Mr. D. C. Greer              Opinion No. C-476'
State Highway Engineer
Texas Highway Department     Re: Whether employees of the
Austin, Texas                    Highway Department are ex-
                                 empt from the provisions
                                 of Article 7621e, Vernon's
                                 Civil Statutes (The Water
                                 Well Drillers Act), under
                                 the stated facts and re-
Dear Sir:                        lated questions.
You have requested our opinion concerning the applicability
of the Water Well Drillers Act to certain Highway Department
employees who may, during the course of their employment,
find it nec~essaryto drill an occasionalwater well on prop-
erty owned by the State. In your request you state that:
        "In the course of this Department's
     operationswe drill approximatelyfive (5)
     waterwells per year on State land with
     State equipment and State employees.
         "* * +
        II     our employees are not primarily
     engaged ior compensationin the drilling of
     water wells since this is considered a minor
     activity to their regular duties inasmuch as
     these employees are primarily engaged by the
     Department for core drilling to provide sam-
     ples for testing soil structure.
        II
         . . . our employees will be drilling water
     wells on our own property and none other."
      You then ask:
         II
              . since our employees may occasionally
                  .   .

      drill a water well with no separate compensa-
      tion from their regular pay with these few
      wells being constructedby State employees on


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Mr. D. C. Greer, page 2 (C-476)


      State land with State equipment,are we exempt
      from the provisions as set forth in this Act?
         "If as a State agency we are not exempt
      with the above In consideration,we would
      like to know if State employees are exempt
      from the payment of registrationand renewal
      fees.
         "If our employees are not exempt from the
      provisions of this Act, would it suffice for
      us to have one supervisoryemployee registered
      with the responsibilityof compliancewith
      this Act for any wells our crews drill.
         "Do the provisions of this Act relating
      to bonding require that a State employee
      provide bond In the amount of $2,000.00?"
      The Water Well Drillers Act, Acts 59th Leg., R.S. 1965,
Ch. 264, p. 509, codified as Article 7621e, Vernon's Civil
Statutes, is an act designed to provide minimum standards and
qualificationsfor persons who are engaged In the drilling of
water wells for compensationin this State. Legislative ln-
tent in passing the Act is manifested In the caption which
provides that it is "an act designed to aid In the prevention
of pollution of the State's undergroundwater by providing
minimum water well drillers qualificationsand standards.
      Section 3(a) of the Act states:
         "It shall be unlawful for any person to act
      as or to offer to perform services as a water
      well driller without first obtaining a certl-
      ficate of registrationin the manner rescribed
                                          Ah 27 Water
      herein and pursuant to the rules of _
      Well Drillers Board."
      Section 13(a) of the Act provides:
         'Any person not holding a certificateof
      registrationas a registeredwater well driller
      who drills, bores, cores or constructsany water
      well in this State for compensationshall be
      guilty of a misdemeanor. . . ."
Mr. D. C. Greer, page 3 (C-476)


      Section 13(a), standing alone, could be subject to a
somewhat broader interpretationwith regard to what specific
action is unlawful. At the same t$me, reading the various
sections of the Act together,particularly Sections 2(e)
and 3(a), the conclusionisoinescapablethat the law intends
to regulate those who hold themselves out to the public or
who perform the services of a water well driller for the
public for compensationand to make these activitiesunlaw-
ful unless the person holds a certificateof registration
from the Water Well Drillers Board,
      A   "water well driller" is defined in Section 2(e) as:
           I, . . . any person (includingowner, operator,
      and drilling supervisor)who engages for com-
      pensation in the drilling, boring, coring, or
      constructionof any water well In this State.
      The term, however, shall not include any person
      who drills,~bores,cores, or constructsa water
      well on his.own property for his own use or a
      person who assists In the constructionof a
      water well under the direct supervisionof a
      registeredwater well driller and Is not prl-
      marily responsiblefor the drilling operations."
      This section, as does Section 13(a), places the regulated
activity in context of persons who are engaged In the business
of drilling wells for the pub,licfor profit, The mere fact
that a person who drills or engages in well drilling activities
receives compensationis not conclusive in determiningwhether
a certificateof registrationis mandatory, however, because
the definition of the regulated activity exempts both persons
who drill on their own property for their own use and persons
who work for or under the supervisionof a registeredwater
well driller.
      This office held in Attorney General's Opinion V-549,
April 23, 1948, that Article 6243-101, Vernon's Civil Statutes,
by exempting from the Plumbing License Law persons who perform
plumbing on their own property, also exempts servants of the
property owner performing plumbing under his supervisionand
control on his own property. The same analogy no doubt is
applicable to the Water Well Drillers Act.
     From the facts stated in the request for opinion, the
employees involved receive compensationonly by virtue of




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Mr. D. C. Greerm page 4 (c-476)


their general employment by the State and not for the purposes
of drilling water wells. They also do not act or offer to
perform services as water well drillers and are engaged in
the occasionaldrilling of water wells on their employer's
--the State's--ownland. Under these facts, we hold that
the State employees concerned fall within the exemptions
contained in the Water Well Drillers Act and are not re-
quired by the law to be registeredwater well drillers.
      The remaining questions become moot with this conclusion.
                       SUMMARY
      Employees of the State Highway Department
      drilling or supervisingthe drilling of an
      occasionalwater well on land owned by the
      State are exempt from the Water Well Drillers
      Act, codified as Article 7621e, Vernon's
      Civil Statutes, and are not required to be
      registeredwater well drillers.
                              Yours very truly,
                              WAGGONER CARR
                              Attorney General of Texas




APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Linward Shivers
Milton Richardson
Robert Lemens
APPROVED FOR THE A!ll'ORN?TfGENERAL
By T. B. Wright




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