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                                       ATTORNEY            GENERALOFTEXAS
                                                    GREG        ABBOTT

                                                        August 25,2004



         Ms. Sandy Smith                                         Opinion No. GA-0239
         Executive Director
         Texas Board of Professional Land Surveying              Re: Whether the Board of Professional Land
         7701 North Lamar, Suite 400                             Surveying may establish a “retired status” category
         Austin, Texas 78752                                     for its registrants, set a reduced renewal fee, and
                                                                 waive continuing education requirements for those
                                                                 individuals     (RQ-0 19 1-GA)


         Dear Ms. Smith:

                  You ask whether the Board of Professional Land Surveying (the “Board”) may establish a
         “retired status” category for its registrants, set areduced renewal fee, and waive continuing education
         requirements for those individuals.’

                  Chapter 1071 of the Occupations Code, the Professional Land Surveyors Practices Act,
         governs the regulation of the practice of land surveying. Subchapter B thereof establishes the Texas
         Board of Professional Land Surveying, composed ofnine members, including a commissioner, who
         is “the commissioner of the General Land Office.” TEX. OCC. CODE ANN. $5 1071.002(2), .05 l(a)
         (Vernon 2004). The remaining eight members of the Board are appointed by the governor based
         “on the recommendation of the commissioner,” and “with the advice and consent of the senate.” Id.
         5 1071.05 l(b). The Board is authorized to “adopt and enforce reasonable and necessary rules and
         bylaws to perform its duties under this chapter      . to establish standards of conduct and ethics for
         land surveyors” and to “set fees in amounts reasonable and necessary to cover the costs of
         administering” chapter 1071. Id. 5s 1071.151(a), .1526.

                  Chapter 1071 provides that “[a] person may not engage in the practice of professional
         surveying unless the person is registered, licensed, or certified as provided in this chapter.” Id.
         5 1071.25 I(b). Subchapter F describes the registration, licensing, and certification requirements for
         an individual who wishes to perform professional land surveying.          See id. $5 1071.251-.263.
         Subchapter G sets forth the requirements for license renewal, as well as those relating to continuing
         professional education. Id. 55 1071.301, ,305. You indicate that the license renewal fee is set by
         the Board at $150 per year. See Request Letter, supra note 1, at 1. In addition, section 1071.1521
         establishes an additional renewal fee of $200. See TEX. Oct. CODE ANN. 4 1071.1521 (Vernon
         2004). Finally, section 1071.263 creates an “inactive status” category. That section provides:

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                   ‘Letter fromSandy Smith, Executive Director, Texas Board ofProfessional Land Surveying, to Honorable Greg
         Abbott, Texas Attorney General (Mar. 8, 2004) (on tile with the Opinion Committee,                also available at
         http:iiwww.oag.state.tx.us) [hereimfier Request Letter].
Ms. Sandy Smith - Page 2                       (GA-0239)




                         (a) A registered professional land surveyor may request
               inactive status at any time before the expiration date of the person’s
               certiticateofregistration. Aregistration holderoninactive   statusmay
               not practice surveying.

                      (b) A registration holder on inactive        status must pay an
               annual fee set by the board.

                       (c) A registration holder on inactive status is not required to:

                               (1) comply with the professional development
                       requirements adopted by the board; or

                               (2) take an examination     for reinstatement   to
                       active status.

                        (d) To return to active status, aregistration holder on inactive
               status must file with the board a written notice requesting
               reinstatement to active status.

Id. 5 1071.263. You state that the Board has set the renewal fee for a person on “inactive status” at
$37, “which does not include the $200 increase.” Request Letter, supra note 1, at 1. Your question
is whether the Board may establish a further category of “retired status,” in order to reduce the fees
paid by registered land surveyors over the age of 65, and to eliminate the continuing education
requirements for those individuals. See id. A person in such status would be permitted to practice
professional land surveying.

         The authority of a state governmental agency is derived entirely from legislative enactment.
See Corzelius v. R.R. Comm ‘n, 182 S.W.2d 412,415 (Tex. Civ. App.-Austin 1944, no writ). Such
an agency may exercise only those powers expressly conferred, together with those that may
necessarily be implied from the powers expressly granted. See Pub. UfiI. Comm’n v. City Pub.
Serv. Bd. of San Antonio, 53 S.W.3d 310,316 (Tex. 2001). An agency may not exercise what is
effectively a new power on the theory that such an exercise is expedient for the agency’s purposes.
See id.

         Chapter 1071 of the Occupations Code does not expressly authorize the Board to create a
“retired status” category. Nor, in our opinion, may the authority to do so be inferred from any
provision of chapter 1071. By contrast, chapter 1001 of the Occupations Code, which relates to
professional engineers, expressly provides for reduced license fees and annual renewal fees for
engineers who are at least 65 years of age. See TEX. OCC. CODEANN. 5 1001.205(b) (Vernon 2004).
This provision indicates that the legislature knows how to authorize reduced fees for licensees over
the age of 65. It has done so in the case of professional engineers; it has not done so in the case of
professional land surveyors. As a result, we conclude that the Board ofProfessional Land Surveying
may not establish a “retired status” for its registrants, set a reduced renewal fee, and waive
continuing education requirements for those individuals.
    Ms. Sandy Smith - Page 3                      (GA-0239)




                                           SUMMARY

                            The Board of Professional Land Surveying may not establish
                   a “retired status” for its registrants, set a reduced renewal fee, and
                   waive continuing education requirements for those individuals.




                                                  Attorney General of Texas


    BARRY R. MCBEE
    First Assistant Attorney General

    DON R. WILLETT
    Deputy Attorney General for Legal Counsel

    NANCY S. FULLER
    Chair, Opinion Committee

    Rick Gilpin
    Assistant Attorney General, Opinion Committee




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