   OFFICE   OF THE ATTORNEY   GEKERAL   . ST.%TE OF TEX.XS

   JOHN     CORNYN




                                                 March 7,2002



Ms. Sandy Smith, Executive Director                          Opinion No. JC-0475
Texas Board of Professional Land Surveying
7701 North Lamar, Suite 400                                  Re: Authority of the Texas Board of Professional
Austin, Texas 78752                                          Land Surveying to require that all proposed oil and
                                                             gas well locations be surveyed by a registered
                                                             professional land surveyor (RQ-0440-JC)


Dear Ms. Smith:

         You ask whether the Texas Board of Professional Land Surveying (the “Board,‘) may require
that all proposed well locations submitted to the Texas Railroad Commission be surveyed by a
registered professional land surveyor.    Rules promulgated by the Railroad Commission (the
“Commission”) require information about well locations to accompany applications for certain oil
and gas well permits, but they do not require that the locations be surveyed by a registered
professional land surveyor.     The Commission has reasonable discretion to determine what
information must accompany permit applications filed under Commission rule. If measurements
determined by a less precise method than professional surveying yield enough information for the
Commission to implement its rules on oil well permits and oil well spacing, such well locations need
not be surveyed.

         Your request letter in effect inquires about the present validity of Attorney General Opinion
JM-418 issued in 1985 in response to an inquiry from the Board.* The Board asked whether a plat
of a proposed oil or gas well location submitted to the Commission in applications for permits to
drill, deepen, or plug back a well, must be prepared by a registered land surveyor. See Tex. Att’y
Gen. Op. No. JM-418 (1985) at 1. The Board in particular inquired about Form W-l, developed by
the Commission for operators of oil, gas, or geothermal resource wells to use in applying for various
kinds of permits.       Commission rules governing applications for permits generally require the
application to include a plat showing where the oil or gas well is located. See, e.g., 16 TEX. ADMIN.
CODE $9 3.5 (2001) (application to drill, deepen, re-enter, or plug back); 3.37 (statewide spacing
rule); 3.38 (well densities); 3.76 (plat approval for mineral development). A “neat, accurate plat of
the lease or unit” showing the drilling unit boundary, the surface location of the proposed site,
section, block, or lot, scale, and other information, must accompany Form W- 1. See INSTRUCTIONS
TO FORM W-l, RAILROAD COMMISSION OF TEXAS, OIL AND GAS DIVISION (2000), available at
http://www.rrc.state.tx.us/divisions/og/form-.html;                    see also 16 TEX. ADMIN. CODE



        ‘See Letter from Ms. Sandy Smith, Executive Director, Texas Board of Professional Land Surveying, to
Honorable John Comyn, Texas Attorney General (Aug. 21, 2001) (on file with Opinion Committee).
Ms. Sandy Smith        - Page 2                           (JC-0475)




5 3.36(d)(2)(B) (2001). The Commission does not define “plat” in its rules, and its use of this term
does not suggest that a professional surveyor must make the measurements shown thereon. “Plat”
means a “plan or diagram of anything; esp. a ground-plan of a building or of any part of the earth’s
surface; a . . . map [or] chart.” XI OXFORD ENGLISH DICTIONARY 993 (2d ed.1989); see also Tex.
Att’y Gen. Op. No. JM-418 (1985) at 4.

         Thus, although you ask whether the Board has authority to require proposed oil and gas well
locations to be surveyed by a registered professional land surveyor, your question raises the same
legal issues addressed in Attorney General Opinion JM-418. It requires us to review the reasoning
of Attorney General Opinion JM-418 in addition to addressing the Board’s statutory authority to
regulate land surveying.

          The Professional Land Surveying Practices Act, TEX. REV. CIV. STAT. ANN. art. 5282~
(Vernon Supp. 2002)2 (the “Act”) provides that a person may not engage in the practice of
professional surveying unless he or she is certified, registered, or licensed as provided by its
provisions.    See id. 8 15(a). The Board is authorized to certify surveyors-in-training,         register
professional land surveyors, and license state land surveyors. See id. $3 8(a) (meetings to examine
approved applicants for certification, registration, or licensing); 15(a) (a person may not practice
professional surveying or offer to practice professional surveying unless the person is certified,
registered, or licensed as provided by this chapter). A “[llicensed state land surveyor” is “a surveyor
licensed by the Texas Board of Professional Land Surveying to survey land in which the state or the
public free school fund has an interest, or other original surveys, for the purpose of filing field notes
in the General Land Office.” Id. 8 2(4); see also id. 9 2(3) (defining “state land surveying”), 9 25(a)
(jurisdiction of licensed state land surveyors). A county surveyor, elected pursuant to article XVI,
section 44 of the Texas Constitution, must also be licensed or registered by the Board. See Tex.
Att’y Gen. Op. No. MW-541 (1982) at 2; see also TEX. CONST. art. XVI, 4 44; TEX. REV. CIV. STAT.
ANN. art. 5282c, § 25(b) (Vernon Supp. 2002). Your request is limited to surveys by a person
“registered by the board as a registered professional land surveyor” whose authority to survey land
is defined in section 2( 1) of the Act. TEX. REV. CIV. STAT. ANN. art. 5282~’ $2(l), (2).

         The Board may discipline licensees and registrants and may impose administrative penalties.
See id. §§ 23,23A, 24. In addition to any other action authorized by law, the Board may institute
an action in its name against any person to enjoin a violation of the Act or a board rule. See id. 3
9(b); see also id. 9 23(c) (criminal penalty for engaging in the practice or offering to practice
professional surveying or state land surveying without being registered or licensed). Finally, the
Board may adopt “reasonable and necessary rules, regulations and bylaws . . . for the performance
of its duties in administering this Act and for the purpose of establishing standards of conduct and
ethics for surveyors registered or licensed under this Act.” Id. 8 9(a).



          2The Profess’ronal Land Surveying Practices Act, TEX.REV.CIV.STAT.ANN.art. 5282~ (Vernon Supp. 2002),
will be repealed and reenacted as chapter 107 1 of the Occupations Code by legislation effective on June 1,2003. See
Act of May 22,2001,77th Leg., R.S., ch. 142 1, $5 1,13,15,2001 Tex. Gen. Laws. 4570,4629,5020. The enactment
is a nonsubstantive revision of statutes on the licensing and regulation of certain professions and businesses. See id.,
ch. 1421,s 14,200l Tex. Gen. Laws. 4570,502O.
Ms. Sandy Smith        - Page 3                          (JC-0475)




         Thus, the Board has authority to regulate as registered professional land surveyors persons
who engage in professional surveying as defined by the Act. It has no authority to regulate as
registered professional land surveyors those persons whose activities in measuring land do not
constitute “professional surveying.” Seegenerally State v. Pub. UtiZ. Comm ‘II,883 S.W.2d 190,194
(Tex. 1994) ( a d ministrative agency, as creation of legislature, has only those powers expressly
conferred and those necessary to accomplish duties); R.R. Comm’n v. Lone Star Gas Co., 844
S. W.2d 679 (Tex. 1992) (rules and regulations adopted by an agency must be within clear intent of
statutory authority conferred on the agency). The Act defines “professional surveying” to mean

                  the practice of land, boundary, or property surveying or other similar
                  professional practices. The term includes any service or work the
                  adequate performance of which involves the application of special
                  knowledge of the principles of geodesy,3 mathematics, related applied
                  and physical sciences, and relevant laws to the measurement or
                  location of sites, points, lines, angles, elevations, natural features, and
                  existing man-made works in the air, on the surface of the earth,
                  within underground workings, and on the beds of bodies of water for
                  the purpose of determining areas and volumes for:

                           (A)    the location of real property boundaries;

                           (B)    the platting and layout of lands and subdivisions       of land;
                  or

                           (C) the preparation and perpetuation of maps, record plats,
                  field note records, easements, and real property descriptions that
                  represent those surveys. To the extent these services of types of
                  creative work meet this definition, the term includes consultation,
                  investigation, evaluation, analysis, planning, providing an expert
                  surveying opinion or testimony, and mapping.

TEX. REV. CIV. STAT. ANN. art. 5282~’ 5 2( 1) (Vernon Supp. 2002) (footnote added). “This Act does
not require the use of a registered land surveyor to establish an easement or a construction estimate




         “‘Geodesy” is “a branch of applied mathematics concerned with the determination of the size and shape of the
earth and the exact positions of points on its surface and with the description of variations of its gravity field.”
WEBSTER’S NINTH NEW COLLEGIATEDICTIONARY5 13 (9th ed. 1990).
Ms. Sandy Smith         - Page 4                             (JC-0475)




which does not involve the monumentation,4                 delineation,    or preparation      of a metes and bounds5
description.” See id. 5 3A (footnote added).

         The statutory definition of “professional surveying” refers in technical terms to the special
body of knowledge used by surveyors in determining areas and volumes for locating real property
boundaries, platting and laying out land and subdivisions,          and preparing maps and other
documentation that represent the surveys. See id. 8 2( 1). A non-statutory definition of “surveying”
is phrased in less technical terms and illustrates some of the ways in which surveying is typically
used:

                   Surveying    is the art of using scientific principles      to make
                   comparatively large measurements to a required accuracy. Surveying
                   has two basic functions: (1) to measure what exists, to determine
                   where it is located, and usually to prepare a map to show the results
                   of these data from which a plan or a boundary description can be
                   made; and (2) to establish marks to guide construction according to
                   a plan or to show the boundaries according to a description or other
                   data.

26 THE ENCYCLOPEDIA AMERICANA 70 (1976) (defining “surveying”).    The use of surveying
“extends from measuring property boundaries and making a plot plan for a house to great
construction projects like canals, railroads, and highways.” Id.

        If compliance with Commission rules on depicting the location of proposed oil or gas wells
requires a person to engage in “professional surveying,” that person must be registered by the Board
as a professional land surveyor. Attorney- General Opinion JM-4 18 addressed the defmition of
“public surveying,” the statutory predecessor of the definition of “professional surveying.” See Act
of May 23, 1979, 66th Leg., R.S., ch. 597, § 2(l), 1979 Tex. Gen. Laws 1261 (defining “public
surveying”), amended by Act ofMay28,1989,71st         Leg., R.S., ch. 1091, § 1,1989 Tex. Gen. Laws
4460, 4461 (defining “professional surveying”). The definition of “public surveying” was briefer
and less technical than the definition of “professional surveying” in article 5282~ of the Revised
Civil Statutes. “Public surveying” was

                   the practice for compensation of determining the boundaries or the
                   topography of real property or of delineating routes, spaces, or sites
                   in real property for public or private use by using relevant elements
                   of law, research, measurement, analysis, computation, mapping, and
                   land description writing. Public surveying includes the practice for


          41nthe context of surveying law, a “monument” is “[a]ny object, natural or artificial, fixed permanently in the
soil and referred to in a document as a means of ascertaining the location of a tract of land or any part of its boundaries.”
IX OXFORD ENGLISHDICTIONARY 1045 (2d ed. 1989).

          “‘Metes and bounds” are defined as the “boundary lines of land, with their terminal points and angles.” Lej7er
v. City of Dallas, 177 S.W.2d 23 1,234 (Tex. Civ. App.-Dallas 1943, no writ).
Ms. Sandy Smith - Page 5                          (JC-0475)




                compensation of land, boundary,       or property   surveying   or other
                similar professional practices.

See Act of May 23, 1979,66th     Leg., R.S., ch. 597, 9 2(l), 1979 Tex. Gen. Laws 1261.

         Attorney General Opinion JM-418 addressed the meaning of “surveying” by looking at the
legislature’s purpose in regulating surveyors. It concluded that Texas had historically “regulated
surveyors to ensure that land would be correctly measured and boundaries correctly determined
where a high degree of accuracy is necessary to protect the public in land transactions and to ensure
the reliability of land titles.” Tex. Att’y Gen. Op. No. JM-418 (1985) at 4. It also concluded that
the statutory definition of public surveying did not “encompass all measurements taken within
defined boundaries or all graphic representations of those measurements.” Id.

          We find that these two conclusions of Attorney General Opinion JM-418 are consistent with
legislative decisions reflected in statutes requiring a survey of land and those authorizing a less exact
method of measuring land. Texas statutes require land surveys where great precision in measuring
land is necessary, for example, to establish boundaries for political subdivisions, to lay out roads,
or to identify property subject to a sale. Surveys of land in which the state or the permanent school
fund has an interest must be done by a licensed state land surveyor. See TEX. REV. CIV. STAT.ANN.
art. 5282c, 8 2(4) (Vernon Supp. 2002); see also TEX. NAT. RES. CODEANN. ch. 21 (Vernon 2001)
(survey of state’s public lands). A survey to establish county boundary lines must be made by “an
experienced and competent registered professional land surveyor.” TEX. LOC. GOVT. CODEANN.
8 72.001 (Vernon 1999); see also TEX. TRANSP.CODEANN. $0 254.009 (Vernon 1999) (survey of
county road drainage system), 3 14.013 (survey of municipal property to be condemned for highway
or other proposed improvement).       Land surveys of privately owned land are statutorily required in
some circumstances.       A commissioners court may require “lot and block monumentation”            in a
subdivision plat to be set by a registered professional surveyor before the plat is recorded. TEX. LOC.
GOV’T CODEANN. 9 232.003(9) (Vernon Supp. 2002). A person selling land must provide the
purchaser “a survey, which was completed within the past year, or plat of a current survey of the real
property,” before an executory contract for the sale of land is signed. TEX. PROP.CODEANN. 0
5.069(a)( 1) (Vernon Supp. 2002).

         Other statutes, however, identify a boundary or property location by relying on land surveys
that have already been done and do not require a new survey. See TEX. LOC. GOV’T CODEANN.
8 376.044 (Vernon 1999) (territory in Westchase Area Management District described by reference
to specific surveys, a recorded deed, and a recorded subdivision plat); TEX. TRANSP.CODEANN.
5 361.134 (Vernon 1999) (real property acquired by Texas Turnpike Authority is to be described by
locating boundary line with reference to lot and block lines of recorded subdivisions, or survey lines
and comers). Thus, in some circumstances, the legislature has determined that a new site may be
located on an existing survey.

        The courts have also relied on methods other than surveying to measure land. Where the
distance between a liquor store and a church was at issue, the court accepted measurements written
on a blueprint map as evidence of the distance. See Robinson v. City ofDallas, 193 S.W.2d 821,822
Ms. Sandy Smith    - Page 6                       (JC-0475)




(Tex. Civ. App.-Austin 1946, writ refd); see also EzzeZZ v. Tex. Alcoholic Beverage Comm ‘n, 528
S.W.2d 888,891 (Tex. Civ. App.-Fort Worth, 1975, no writ) (handwritten measurements on plat).

          We consider the plats of proposed oil and gas well locations that Commission rules require
to be filed with the Commission in connection with various permit applications. The rules are issued
under the Commission’s authority to make and enforce rules to conserve oil and gas and to provide
for the issuance of permits where necessary or incident to enforcing rules to prevent waste. See TEX.
NAT. RES. CODEANN. $0 85.201-.202 (Vernon 2001); see also 16 TEX. ADMIN. CODEch. 3 (2001)
(Oil and Gas Division). The Board ofProfessional Land Surveying believes that requiring such plats
to be prepared by a registered surveyor would best serve the public interest.

         The Commission,          however, does not require that a registered surveyor prepare the
plats submitted to it. It submitted its reasons for this in connection with Attorney General Opinion
JM-418, stating that the position of a new well can be determined by measurement from an existing
marker and this location may be recorded on a map based on a prior survey. See Tex. Att’y Gen. Op.
No. JM-418 (1985) at l-2. Thus, the plats do not establish boundaries, but measure from existing
boundaries.      The Commission          further explained that the plats submitted with applications
“are not used in the chain of title, but enable Commission staff to determine if the proposed
well location complies with the Commission’s                spacing rules.   Once the application     is
approved, the Commission’s mapping section plots the proposed well on the county maps in the
map room.” Id. at 2. Computerized                    maps are now used for this purpose.            See
http://www.rrc.state.tx.us./divisions/og/maps/mapinfo.html.        On occasion, “the exact location of a
well may become a pivotal issue in a contested case. The parties usually resort to a certified plat to
settle this fact issue.” Tex. Att’y Gen. Op. No. JM-418 (1985) at 2.

         The Legislature has granted the Commission broad discretion in administering              laws
regulating oil and natural gas. See R.R. Comm ‘n v. Lone Star Gas Co., 844 S.W.2d 679,686 (Tex.
1992). The Commission has issued rules under its statutory authority to prevent waste of oil and gas
resources, and pursuant to these rules, it requires plats ofwell locations to accompany specific permit
applications. It is within the Commission’s reasonable discretion to determine what information it
needs to carry out its authority to prevent waste and to implement the rules it has issued for this
purpose. See Stewart v. IfumbZe Oil & Refining Co., 377 S.W.2d 830,832 (Tex. 1964) (question as
to proper location of oil well is for the Railroad Commission as an administrative body, not for the
courts). The Commission has apparently decided that measurements determined by some means
other than professional surveying yield enough information for it to implement its rules on oil well
permits and oil well spacing. As we have pointed out, certain Texas statutes identify boundaries or
property locations by reference to existing land surveys, and we do not believe that a court would
find that the Railroad Commission has abused its discretion by accepting plats that also use the
method. We accordingly conclude that compliance with Railroad Commission rules on depicting
the location of proposed oil or gas wells does not require the work of a “professional survey,” and
it need not be performed by a professional land surveyor registered by the Board. We affirm
Attorney General Opinion JM-418 (1985).
Ms. Sandy Smith    - Page 7                      (JC-0475)




                                        SUMMARY

                        The Texas Board of Professional          Land Surveying      is
               authorized to regulate persons who engage in surveying as defined by
               the Professional Land Surveying Practices Act, article 5282~ of the
               Revised Civil Statutes. See TEX. REV. CIV. STAT. ANN. art. 5282~
               (Vernon Supp. 2002). The Railroad Commission has promulgated
               rules requiring plats showing well locations to accompany
               applications for certain oil and gas well permits, but the rules do not
               require that the locations be surveyed by a registered professional
               land surveyor.     The Commission      has reasonable discretion to
               determine what information must accompany permit applications
               filed under Commission       rule.  If plats showing well locations
               determined by a less precise method than professional surveying yield
               enough information for the Commission to implement its rules, the
               well locations need not be surveyed. We affirm Attorney General
               Opinion JM-0418 (1985).




                                               Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
