Hon. Dan W. Jackson                Opinion No. O-2418
Criminal District                  Rer Interpretation    of Article
Attorney                           32718 Vernon’s Annotated Civil
Houston, Texas                     Statutes, relating   to the prac-
                                   tice of professional    englneer-
Attentlont     Mr. Palmer          lng .
 Hutcheson,    Jr.
Dear Sir:
             This will acknowledge receipt         of your letter     of May
27,lw,      requesting    the opinion of this department lnterpret-
lng Article      3271A, Vernon’s Annotated Civil Statutes,          relating
to the practice       of professional    englneerlng.      Your questions
are as follows:
             “Bearing In mind the definition          of professional
       engineering     as given In Sect Ion 2 of Article       32718,
       and the penal provision        ln Section 23, would an archl-
       tect be liable,     under the penal provision,        If he
       builds a store,      an office   building   or a public bulld-
       lng with plumbing and lighting          and provision    for the
       usual utllltles,      without hiring the services        of a
       professional     engineer?
              8,. . .

            would a sales and service    representative     (not
      a registered    engineer) of an air conditioning     equlp-
      ment company be guilty,    under Section 23 of Article
      32718, If he Installed    an air conditioning    system in
      a hospital   without employing a registered     engineer?
              1’. . .
             “The third question arises from the practice,
      which is especially    prevalent where large office
      buildings   are concerned,   of having plans prepared out
      of the State, with or without the advice of profes-
      sional engineers    in other states,   none of whom are
      registered   In Texas, and sent into the state and used
      In construction   of these buildings    without the seal
      or approval of any engineer registered       under the laws
      of the State of Texas.      In this situation,   1s it the
      opinion of your honorable offlce      that the penal pro-
Hon. Dan W. Jackson,    page 2    (O-2418)


     to any of the persons engaged        ln the constructlon      of
     such a building In Texas?”
          In answer to     your first    question  we call, your atten-
tion to Section 11 of     Article   249a, VernonIs hnnotated Civil
Statutes, creating the     Board of Architectural     Zxamlners and regu-
Iatlng the practice of     architecture.     This section reads as fol-
lowsr
             *Inny person, or firm, who for a fee or other
     direct     compensation therefor,        shall engage In the
     planning,     or designing,      or supervising     the construc-
     tion of buildings to be erected             or altered In this
     State, by or for other persons than themselves,                  as
     a profession      or business,      and shall represent or
     advertise     themselves as architects,         architectural
     designers,     or other titI,e of profession          or business
     using some form cf the word ‘architect,’               shall be
     considered as practicing           the profession     of architec-
     ture ln this State, and shall be required to comply
     with the provisions         of this &t; and no person or
     firm shall engage In or conduct the practice                of
     architecture      as aforesaid      ln this State unless a reg-
     istration     certificate      or certificates     therefor    have
     been duly Issued to such person or the members of such
     partnership      shall engage In, or conduct, the practice
     of architecture        as aforesaid     within this State except
     by and through persons to whom registration                certlfl-
     cates have been duly Issued,            and which certificates
     are In full effect;         but nothing In thls Act shall pre-
     vent draftsmen,        students,    clerks or works, superln-
     t endent s, or other employees or assistants             of those
     legally     practicing     architecture     under registration
     certq’ i’ates
          “A.-r-        as herein provided for, from acting un-
     der the Instruction,          control,    or supervision    of such
     registered      architects.
            “Nothing ln this Act shall preve~nt qualified            pro-
     fessional    engineers from planning and supervising            work,
     such as railroads,     hydro-electric      work, Industrial
     plants,   or other construction       primarily    intended for
     engineering    use of structures      incidental    thereto,    nor
     prevent said engFneers from planning,            deSignIt%, or
     supervising    the structural    features     of any bulldlng,
     but such engineers shall not employ the title              ‘archi-
     tect’ In any way, nor represent          themselves as such, nor
     shall any engineer practice        the profession      of archltec-
     ture as defined herein,       unless he or she be registered
     as an architect     under the provisions        of this Act.
Hon. Dan W. Jackson,     page 3    (o-2418)


             An architect    building or supervlslng      the construction
of a “store,      an office  building or a public building with plumb-
ing and lighting      and provision   for the usual utilitles’1     falls
squarely within the regulatory        provisions    of Article 249a, Ver-
non’s Annotated Civil Statutes,         and Is not required to comply
with Article      32718, Vernon’s Annotated Civil Statutes,        regulat-
ing the practice      of professional    engineering.    Nor Is such archl-
tect required to employ the services          of a professional    engineer.
This for the reason that the act regulating           the practice    of pro-
fessional    engineering    1s aimed at those l~supervIslng~’ engineering
work, “In responsible       charge of such work*‘, or those holding
themselves out as a professional         engineer by offering     their serv-
ices for consultation,       or by preparing plans, estimates and
evaluations.       “The mere execution,    as a contractor,     or work de-
signed by a professional       engineer,   or the supervision     of the
construction      of such work as foreman or superintendent”        is not
enga lng ln the practice       of professional     engineering.    Sect Ion
12(ff     Article   32718.   See also State Board of Examiners Etc.,
vs. Siandara Engineering Company (S.Ct. Term.), 7 S.W. (2j 47,
holding that plumbers are not englneers under the provisions               of
a slmllar statute.
            The only prohibition    In Section 23 of Article   32714,
Vernon’s Annotated Civil Statutes,      Is against one practicing
or offering   to practice  the profession     of engineering without
being registered    or exempted in accordance with the terms of the
Act, using the registration      of another or giving false or forged
evidence to the Board of Registration       for Professional  Engineers.
            Wile   the Act (Art. 32718, Vernon’s Winnotated Civil
Statutes)   requires   an architect to hire no one, we do call your
attention    to Section 19 which requires the State, its political
subdivisions,    and any county, city,  or town to employ a regis-
tered professional     engineer when It engages in the construction
of public works under certain circumstances.      This section reads
as follows:
             “After the first     day of January, 1933, it shall
      be unltiiful   for this State,     or for any of its politi-
      cal subdivisions,      for any county, city,      or town, to en-
      gage In the construction        of any public work involving
      professional     engineering,    where public health, public
      welfare or public safety is involved,          unless the engl-
      neerlng plans and specifications         and estimates have
      been prepared by, and the engineering          construction   Is
      to be executed under the direct         supervision    of a reg-
      istered professional       engineer;  provided,    that nothing
      in this Act shall be held to apply to any public work
      wherein the contemplated expenditure          for the completed
      project    does not exceed Three Thousand ($3,000.00)
      Dollars.     Provided,    that thls Act shall not apply to
Hon. Dan W. Jackson,      page 4    (O-241b)


      any road maintenance or betterment          work undertaken by
      the County Commlssloners~ Court .‘I
              It Is therefore     the oplnlon of this department, in
answer to your first        question that an architect        duly registered
under the provisions        of Article 249a Vernon’s Annotated Civil
Statutes ~111 not be amenable to Sec<lon 23 of Article j271A,
Vernon’s Annotated Civil Statutes,            In falling    to employ the
services    of a registered      professional    engineer In building a
store,   office   building,    or public building       “with plumbing and
lighting    and provision     for the usual utllities.tl
             Your second question Is whether or not a “sales and
service representative        (not 5 registered   engineer) of an air
conditioning    eq’llpment company” would be guilty under Section
23 of violating      A rtlcle   j2718, Vernon’s Annotated Civil Stat-
utes, If he ~%,stalled        an air conditioning   system ln a hospital
wltho;lt employing a registered        engineer.”
          In this connection we call your attention  to Section
20 (e) of Article  3271S, Vernon’s Annotated Civil Statutes,
which reads in part as follows:
           “Nothing in this Hct shall be construed to apply
      to persons doing the actual work of Installing  . . .
      air ccnditlon.ing equipment and systems . . .*I
             It is therefore   the opinion of this Department in an-
swer to your second question,       and you are respectfully   advised
that iirticle   j2,71&, Vernon’s &notated Civil Statutes,      does not
apply to a sales and service representative         of an air condltion-
ing zompir;y installing     an air ccnditionlng    system in a hospital.
You are further advised that the act does not require the em-
ployment of a registered      professional   engineer in the installa-
t Ion of such air conditioning      system.   Refer to the discussion
of Section 23 above.
             Your final question is tihether or not those persons
engaged in ttrs construction   oi buildings  in this State pursuant
to plans and specifications     prepared by and with the advice of
professional    engineers in other states without the advice or
approval 01’ any engineer registered     under the laws of this State
are amenable to prosecution     under the penal provisions  of Sec-
tion 23 of Article     3271A, Vernon’s Annotated Civil Statutes.
             In answer to this question you are advised and It is
clear that    those engaged in the actual construction       of such
buildings    are not within the purview of drticle     32718, Vernon’s
iinnotated   Civil Statutes,  et al.    As previously  pointed out,
“the mere    execution,  as a contractor,   of work designed by a pro-
fessional    engineer,  or the supervision   of construction    of such
    ..


I




         Hon. Dan W. Jackson,   page 5     (o-2418)


         work as foreman or superintendent"     is not engagin     in the prac-
         tice of professional engineering.      See Section 12 'if),  Article
         327.u.

                                         Very truly   yours
                                           HTTORNEY GENEilALOF T&X&3
                                         By /s/ Walter R. Koch
                                         Walter R. Koch, Assistant
                                         By /s/ James D. Smullen
                                         James D. Smullen
         APPROVED JUN Id, 1940
         /s/ Gerald C. Xann
         ?.TTORXUJJY
                   G5XiUlrL OF T&X&S

         APPRO'JRD:OPIi'iIOK CCi%SITl'&&
         BY:      BWB, CHAIRM!QJ
         JDS:ew:wb
