                               ATTORNEY            GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                 June 20,2006



The HonorableJeff Wentworth                               Opinion No. GA-0439
Chair, Committee on Jurisprudence
Texas State Senate                                        Re: Whether a city building official may rely on
Post Office Box 12068                                     a professional engineer’s seal and certification
Austin, Texas 7871 l-2068                                 that a plat or plan complies with the city’s
                                                          building codes (RQ-0426-GA)

Dear Senator Wentworth:

        You request our opinion on “whether a city building official may rely on a professional
engineer’s seal and certification that all code provisions, specifically the International Residential
Code (“IRC”)       as adopted by the city, have beenmet.“’ The IRC, as amended by a municipality,
is “adopted as a municipal residential building code” in Texas. See TEX. LOC. GOV’T CODEANN.
5 214.212(a)-(c) (Vernon Supp. 2005). According to your letter, a housing subdivision in your
senate district was “allegedly designed and constructed in violation of city code and the IRC.”
Request Letter, supra note 1, at 1. You inform us that though the city building official is authorized
to “enforce the IRC, as well as to render interpretations of the code and adopt policies and
procedures to clarify the application of its provisions,” the official “contends that he has no
responsibility to ensure plans conform to the IRC as adopted by the city if the plat or plan is certified
and sealed by a professional engineer.” Id.

       In your query, you direct our attention to section 100 1.402 of the Occupations Code. Section
1001.402 provides that

                 [a] public official of the state or of a political subdivision of the state
                 who is responsible for enforcing laws that affect the practice of
                 engineering, may accept a plan, specification, or other related
                 document only if the plan, specification, or other related document
                 was prepared by an engineer, as evidenced by the engineer’s seal.

Bx. Oct.   CODE ANN. 5 1001.402 (Vernon 2004). Section 1001.402 uses the word “may” and
thereby “creates discretionary authority or grants permission or a power.” TEX. GOV’T CODEAm.


          ‘Letter from Honorable Jeff Wentworth, Chair, Committee on Jurisprudence, Texas State Senate, to Honorable
Greg Abbott, Attorney General of Texas, at 1 (Dec. 20,2005) (on file with the Opinion Committee, also available nf
http://www.oag.state.tx.us)  [hereinafter Request Letter].
The Honorable Jeff Wentworth      - Page 2         (GA-0439)




5 3 11.016 (Vernon 2005). Pursuant to its plain language, see Fitzgeruldv. AdvancedSpine Fixation
Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999), section 1001.402 authorizes a building official to
accept a plan, specification, or other related document but limits that authority to instances where
the plan, specification, or other document has been prepared by a professional engineer. See TEX.
Oct. CODE ANN. 5 1001.402 (Vernon 2004) (“public official           nzay accept a plan, specification,
or other related document only if.           [it] was prepared by an engineer”) (emphasis added).
Conversely, where the plan, specification, or other related document has not been prepared and
sealed by a professional engineer, under section 1001.402 the building official may not accept it.
See id. (“may accept.       only if.  prepared by an engineer, as evidenced by the engineer’s seal”)
(emphasis added).

         The Occupations Code and the regulations promulgated by the Texas Board of Professional
Engineers (“TBPE”) establish the rules regarding a professional engineer’s seal. See id. ch. 1001
(“This chapter may be cited as the Texas Engineering Practices Act.“). Upon licensure, a
professional engineer is required to obtain a seal. See id. § 1001.401(a) (Vernon Supp. 2005). A
professional engineer must place the seal on every plan, specification, plat, or report issued by the
engineer. See id. 5 1001.401(b). “The purpose of the engineer’s seal is to assure the user of the
engineering product that the work has been performed or directly supervised by the professional
engineer       .” 22 TEX. ADMIN. CODE 5 137.33(a) (2005) (Tex. Bd. of Prof 1 Engineers, Sealing
Procedures). Further, “[ulpon sealing, engineers take full professional responsibility for that work.”
Id. 3 137,33(b); see also Tex. Att’y Gen. Op. No. GA-0274 (2004) at 4 (“Seals ‘carry with them
the [engineer’s] representation of personal accountability independent of any employment contract
with [his or her] employer.“‘) (quoting George Thomas Homes, Inc. v. S. K Tension Sys., Inc., 763
S.W.2d 797, 800 (Tex. App.-El        Paso 1988, no writ)). Pursuant to TBPE rules of professional
conduct and ethics, professional engineers are required to practice “in conformance with [applicable]
standards, laws, codes, rules and regulations.” 22 TEX. ADMIN. CODE 5 137.59(a) (2005) (Tex. Bd.
of Prof 1 Engineers, Engineers’ Actions Shall Be Competent).         A professional engineer is also
required to “endeavor to meet all ofthe applicable professional practice requirements of federal, state
 and local statutes, codes, regulations, rules or ordinances in the performance of engineering
 services.” Id. § 137,63(b)(l) (2005) (Tex. Bd. of Prof 1Engineers, Engineers’ Responsibility to the
Profession).

        You ask if a building official may “rely” on a professional engineer’s seal. See Request
Letter, supru note 1, at 1. Your reference to the building official’s contention that “he has no
responsibility” with respect to plans sealed by a professional engineer leads us to conclude that you
are inquiring whether a building official who “relies” on a professional engineer’s seal is thereby
absolved of any responsibility or duty, the violation of which would serve as a basis for a civil
action.

        Section 1001.402 simply does not address the question. The duties of a building official
derive from other sources of law, including statute, city ordinances, and the IRC. And section
1001.402 does not create any obligation or duty, see Smith v. Houston Chemical Services, Inc., 872
S.W.2d 252,264 (Tex. App.-Austin       1994, writ denied) (acceptance of a plat or plan that bears an
engineer’s seal under section 1001.402 does not create rights and obligations), nor does it by its plain
The Honorable Jeff Wentworth       - Page 3          (GA-0439)




language absolve the building official of any duties imposed by other law. Moreover, the specific
determination ofwho may be held liable for a building code violation is one that depends on the facts
of the particular circumstances which requires resolution by the courts. We cannot resolve questions
of fact in the opinion process. See Tex. Att’y Gen. Op. No. GA-0139 (2004) at 5. Thus, to the
extent you inquire about a building official’s potential liability for a violation of a duty based on laws
other than section 1001.402, including city building codes, we cannot answer your question.

        However, we can answer your legal question on the meaning of section 1001.402. Section
1001.402 authorizes a building official to accept a proffered plat or plan only if the plat or plan bears
the professional engineer’s seal. See id. Pursuant to the TBPE rules, the engineer’s seal is merely
evidence, or assurance, to the building official that the work was performed by a professional
engineer, see TEX. OCC. CODE ANN. § 1001.402 (Vernon 2004) (“was prepared by an engineer, as
evidenced by the engineer’s seal”) (emphasis added); see also 22 TEX. ADMIN. CODE 5 137.33(a)
(2005) (Tex. Bd. of Profl Engineers, Sealing Procedures), and that the professional engineer
endeavored to meet all federal, state, or local requirements. See 22 TEX. ADMIN. CODE $3 137.59(a)
(2005) (Tex. Bd. ofProf 1Engineers, Engineers’ Actions Shall Be Competent), 137.63(b)(l) (2005)
(Tex. Bd. of Pro!? 1 Engineers, Engineers’ Responsibility to the Profession). Thus, under section
 1001.402, a professional engineer’s seal represents only that the plat or plan was prepared by a
professional engineer who endeavored to comply with all federal, state, and local regulations.
The Honorable Jeff Wentworth       - Page 4       (GA-0439)




                                        SUMMARY

                        Section 1001.402, Occupations Code, does not create rights
               and obligations regarding a building official’s duties that are imposed
               by other laws, including city ordinances. Under section 1001.402 a
               building official may accept a plat or plan only if it is sealed by a
               professional engineer but may “rely” on a professional engineer’s seal
               only for the representations that the plat or plan was prepared by a
               professional engineer who endeavored to comply with all federal,
               state, and local requirements.




KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
