                   December 29, 1969


Hon. R. W. Olson, P. E.                Opinion No. M-545
Chairman
Texas State Board of Registration      Re:   Application of Texas
  for Professional Engineers                 Engineering Practice
Room 200, 1400 Congress Ave.                 Act (Articie 3271a,
Austin, Texas 78701                          Vernon's Civil Statutes)
                                             to the Texas Hospital
                                             Licensing Law (Article
                                             4437f, Vernon's Civil
                                             Statutes) and to Article
                                             4442c, Vernon's Clvll
Dear Mr. Olson:                              Statutes.
          Your recent letter requesting the opinion of this office
concerning the referenced matter states, In part, as follows:
          "(T)he Board respectfully requests the Attorney
     General's opinion In regard to the following:
           "(1) Are the provisions of the Texas Englneer-
     in@:Practice Act applicable to the State Department
     of Publlrc Health in establishing standards for the
     design and construction of hospitals, nursing homes
     and related institutions?
          "(2) Is it lawful for the State Department of
     Health to approve designs, plans and specificatfons
     for the construction of any hospital, nursing home
     or related institution which do not bear the seal
     of a Professional Engineer licensed by the State of
     Texas?
           "(8) Is it lawful for the State Department of
     Health to approve designs, plans or specifications
     for the construction of hospitals, nursing homes or
     related institutions involving structural, mechanical,
     electrical or other Engineering principles but which
     does not bear the seal of a Professional Engineer
     licensed by the State of Texas?


                            -2601-
Hon. R. W. Olson, page 2 (M-545)


         "(4) Is the legal effect of Sec. 20(f),
    Texas Engineering Practice Act, that plans and
    specifications for structures larger in height
    or area than those specified in Section 201(f)
    must bear the seal of a licensed Engineer?
          The Texas Hospital Licensing Law, which Is Article 4437f,
Vernon's Civil Statutes, provides, $.n part, as follows:
                 I,
                      .   .   .



          “Sec. 5. The Licensing Agency '(The Department
     of Health) . , . shall adopt, amend, promulgate,~and
     enforce such rules, regulations, and minimum standards
     as may be designed to further the purpose of this Act.
     .   .   .
                 I,
                      .   .   .



         “Sec. 8. Upon receipt of an application for
    license, . ~ . the Licensing Agency shall issue a
    license if it finds that the applicant and the
    hospital comply with the provisions of this Act,
    [gated
    and t e ru es, re u a
    hereunder. . . D
          "Sec. 9. The Licensing Agency shall have the
     authority to deny . . . a license in any case where
     it finds there has been a substantial failure to com-
                               y-yft ffns, if;z;a;dards


          Article 4442c, Vernon's Civil Statutes, dealing with
convalescent and nursing homes and related Institutions, provides,
in part, as follows:
          II
           . . .
           “Sec. 4. An application for a license shall
     . . . contain such information as the Licensing
                                            IPAS whtrh
     Agent (the Department of Health) i%-i%--    ~.-__..
     iz-9
       y nclude affirmative evidence 0, ??-+mTEy to
     comply with reasonable standards, rules and regula-
     tions
     _-     as are lawfully prescribed hereunder. , . .
                 11
                      .   .   .




                                  -2602-
Hon. R. W. Olson, page 3 (M-545)

          “Sec. 6. The Licensing Agency . . . is au-
     thorized to deny . . . the license in any case
     In which it finds that there has been a substantial
     failure to comply with the requirements established
     under this law. . e a
          “Sec. 7. The Licensing Agency is authorized to
     adopt, amend, promulgate, publish and enforce mfnimum
     standards in relation to: (a    Construction of th
     home or institution . . .' (imphasis added.)      e
          Your first question Is answered in the negative. The
foregoing quotations from the statutes make it apparent tnat the
Legislature intended that the Department of Health promulgate Its
own standards relating to the design, construction and licensing
of hospitals, nursing and convalescent homes, and related institu-
tions. Articles 4437f and 4442~ nowhere require the Department
of Health to impose the engineering standards promulgated by the
Texas State Board of Registration for Professional Engineers.
Except in regard to Sec. 19 of Article 3271a, Vernon's Civil
Statutes, which deals with public works and which will be
hereinafter discussed, the Department of Health is nowhere
required to consider the requirements of the Texas Engineering
Practice Act in regard to the approval of designs, plans and
specifications.
          Your second and third questions involve the Department of
Health's right ~to approve designs for the construction of hospitals
and related institutions which do not bear the seal of a Professional
Engineer licensed by the State of Texas.
          We assume that the "designs, plans and speciffcations" for
cc:nstructionof hospitals and related Institutions and the "struc-
turalp mechanical, electrical, and engfneerdng principles" mentioned
in your second and third questions fall withfn the definition of
"practice of engineerfng' set forth in Section 2(5) of the Act.
          Sectfon 15 of the Act provides, in part, as follows:
          !'Eachregistrant hereunder shall upon regis-
     tration obtain a seal of the desfgn authorized by
     the Board, bearing the registrant's name and the
     legend "Regfstered Professional Engineer." Plans,
     speciflcatlons, plats, and reports issued by a
     registrant shall be stamped with the said seal
     when filed with public authori.ti.es.D . .'
     -(Emphasisadded.)
          Thus, unless the person filing such designs with public
?uthorLtSes (Including the Department of Health) is exempted by
Section 20 of the Act from the provisions of that Act, the person


                           -2603-
Hon. Ft.W. Olson, page 4 (M-545)


submlttfng such designs to a public authority   must   see   to   it
that such designs possess the seal.
          However, in view of our opinion that the Act is not
applicable to the Department In establishing standards, your
question must be answered in the affirmative,
to public works covered by Section 19 of Artic
will be discussed below. To hold .otherwise would be to encroach
   th   i ht f the Department of Health to set and maintain its
%   staEd&?ds'for the construction of hospitals and related ln-
stitutions. Should the Department approve a design required to
have the seal but not having one, your Board is free to take
appropriate disciplinary action against the person submitting
such plans.
          With reference to your second and third questions, a
different rule applies when the conditions described in Section
19 of Article 3271a are present.
          Section 19 of Article 3271a is as follows:
           "After the first day of January, 1938, it
     shall be unlawful for this state, or for any of
     fts political subdivisions, for any county, city,
     or town, to engage in the construction of any
     pu'blicwork involving professional engineering,
     wnere public health, public welfare or public
     safety Is involved, unless the engineering plans
     and specifications and estimates have been prepared
     by 3 and the engineering construction is to be ex-
     ecuted under the direct supervision of a registered
     professional engineer; provided, that nothing in
     this Act shall be held to apply to any public work
     wherefn the contemplated expenditure for the com-
                 ect does not exceed Three Thousand
                            Provided, that this Act
     shall not apply to any road maintenance or bettermeift
     work undertaken by the County Commissioners' Court.
          Thus, if a hospital, nursin home or related institution
is to cost more than Three Thousand ( 3,OOO.OO) Dollars and is
to be constructed b the State or any of Its olitical su
---                                                         visions
zze;yu;l;;;n;y, cit.;,or to=, the constructiin cannot lebgz:lypro-
             he engineering plans and specifications and estimates
have been prepared by a registered professional engineer. In such
a situation, since plans and specifications which are not prepared



                             -2604-
.




    Hon. R. W. Olson, page 5 (M-545)


    by a registered engineer cannot be lawfully used, it is our
    opinion that the approval of such plans and specifications
    would be In contravention of the Board's responsibilities.
    In giving a reasonable construction to Article 4437f, we
    think It anticipates that the Board will only approve plans
    and specifications that can be used without violating Section
    19 of 3271a.
              Your fourth question requests a construction of
    Section 20(f) of the Act. That Section provides, in part,
    as follows:

             "Sec. 20,. The following persons shall,be
        exempt from the provisions of this Act, provided
        that such persons are not represented or held out
        to the public as duly licensed and registered by
        the Board to engage in the practice of engineering:
             II
              . . .
             "(f) A person, firm, partnership, joint
        stock association or private corporation, erect-
        ing, constructing, enlarging, altering or repair-
        ing, or drawing plans and specifications for: (1)
        any private dwelling, or apartments not exceeding
        eight units per building for one story buildings,
        or apartments not exceeding four units per bulld-
        ing and having a maximum height of two stories, or
        garages or other structures pertinent to such
        buildings; or (2) private buildings whfch are to
        be used exclusively for farm, ranch or agricultural
        purposes, or used exclusively for storage of raw
        agricultural commodities; or (3) other buildings,
        except public buildings included under Section 19
        of this Act, having no more than one story and
        containing no clear span between supporting struc-
        tures greater than 24 feet on the narrow side and
        having a total floor area not in excess of five
        thousand square feet; provided that on unsupported
        spans greater than 24 feet on such buildings only
        the trusses, ~beams, or other roof supporting members
        need to be engineered or pre-engineered; provided
        that no representation is made or implied that en-
        gineering s$rvices have been or will be offered to
        the public.
              Section 20 of the Act, in addition to exempting from its
    provisions people constructing buildings of the type set forth in

                                -2605-
Hon. R. W. Olson, page 6 (M-545)


Section 20(f), supra, also exempts several other types of.
persons and, consequently, their engineering designs. Such
excepted designs could be larger in height or area than those
adverted to in Section 20(f) supra. Thus, it does not follow
that a seal would be required on designs differing from those
set forth in Section 20(f), supra, provided the persons de-
signing plans for structures larger than those specified in
Section 20(f), supra, do not represent or hold out to the public
that they are duly licensed and registered by your Board, and
provided further that they fall within an exemption in one of
the other Subsections of Section 20, supra.
          In view of the foregoing, it is the opinion of this
office that your questions be answered as follows:
         The answer to your first question Is 'no";
          The answer to your second question is 'yes', provided
that Sec. 19 of Article 3271a is not applicable.
          The answer to your third question is 'yes", provided
that Sec. 19 of Article 3271a is not applicable.
         The answer to your fourth question is 'no."
                     SUMMARY
         (1) The provisions of the Texas Engineering
    Prac,tEceAct, (Article 327la, Vernon's Civil Statutes)
    are not applicable to the Department.of Health in
    establ,fshingstandards for the design of hospitals
    and related institutions.
         (2) The Department of Health may approve
    designs for hospitals and related Institutions
    which do not bear the seal of a registered Pro-
    fess,ionalEngineer licensed by the Texas State
    Board of Registration for Professional Engineers,
    prov.ldedthat such designs do not fall within
    the purview of Section 19 of Article 3271a of
    Vernon's Civil Statutes, which deals with public
    works.
          (3) Designs for structures larger In height
     or area than those specified In Section 20(f) of
     the Texas Engineering Practice Act are not required



                               -2606-
.   .




        Hon. R. w. Olson, Page 7 (M-545)


             to bear the seal of a registered Professional
             Engineer, provided the person creating such
             designs is exempt under one of the other sub-
             sections of Section 20 of the Texas Engineering
             Practice Act.




        Prepared by Austin C. Bray, Jr.
        Assistant Attorney General
        APPROVED:
        OPINION COMMITTEE
        Kerns Taylor, Chairman
        Alfred Walker, Co-Chairman
        Scott Garrison
        Ralph Rash
        Wardlow Lane
        Arthur Sandli,n
        MEADE F. GRIFFIN
        Staff Legal Assistant
        WCLA WHZTE
        F,irstAssistant




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