                    THEATTORNEY               GENERAL
                                  OF-TEXAS
                              Ausnlv    .a*.
                                           TEXAS
  WI&      WILSON
ATTORNEY     OENERAL

                                  March 29, 1961

    Honorable Charles A. Allen         Opinion No. NW-1029
    Criminal District Attorney
    Harrison County                    Re': Whether, under
                                                       . . the man-
                                            1 >
                                            aatory provisions of the
    P. 0. Box $949
    Marshall, Texas                         Harrison County Road Law,
                                            the Commissioners' Court
                                            of Harrison County, Texas,
                                            is required to employ and
                                            have in Its constant em-
                                            ploy a "registered profes-
    Dear Mr. Allen:                         sional" civil engineer?
                       lettersof March 7, 1961, you request the
              In your __.
    opinion of this office on the following question:
                      "Under the mandatory provisions of the
                 Harrison County Road Law is the Commlssion-
                 ers' Court of Harrison County, Texas requir-
                 ed to employ and have In its constant employ
                 a 'registered professional' civil engineer?"
              In Opinion No. V-1407, to which we adhere, this
    office expressed the opinion that:
                     "House Bill No. 812, Acts 42nd Leg.,
                Special Laws R.S. 1931, ch. 156, p. 303
                (Harrison County Road Law), makes It manda-
                tory for the commissioners' court of
                Harrison County to employ a county engineer
                and to have a county engineer in constant
                employment with Harrison County."
              Section 4 of House Bill No. 812, Acts 42nd Lee;.,
    Special Laws, R.S. 1931, ch. 156, p. 303 requires that 'Said
    County Engineer shall be a qualified Civil Engineer and a
    resident of the State of Texas; . . . ' The question thus
    evolves : Must the "qualified Civil Engineer" required by
    Section 4 be a "registered professional" civil engineer?
Honorable Charles A. Allen, Page 2 (w-1029)


          The duties of the county engineer are set forth in
Sections 2, 3 and 4 of the Harrison County Road Law, provid-
ing in part as follows:
               "Sec. 2. The Commissloners~ Court
          of Harrison County is hereby authorized and
          empowered to employ a County Engineer, whose
          duties, compensation and liabilities shall be
          such as are imposed by this Act. The said
          County Engineer shall devote his entire time
          to the construction and maintenance of the
          county roads.
               "Sec. 3. That said County Engineer
          shall be appointed by the Commissioners'
          Court of said county within ninety (90) days
          after the nassage of this Act at a Regular
          Meeting or-Called Session thereof. That he
          shall have charge of all public road con-
          struction and public road maintenance, to-
          gether with the building of bridges and cul-
          verts, in his County except as is otherwise
          herein expressly provided. . . .
               “Sec. 4. Said County Engineer shall
          be a qualified Civil Engineer and a resident
          of the State of Texas; . . . That said County
          Engineer shall subject to the orders of the
          Commissioners' Court, have general supervision
          over the construction and maintenance of all
          public roads and highways of his county, toget-
          her with the building of bridges and culverts;
          he shall superintend the laying out of new
          roads subject to the orders of the Commissioners'
          Court, and shall forthwith make or cause to be
          made a road map of the county showing the loca-
          tion, mileage, and classification of the dif-
          ferent roads and highways in said county, . . .'
          (Emphasis added throughout)
          The pertinent sections of Article 3271a, Vernon's
Civil Statutes, defining and regulating the practice of pro-
fessional engineering in the State of Texas, provide in part:
               "Section 1. That In order to safeguard
          life, health, and property, any person prac-
          ticing or offering to practice the profession
Honorable Charles A. Allen, Page 3 (WW-1029)


         of engineering as hereinafter defined shall
         hereafter be required to submit evidence that
         he is qualified so to practice and shall be
         registered as hereinafter provided; and it
         shall be unlawful for any person to practice
         or offer to practice the profession of engi-
         neering In this State, . . . unless such
         person has been duly registered or exempted
         under the provisions of this Act.
                          "DEFINITIONS
              "Sec. 2. The term professional engineer
         as used in this Act shall mean a person who,
         by reason of his knowledge of mathematics, the
         physical sciences, and the principles of en-
         gineering, acquired by professional education
         and practical experience, Is qualified to en-
         gage in engineering practice as hereinafter
         defined.
              'The practice of professional engineering
         within the meaning and Intent of this Act in-
         cludes any professional service, such as con-
         sultation, investigation, evaluation, planning,
         designing, or responsible supervision of con-
         struction in connection with any public or pri-
         vate utilities, structures, bulldlnsts.machines.
         equipment, processes, works, or projects, where:
         in the public welfare, or the safeguarding of
         life, health or property is concerned or involv-
         ed, when such professional service requires the
         application of engineering principles and lnter-
         pretation of engineering data.
              ,t
               . . .
              "Sec. 19.   After the first day of January,
         1938, it shall be unlawful for this State, or
         for any of its nolltlcal subdivisions. for any
         county; city, or town, to engage in the con-
         struction of any public work involving pro-
         fessional engineering, where public health,
         public welfare or public safety is involved,
         unless the engineering plans and specifica-
         tions and estimates have been prepared by,
Honorable Charles A. Allen, Page 4 (WW-1029)


         and the engineering construction is to
         be executed under the direct supervision
          f a registered professional engineer;
         zrovided that nothingln~ &isAct shall
         be held io apply to any public work where-
         in the contemplated expenditure for the
         completed reject does not exceed Three
         Thousand ($ 3,OOO.OO) Dollars. Provided,
         that this Act shall not apply to any road
         maintenance or betterment work undertaken
         by the County Commissioners' Court."
         (Fmphasis added throughout)
          The term, "public works" is defined In Volume
34 of Texas Jurisprudence at page 731, as embracing "all
constructlorsand improvements--ordinarily of a fixed
nature--designed for public use, protection or enjoyment.
Clearly included among public works are bridges, school
buildings, waterworks, dams, sewers, canals and channels,
levees and seawalls, wharves and piers, irrigation, re-
clamation and drainage projects, and highways and streets.
Indeed, every work undertaken by the State, a county,
municipality, or other public agency Is necessarily, in
the broadest sense, a 'public work.'" The term "public
welfare" is defined as "the prosperity, well-being, or
convenience of the public at large, or of a whole community,
as distinguished from the advantage of an individual or
limited class." Black's Law Dictionary.
          It is the opinion of this office that the duties
imposed upon the county engineer by the Harrison County
Road Law are encompassed by the definition of the practice
of professional engineering contained In Section 2 of Article
3271a.
          In response to a request from the County Auditor
of Harrison County, relative to the authority of the Commls-
sioners Court to appoint a person not possessing the qualifl-
cations of a "professional engineer" as a superintendent of
maintenance and construction of county roads and other public
works, this office expressed the following opinion:
               "It is the opinion of this department,
          under the facts stated, that Section 19,
          supra, does not prohibit the Commissioners'
          Court from appointing a person not possess-
          ing the qualifications of an engineer as
Honorable Charles A. Allen, Page 5 (WW-1029)


         defined In Article 327la, V. A. C. S.,
         as a superintendent In the construction
         of public works where the contemplated
         expenditure for the completed project
         does not exceed $3,000.00; nor does said
         section prohibit the Commissioners' Court
         from appointing such a person to super-
         vise any road maintenance or road better-
         ment work undertaken by the county Commls-
         sioners' Court.
              "Where, however, the county Commis-
         sioners' Court engages in the construction
         of public works wherein the contemplated
         expenditure for the completed project ex-
         ceeds $3,000.00, and such work involves
         public health, public welfare or public
         safety, and also involves professional
         engineering, it is the opinion of this de-
         partment that, while a non-engineer could
         be appointed as general supervisor of such
         construction, Section 19 requires the
         county to employ a registered professional
         engineer to prepare the engineering plans
         and specifications and estimates, and the
         engineering construction, likewise, must be
         executed under the direct supervision of
         such engineer.
              "Whether the construction of a parti-
         cular public work involves 'professional
         engineering' and whether 'public health,
         public welfare or public safety' Is involv-
         ed, are questions of fact, and consequently
         not subject to being ruled on by this
         department."
Copies of this opinion, No. o-3505, and of Opinion No. V-1407
are enclosed for your information.

                      SUMMARY
          Under the mandatory provisions of the
          Harrison County Road Law and the pro-
          visions of Article 327la, Vernon's Civil
Honorable Charles A. Allen, Page 6 (NW-1029)


            Statutes, the Commissioners Court of
            Harrison County, Texas, is required
            to employ and have In Its constant em-
            ploy a "registered professional" civil
            engineer.
                               Very truly yours,
                               WILL WILSON
                               Attorney General of Texas


                                    J+&A&-yd.b
                               BY
                                     Dudley D. McCalla
                                     Assistant


DDM:hmc
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Jack N. Price
John Reeves
L. P. Lollar
John Leonarz
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Morgan Nesbltt
