   or the property of others from requiring the manufacturer to have
 9   plans     or    specifications                   signed        and      sealed      by     a    licensed
10   professional engineer; or
11                   (2)       the board from requiring, by rule, that certain
12   manufactured products delivered to or used by the public must be
13   designed       and    sealed       by        a    licensed        professional           engineer,      if
14   necessary to protect the public health, safety, and welfare.
15            (d)    For purposes of this section, "products manufactured by
16   th e e ntity" also includes computer software , f i rmware , hardware ,
17   semiconductor            devices,       and         th e      production,          exploration,        and
18   transportation of oil and gas and related products.
19            SECTION 4.            Subsections              (b)    and      (c),      Section      1001.058,
20   Occupations Code 1 are amended to read as follows:
21            (b)    [This      eiremption            inoh1des       the     use    of    a   joa   title    or

22   personnel olassifioation ay the employee if the employee does not

23   u-s€-+


24                   [ ( 1)     the title or alassifiaation in oonneation ·1ith an

25   offer to the pualio to perform eFHjiHeer inEj servioes 1 and

26                   [ (2)      a name, title, or 11ord that tends to oonvey the

27   i mpression     t l:at     a    p e r so n       n ot    l i aens e d   una e r     this    chapter     is



                                                             4
                                                                                           S.B. No. 277

 1   offerifl~         to the p1:1alio to perform       efl~ifleerifl~        servioes,

 2               (~]        A person who claims an exemption under this section

 3   and who is determined to have directly or indirectly represented

 4   the    person        as     legally qualified           to      engage    in    the   practice   of

 5   engineering or who is determined to have violated Section 1001.301

 6   may not claim an exemption until the 10th anniversary of the date

 7   the person made that representation.

 8               SECTION 5.         Subchapter B, Chapter 1001, Occupations Code, is

 9   amended by adding Section 1001. 066 to read as follows:

10               Sec. 1001.066.            CERTAIN     NASA-RELATED            ACTIVITIES.          This

11   chapter does not:

12                        (1)     apply to a business entity or the business entity's

13   employees to           the extent        that    the     entity's products or services

14   consist of space vehicles or space services provided to, or space

15   technology transfer programs required .by, the National Aeronautic s

16   and Space Administration; or

17                        (2)     prohibit     the     use      of     the    term     "engineer"     or

18   "engineering"              in a     job title or personnel classification by an

19   employee described by Subdivision (1) to the extent that the use of

20   the title or classification is related to activities described by

21   that subdivision.

22               SECTION 6.         Subsection       (b),     Section 1001.101,            Occupations

23   Code, is amended to read as follows:

24               (b)     Appointments to the board shall be made without regard

25   to    the    race,         color,    disability       [-e-r-e-e4],   sex,      religion,   ~     or

26   national origin of the appointee.

27               SECTION 7.         Subsection       (a),     Section 1001.102,            Occupations



                                                       5
                                                                                      S.B. No. 277

 1   Code, is amended to read as follows:

 2              (a)     A person may not be [is Rot eligible for appoiRtmeRt as]

 3   a public member of the board if the person or the person's spouse:

 4                      (1)     is registered,       certified,      or    licensed       by~      [-aR-

 5   ooelilpatioRal] regulatory agency in the field of engineering;

 6                      (2)     is employed by or participates in the management

 7   of    ~   [aR ageRey or] business entity or other organization regulated

 8   by or       receiving money from the board                  [relatea to       the    fiela     of

 9   eRgiReeriRg]; [-e+]

10                      ( 3)    owns   or   controls,      directly or       indirectly,         more

11   than a       10 percent       [has     a fiRafioial]       interest    [ether       thaR as a

12   00F1s\il111er] in a business entity or other organization regulated by

13   or receiving money from the board; or

14                      (4)     uses or receives a substantial amount of tangible

15   goods, services, or money from the board other than compensation or

16   reimbursement authorized by law for board membership, attendance,

17   or expenses [re lat ea to the fie la of eF1giF1eeriF1g].

18              SECTION 8.       Section 1001.10 3 , Occupations Code,                  is amended

19   to read as follows:

20              Sec . 1001.103.        MEMBERSHIP         AND      EMPLOYEE        RESTRICTIONS.

21   (a)       In this section, "Texas trade asso c iation" means a cooperative

22   and       voluntarily       joined     statewid e     association        of      bu s iness    or

23   professional          competitors       in   th is   sta te   de s ign ed   to    assis t     its

24   members      and     its    industry or      profession       in dealing with mutual

25   business or professional problems and in promoting their common

26   interest.

27              (a-1)     A person may not be a           [A] member      [or employee] of the



                                                     6
                                                                                        S.B. No. 277
 1   board and may not be a board employee employed in a                                    "bona fide

 2   executive,      administrative,            or    professional           capacity,"           as   that

 3   phrase is used for purposes of establishing an exemption to the

 4   overtime provisions of the federal Fair Labor Standards Act of 1938

 5   (29 U.S.C. Section 201 et seq.), and its subsequent amendments, if:
 6                   (1)     the    person      is        an    officer,     employee,         or      paid

 7   consultant of a Texas trade association in the field of engineering

 8   [ inat1stry] ; or

 9                   (2)     the    person's     spouse           [relatea within           the    seoeBe1

10   ae~ree      BY affinity er      G9f\San~t1inity,            as aeterminea t1naer Chapter

11   §7a   1   GevernmeBt    Ceae,    t e a perseB uhe]                is   an officer,           manager

12   [empleyee], or paid consultant of a Texas trade association in the

13   field of engineering [iBe1t1stry].

14             (b)   A person may not be [serve as] a member of the board or

15   act as the general counsel to the board if the person is required to

16   register as a lobbyist under Chapter 305, Government Code, because

17   of    the    person's    activities         for           compensation      on    behalf          of   a

18   profession related to the operation of the board.

19             SECTION 9.      Section 1001.106, Occupations Code,                          is amended

20   by amending Subsection (a)              and adding Subsection (c)                      to read as

21   follows:

22             (a)   It is a ground for removal from the board that a member:

23                   (1)     does    not   have           at    the   time    of      taking       office

24   [appeiBtment] the qualifications required by Sections 1001.101 and

25   [ Seetien] 1001.102;

26                   (2)     does not maintain during service on the board the

27   qualifications         required       by        Sections         1001.101        and    [Sectien]



                                                      7
                                                                                              S.B. No. 277

 1   1001.102;

 2                   ( 3)        is    ineligible             for       membership          under     Section

 3   1001.102      or       [violates        a    prohibition             established         by     £eetion)

 4   1001.103 i    [~]

 5                   (4)         cannot,         because           of     illness     or       disability,

 6   discharge the member's duties for a substantial part of the member's

 7   term; or

 8                  J.2l         is absent from more than half of the                               regularly

 9   scheduled board meetings                    that the member             is eligible to attend

10   during [held in)             a calendar year without an excuse approved by a

11   majority vote of the board [ 1                     eicelttdin~       meetifl~S     held Hhile the

12   person '.ms not a meml3er) .

13          ( c)    If the executive director has knowledge that a potential

14   ground for removal exists, the executive director shall notify the

15   presiding      officer           of   the    board       of    the    potential         ground.       The

16   presiding officer shall then notify the governor and the attorney

17   general    that        a    potential        ground        for      removal     exists.          If   the

18   potential ground for removal involves the presiding officer, the

19   executive director shall notify the next highest ranking officer of

20   the board,      who shall then notify the governor                              and the attorney

21   general that a potential ground for removal exists.

22          SECTION 10.               Section 1001.108, Occupations Code, is amended

23   to read as follows:

24          Sec. 1001.108.                 OFFICERS.          The governor          shall designate a

25   member of the board as the presiding officer of the board to serve

26   in that capacity at the will of the governor.                            The board shall elect

27   annually      from         its members        [a   presidifl~          offieer   1 )    an     assistant



                                                          8
                                                                                      S.B. No. 277

 1   presiding officer ( 7          )   and a secretary.

 2              SECTION 11.         Subchapter      c,     Chapter 1001, Occupations Code,

 3   is amended by adding Section 1001.112 to read as follows:

 4              Sec. 1001.112.           TRAINING.         (a)   A person who is appointed to

 5   and qualifies for office as a member of the board may not vote,

 6   deliberate, or be counted as a member in attendance at a meeting of

 7   the   board      until    the       person    c o mpl etes    a    training      program    that

 8   complies with this sect ion.

 9              (b)   The   tr aining         program       must   provide      the    person    with

10   information regarding:

11                    (1)     this chapter;

12                    (2)     the programs operated by the board;

13                    (3)     the role and functions of the board;

14                    (4)     the rules of the board, with an emphasis on the

15   rules that relate to disciplinary and investigatory authority;

16                    (5)     the current budget for the board;

17                    (6)     the results of the most recent formal audit of the

18   l;>oard;

19                    (7)     the requirements of:

20                            (A)       the     open       meetings      law,       Chapter      551,
21   Government Code;

22                            (B)       the   public       information       law,     Chapte r   552,

23   Government Code;

24                            (C)       the   administrative           procedure      law ,   Chapter

25   2001, Government Code; and

26                            (D)       other     laws     relating     to   public      officials ,

27   including conflict-of-interest laws; and



                                                       9
                                                                                           S.B. No. 277
 1                        (8)     any    applicable        ethics        policies    adopted          by the
 2   board or the Texas Ethics Commission.
 3            (c)     A         person    appointed        to     the     board     is     entitled       to
 4   reimbursement, as provided by the General Appropriations Act, for
 5   the travel expenses incurred in attending the training program
 6   regardless of whether the attendance at the program occurs before
 7   or after the person qualifies for office.
 8            SECTION 12.             Subchapter D, Chapter 1001, Occupations Code,
 9   is amended by adding Sections 1001.153 through 1001.156 to read as
10   follows:
11            Sec. 1001.153.              DIVISION OF            RESPONSIBILITIES.              The    board
12   shall develop and implement policies that clearly separate the
13   policy-making responsibilities of the board and the management
14   responsibilities of the executive director and the staff of the
15   board.
16            Sec. 1001.154.              QUALIFICATIONS            AND    STANDARDS        OF    CONDUCT
17   INFORMATION.               The executive director or the executive director's
18   designee       shall         provide      to   members       of     the    board     and    to    board
19   employees,           as     often    as    necessary,          information          regarding       the
20   requirements for office or employment under this chapter, including
21   information regarding a person's responsibilities under applicable
22   laws     relating           to   standards      of        conduct    for     state    officers       or
23   employees.
24            Sec. 1001.155.              EQUAL       EMPLOYMENT               OPPORTUNITY        POLICY;
25   REPORT.        (a)         The executive director or the executive director's
26   designee shall prepare and maintain a written policy statement that
27   implements a program of equal employment opportunity to ensure that



                                                          10
                                                                              S.B. No. 277

 1   all personnel decisions are made without regard to race,                         color,

 2   disability, sex, religion, age, or national origin.

 3           (b)    The policy statement must include:
 4                  ( 1)   personnel policies,           including policies re lat fog
 5   to recruitment, evaluation, selection, training, and promotion of

 6   personnel, that show the intent of the board to avoid the unlawful

 7   employment practices described by Chapter 21, Labor Code; and
 8                  (2)    an analysis of the extent to which the composition

 9   of the board's personnel is in accordance with state and federal law

10   and a description of reasonable methods to achieve compliance with

11   state and federal law.

12           ( c)   The policy statement must:

13                  (1)    be updated annually;
14                  (2)    be reviewed by the Commission on Human Rights for

15   compliance with Subsection (b) (1); and
16                  (3)    be filed with the governor's office.

17           Sec. 1001.156.      INFORMATION        ON     STATE    EMPLOYEE       INCENTIVE

18   PROGRAM.       The    executive     director    or    the     executive      director's
19   designee shall provide to board employees information and training
20   on the benefits and methods of participation in the state employee
21   incentive program under           Sub chapter B,       Chapter       2108,   Government

22   Code.

23           SECTION 13.      Section 1001.203, Occupations Code, is amended

24   to read as follows:

25           Sec. 1001.203.      RULES           RESTRICTING          ADVERTISING         OR

26   COMPETITIVE     BIDDING.      (a)     The     board    by   rule     shall    prescribe

27   standards      for    compliance     with      Subchapter       A,     Chapter    2254,



                                              11
                                                                                   S.B. No. 277

 1   Government Code [may restrict cempetitive aieleiREJ].

 2          (b)    Except as provided by Subsection (a), the                           (~]    board

 3   may not adopt rules [a rule] restricting advertising or competitive

 4   bidding by a license holder                [perseR liceRseel uReler tfiis cfiapter]

 5   except to prohibit false, misleading, or deceptive practices                                 [~

 6   tfie perseA).

 7          (c)    In its rules to prohibit false , misleading, or deceptive

 8   practices, the         [~]    board may not include [ iR its n1les te prefiiait

 9   false, misleae1iREJ 1 er eleceptive praetiees] a rule that:

10                   (1)      restricts the           [perseR's]     use   of    any medium for

11   advertising;

12                   (2)      restricts the use of a license holder's [13erseR's]

13   personal     appearance         or    [use       ef    tfie    perseR's)     voice      in   an

14   advertisement;

15                   ( 3)     relates     to      the       size      or    duration       of     an

16   advertisement by the license holder [13erseR); or

17                   (4)      restricts         the        license     holder's        [13erseR's)

18   advertisement under a trade name.

19         SECTION 14.            Subchapter E, Chapter 1001, Occupations Code,

20   is amended by adding Section 1001. 2035 to read as follows:

21         Sec. 1001.2035.              RULES         ON     CONSEQUENCES         OF      CRIMINAL

22   CONVICTION.            The   board    shall       adopt       rules   and   guidelines       as

23   necessary to comply with Chapter 53.

24         SECTION 15.            Subsection (a),           Section 1001.204, Occupations

25   Code, is amended to read as follows:

26          (a)    The board shall establish the following [reaseRable aRel

27   Recessary)    fees in amounts reasonable and necessary to cover the



                                                      12
                                                                                                      S.B. No. 277

 1   costs of administering [fer the aaministratien sf] this chapter                                                       [~

 2   ameunts net ts e1rneea]:

 3                 (1)    license feeL             [~•.--..~.--.-.-.--.--.--.--..--.--.~--.--.--.--.---.-,..-~$~5~0]

 4                 (2)    ann ua 1 r en ew a 1 f e e L           [--.--.--.--.--.--.-..--,........,.--,~-..---.--.--$-t7-9-5 ]

 5                 ( 3)   reciprocal 1 i c ens e fee L                   [-...--,..-.--.~-..---.--.--.--.-...........$..,§""O
                                                                                                                            ... ]

 6                 (4)    du pl i c at e license fee ; [-...-...-.--.--.-....--.--.-..--...-,--,.---$-=o-5 ]

 7                 ( 5)   engineer-in-training certificate fee;                                                         $15]

 8                 (6)    roster of engineers fee;                                                                      $10]

 9                 ( 7)   ex am in at ion f e e L [ -..--,........,.--.~-..--...-.---.--.--.--.--.-...----.;o.$-rl2-b0>Y-0 ]

10                 (8)    registration fee for engineering firm; and

11                 (9)    inactive status fee.                                                                        $100]

12          SECTION 16.        Subsection (c),                  Section 1001.206, Occupations

13   Code, is amended to read as follows:

14          ( c)   The fee      increase           imposed by Subsection                             (a)      does not

15   apply to an engineer who:

16                 (1)    meets the qualifications for                                 an exemption under

17   Section 1001.057 or 1001.058 but does not claim that exemption;

18   [~]


19                 ( 2)   is disabled as described by Section 1001. 2051.....£.E.

20                 ( 3)   is     on     inactive             status         as     provided              by      Section

21   1001. 355.

22          SECTION 17.        Section 1001.210, Occupations Code, is amended

23   to read as follows:

24          Sec. 1001. 210.           CONTINUING             EDUCATION             PROGRAMS.                   ~          The

25   board shall     [may]     recognize,             prepare,            or     administer                continuing

26   education programs for its license holders.                                  A license holder must

27   participate in the programs to the extent required by the board to



                                                        13
                                                                                   S.B. No. 277

 1   keep the person's license.
 2         (b)   The board may not require a license holder to obtain

 3   more than 15 hours of continuing education annua lly .                           The board

 4   shall permit a license holder to certify at the time the license is
 5   renewed that      the   license holder              has    complied with       the       board's

 6   continuing education requirements .
 7         (cl   The    board   shall permit              a    license holder        to       receive

 8   continuing education credit for educational, technical, ethical,

 9   or professional management activities related to the practice of

10   engineering, including:
11               (1)     successfully              completing      or   auditing          a    course

12   sponsored by an institution of higher education;

13               (2)     successfully completing a course certified by a
14   professional or trade organization;

15               (3)     attending        a        seminar,      tutorial,        short       course,

16   correspondence course, videotaped course, or televised course;

17               (4)     participating in an in-house course sponsored by a
18   corporation or other business entity;
19               (5)     teaching     a        course          described     by    Subdivisions
20   (1)-(4);

21               (6)     publishing           an    article,      paper,     or    book       on   th e
22   practice of engineering;

23               (7)     makinq or attending a presentation at a meeting of

24   a technical or engineering management society or organization or

25   writing a paper presented at such a meeting;
26               (8)     participating in the activities of a pr ofessional

27   society or association,        including serving on a committee of the



                                                    14
                                                                                 S.B. No. 277
 1   organization; and
 2                 (9)      engaging in self-directed study .

 3         (d)    A       license    holder     may    not     receive    more        than   five

 4   continuing     education         credit    hours       annually     for     engaging      in
 5   self-directed study            [perseHS    re~ulateG      ay the aeare UHGer            this

 6   ehapter,    PartisipatieH iH the          pre~ra111s    is veluHtary].

 7         SECTION 18.            Subchapter E, Chapter 1001, Occupations Code,
 8   is amended by adding Sections 1001.214, 1001.215, and 1001.216 to

 9   read as follows:

10         Sec. 1001.214.            TECHNOLOGY POLICY.         The board shall develop

11   and implement a policy requiring the executive director and board
12   employees    to      research      and    propose       appropriate        technological

13   solutions to improve the board's ability to perform its functions.

14   The technological solutions must:
15                 ( 1)     ensure that the public is able to find information

16   about the board on the Internet;

17                 (2)      ensure that persons who want to use the board' s
18   services are able to:

19                          (A)     interact with the board through the Internet;
20   and

21                          (B)     access     any    service    that    can     be    provided

22   effectively through the Internet; and
23                 (3)      be     cost-effective       and     developed       through      the

24   board's planning processes.

25         Sec. 1001.215.            NEGOTIATED       RULEMAKING         AND     ALTERNATIVE

26   DISPUTE    RESOLUTION        POLICY.       (a)    The    board     shall    develop     and

27   implement a policy to encourage the use of:



                                                 15
                                                                                       S.B . No. 277

 1                ( 1)        negotiated     rulemaking           procedures          under    Chapter

 2   2008, Government Code, for the adoption of board rules; and

 3                (2)         appropriate         alternative             dispute          resolution

 4   procedures under Chapter 2009, Government Code, to assist in the

 5   resolution   of     internal and           external disputes under                 the board's

 6   jurisdiction.

 7          (b)   The board's procedures relating to alternative dispute

 8   resolution must          conform,     to    the       extent   possible,         to     any model

 9   guidelines issued by the State Office of Administrative Hearings

10   for the use of alternative dispute resolution by state agencies.

11          (c)   The board shall designate a trained person to:

12                ( 1)        coordinate        the        implementation        of     the     policy

13   adopted under Subsection (a);

14                ( 2)        serve   as a      resource for        any training needed to

15   implement the procedures for negotiated rulemaking or alternative

16   dispute resolution; and

17                ( 3)        collect data concerning the effectiveness of those

18   procedures, as implemented by the board.

19          Sec. 1001.216.            JOINT ADVISORY COMMITTEE ON THE PRACTICE OF

20   ENGINEERING AND ARCHITECTURE.               (a)        The Joint Advisory Committee on

21   the   Practice      of    Engineering        and        Architecture        is     an    advisory

22   committee to the board and to                    the Texas Board of Architectural

23   Examiners.   The advisory committee consists of:

24                ( 1)        three   members         of    the   board    and    one      practicing

25   architectural engineer appointed by the board; and

26                (2)         three members of the Texas Board of Architectural

27   Examiners and one practicing architect appointed by that board.



                                                      16
                                                                                 S.B. No.   277

 1            (b)    Members      of   the    advisory   committee        serve     staggered

 2   six-year terms with the terms of one or two members appointed by the

 3   board    and    one   or   two members        appointed by the       Texas Board        of

 4   Architectural Examiners expiring each odd-numbered year.

 5            ( c)   The advisory committee shall meet at least twice a year.

 6            ( d)   The advisory committee shall work to resolve issues that

 7   result    from the overlap between activities that                     constitute the

 8   practice of engineering and those that constitute the practice of

 9   architecture.         The advisory committee shall assist each agency in

10   protecting the public rather than advancing the interests of either

11   agency or the profession it regulates.

12            ( e)   The advisory committee shall issue advisory opinions to

13   the board and to the Texas Board of Architectural Examiners on

14   matters relating to the practice of engineering and the practice of

15   architecture, including:

16                   (1)    opinions on whether certain activities constitute

17   the practice of engineering or the practice of architecture;

18                   (2)    specific      disciplinary        proceedings    initiated      by

19   either agency; and

20                   (3)    the    need      for    persons     working     on    particular

21   projects to be licensed by the board or registered by the Texas

22   Board of Architectural Examiners.

23            (f)    If the advisory committee issues an advisory opinion to

24   the board or the Texas Board of Architectural Examiners on a matter,

25   that agency shall notify the committee of the final action taken

26   with regard to the matter.              The advisory committee shall consider

27   the action taken by the agency on the matter in any advisory opinion



                                                   17
                                                                                  S.B. No. 277

 1   subsequently issued by the committee on a related matter.

 2           (g)     The board and the Texas Board of Architectural Examiners

 3   shall    enter      into   a    memorandum    of     understanding         regarding       the

 4   a d 11i sor y 'co mmi tt ee that i.rt c ludes t h e c9mp os i t i on an d pu rpose of t he

 5   committee.

 6           SECTION 19.           Section 1001.251, Occupations Code, is amended

 7   by adding Subsection ( c) to read as follows:

 8           ( c)    The     board    shall     maintain        on   the     board's    Internet

 9   website :

10                    (1)    information regarding the procedure for filing a

11   complaint with the board; and

12                    (2)    a form that a person may use to file a complaint

13   with the board.

14           SECTION 20.           Sections   1001. 252        and   1001. 253,   Occupations

15   Code, are amended to read as follows:

16           Sec. 1001.252.           GENERAL          RULES         REGARDING         COMPLAINT

17   INVESTIGATION AND DISPOSITION [COMPLAINT£].                       ~      The board shall

18   adopt rules that permit the board to                      receive and investigate a

19   confidential complaint against a license holder or other person who

20   may have       violated this       chapter.        The board shall maintain the

21   confidentiality of the complaint during the investigation.

22           (b)     The board by rule shall specify:

23                    (1)    the manner by which a person may contact the board

24   for assistance in filin g a comp laint;

25                    (2)    the place at which a complaint must be filed;

26                    ( 3)   the pro p er form of a complaint; and

27                    (4)    the     information       that     must    be     included    in     a



                                                  18
                                                                             S.B. No. 277
 1   complaint .
 2          (c)    The board's      procedures must       permit    a   member       of   the
 3   public who desires to file a complaint to:
 4                 (1)    speak to an investigator on the staff of the board
 5   if the person desires to do so; or
 6                 ( 2)   easily    and    conveniently        access        the   board's

 7   complaint     process     without     being      required     to   speak        to    an
 8   investigator on the staff of the board if the person does not desire
 9   to speak to an investigator .
10          (d)    The board shall consider any written grievance aqainst a
11   license holder or other person filed with the board as a complaint.
12          (e)    A complaint must include information sufficient for the
13   board to determine whether           it has the authority to resolve the
14   complaint.     A complaint that contains sufficient information for
15   the board to commence an investigation is not required to include
16   all of the information necessary for the board to determine the
17   validity of the complaint.
18         (f)     On receipt of a complaint, the board shall determine
19   whether the board has the authority to resolve the complaint.                         If
20   the board does not have the authority to resolve the complaint, the
21   board shall dismiss the complaint.             If the board has the authority
22   to resolve the complaint, the board shall initiate a disciplinary
23   proceeding against the person who is the subject of the complaint.
24         (g)     The    board    by   rule    shall    prescribe      a     method      for
25   prioritizing complaints for purposes of complaint investigation.
26   In establishing priorities:
27                 ( 1)   a   complaint    that     alleges   an   act ion    that     could



                                               19
                                                                                S.B. No. 277

 1   potentially h a rm the public takes precedence over a complaint that

 2   does not allege an action that could potentially harm the public;

 3   and

 4                   (2)    with regard to complaints that do not allege an
 5   action that could potentially harm the public, a complaint filed by
 6   a member of the public takes precedence over a complaint filed by

 7   the staff of the board.

 8           (h)     The board's staff         is     responsible      for   conducting all

 9   phases of complaint investigation , including gathering evidence

10   necessary to determine the validity of the complaint .
11           (i)     The    board    may     employ     or   contract        with   advisors,

12   consultants,       engineers,      or   other     persons    to    provide     technical

13   assistance in investigations and disciplinary proceedings.                        Except
14   for   an action involving fraud,               conspiracy,     or malice,      a person

15   whose services are obtained by the board under this subsection is

16   immune from civil liability and may not be subjected to a suit for
17   damages for any investigation, report, recommendation, statement,

18   evaluation, finding made, or other action taken in the course of

19   performing the person's offic i a l du t ies .
20           ( j)    The board's staff shall regularly report to the board on

21   eac h c o mplaint d ismiss e d by board staff , including :
22                   ( 1)   the name of th e c omplainant;
23                   (2 )   the name of the p e rs on who is th e subj ect of the

24   c omp la int;

25                   (3 )   t he basi s of the c omp l ai nt; a n d

26                   ( 4)   t h e re a s o n fo r the dismi s sal of th e c ompl a i nt .

27           (k )    Exc e pt as provid e d by Sub sec tion (1), a complai n t f iled



                                                 20
                                                                                 S.B. No. 277

 1   with the board is public information.

 2            (1)   For any frivolous complaint, the license ho lder's name

 3   and other personal            information on the        complaint      is not public

 4   information and must be redacted.

 5            (m)   In     this     section,     "frivolous        complaint"       means    a

 6   complaint that the executive director and investigator, with board

 7   approval, determined:

 8                  ( 1)   was made for the purpose of harassment; and

 9                  (2)     does not demonstrate harm to any person.

10            Sec. 1001.253.         COMPLAINT        INFORMATION.        (a)     The   board

11   shall:

12                  (1)     assign a number to each complaint filed with the

13   board; and

14                  (2)     ensure that      each phase      of the       processing of      a

15   complaint is appropriately documented.

16            (b)   The board shall maintain a [keep an infer111atien] file on




                    ( 1)   the name of the per son who filed the complaint;
                    (2)    the date the complaint is received by the board;
                    ( 3)   the subject matter of the complaint;
                    (4)    the name of each person contacted in relation to
     the complaint;
                    ( 5)   a      summary   of   the     results     of    the     review   or



26                  (6 )   an explanation of the reason the file was clo sed ,

27   if the board closed the file without taking action other than to



                                                 21
                                                                               S.B. No. 277
 1   investigate the complaint.
 2            ( c)   The    board    shall    provide    to   the    person     filing         the
 3   complaint and to each person who is a subject of the complaint a
 4   copy of the board's policies and procedures xelating to complaint
 5   investigation and resolution.
 6            (d)    The [ (0)      If a written esmFJlaint :relatin';J ts a lieense
 7   hslde:r is filed uith the bsa:rd, the] board, at least quarterly and
 8   until final disposition of the complaint, shall notify the parties
 9   to the complaint of the status of the complaint unless the notice
10   would jeopardize an undercover investigation.
11            SECTION 21.        Subchapter F, Chapter 1001, Occupations Code,
12   is amended by adding Sections 1001.254 and 1001.255 to read as
13   follows:
14            Sec. 1001.254.         STATISTICAL        ANALYSIS          OF   COMPLAINTS.
15   (a)   The board shall develop and maintain a                    complaint tracking
16   system to monitor           the processing of       complaints filed         wit h t h e
17   board.

18            (b)    The    board     shall   include     with      the    board's     annual
19   financial       report   under     Section      2101.011,      Government       Cod e ,     a
20   statistical analysis of the complaints filed with the board during
21   the preceding year, including:

22                   ( ll   the number of complaints filed;
23                   (2)    a categorization of complaints filed according to
24   the basis of the complaint and the number of complaints in each
25   category;
26                   ( 3)   the number of complaints filed by board staff;
27                   (4)    the number of complaints filed by persons other



                                                22
                                                                                      S.B. No. 277

 1   than board staff;
 2                    (5)    the average length of time required to resolve a

 3   complaint;

 4                    (6)    the number of complaints resolved and the manner
 5   in which they were resolved, including:

 6                           (A)     the number of complaints dismissed and the

 7   reasons for dismissal; and
 8                           (B)     the     number       of    complaints          resulting     in

 9   disciplinary action, the disciplinary action taken, and whether the

10   disciplinary        action      taken     was    imposed     by     stipulation,         agreed

11   settlement, consent order, default, or order following a contested

12   case hearing; and

13                    ( 7)   the     number      of       complaints       filed        that     are

14   unresolved, the number of those complaints filed by board staff,

15   the number of those complaints filed by persons other than board

16   staff,     and    the    average        length       of   time    that     the    unresolved

17   complaints have been on file.

18            Sec. 1001.255.          PUBLIC     PARTICIPATION.               The     board    shall

19   develop    and     implement      policies that           provide    the public with a

20   reasonable opportunity to appear before the board and to speak on

21   any issue under the jurisdiction of the board.

22            SECTION 22.          Section 1001.301, Occupations Code, is amended

23   by amending Subsections (b) and (c) and adding Subsections (f) and

24   ( g) to read as follows:

25            (b)     Except as provided by Subsection (f), a [A] person may
26   not, unless the person holds a license issued under this chapter,

27   directly or indirectly use or cause to be used as a professional,



                                                     23
                                                                          S.B. No. 277
 1   business,       or     commercial         identification,          title,   name,
 2   representation, claim, asset, or means of advantage or benefit any
 3   of, or a variation or abbreviation of, the following terms:
 4                  (1)    "engineer";

 5                  ( 2)   "professional engineer";

 6                  (3)    "licensed engineer";

 7                  (4)    "registered engineer";
 8                  (5)    "registered professional engineer";

 9                  (6)    "licensed professional engineer"; or

10                  (7)    "engineered."

11         (c)    Except as provided by Subsection (f), a [A) person may
12   not directly or indirectly use or cause to be used an abbreviation,
13   word, symbol, slogan, or sign that tends or is likely to create an
14   impression     with    the    public   that    the   person   is    qualified   or
15   authorized to engage in the practice of engineering unless the
16   person holds a license and is practicing under this chapter.
17         (f)    Notwithstanding the other provisions of this chapter, a
18   regular employee of a b u siness entity who is engaged in engineering
19   activities but is exempt from the licensing requirements of this
20   chapter under Sections 1001.057 or 1001.058 is not prohibited from
21   using the term "engineer" on a business card, cover letter, or other
22   form of correspondence that is made available to the public if the
23   person does not:
24                  (1)    offer    to   the    public    to   perform     engineering
25   services; or
26                  (2)    use the title in any context outside the scope of
27   the exemption in a manner that represents an ability or willingness



                                               24
                                                                                 S.B. No. 277

 1   to perform engineering services or make an engineering judgment

 2   requiring a licensed professional engineer.

 3             (g)   Subsection (f) does not authorize a person to use a term

 4   listed in Subsections (b) (2)-(6) or a variation or abbreviation of

 5   one of those terms.

 6             SECTION 23.       Section 1001.303, Occupations Code, is amended

 7   to read as follows:

 8             Sec. 1001.303.       APPLICATION FOR LICENSE.              (a)    An applicant

 9   for   a    license     under    this   chapter      must    submit         an    [a   sHen1)

10   application on a form prescribed and provided by the board.

11             (b)   The application must contain:

12                   (1)    personal    information          about    the       applicant,     as

13   required by board rule;

14                   (2)    a description of the applicant's education;

15                   (3)    a    detailed   summary      of    the    applicant's          actual

16   engineering work;

17                   (4)    a    description    of     any    engineering            license   or

18   registration previously issued to the applicant and any denial,

19   revocation, or suspension of an engineering license or registration

20   held by the applicant;

21                   (5)    a description of any criminal offense of which the

22   applicant has been convicted; and

23                   (6)    at   least three     [~)         references from engineers

24   [ indivieh1als]       having    personal        knowledge       of   the        applicant's

25   character, reputation, [-aft&] general suitability for a license, and

26   [ef whem at least three must be enEJineers havinEJ persenal knewledEJe

27   ef the applicant's] engineering experience.



                                                25
                                                                                           S.B. No. 277

 1          SECTION 24.           Section 1001.304, Occupations Code, is amended

 2   by adding Subsection (d) to read as follows:

 3          (d)     The board by rule shall ensure that the examination is

 4   administered to applicants with disabilities in compliance with the

 5   Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et

 6   seq.), and its subsequent amendments.

 7         SECTION 25.            Sections           1001.306,             1001.310,     and     1001.311,

 8   Occupations Code, are amended to read as follows:

 9         Sec. 1001.306.                EXAMINATION RESULTS.                    (a)     Not   later   than

10   the 30th day after the date a person takes a licensing examination

11   under this chapter, the                   [~]    board shall notify the person                    [~

12   eicaminee] of the results of the                 [~]          examination [net later than the

13   30th eay after the eate the ei1a111inatien is aeministeree].

14          (a-1)        If the        [-aR]    examination is graded or reviewed by a

15   [natienal] testing         service~

16                  l1.l    [Tl        the      board      shall       notify      the    person       [~

17   examinee] of the results of the examination not later than the 14th

18   day after the date the board receives the results from the testing

19   service; and

20                   (2)    if[ ....

21          [ (b)    If    the]        notice        of    the       examination       results     [ ef    an

22   eJEaminatian]       will be delayed for                   longer       than 90 days after            the

23   examination date, the board shall notify the person [ eaGh ei1a111inee]

24   of the reason for the delay before the 90th day .

25          (b)     The board may reguire                      a    testing service to notify a

26   person of the results of the person's examination .

27          (c)     If     requested           in    writing          by    a   person     who    fails     ~




                                                          26
                                                                           S.B. No. 277
 1   licensing [-t-he-)   examination administered under this chapter, the
 2   board shall furnish [prsvide ts] the person with an analysis of the

 3   person's performance on the examination.

 4          Sec. 1001.310.        TEMPORARY OR PROVISIONAL LICENSE.           ~       The
 5   board by rule may adopt          standards and procedures for           issuing a

 6   temporary or provisional license under this chapter.

 7          (b)   The     board    may     issue     a   provisional   license   to    an

 8   applicant cuxrently licensed in another jurisdiction who seeks a
 9   license in this state and who:

10                 (1)    has been licensed in good standing as an engineer
11   for at least two years in another jurisdiction, including a foreign
12   country, that has licensing requirements substantially equivalent

13   to the requirements of this chapter;

14                (2)     has     passed    a      national   or   other   examination

15   recognized by the board relating to the practice of engineering;
16   and
17                (3)     is sponsored by a person licensed by the board

18   under this chapter with whom the provisional license holder will
19   practice during the time the person holds a provisional license.

20          (cl   The board may waive the requirement of Subsection (b) ( 3)
21   for an applicant if the board determines that compliance with that

22   subsection would be a hardship to the applicant.
23          (d)   A provisional li ce nse is valid until the date the board

24   approves or denies the provisional license holder's application for
25   a license.    The board shall issue a license under this chapter to

26   the provisional license holder if:

27                (1)     the provisional lic ense holder is eligible to be



                                                27
                                                                                     S.B. No. 277
 1   licensed under Section 1001.3ll(b); or
 2                    (2)        the provisional license holder meets the following
 3   requirements:
 4                               (A)   the   provisional       license       holder     passes   an
 5   examination that tests the provisional license holder's knowledge
 6   and understanding of the laws and rules relating to the practice of
 7   engineering in this state;
 8                               (B)   the   board        verifies    that    the     provisional

 9   license holder meets the academic and experience requirements for a
10   license under this chapter; and
11                               (Cl   the provisional license holder satisfies any
12   other licensing requirements under this chapter.
13            (e)     The board must approve or deny a provisional license
14   holder's application for a license not later than the 180th day
15   after the date the provisional license is issued.                              The board may
16   extend the 180-day period if the results of an examination have not
17   been received by the board before the end of that period.

18            (f)     The board may establish a fee for provisional li c enses
19   in an amount reasonable and necessary to cover the cost of issuing
20   the license.
21            Sec. 1001.311.           APPLICATION BY NONRESIDENT.                  ~    A person
22   who   holds      a   license      or    certificate       of    registration       issued by
23   another state or a foreign country may apply for a license in this
24   state.

25            (b)    The board may waive any prerequisite to obtaining a
26   license        for     an     applicant     after        reviewing       the     applicant's
27   credentials and determining that the applicant holds a license



                                                     28
                                                                                              S.B. No. 277

 1   issued by another              jurisdiction that               has     licensing requirements

 2   substantially equivalent to those of this state.

 3            SECTION 26.           Subsection (b), Section 1001.351, Occupations

 4   Code, is amended to read as follows:

 5            (b)        The    board       by   rule       may    adopt    a     system       under     which

 6   licenses and registrations expire on various dates during the year..:..

 7   For the year in which the license or registration expiration date is

 8   changed, the board shall prorate license or registration fees on a

 9   monthly basis so that each license or registration holder pays only

10   that portion of the license or registration fee that is allocable to

11   the number of months during which the license or registration is

12   valid.         On    renewal       of    the    license       or   registration            on the     new

13   expiration date, the total license or registration renewal fee is

14   payable [ane shall aejust renewal Elates aeeorein(jly).

15            SECTION 27.          Sections          1001. 352       and     1001. 353,        Occupations

16   Code, are amended to read as follows:

17            Sec. 1001. 352.               NOTICE   OF      LICENSE       EXPIRATION.             Not   later

18   than the 30th day [one month) before the [enpiration) date                                          [~)   a

19   person's license is scheduled to expire, the board shall send [ffla-i..±.

20   to the person at the last aEIElress the person provieee to the hoarEI)

21   written notice of the jmpending [lieense) expiration to the person

22   at the person's last known address according to the records of the

23   board    [Elate      ane    the     amount      of      the   annual        rene .:al fee
                                                                                        1
                                                                                                     for   the

24   lieense).

25            Sec. 1001. 353.               PROCEDURE FOR RENEWAL.                (a)       A per son who is

26   otherwise       eligible          to    renew      a    license       may    renew       an   unexpired

27   license by paying the required renewal fee to the board before the



                                                            29
                                                                                S.B. No. 277
 1   expiration date of the license.                  A person whose license has expired
 2   may not           engage    in activities that         require a    license until the
 3   license has been renewed.
 4              (b)      A person whose license has been expired for 90 days or
 5   less may renew the license by paying to the board a renewal fee that
 6   is equal to 1-1/2 times the normally                  [~]      required renewal fee and
 7   any applicable increase in fees as required by Section 1001.206 [a
 8   peRalty fee set lly U1e lloard].

 9              ( c)     A person whose license has been expired for more than 90
10   days but less than two years may renew the license by paying to the
11   board a renewal fee that is equal to two times the normally required
12   renewal fee          and any applicable increase in fees as required by
13   Section 1001.206 for each delinquent year or part of a year [a±±
14   1:rnpaid reRe\1al fees aRd a peRalty fee set lly the lloard].

15              (d)      A person whose license has been expired for two years or
16   more may not renew the license.                 The person may obtain a new license
17   by complying with the requirements and procedures, including the
18   examination requirements, for obtaining an original license                         [~

19   are iR effeet at the time the persoR applies].

20          SECTION 28.               Subchapter H, Chapter 1001, Occupations Code,
21   is amended by adding Sections 1001. 354 and 1001. 355 to read as
22   follows:
23          Sec. 1001.354.                RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
24   PRACTITIONER.              (a)     A person who was licensed in this state, moved
25   to another state, and is currently licensed and has been in practice
26   in   the      other        state    for   the   two   ye ars   preceding   the   date   of
27   application may obtain a new license without reexamination .



                                                     30
                                                                S.B. No. 277
 1          (bl    The p erson must pay to the board a fee that is egual to
 2   two times the normally required renewal fee for the license.

 3         Sec. 1001.355.       INACTIVE   STATUS.   (a)   An   engineer   may

 4   request inactive status at any time before the expiration date of
 5   the person's license.      A license holder on inactive status may not
 6   practice engineering.

 7          (bl    A license holder on inactive status must pay an annual
 8   fee set by the board.

 9          ( c)   A license holder on inactive status is not required to:

10                  (1)   comply with the continuing education requirements
11   adopted by the board; or

12                  (2)   take an examination for reinstatement to active

13   status.
14         (d)     To return to active status , a license holder on inactive

15   status must:

16                  (1)   file with the board a written notice requesting
17   reinstatement to active status;
18                  (2)   pay the fee for the annual renewal of the license

19   and the fee increase required by Section 1001.206; and

20                  (3)   provide evidence satisfactory to the board that
21   the person has complied with the continuing education requirements

22   adopted by the board.
23         SECTION 29.      Section 1001.405, Occupations Code, is amended

24   by adding Subsection ( g) to read as follows:

25         lgl     Notwithstanding the other provisions of this section ,

26   the board by rule may provide that a business entity that has not
27   previously registered with the board and that is engaged in the



                                           31
                                                                           S.B. No. 277
 1   practice     of    engineering in violation of Subsection              (b)    is not
 2   subject to disciplinary action for the violation if the business
 3   entity registers with the board not later than the 30th day after
 4   the date the board gives written notice to the business entity of
 5   the registration requirement.              This subsection does not apply to a
 6   business entity whose registration has expired.
 7          SECTION 30.          Section 1001.406, Occupations Code, is amended
 8   to read as follows:

 9          Sec. 1001.406.          GRADUATE ENGINEERS.           ~    A graduate of a

10   [pualie]     university       recognized by     the    American Association         of
11   Colleges and Universities who has a degree from an engineering
12   program accredited by the Accreditation Board for Engineering and
13   Technology (ABET) has the right to:
14                     (1)    disclose    any   college     degree    received     by   the

15   person; and
16                     (2)    use the term "graduate engineer" on the person's
17   stationery or business cards or in personal communications of any
18   character.
19          (b)    A graduate engineer who is employed in a firm registered
20   under this chapter and who is working under the direct supervision
21   of a licensed professional engineer may use the term "engineer" on
22   the   person's          stationery   or    business     cards    or   in     personal
23   communications of any character.
24         SECTION 31.           Subchapter J, Chapter 1001, Occupations Code,
25   is amended by adding Sections 1001.4525, 1001.4526, and 1001.4527
26   to read as follows:
27         Sec. 1001.4525.           PROBATION.       (a)    If   a   person's     license



                                                32
                                                                             S.B. No. 277

 1   suspension is probated, the board may require the person to:

 2               (1)     report regularly to the board on matters that are

 3   the basis of the probation;

 4               (2)     limit   practice       to    the    areas   prescribed by the

 5   board; or

 6               ( 3)    continue or review professional educati-on until

 7   the person attains a degree of skill satisfactory to the board in

 8   those areas that are the basis of the probation .

 9         (b)   The board by rule         shall adopt writ ten guidelines t o

10   ensure that probation is administered consistent ly.

11         Sec. 1001. 4526.      RESTITUTION.           (a)    Subject     to      Subsection

12   (b), the board may order a person licensed or registered under this

13   chapter to pay restitution to a consumer as provided in an agreement

14   resulting from an informal settlement conference instead of or in

15   addition to imposing an administrative penalty under this chapter.

16         (b)   The    amount   of   restitution ordered as provided in an

17   agreement resulting from an informal settlement conference may not

18   exceed the amount the consumer paid to the person for a service

19   regulated by this chapter.          The board may not require payment of

20   other damages or estimate harm in a restitution order.

21         Sec. 1001. 4527.      RECUSAL       OF    BOARD    MEMBER.        (a)     A board

22   member who participated in the investigation of a complaint or in

23   informal settl e ment negotiations regarding the complaint:

24               ( 1)   may not participate in the discussion of o r vote on

25   the matter at a board meeting related to the complaint; and

26               ( 2)   shall    state    at    the    meeting       why   the     member   is

27   prohibited from participating in the discussion of or voting on the



                                               33
                                                                       S.B. No. 277

 1   matter.

 2            (b)   A statement under Subsection      (a) (2)   shall be entered

 3   into the minutes of the meeting.

 4            SECTION 32.   Chapter 1001, Occupations Code, is amended by

 5   adding Sub chapter M to read as follows:

 6                        SUBCHAPTER M.    ADVISORY OPINIONS

 7            Sec. 1001. 601.   BOARD ADVISORY OPINIONS.         (a)    On its own

 8   initiative or at the request of any interested person, the board

 9   shall prepare a written advisory opinion about an interpretation of

10   this   chapter or the application of this chapter to a person in

11   regard to a specified existing or hypothetical factual situation.

12   The board shall respond to requests for opinions within 180 days or

13   affirmatively state its reason for not responding to the request.

14            Sec. 1001.602.    MAINTENANCE OF OPINIONS; SUMMARY.         The board

15   shall:

16                  (1)   number and classify each advisory opinion issued

17   under this subchapter; and

18                  (2)   annually compile a summary of the opinions in a

19   single reference document that is available on the Internet.

20            Sec. 1001.603.    ATTORNEY GENERAL'S OPINIONS.       The authority

21   of the board to issue an advisory opinion under this subchapter does

22   not affect the authority of the attorney general to issue an opinion

23   as authorized by law.

24            Sec. 1001. 604.   RELIANCE   ON   ADVISORY   OPINION.       It   is   a

25   defense to prosecution or to imposition of a civil penalty that a

26   person reasonab l y relied on a written advisory opinion of the board

27   relating to:



                                           34
                                                                                S.B. No. 277
 1                  (1)   the provision of the law the person is alleged to

 2   have violated; or
 3                  (2)   a fact situation that is substantially similar to

 4   the fact situation in which the person is involved .
 5            SECTION 33.    (a)     Not later than January 1, 2004, the Texas
 6   Board of Professional Engineers shall adopt the rules required by
 7   Section 1001. 2035, Occupations Code, as added by this Act.

 8            (b)   Not later than September 1, 2005, the Texas Board of
 9   Professional Engineers shall adopt the written guidelines required
10   by Section 1001. 4525, Occupations Code, as added by this Act.
11            (c)   The   Texas     Board    of        Professional      Engineers    is    not
12   required to issue an advisory opinion under Subchapter M, Chapter
13   1001, Occupations Code, as added by this Act, before January 1,
14   2004.
15            SECTION 34.    (a)     This Act takes effect September 1, 2003.

16            (b)   The   changes    in     law        made   by   Sections    1001.102     and
17   1001.103, Occupations Code, as amended by this Act,                        and Section

18   1001.112,      Occupations      Code,        as     added     by   this   Act,   in    the
19   prohibitions on or qualifications of members of the Texas Board of
20   Professional Engineers do not affect the entitlement of a member
21   serving on the Texas Board of Professional Engineers immediately
22   before September 1, 2003, to continue to serve and function as a
23   member    of   the   Texas    Board     of    Professional         Engineers     for   the
24   remainder of the member's term.              Those changes in law apply only to
25   a member appointed on or after September 1, 2003.
26            (c)   The change in law made by Section 1001.108, Occupations
27   Code, as amended by this Act, does not affect the entitlement of a



                                                  35
                                                               S.B. No. 277
 1   person who was serving as presiding officer of the Texas Board of
 2   Professional Engineers immediately before September 1,       2003, to
 3   continue to serve and function in that capacity for the remainder of
 4   the person's term as presiding officer.    That change in law applies
 5   only to the designation of a presiding officer of the board after
 6   that person's term as presiding officer expires.
 7         (d)   The changes in law made by this Act to Chapter 1001,
 8   Occupations Code,   relating to the investigation of a       complaint
 9   apply only to a complaint filed with the Texas Board of Professional
10   Engineers on or after the effective date of this Act.     A complaint
11   filed with the board before the       effective date of this Act    is
12   governed by the law as it existed immediately before that date, and
13   the former law is continued in effect for that purpose.




                                      36
                                                                S.B. No. 277




       President of the Senate                     Speaker of the House
        I   hereby certify that     S . B. No. 277 passed the      Senate   on
April 22, 2003, by a viva-voce vote; May 21, 2003, Senate refused

to   concur     in   House   amendments    and    requested   appointment   of

Conference Committee; May 24, 2003, House granted request of the

Senate; May 31, 2003, Senate adopted Conference Committee Report
by a viva-voce vote.




                                                 Secretary of the Senate
        I hereby certify that S.B. No. 277 passed the House, with

amendments,     on May 8, 2003, by a non-record vote; May 24, 2003,

House granted request of the Senate for appointment of Conference

Committee; May 31, 2003, House adopted Conference Committee Report
by a non-record vote.



                                                 Chief Clerk of the House

Approv e d :



                Date



               Governor




                                      37
           Tab 6
Final Order, dated Aug. 16, 2012
                                               SOAH DOCKET NO.                    XXX-XX-XXXX

                                                   TBPE CASE              NOS. D-31480


TEXAS BOARD OF PROFESSIONAL                                                     BEFORE THE STATE OFFICE
ENGINEERS

v.                                                                              OF

RAGHNUATH DASS                        P.E.

LICENSE NO.             90119                                                   ADMINISTRATIVE HEARINGS



           TEXAS BOARD OF PROFESSIONAL ENGINEERS FINAL ORDER


          Be   it   known    that   on    this   date the matter ofthe Texas Board of Professional Engineers                         Board


vs.   Raghnuath        Dass P.E.          License      No. 90119 Respondent was heard                     by the Board        in    an open



                                                 The Board       finds that                       and timely notice         was     given   to
meeting on August 16 2012.                                                      after    proper



Respondent           the above styled        case was heard        by an Administrative           Law   Judge assigned        to   the State



Office of Administrative                              in   Austin Texas on April 18 2012.                Respondent         appeared      and
                                      Hearings



represented       himself.    The Board was            represented        by Staff Attorney       Dewey     E.   Helmcamp          III.




                                          of evidence the Administrative                 Law Judge   ALJ closed        the record.          On
Following the presentation


June 13 2012 the ALJ prepared                         a Proposal        for   Decision    PFD      which found       that    Respondent



violated 22     TAC        sections    137.33b 133.37f                  and 137.63b        2 and recommended            a sanction        of a



Formal Reprimand              a suspension         of Respondents             Texas engineers license for two years with the



entire   period      probated and a $4000.00                administrative penalty.



The Board reviewed            the   PFD                                   of Fact and Conclusions         of Law the Respondents
                                               including Findings


                                                                                              and the                of the hearing and
Exceptions      to   the   PFD      the   Boards Response          to    the Exceptions                 transcript




                                                                                  members of the Board           present and voting         at
                                                                  vote of the
gave due consideration              thereto.     By   majority



the meeting         the Board adopts the           ALJs PFD        including the         ALJs Findings      of Fact and Conclusions




                                                                                                                                   TBPE000012
of law   set   forth    as   follows




                                                           1.    FINDINGS             OF FACT


 1.      Raghunath            Dass Respondent                      is   a licensed         professional          engineer       holding       professional

         license       number 90119 issued by the Texas Board of Professional Engineers Board.                                                         At the

         times applicable             to this   matter he was the sole licensed professional engineer employed                                               by

         Trinity Soils Investigation Laboratories                                 Inc.   TSI.

2.       On December 8 2011                     staff      of the Board Staff sent a notice of hearing and a Complaint                                       to


         Respondent           proposing         a two-year              probated         suspension           of Respondents        license         a formal

         reprimand and an administrative penalty of $7000.


3.       The    notice of hearing             contained           a statement            of the time place and nature of the hearing a
         statement of the legal authority and jurisdiction                                    under which the hearing was                     to   be held a

         reference       to    the    particular          sections       of the         statutes        and   rules   involved and a short plain
         statement       of the matters           asserted.




4.       The    hearing        on the merits was held on April 18 2012 before Administrative                                                   Law Judge

         ALJ       Richard          R. Wilfong        in    the William P. Clements Building 300 West                              15th   Street Fourth

         Floor Austin Texas.                  All parties appeared                    and participated           in   the hearing. The Board was

         represented          by Dewey          E.    Helmcamp              III   attorney.             Respondent      represented himself. The
         record closed the same                 day.



5.       On    February        18 2009 TSI                 submitted         a proposal            to   perform construction           material testing

         CMT           for    the    San    Patricio            County fairgrounds horse                      barn    project    the     Project.           The

         proposal       included       a price quote.



6.       The    Project is a public works project.



7.       From      February          17 2009          through           April     7      2009 TSI          submitted      16   CMT       reports to         San

         Patricio      County        for   the Project.



8.       None of the          16    CMT      reports released to San Patricio                             County were signe4 and sealed by a
         licensed professional engineer.



9.       Respondent did not perform or                           directly    supervise any of the testing reflected                      in   the 16   CMT
         reports submitted             byTSI         to   San     Patricio        County for the Project.


10.      Respondent           had no knowledge                     of the project            or the actions           of TSI     with     respect      to   the

         Project before             April    17   2009.



11.      On    April     20 2009            Respondent              added         his    undated         signature and seal         to    copies       of the

         16    CMT reports and              resubmitted             them     to   San      Patricio       County.




                                                                                                                                                   TBPE000013
 12.    Respondent provided                   copies of the 16           CMT reports               bearing    his   undated     signature and seal

       when he         attended an informal             conference          with       the Board on June              28     2010.



 13.   Respondent            failed     to   exercise reasonable care and diligence to prevent TSI from submitting a

       proposal        for   construction         material testing              for   the Project which included                a price bid.



 14.   Respondent            failed     to   exercise reasonable care and diligence to prevent TSI from performing

       construction          material testing          for-the      Project without                having the       tests   performed or       directly

       supervised         by a licensed professional engineer.


15.    Respondent            failed     to   exercise reasonable           care and diligence to prevent TSI from submitting

       CMT       reports          for   the    Project without           the     signature and seal                 of a licensed       professional

       engineer.



16.    Respondent was dishonest and unethical                              in   the conduct          of his business        affairs   when he added
       his   undated         signature and seal         to    the   CMT          reports after they were released to San Patricio

       County.



17.    Respondents            addition of his undated               signature and seal to the               CMT reports when he had not
       performed or           directly        supervised     the tests reflected               in   the   CMT reports was dishonest and
       unethical.




18.    Respondent            added      his   signature and seal to the             CMT reports after he reviewed the testing
       data    to   appease        Mr. Shriers concern              that   the    CMT reports needed to be signed and sealed by
       a licensed engineer.



19.    Staff    failed       to    prove a       common        understanding                and       interpretation         among      professional

       engineers       concerning             the requirements           relating      to   material testing          in    conformance        with the

       Professional Services                  Procurement Act            PSPA.

20.    Respondent          has no history of prior violations                         of Board       rules.




21.    Respondents            conduct         did not result        in   any economic               damage.


22.    Respondent          did not profit         from his     actions.




                                                 II.   CONCLUSIONS OF                         LAW


1.     The Texas Board of Professional                       Engineers          Board         is   the agency charged          with administering

       and enforcing          the provisions of the Texas Professional Engineers                                     Act and the Board Rules

                     to   Tex      Occ.      Code Ann.           1001.207              1001.451           1001.452         and 1001.454.
       pursuant



2.     The     State      Office        of Administrative                               has                          over    the     hearing    in   this
                                                                     Hearings                  jurisdiction




                                                                                                                                           TBPE000014
       proceeding including the authority                       to   issue a proposal            for   decision with proposed               findings of
       fact     and conclusions           of law pursuant              to   Tex.    Govt Code Ann.              ch.   2003.



 3.    Notice         of the complaint         and of the hearing on the merits was provided                                 as    required by     Tex
       Ore.      Code Ann.           1305.253        and by the Administrative Procedure                        Act        Tex.   Govt Code Ann.
              2001.051         and 2001.052.


4.     The Board had             the burden of proving               the case by a preponderance                 of the evidence            pursuant to
       1   Tex. Admin.            Code    TAC              155.41.



5.     Based on the above Findings                      of Fact Respondent                     violated 22      TAC          137.33b when he
       failed    to     supervise     the performance of the                  CMT       testing.



6.     Based on the above Findings                         of Fact Respondent                  violated    22   TAC           137.33f when he
       allowed        TSI   to    release the       CMT      reports        without     having signed dated and sealed the                       CMT
       reports        before they were released.



7.     Based on the above Findings                    of Fact Respondent                 violated 22       TAC             137.63b2           when he
       failed    to   exercise reasonable care and diligence to prevent TSI from submitting a competitive

       bid for professional engineering                      services in violation of the                 PSPA.


8.     Respondent           failed   to   engage      in   professional and business activities                       in   an honest and       ethical

       manner when he added                   his    undated     signature and seal to                 CMT      reports after they had been

       released in an effort to appease                    the concern         of San Patricios           engineer that           the   CMT reports
       needed      to    be signed and sealed by a licensed professional engineer.


9.     The Board          is   authorized       to    assess an administrative                   penalty    of no more than $3000 per

       violation        of Board rules and may include                       in   the penalty      the actual     costs of investigating the

       action.     Tex.     Occ.     Code Ann.             1001.502         a and c.
10..   The    sanctions          suggested     by 22       TAC         139.35b           for   each of Respondents                 violations    are a

       two-year         probated     suspension of Respondents                      license a reprimand formal or informal                         and

       a fine of $500 to $2500.



11.    Taking     into    consideration         the factors         set forth      in   22   TAC       139.35a             the above Findings       of

       Fact support         a less severe sanction             to    deter future        misconduct.



12.    Respondents             license should          be suspended for a period                       of two years and the period                  of

                          should      be                                In    addition         Respondent         should          receive    a formal
       suspension                            fully   probated.

       reprimand         and be assessed             an administrative              penalty      of $4000.00 inclusive of any cost

       incurred by the Board in                its   investigation of this matter.




                                                                                                                                             TBPE000015
                                                                 ORDER



            WHEREFORE PREMISES CONSIDERED the Texas                                             Board of Professional           Engineers does


            hereby issue         a Formal Reprimand                and a two-year          suspension      of the Texas engineer            license


            held by Mr. Raghunath               Dass      P.E. License         Number 90119        for    conduct     alleged   in the   foregoing


            Final    Board Order           to   be   fully   probated     for    the entire period contingent            upon Respondents

            payment of a $4000 administrative penalty                             to   the Board within       thirty    days    of the date     this


            Order     is final   and appealable. Respondents                      failure to   pay the administrative penalty within

            thirty   days     of the date         this   Final Order       is   final     and appealable      shall    constitute    a separate


            violation       of the Act and may                   result   in    further    disciplinary     action      against     Respondent


            including       but not      limited to          Respondents          probation     being     vacated      by operation         of law

            without     any      further    action       other than       notice       from the Boards Executive                 Director.     The

            probation     will   be   further     contingent       upon Respondent not being found                  in violation    of a   separate


            offense     of the Act or Board              rules   during said period         of probation     by the Board.




DATE ISSUED               August 16 2012 by the


MEMBERS OF THE TEXAS BOARD OF PROFESSIONAL ENGINEERS




G   ICemb            ennett      Ph.D.     P.E.

Chair




Lance   I       ey     P.E.

Executive      Director




                                                                                                                                         TBPE000017
APPROVED A TO FORM



Dewey     E.    Helmcam
Staff Attorney




                                                CERTIFICATE OF SERVICE

          I   hereby certify that a true            and   correct   copy of the foregoing   Final Order has been served on

the              of                            0-     2012             Federal         Express         Tracking       No.
        79 9 7        7f   4   2   D   0   Y   9     to   the Respondent



Mr. Raghnuath         Dass

8719 Copperbrook Drive

Houston       TX   77095




                                                                           Lance Kinney P.E.
                                                                           Executive   Director




                                                                                                                  TBPE000018
              Tab 7
Cover Letter for (Dass’s) Initial Brief,
        dated Mar. 26, 2013
March 26, 2013


Ms. Amalia Rodriguez-Mendoza
Travis County District Clerk (Civil)
Travis County Courthouse
1000 Guadalupe, Suite 302
Austin, Texas 78701

RE:     Cause No. D-1-GN-12-003397; Raghunath Dass, P.E. v. Texas Board of
        Professional Engineers; In The 419th Judicial Court of Travis County, Texas


Dear Ms. Rodriguez-Mendoza,

Enclosed for filing, please find the Plaintiffs Initial Brief in the above-referenced matter.

By copy of this letter, I am forwarding the copies to all interested parties.


Thank you,

Sincerely,


 ~~
Raghunath Dass, PE
                                                                                   Rec1:1veo
                                                                                      APJ( u I 2013
                                                                            OFF/CEOt ·•· .
Encl.   Plaintiffs Brief                                                        ADM/N/srW: ~~:us;; '?t_GENERAL
                                                                                               Li.~ •!i//SfON
cc:     Honorable Judge Gisela Triana, 200th Court
cc:     Veena MQhan A. sistant Attom<;J Gen~ aI
             Tab 8
Notice of Appeal, dated Oct. 23, 2013
                     IN THE 419TH JUDICIAL DIS
                             TRAVIS COUNTY, TE
                           CAUSE NO: D-l-GN-12

RAGHUNATB DASS, P. E.,                            §                       THIRD COURT OF
                                                  §                   ALS
Appellant,                                        §               l

                                                  §
v.                                                §         AUSLT, TEXAS • (J<lJ
                                                                  frn                ('
                                                  §
TEXAS BOARD OF                                    §                                ~iled in The District Court
PROFESSIONAL ENGINEERS                            §         NO:                    • of Travis County, Texas
                                                  §                        ~,,,,   ES OCT 2 ~ 2013
Appellee.

                                  NOTICE OF
                                                  §
                                                       APPEAL*~
                                                                          ~         At    Ik       -z
                                                                                                i...-     g   M.
                                                                                    Amalia Rodriguez-Mende~!erk




Appeals the Final Judgment of this Court, entered~~ep mber 27, 2013. The Final
                                                       ~
Judgment resulted from a Judicial Review of~ Order from Texas Board of
                                                  <)
Professional Engineers. Appellee.             0•
                                             c;
                                      •~          Respectfully s bmitted,
                                     ~....                                    ~
                              ~,,,,,
                              ,                   Raghunath D 1 s, PE
                                                  Appellant Pro~e
                          ~
                        CJo
                                                  8719 Copperb ook Drive
                                                  Houston, Tex 77095
                                                  Phone: (281) 8 3983
                     ~
                  ·~
                                                  Email: rdass4 7@yahoo.com
                ~(j
The State of   ~<a.,s               County of          r\Q..v-ri S

                                                                      ~y of Ckla~)r r
to which2
Sworn to an)>subscribed before me on this the


        g~
                ~:seal of office.
                                                        fA ..3
                                                                      j

                                                   Notary Public ignature
                                                                                                 , 2013
                                                        I
                            CERTIFICATE OF        SER~CE
       I hereby certify that a true and correct copy ofthe!Notice of Appeal bas been
mailed on the 23rd day of October 2013, to:              I
                                                         !
VeenaMohan
Assistant Attorney General
Office of the Attorney General
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711-2548
Email: veena.mohan@texasattorneygeoeral.gov
Telephone: (512) 936 - 0535
Facsimile: (512) 457- 4676

AITORNEY FOR APPELLEE



                                                                   Ragbunath Dass
October 23, 2013


Ms. Amalia Rodriguez-Mendoza                                ;
Travis County District Clerk (Civil)                        l
Travis County Courthouse
1000 Guadalupe, Suite 302                                   I                .,CJ0
Austin, Texas 78701

RE:       Notice of Appeal                                 I
                                                            I
                                                                       V
                                                                           ~'
          Cause No. D-l-GN-12-003397; Raghunath Dass,              ~       v. Texas Board of
          Professional Engineers; In The 419th Judicial Court   <;i§°avis County, Texas

Dear Ms. Rodriguez-Mendoza,
                                                           ~
                                                         ~0,

Enclosed for tiling, please find the Appellant's   l'j~C~)- ppeal in the above-referenced
matter.                                        ~~ ~
By copy of this letter, I am forwarding the '4)~s to all intrested parties.
                                            o·
Thank you,
                                         CJ
                                       ~~
Respectfully,                    ~'-..fl>


tJ~~,
Raghunath Dass, PE          OQ
                       ~CJ
                       ·~
                    • (J
Encl. Notice ~ppeal
                0
cc:       V ~Mohan, Assistant Attorney General
              Tab 9
Texas Board of Professional Engineer’s
  2005 Policy Advisory Opinion on
 Construction Materials Testing, dated
            Aug. 20, 2009
                   Texas Board of Professional Engineers
  Policy Advisory Opinion Regarding Construction Materials Engineering
                                         August 20, 2009

Executive Summary:         The assessment of a construction material for quality,
appropriateness and acceptability is considered by the Board to be an engineering
activity. These Construction Materials Engineering (CME) activities must be performed
by licensed professional engineers. Construction materials testing (CMT), within the
context of CME includes collecting samples, performing well-defined test procedures,
and reporting of data. In certain situations, performing tests and construction materials
sampling using well-defined engineering specifications may not be considered
engineering activities.

Discussion: On construction projects, engineers are called upon to assess the quality,
appropriateness and acceptability of the materials that are used. These assessments are
known collectively as CME. The CME includes the determination of the scope and
procedures of testing for the project, the supervision of testing, and the analysis of test
results for construction material acceptance purposes or for use in engineering
recommendations. Although we most commonly associate CME with the analysis of
concrete and soil, CME is conducted on any material used in construction including but
not limited to timber, asphaltic concrete, steel, selected fill materials, recycled materials,
aggregates, epoxies, and polymers.

Because it is engineering, CME must be personally performed by a licensed engineer or
be directly supervised by a licensed engineer, and can only be offered to the public in full
conformance with the Texas Engineering Practice Act (Act). Any CME activities that are
contracted by a political subdivision of the State of Texas or an agency of the state, or on
the political subdivision or agency’s behalf, must be acquired in conformance with the
Professional Services Procurement Act, Article 2254.004 of the Texas Government Code.

The CMT, within the context of CME includes collecting samples, performing well-
defined test procedures, and reporting of data. In certain situations, performing tests and
sampling by using well-defined engineering specifications may not be considered
engineering activities. However, if analysis of test data is done or a determination is
made that a material is acceptable, these activities would be considered to be CME and
require a licensed professional engineer. Because the engineer is responsible for
accepting the public works project, acceptance or rejection of materials or work, the
direct supervision by an engineer of CMT for those acceptance decisions is needed.


Public Works: When constructing public works, the state or political subdivision of the
state must ensure that the engineering construction is performed under the direct
supervision of a licensed engineer (Sec. 1001.407, Occupations Code). This supervision
must include the direct supervision of materials testing and engineering necessary and
appropriate for verification of compliance with construction plans and acceptance of the
project by the public owner.

Adopted by the Texas Board of Professional Engineers 5/18/2005                                   Page 1
Edited August 20, 2009 to remove FAQ Section
A licensed professional engineer must directly supervise any element of acceptance
testing, from data collection to final determination. When engineers are hired for these
services, they must be retained under the Professional Services Procurement Act (PSPA).
The CMT services unrelated to acceptance testing might be acquired using other
purchasing procedures provided the CMT services do not include any CME function. For
public entities with staff engineers who make acceptance decisions, the engineers must be
in a position to determine if the testing and inspection services are properly performed at
a frequency that provides confidence that the materials and work meet (or reasonably
conform in some cases) the contract requirements or standards of practice. This requires
reviewing qualifications, monitoring inspection and testing services and review of test
and inspection data.

The validity of an engineering judgment in the construction materials area is integrally
tied to the validity of test data, which is in turn directly related to training of technical
staff, performance of testing equipment, and other elements associated with an accredited
engineering laboratory. Therefore, by the standard established by Sec. 1001.407,
Occupations Code, CMT conducted for the purpose of verification and acceptance of a
facility is considered a CME function.

The Board recognizes as a specific exception for CMT conducted under a federally
approved quality assurance program (QA) specifically governing the Texas Department
of Transportation, provided that alternate methods of ensuring appropriate engineering
direct supervision are in place. In addition, CMT services used for a contractor’s internal
quality control purposes only and are not used by the owner for verification and/or
acceptance purposes may not be considered engineering.




Adopted by the Texas Board of Professional Engineers 5/18/2005                                  Page 2
Edited August 20, 2009 to remove FAQ Section
