                                          The Attorney                General of Texas
                                                                 December    22,     1982
MARK WHITE
Attorney General


                                        Mr. W. T. Satterwhite,  Chairman                          Opinion     No. MW-541
Supreme      Court Building
                                        Texas Board of Land Surveying
P. 0. Box 12546
Austin,    TX. 76711. 2546              1106 Clayton Lane, Suite 210~                             Re:   whether    county    surveyor
5121475.2501                            Austin,  Texas   78723                                    must be    licensed     under    the
Telex    9101674-1367                                                                             Land Surveyor’s     Practices    Act
Telecopier     5121475.0266                                                                       of 1979

1607 Main St., Suite 1400
                                        Dear Mr.. Satterwhite:
Dallas,   TX. 75201-4709
2141742.6944                                 You have    asked two questions ‘concerning                     the application   of   the
                                        Land Surveying   Practices Act of 1979. article                     5282~. V.T.C.S.:
4624 Alberta       Ave.. Suite    160
El Paso, TX.       79905-2793                          1.   Can a      county     surveyor    engage   in    the
9151533.3464                                       practice    of    surveying     as defined    in  the Land
                                                   Surveying    Practices     Act of 1979 without      being   a
                                                   registered     surveyor    pursuant    to the requirements
1220 Dallas Ave.. Suite          202
Houston.     TX. 77002-6986
                                                   of the act?
7131650-0666
                                                       2.   Is a person   required   to be a registered
                                                   surveyor   under the Land Surveying  Practices Act of
606 Broadway.        Suite 312                     1979 in order to become a candidate    for the office
Lubbock.  TX.       79401.3479
                                                   of county surveyor?
6061747-5238

                                               As yet there are no appellate         court cases   interpreting     the new
4309 N. Tenth.     Suite B              enactment    which    consolidated      the State  Board of Registration        for
McAllen,     TX. 76501-1665             Public   Surveyors    and the Board of Examiners of Licensed            State Land
5121662.4547
                                        Surveyors   into the Texas Board oft Land Surveying.          However, the answer
                                        to your first      question      is provided   in a straightforward      manner by
200 Main Plaza. Suite 400               section   4, subsections      (1) and (2) of the new statute.
San Antonio,  TX. 78205-2797
5121225.4191                                   Section    3 of    the act   makes it       unlawful   “for  any person  to
                                        practice    or offer    to practice  land surveying”       in the state unless the
An Equal       Opportunity/             individual     is duly registered,      licensed,     or exempted under the act.
Affirmative      Action     Employer    But subsections      (1) and (2) of section       4 read:

                                                       Sec. 4 The provisions                of   this   Act do not    apply
                                                    to any of the following:

                                                        (1)   a county   surveyor   acting   in an official
                                                   capacity    as authorized     by law in counties     under
                                                   25,000    population,   but only until     the expiration
                                                   of    the term of persons       currently    holding   such
                                                   office;




                                                                            p.1962
Mr. W. T. Satterwhite          - Page 2           (MW-541)




                   (2)   an officer      of a state,     county    (except     as
              provided     by Subsection       (1) of this      section    when
              applicable),     city,     or other political       subdivision
              whose official      duties    include    land surveying      when
              acting    in his official        capacity,    but only ux
              the expiration        of the tetm of persons           currently
              holding    such office....        (Emphasis added).

It is apparent from this language that a county surveyor                    cannot engage
in the private       practice    of land surveying           without    being     either     a
registered    surveyor    or a licensed      state     land surveyor      under the act,
even though the unexpired          term of the county           surveyor’s     office     may
have commenced prior        to the effective      date of the act.         It is equally
clear    that a county     surveyor   who is neither         licensed     nor registered
and whose unexpired       term commenced prior          to the effective      date of the
act may continue       to discharge       his    official     duties    until     his    term
expires.

       The Land Surveying            Practices      Act    of    1979 purports       to both
regulate        the    private    practice       of   land    surveying       and establish
qualifications         for   the public     office     of county       land surveyor.       The
obvious     intent     of the legislation        is to require      that county surveyors
be licensed         or registered      under the act in order               to hold   office,
exempting        during    the unexpired       portion     of   their     terms only     those
holding     office    at the time the act took effect.               -Cf.   Attorney  General
Opinion O-3940 (1941).

       Statutes    respecting     the office    of county surveyor.      generally,      are
now found in the Natural Resources              Code, chapter      23.   The place of a
county    surveyor’s      residence    and office       location    are specified,       but
licensure     requirements      are not.     Article   XVI, section     44 of the Texas
Constitution,      which establishes         the office,      does not itself      specify
any qualifications        for it.

        Statutory      restrictions        on the right         to hold public       office     are
strictly      construed,      Willis     V. Potts,     377 S.W.Zd 622 (Tex.           1964),    and
it was held in Burroughs V. Lyles,                    181 S.W.Zd 570 (Tex.          1944).     that
where the constitution             prescribes      qualifications        for an office,      it is
beyond the legislative            power to change or add to those qualifications,
unless     the constitution         gives that power.          Where the constitution          does
not itself        prescribe       any qualifications           for    an office    it    creates,
however,       more recent         cases    suggest      the legislature        may prescribe
qualifications        for it.       See Phagan ‘I. State,          510 S.W.Zd 655 (Tex. Civ.
APP. - Fort Worth 1974,Tit                   ref’d   n.r.e.);       Green V. County Attorney
of Anderson County,            592 S.W.Zd 69 (Tex.            Civ. App. - Tyler          1979, no
writ).

       Both the Green and Phagan cases             involved    licenses    to practice
law.    Green and Phagan were district           attorneys.       Both were disbarred
while    still     in office.    Article      V, section    21 of the constitution
creates        the   office   of     district      attorney      but    specifies      no



                                             p.    1963
Mr. W. T. Sattewhite           - Page 3        (MW-541)




qualifications       for    holding   it.     However,    article   332,    V.T.C.S.,
provides     that only duly licensed      attorneys    are eligible  to the office.
Both the Phagan and Green courts held that loss of their               licenses   made
the men ineligible       for the office,     ipso facto.

      The constitutional       issue   was not expressly       addressed    in either
case, but the action      of the supreme court in refusing           a writ of error
in the Phagan case with a "no reversible           error"     notation   leads us to
conclude    that the legislature      may validly  require,      as a qualification
for office,     that county      surveyors  he either     licensed     or registered
pursuant to article      5282c, V.T.C.S.

       In Kothmann V. Daniels,                  397 S.W.Zd 940 (Tex.        Civ.    App. - San
Antonio      1965, no writ),           the court      concluded     that in the absence         of
specification,          "eligibility"         requirements     for public    office    refer     to
the time a person              assumes office         rather     than to the time of his
election,       where the disqualification                is of such a nature          that its
continuation         or termination          is not within      the control     of the person
seeking      office.        See also Rose V. White,             536 S.W.Zd 395 (Tex;          Civ.
APP. - Dallas          1976, no writ).           Cf. Mills V. Bartlett,        377 S.W.Zd 636
(Tex. 1964) (residence              reauirement).       Whether a disaualification          is of
"such a na&&e" is often a quest&                      of fact,     which *this office     cannot
resolve     in its opinion          process.

       We therefore    advise you that a county surveyor       may not engage in
the private     practice    of land surveying    without   being   registered   or
licensed   pursuant to the Land Surveying       Practices    Act of 1979, nor is
a person eligible      to election as county surveyor     unless at the time he
takes office     he is registered    or licensed    pursuant    to the act.   -Cf.
V.T.C.S.   art. 5282c,     625(b).

                                         SUMMARY

                   A county surveyor       may not engage in the private
              practice       of     land       surveying    without      being
              registered       or    licensed      pursuant   to    the    Land
              Surveying     Practices      Act of 1979, nor is a person
              eligible    to election       as county surveyor      unless   at
              the time he takes            office     he is  registered      or
              licensed    pursuant to the act.
                                                                                A




                                                    -MARK           WHITE
                                                      Attorney     General of      Texas

JOHN W. FAINTER, JR.
First Assistant Attorney           General




                                          p.    1964
Mr. W. T. Satterwhite      - Page 4        (Mw-541)




RICHARD E. GRAY III
Executive Assistant     Attorney    General

Prepared    by Bruce Youngblood
Assistant    Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison,      Chairman
Rick Gilpin
Patricia  Hino-josa
Margaret McGloin
Jim Moellinger
Bruce Youngblood




                                   p.   1965
