.




                                     The Attorney General of Texas
                                                          Cfctober    24, 1984
    JIM MATTOX
    Attorney General


                                   Mr. Philip D. Cm?::, PAIA                               Opinion No.      JM-217
    Supreme Court Buitdina
    P. 0. Box 12548                Executive Directo.:
    Austin. TX. 7871% 254S         The Texas Board of Architectural                        Re: Authority   of a landscape
    512,4752501                       Examiners                                            architect  under article   249c.
    Telex 9101874-1367
                                   8213 Shoal Creek :3:Lvd., Suite              107        V.T.C.S.
    Telecopier  51214750268
                                   Auetln. Texas   7W58

    714 Jxkson.   Suite 700        Dear Mr.   Creer:
    Dallas. TX. 752024505
    2141742-8944
                                         You ask whet,ter        the landscape        architect    for   the city       of   Corpus
                                   Christ1 Mayo
    4824 Alberta Ave.. Suite 150
    El Paso, TX. 799052793                     develop     detailed     plans   and specificatloas      for
    915/5333484                                retainill!!   walls,    park shelters,    decks,    viewing
                                               platfonw,      elevated     boardwalks,  etc.    under the
     001 Texas.   suits   700
                                               definit ton      of     the     practice    of    landscape
    Houston,   TX. 77002.3111                  archite,::ure    as set out in article    249c. V.T.C.S.
    713/22%5M8
                                   We conclude      that a landscape       architect   may not develop plans and
                                   specifications      fcmr such structures      when their    preparation   requires
    SO8 Broadway, Suite 312
    Lubbock. TX. 79401.3479
                                   skills     vhich    fall   within    the definitions     of    the practices     of
    8081747.5238                   engineering,     archL:ecture,    or public surveying.     Whether the design or
                                   construction     of 4~ particular      improvement constitutes     an exercise   of
                                   engineering,     archlzecture,    or public surveying is a question dependent
    4309 N. Tsnth. Suite B
    McAllen. TX. 78501-1585
                                   upon the facts of azach case.         This office  is not authorized to resolve
    512/882.45d7                   such matters in t:w opinion process.

                                         The practice   of landscape             architecture.    defined    In article       249c.
    200 Main Plus. Suite ro0
                                   section 1 (b) , includes the
    San Antonlo. TX. 78205.2797
    512/2254191
                                                  preparat:Lon     of . . .         detailed       design     plans,
                                                  studies L      specifications,               and      responsible
    An Equal Opparlunityl                         supervialon    in connection with the development of
    Affirmative Action Emplow                     land awas where, and to the extent                      that,   the
                                                  princip,*l  purpose of such service               is to arrange
                                                  and modify the effects              of natural       scenery    for
                                                  aesthetl,:  effect,     considering        the use to which the
                                                  land i:; to be put.              Such services       concern the
                                                  arrangammt       of    natural        forms,     features,      and
                                                  plantings.    including      the ground and water forms,
                                                  vegetat Loa.      circulation.           walks,       and     other
                                                  landsca ?a~ features           to    fulfill     aesthetic      and




                                                                     p.   972
Mr. Philip    D. Creer - Page ;I        (JM-217)




             functional     requirments   but shall not include any
             services or funct:lona within the definition      of the
             practice     of eng&eering,      uublic  surveying,   or
             architecture     as duliined by the laws of this state.
             (Emphasis added).

In light    of this definiticn.   your question  Is In essence whether a
landscape architect    may perform the aforementioned     services   without
engaging     in the practice:1   of engineering.   public    surveying,    or
architecture.

      The practice    of enginefc?ing     is defined    as

             any service or cr’r;%tive work . . . the performance
             of which requires engineering    education,    training
             and experience      ln the application     of    special
             knowledge   of    th:  mathematical,     physical,     or
             engineering  sciences   to such services   or creative
             work.

V.T.C.S.     art.    3271a. §2(4).      Public   surveying    is the practice       of
“determining       the boundaries or the topography of real property or of
delineating      routes,   spaces, or sites in real property” by the use of
“relevant        elements     of   law *   research,     measurement.     analysis,
computation,       mapping, and land description        writing.”    V.T.C.S.   art.
5282c,    $2(l).      The practiw     of architecture      is defined   in article
249a. section 10(a). V.T.C.S.,         as

             any service     or creative      work . . . applying        the
             art and science        of developing       design concepts,
             planning for functional       relationships       and intended
             uses,    and estahl.ishing        the    form,     appearance,
             aesthetics,     and construction         details,     for   any
             building     or    buildings,      or     environs,     to    be
             constructed,      enl.arged    or    altered,      the proper
             application      of    which      requires      architectural
             education.    training and experience.

       The statutes     regulat:lng      the practices       of engineering,       public
                                                           _                            .
surveying,     and architecture         each contain       language expressing         the
objective    of safeguarding      life,    health,   property and public welfare.
See V.T.C.S.      arts.  249a. IL; 3271a, 11.1; 5282~‘ $3.                 Article    249c
ztains     no such language!; we do not,               however,     infer    any   lesser
concern for the public        from this omission.            The statutes     regulating
engineering,     public surveying,        and architecture       reflect    the state’s
overriding     interest   in px,cmoting safety         and competence in design,
measurement,       and construction         while    discouraging        confusion     and
deception    of the public b>, unlicensed          practitioners.        See Parrish v.
Phillips.    401 S.W.2d 347 I,‘l’ex. Civ. App. - Houston 1966. writ ref’d
n.r.e.);   Farha v. Elam, 3(;5 S.W.Zd 692 (Tex. Civ. App. - Fort Worth



                                         p. 973
Mr.   Philip   D. Creer - Page 3        (JM-217)




 1964. writ ref’d n.r.e.);   Habry v. Prime=,    333 S.W.Zd 684 (Tex. Civ.
APP. - Houeton 1960). $?.        onL other grounds. 338 S.W.2d 704 (Tex.
 1960).   We believe that 4ZIcle   249c promotes corresponding  interests.
-See Attorney General Opinion R-814 (1976).
      The laws pertaining         to the practice      of the four professions
discussed     in this      opinior~ each provide        exemptions    for  certain
individuals     othervise   satlaf!ying   the requirements of regulation.       See
V.T.C.S.    arts.   249s. 110; i49c.      16; 3271a. 121; 5282~. 04.       Arti=
249c, section      2, exempts professional      engineers,    land surveyors,   and
architects     from the provisions      of the act.     Landscape architects,    on
the other hand, are not er,empted from compliance with articles               249a,
3271a. snd 5282~.         As a goneral matter,     the creation    of a statutory
exception by the 1egislatu::c         “makes plain the intent that the statute
should apply in all cssel            not excepted.”      State v. Richards,     301
S.W.2d 597. 600 (Tex. 1957).

      It has been suggested :hst landscape architects               may be permitted
to perform services within t,he practices             of engineering,    architecture.
and public surveying as long as they do not represent                    themselves to
the public as members of those professions              or employ the titles      of the
respective     professions.       It is true that lo Attorney General Opinion
R-814 (1976) this office            concluded that non-licensed          persons could
perform services       involving ,zlements of landscape architecture             as long
as they did not hold thenselves              out as landscape      architects.       This
conclusion      though,     was predicated         on the applicability          of   the
exemptions contained in article            249c.    Similarly.   In Attorney General
Opinion M-545 (1969). this office           held that certain structural         designs
could be prepared by pertcns not registered                  under article      3271a as
long as they do not represent that they are licensed                  and registered.
This     conclusion,      too,    presumed the applicability            of    exemptions
contained     in article       327:~~.   With regard to landscape           architects,
there is no exemption upt’c, which we may rely.                 Accordingly,      it has
been concluded on prior occasions              that landscape architects         are not
excused, by agreement or otlervise,             from the licensing     requirements of
statutes     from which they are not specifically                excepted.      Attorney
General Opinions E-890 (1976);             H-495 (1975).       The question      you ask
does not require a diffewnt              answer.     On the contrary,       because the
services     in question       are to be performed for the city               of Corpus
Christi,     we answer your question          in the negative.        See, e.g.,     art.
3271a. 919 (plans and specifications               for any public work whose cost
exceeds     $3000 must be p::c!pared by and construction                 supervised     by
registered     professional     engineer).

                                     SUMMARY

                   A landscape    architect   may not,       under the
               definition    of :.andscape   architecture,      develop
               detailed   plans  and specifications        for  certain
               structures  when their preparation     requires skills



                                          p. 974
hr.   Philip    D. Crcer - Page 4         (JM-217)




               which fall     withjo, the practices     of engineering,
               public    surveying,    or architecture.      Whether the
               development      of   much plans     and specifications
               constitutes     au csercise      of engineering,    public
               surveying,     or a::t:hitecture   is a factual     matter
               that this office     i.s not authorized to resolve.




                                                                               i


                                                   JIM     MATTOX
                                                   Attorney General of Texas

TOMGREEN
First Assistant       Attorney   Gweral

DAVID R. RICRARDS
Executive Assistant Attorney         General                                   .


RICK GILPIN
Chairman, Opinion Committe~r

Prepared by Rick Gilpia
Assistant Attorney General

APPROVED:                                                                      :
OPINION COMWITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




                                          p. 975
