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                          ATTORNEY            GENERAL
                                OP TEXAS
                               AUSTIN   1s.TExas

                                  April 12, 1962

         Honorable tiond G. Schwartz
         County Attorney
         Lavaca County
         Hallettsville, TE!xas
                                    Opinion No. w-1308
                                    Re :   Whether a county surveyor may make
                                           private surveys for compensation
                                           of lands in his county without be-
                                           ing licensed under Article 5282a,
         Dear IIr. Schwartz:               V.C.S.
                   You have requested an opinion on the following subject:
             - duly elected and acting county surveyor survey private
         ?%dz for compensation without qualifyinr as a registered public
         surveyor pursuant to the Registered,Pub&   Surveyors Act of 1955?
                   The 54th Texas Legislature enacted the Registered Pub-
         lic Surveyors Act of 1955, codified as Article 5282a, Vernon’s
         Civil Statutes. One indication of the legislative intent in the
         enactment is found in the Act’s Emergency Clause (Section 12),
         which reads as follows:
                   “The fact that many persons are now engaging
              in the practice of Public Surveying without ade-
              quate preparation and qualification therefor, with
              resulting confusion to persons dealing with such
              persons, creates an emergency and imperative public
              necessity that the Constitutional Rule requiring
              bills to be read on three several days in each
              House be suspended . . .‘I
                   Section 2(b) of the Act defines public surveying as:
                   11
                    . . . the science or practice of land mea-
              surenent according to established and recognized
              methods engaged in and practiced as a profession or
              service available to the public generally for com-
              pensation, and comprises the determination by means
              of survey, of the location or relocation of land
              boundaries and land boundary corners; the calcula-
              tion of area and the preparation of field note




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         Honorable Ammond G. Schwartz,.page 2   NW-1308)


              description of surveyed land; the preparation
              of maps showing the boundaries and areas of the
              subdivision of tracts of land into smaller
              tracts;the preparation of official plats or maps
              of said land and subdivisions thereof; and such
              other duties as sound surveying practice would
              direct."
                   Section 2(b) also states that a public surveyor is any
         person engaged in the public surveying defined in the Act, and
         who is employed as a surveyor or who holds himself out to the
         public as such. Section 6 requires the registration of any per-
         son, except those exempted from the Act by Section 3, who engages
         or continues in the practice of public surveying after January
         1, 1956. Section 8 provides that after January 1, 1956:
                   II      any person who shall practice, or
              offer io'plactice, the profession of Public Sur-
              veying in this State without being registered or
              exempted in accordance with the provisions of
              this Act, or any person presenting or attempting
              to use as his OlJn the Certificate of Registration
              or the seal of another, . . . shall be fined not
              less than One Hundred Dollars ($100) nor more
              than Five Hundred Dollars (:$500),or be confined
              in jail for'a period not exceeding three (3)
              months, or both. Each day of such violation
              shall be a separate offense."
                   Section 3 states that the provisions of the Act shall
         not apply, amongtothers, to.a "County Surveyor
         Qfficial cawaci v as authorized bv law." (Emphasis added
                   The office of county surveyor is created by Section 44
         of Article XVI of the Constitution of Texas, which states:
                   "The Legislature shall prescribe the duties
              and provide for the election by the qualified vot-
              ers of each county in the State, of a county treas-
              urer and a countv survevor who shall hold their
              office for two years, and Anti1 their successors
              are qualified; and shall have such compensation as
              may be provided by law." (Emphasis added)
                   Articles 5283-5298, Vernon's Civil Statutes, relate to
         the office of County Surveyor. As stated in Attorney General
         Opinion No. O-3940 (September 15, 19411, neither the Constitution
         nor the statutes prescribe any particular qualifications or re-
         quire a county surveyor to be a licensed land surveyor.




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    Ronorable Ammond G. Schwartz., page 1   MJ-1308)


              Article 5289 refers to the duty of a county surveyor to
    survey land, as follows:
              'IIfany county surveyor fails, neglects or
         refuses when the amount of lawful surveying fees
         of any location of land may be tendered to him Qf
         w   werson lezallv entitled to the survev to make
         or cause such survey to be made within on:!month
         after such tender) he and his sureties shall be
         liable on his official bond to such injured parties
         in the amount of damages or injuries said parties
         may sustain by reason of such neglect, refusal or
         failure." (Emphasis added)
              The duty and authority of a county surveyor with respect
    to the actual survey of land is epitomized by Article 5299, Ver-
    non's Civil Statutes, which states:
              "All surveys of public lands shall be made
         by authority of lalJ, and by a survevor dulv ao-
         pointed. elected or licensed, and oualified.t'
         (Emphasis added)
                Considered together, these two statutes indicate that
    the survey of public land, as opposed to private land, is the
    statutory duty of the county surveyor. Since the survey of priv-
    ate lands for compensation is not a statutory duty of county sur-
    veyors, the logical conclusion is that a county surveyor who en-
    gages in such practice does so in a capacity other than his offi-
    cial capacity as authorized by law. The conclusion necessarily
    fOllO>JS , from this, that the survey of private lands by a county
     surveyor is not within the exception listed in Section 3 of the
    Registered Public Surveyors Act of 1955, since that section speaks
    cnly of the actions of a county surveyor which are "in his offi-
     cial capacity as authorized by law."
              This conclusion is strengthened S'Jthe fact that the
    Registered Public Surveyors Act of 1955 provided three diff;aEnt
    methods for qualifying for a certificate of registration.
    first two methods of qualifyin,
                                  0 were for the benefit of persons
    actually engaged in public surveying prior to the effective date
    of the Act; both methods contain lesser requirements for qualifi-
    cation than the third method; and both contain cut-off dates (1
    and 5 years respectively) after which only the third method of
    qualification may be utilized.
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Honorable Ammond G. Schwartz, page 4   Ww-1308)




           A county surveyor who surveys private lands
      for compensation is engaged in the practice of
      public surveying as defined in the Registered
      Public Surveyors Act of 1955, and a county sur-
      veyor so engaged is required by law to possess a
      certificate of registration issued by the State
      Board of Registration for Public Surveyors.
                                Yours very truly,
                                WILL WILSON
                                Attorney General of Texas



                                    F. R. Booth
FRB:zt:wb                           Assistant

APPROVED:
OPINION COMMITTEE
W. V. Geppert Chairman
Morgan Nesbitk
Elmer McVey
Norman V. Suarez
John Hofmann
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Houghton Brownlee, Jr.
