                              ATTORNEY GENERAL OF TEXAS
                                           GREG       ABBOTT




                                                 July 25,2012



Mr. Lance Kinney, P.E.                                 Opinion No. GA-0955
Executive Director
Texas Board of Professional Engineers                  Re: Whether a federally appointed designated
1917 South Interstate 35                               engineering representati ve must be licensed by the
Austin, Texas 78741-3702                               Board of Professional Engineers under the Texas
                                                       Engineering Act, chapter 1001, Occupations Code
                                                       (RQ-1047-GA)

Dear Mr. Kinney:

       You ask whether a person who is appointed by the Federal Aviation Administration (the
"FAA") as a "designated engineering representative" (a "DER") must, while serving in such
appointment, be licensed as a professional engineer by the Board of Professional Engineers (the
"Board") under the Texas Engineering Act, chapter 100 1, Occupations Code. l

        You furnish the following information regarding the functions of a DER:

                 The [FAA] employs engineers directly and uses non-agency
                 engineers, DERs, for limited consultation, data analysis and reports
                 and approvals regarding aircraft design and certification. We believe
                 there is no question that DERs are assisting the FAA in the
                 performance ofthefederalfunction of ensuring the airworthiness of
                 aircraft and thus the public health, safety and welfare.

Request Letter at 3 (emphasis added). According to your request letter, DERs are "appointed by the
FAA through one ofthe 10 Aircraft Certification Offices ("ACO")." Id. You note that there are two
types of DERs: a company DER and a consultant DER. "A consultant DER works for multiple
clients and is not a direct employee of a manufacturer or airline." Id. Your question is limited to
the licensing of consultant DERs. Id. Federal law imposes three requirements governing DER
appointments: "(1) an accredited engineering degree in the appropriate field plus 4 years directly
related experience or eight years' experience in the appropriate field; (2) three references confirming


         'Letter from Lance Kinney, P.E., Exec. DiL, Tex. Bd. of Prof 1Eng'rs, to Honorable Greg Abbott, Tex. Att'y
Gen. at 1 (Mar. 20, 2012), http://texasattorneygeneral.gov/opin ("Request Letter").
Mr. Lance Kinney, P .E. - Page 2               (GA-0955)




the work experience; [and] (3) mandatory orientation and demonstrated knowledge of FAA
regulations." !d. See also U.S. DEP'T OF TRANSP., FED. AVIATION ADMIN., Designee Mgmt.
Handbook, Order 8100.8D, at 4-2, & app. A, at A4 (Oct. 28, 2011) ["DER Requirements"]. By
contrast, an applicant for a Texas professional engineering license is subject to numerous additional
requirements, including, most significantly, passage of an examination prescribed by the Board. See
TEX. Oee. CODE ANN. § 1001.302(a) (West 2012). We note that holding a Texas professional
engineering license is not among the federal requirements governing a DER designation. See supra
DER Requirements. You indicate that, at present, only nineteen of 130 DERs with Texas addresses
"appear to have an active Texas [professional engineering] license." Request Letter at 3.

        We assume for purposes of this opinion that you are correct in concluding that a DER, under
the circumstances you describe, is engaged in the practice of engineering. See Request Letter at 4.
Even so, we note that the Texas Legislature exempted federal employees from the Texas Engineering
Act, which governs the licensing of professional engineers in this state. TEX. Oee. CODE ANN.
§ 1001.054 (West 2012). In Attorney General Opinion JC-0390, this office concluded that persons
who practice engineering under contracts procured by the federal government are also exempted
from the requirements of chapter 1001. Tex. Att'y Gen. Op. No. JC-0390 (2001) at 9 (relating to
"contracts procured by the federal government pursuant to federal procurement laws and regulations
under which the federal government assesses engineers' qualifications"). Although we have found
no information that would lead us to believe that a DER functions as a federal contractor, Opinion
JC-0390 relied on two United States Supreme Court cases that are relevant to the question you pose.

       In Miller v. Arkansas, the Court considered an Arkansas statute that required contractors
performing construction work of a certain value to obtain a license from the state. Miller v.
Arkansas, 352 U.S. 187, 188 (1956). The Court contrasted the requirements for obtaining a federal
contract with the requirements for securing an Arkansas license. [d. at 188-89. The Supreme Court
declared that

               [m]ere enumeration of the similar grounds for licensing under the
               state statute and for finding "responsibility" under the federal statute
               and regulations is sufficient to indicate conflict between this license
               requirement which Arkansas places on a federal contractor and the
               action which Congress and the Department of Defense have taken to
               insure the reliability of persons and companies contracting with the
               Federal Government. Subjecting afederal contractor to the Arkansas
               contractor license requirements would give the State's licensing
               board a virtual power of review over the federal determination of
               "responsibility" and would thus frustrate the expressedfederal policy
               of selecting the lowest responsible bidder.

[d. at 189-90 (emphasis added). The Court quoted from an earlier case, Johnson v. State of
Maryland, 254 U.S. 51, 57 (1920), that described "the immunity of the instruments of the United
States from state control in the performance of their duties." In that case, the Supreme Court struck
Mr. Lance Kinney, P.E. - Page 3                (GA-0955)




down the state's attempts to require "qualifications       III   addition to those that the [Federal]
Government has pronounced sufficient."

        Likewise, in Sperry v. Florida, 373 U.S. 379 (1963), the Supreme Court held that Florida was
prohibited from enjoining a nonlawyer registered to practice before the United States Patent Office
from preparing and prosecuting patent applications in Florida, notwithstanding that such activity
constituted the practice of law in Florida. The Court reasoned thus:

               A State may not enforce licensing requirements which, though valid
               in the absence of federal regulation, give "the State's licensing board
               a virtual power of review over the federal determination" that a
               person or agency is qualified and entitled to perform certain
               functions, or which impose upon the performance of activity
               sanctioned by federal license additional conditions not contemplated
               by Congress.

[d. at 385 (emphasis added). These Supreme Court decisions make it likely that a court would
conclude that, when a federal statute or regulation sets forth requirements by which to assess
qualifications of appointees, a state may not add to those requirements and thereby interfere with the
federal determination of a person's suitability to perform certain federal functions. Under the facts
presented in your request letter, the FAA, through one of its ACOs, prescribes the qualifications for
appointment as a DER. None of those qualifications include possessing a Texas-issued license to
practice engineering. As a result, United States Supreme Court precedent would likely require a
court to conclude that a federally appointed DER is not required to be licensed as a Texas
professional engineer. We note, however, that to the extent that an individual engages in the practice
of engineering in Texas outside the scope of his capacity as a federally appointed DER, he must be
licensed by the Board of Professional Engineers. See TEX. Occ. CODE ANN. § 1001.301(a) (West
2012).
Mr. Lance Kinney, P.E. - Page 4             (GA-0955)



                                     SUMMARY

                      United States Supreme Court precedent would likely lead
              a court to conclude that a person appointed as a "designated
              engineering representative" by the Federal Aviation Administration
              is not, while serving in that capacity, required to be licensed as a
              professional engineer by the Texas Board of Professional Engineers.
              To the extent, however, that a person engages in the practice of
              engineering in Texas outside the scope of his capacity as a federally
              appointed "designated engineering representative," he must be
              licensed by the Board.

                                            Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
