                                 The Attorney             General of Texas
                                                    November 5, 1981
MARK WHITE
Attorney General


Supreme Court Building
                               Honorable Robert E. Davis               opinion No. Mw-384
P. 0. Box 12548                Chairman
Auslin, TX. 78711              Texas House of Representatives          Re: Interpretation of Texas
5121475-2501                   Committee on Ways & Means               Engineering Practice Act
Telex 9101874.1367
                               P.O. Box 2910
Telecopier   5121475+3266
                               Austin, Texas 78769

1607 Main St.. Suite 1400      Dear Mr. Davis:
Dallas. TX. 75201
2141742-8944
                                    You have addressed questions tp us concerning the construction of
                               the Texas Engineering Practice Act, article 3271a. V.T.C.S.
4624 Alberta Ave.. Suite 160
El Paso, TX. 79905                  The Texas Engineering Practice Act is quite comprehensive. The
9151533-3484                   act appropriates the terms "engineer," "engineering" and various
                               derivatives thereof to persons who are duly registered with the Board
1220 Dallas Ave.. Suite 202
                               of Registration for Professional Engineers. Generally speaking, the
Houston. TX. 77002             act forbids the use of the term "engineer" or any of its derivatives
71316500666                    to all except those who are duly registered. Tackett v. State Board
                               of Registration for Professional Engineers, 466 S.W~.2d332 (Tex. Civ.
806 Broadway. Suite 312
                               APP. - Corpus Christi 1971. no writ).
Lubbock, TX. 79401
EOWi’47-5238                        The act itself contains exemptions, one of which is articulated
                               in sqction 20(g), which reads as follows:
4309 N. Tenth. Suite B
                                             sec. 20.   The following persons shall be
McAllen. TX. 76501
5121682-4547
                                        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
200 Main Plaza. Suite 400               the Board    to engage in      the  practice of
San Antonio, TX. 78205
                                        engineering.
5121225-4191

                                              . . . .
An Equal Opportunity/
Affiranative Action Employer
                                             CR) Any regular full time employee of a
                                        private corporation or other private business
                                        entity who is engaged solely and exclusively in
                                        performing services for such corporation and/or
                                        its affiliates; provided, such employee's services
                                        are on, or in connection with, property owned or
                                        leased by such private    corporation  and/or its
                                        affiliates or other private business entity, or in
Elr.Robert E. Davis - Page 2     (Mw384)



         which   such    private corporation and/or     its
         affiliates or other business entity has         an
         interest, estate or possessory right, or whose
         services   affect     exclusively   the  property,
         products, or interests of such private corporation
         and/or its affiliates or other private business
         entity; and, provided further, that such employee
         does not have the final authority for the approval
         of.   and    the   ultimate   responsibility for,
         engineering designs, plans or specifications
         pertaining to such property or products which are
         to be incorporated into fixed works, systems, or
         facilities on the property of others or which are
         to be made available to the general public. This
         exemption includes the use of job titles and
         personnel classifications by such persons not in
         connection with any offer of engineering services
         to the public, providing that no name, title, or
         words are used which tend to convey the impression
         that an unlicensed person is offering engineering
         services to the public.

V.T.C.S. art. 3271a, 920.

     Your first question is: "Does the exemption stated in article
3271a, section 20 remove engineers in industry from the scope of the
act?" We conclude that engineers in industry are not subject to
licensing requirements if they meet the requirements of section 20(g),
but they are not exempt from the scope of the act.

     Section 1.1 of article 3271a, V.T.C.S.,         sets   forth   the
legislative purpose of the act, as follows:

              In recognition of the vital impact which the
         rapid advance of knowledge of the mathematical,
         physical and engineering sciences as applied in
         the practice of engineering is having upon the
         lives, prw=rty.    economy and security of our
         people and the national defense, it is the intent
         of the Legislature, in order to protect the public
         health, safety and welfare, that the privilege of
         practicing engineering be entrusted only to those
         persons duly licensed, registered and practicing
         under the provisions of this Act and that there be
         strict compliance with an enforcement of all the
         provisions of this Act, and, in order that the
         state and members of the public may be able to
         identify those duly authorized to practice
         engineering in this state and fix responsibility
         for work done or services or acts performed in the
         practice of engineering, only licensed and
         registered persons shall practice, offer or
.   -.-

          Mr. Robert E. Davis - Page 3    057-384)



                    attempt to practice engineering or call themselves
                    or be otherwise designated as any kind of an
                     'engineer' or in any manner make use of the term
                     'engineer' as     a    professional, business     or
                    commercial      identification,      title,     name,
                    representation, claim or asset, and all the
                    provisions of this Act shall be liberally
                    construed and      applied    to   carry   out   such
                    legislative intent. In furtherance of such intent
                    and purpose of the Legislature, the practice of
                    engineering    is    hereby   declared   a    learned
                    profession to be practiced and regulated as such,
                    and its practitioners in this state shall be held
                    accountable to the state and members of the public
                    by high professional standards in keeping with the
                    ethics and practices of the other learned
                    professions in this state. There is specifically
                    reserved to graduates of all public universities
                    recognized by the American Association of Colleges
                    and Universities the right to disclose any college
                    degrees received by such individual and use the
                    word Graduate Engineer on his stationery, business
                    cards, and     personal communications of         any
                    character.

               Section 1.2 specifically reserves to registrants of the board the
          practice of engineering. Subsections (2). (3), and (4) of section 1.2
          preclude non- registrants from using the term "engineer" or
          derivatives thereof, from using any symbol or abbreviation which
          would, in any manner, tend to create a public impression that the
          person so using was a registrant of the board, or from receiving any
          fee or compensation for "engineering" services.        The concluding
          paragraph of section 1.2 of the act provides that any entity utilizing
          the term "engineer" or otherwise holding itself out to the public as
          an engineer "shall be conclusively presumed and regarded as engaged in
          the practice of engineering." It is our opinion that the essence of
          section 20(g) is to exempt the average engineer in industry from the
          requirement of state registration; however, we do not believe that
          section 20(g) of the act can be construed in such a way as to thwart
          the express purpose of the act by permitting any non-registrant to
          hold himself out as a'engineer.

              The preamble to section 20 of the act reads as follows:

                        Sec. 20.   The following persons shall be
                   exempt from the provisions of this Act, eded
                   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. (Emphasis added).




                                         p. 1307
           c
..

     Elr.Rohcrt E. Davis - Page 4    (Mw-384)



          You next ask, in the event of a negative answer to question
     number one, to what extent the engineer in industry is covered by the
     act.

          It is our opinion that all persons. not specifically exempted by
     the act, are covered by the act. Although a person employed in the
     engineering department of a" industry may carry the "in-house"
     designation of "engineer" without being registered, such designation
     may not be used in such a way that misleads the public into believing
     the user is a registrant. It is worthy of note that section 20(g)
     specifically provides that "such employee does not have the final
     authority for the approval of, and the ultimate responsibility for,
     engineering designs, plans or' specifications...." In other words, he
     is not authorized to practice engineering.

          You next ask the following question: "Does the certification of
     engineers in industry as a specialist with respect to specific skills
     in a recognized discipline of engineering pursuant to standardized,
     nondiscriminatory guidelines fall within the scope of the act?

                    (a) If the answer to Question 2 is 'yes,'
               would such a" undertaking fall within the
               definition of the 'practice of engineering' as set
               out in the act?

                     (b) If the answer to Question 2(a) is 'yes,'
               would   the board be authorized to require
               registration of such activity?..

                    (c) If the answer to Question 2(b) is 'yes,'
               under what circumstancei would the board be
               authorized to withhold registration of such
               activity?

                    (d) If the answer to Question 2 is 'no.'
               would a private nonprofit corporation composed
               solely of engineers in industry be authorized to
               certify an engineer as possessing the requisite
               degree of education, skill, expertise, and
               knowledge so as to indicate a specialization in a
               particular discipline of engineering if such
               certification is     pursuant  to   standardized,
               nondiscriminatory guidelines?

                    (e) If the answer to Question 2(d) is 'yes,'
               may the corporation formulate its own procedures
               and rules for recognition of a" engineer as a
               specialist   in   a   particular  discipline   of
               engineering and, on this basis, issue him a
               certificate of specialty?




                                     .   12na
.-:

      Mr. Robert E. Davis - Page 5   (MW-384)



           In answer to your question concerning certification. if the
      result of a certificatio" is to represent the holder as duly licensed
      by the board, he is in violation of the licensing provisions of the
      act.

           The board registers only individuals; a business entity,
      incorporated or otherwise, acquires its engineering legitimacy only
      through the registration of an individual, who is held responsible for
      the engineering work done on behalf of the entity. We therefore
      answer your question 2(b) in the affirmative.

           We answer your question 2(c) simply by stating that the act
      confers broad powers on the board. The principal duty of the board is
      to protect the public; if, in the opinion of the board, such a
      certification could tend to mislead the public, the registration could
      be withheld.

                                  SUMMARY
                    The Texas Engineering Practice Act, article
               3271a. V.T.C.S.. does not exempt persons employed
               in industry as 'engineersfrom the operation of the
               act; industry certification of an employee as an
               engineering specialist falls within the scope of
               the act.




                                              MARK      WHITE
                                              Attorney General of Texas

      JOHN W. FAINTER, JR.
      First Assistant Attorney General

      RICHARD E. GRAY III
      Executive Assistant Attorney General

      Prepared by Robert W. Gauss
      Assistant Attorney General

      APPROVED:
      OPINION COMMITTEE

      Susan L. Garrison, Chairman
      Jon Bible
      Robert W. Gauss
      Rick~Gilpin
      Jim Moellinger




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