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                                    March 19, 1971


    Mr. Donald C. Klein, P. E.                  Opinion No. M- 816
    Executive Director
    Texas State Board of Registration           Re:   Authority of Board
      for Professional Engineers                      under Article 3271a.
    Room 200, 1400 Congress                           V.C.S., to require
    Austin, Texas 78701                               written examination
                                                      of all applicants
        Dear Mr. Klein:                               for license.

               Your recent letter requested the opinion of this
     department on the authority of the Board under Article 3271a,
    Vernon's Civil Statutes, to require a written examination of
    -all applicants for a license as a professional engineer.

                  You submitted a copy of a proposed rule which would
        require such an examination and also a very able brief on the
        question.

                  After a careful review of the pertinent sections of
        Article 3271a, Vernon's Civil Statutes, and of language found
        in recent Texas cases on the subject of authority of admini-
        strative agencies to make rules, we are of the opinion that the
        Texas State Board of Registration for Professional Engineers
        does not have the authority to require by administrative rule
        a written examination of all applicants for a license as a
        professional engineer.

                   Subsections   (a) and (b) of Article 3271a. read as
        follows:

                  "Sec. 12. The following shall be considered
             as minimum evidence satisfactory to the Board that
             the applicant is qualified for registration as a
             professional engineer, to-wit:



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Mr. Donald C. Klein, P. E., page 2



           (a) Graduation from an approved course in
     engineering of four (4) years or more in a rec-
     ognized school or college approved by the Board
     as of satisfactory standing, and a specific record
     of an additional four (4) years or more of active
     practice in engineering work, of a character sat-
     isfactory to the Board, indicating that the appli-
     cant is competent to be placed in responsible
     charge of such work: or

          (b) Successfully passing a written, or
    written and oral, examination designed to show
    knowledge and skill approximating that attained
    through graduation from an approved four (4)
    years engineering course: and a specific record
    of at least eight (8) years of active practice
    in engineering work of a character satisfactory
    to the Board and indicating that the applicant
    is competent to be placed in responsible charge
    of such work."

         Subsection   (g) of Article 3271a reads as follows:

         "(9) Any person having the necessary quali-
    fications prescribed in this Act to entitle him
    to registration shall be eligible for such reg-
    istration though he may not be practicing at the
    time of making his application."

         Section 8 of the article reads, in part, as follows:

         "The Board shall have the authority and
    power to make and enforce all rules and regu-
    lations necessary for the performance of its
    duties, to establish standards of conduct and
    ethics for engineers in keeping with the pur-
    poses and intent of this Act or to insure strict
    compliance with and enforcement of this Act . . .)I




                             -3955-
Mr. Donald C. Klein, P. E., page 3       (M-816)



          The thrust of opinions we have examined appears to
be (1) that authority to make a particular rule must be found
in the statute governing the agency, (2) that the rule must
not be inconsistent with the statute, and (3) that the rule
must be referable to and consistent with one or more specific
provisions of the statute.

          In Gerst v. Oak Cliff Savinqs and Loan Association,
432 S.W.Zd 703 (Tex.Sup. 1968) the court said:

          "In exercising the powers and broad au-
     thority granted by the Legislature, the only re-
     quirement is that rules and regulations must be
     consistent with the Constitution and Statutes of
     this State. Kee v. Baber, 157 Tex. 387, 303 S.W.
     Zd 376 (1957). In m,    we said:

             ' * * * * * * The determining factor in
           this and other decisions of our courts
           dealing with the question of whether or not
           a particular administrative agency has ex-
           ceeded its rule-making powers is that the
           rule's provisions must be in harmony with
           the general objectives of the Act involved.
           In Texas State Board of Examiners in OP-
           tometrv v. Carp, 412 S.W.Zd 307 (Tex.Sup.
           1967), we held that the Rule's provision
           were in harmony with the general objectives
           of the Act and referable to and consistent
           with one or more of its snecific proscriptions."'
           (Emphasis supplied.)

          Section 8 of Article 3271a, Vernon's Civil Statutes,
gives the Board the power to make rules necessary to, in sub-
stance, do &    the following:

           (1) enable the Board to carry out its duties:

           (2) establish standards of conduct and ethics,
     and



                              -3956-
Mr. Donald C. Klein, P. E., page 4      (M-816)


          (3) insure strict compliance with and enforce-
     ment of the Act.

          There is no provision in Article 3271a that would give
the Board authority to enlarge on or make more restrictive the
provisions of the statute governing requirements for a license.

          In considering the rule now proposed by the Engineer's
Board, we are of the opinion that the rule is inconsistent with
the statute for the reason that it imposes a requirement on
every applicant for a license that the Legislature did not
choose to impose on every applicant. The Legislature in pro-
viding subsections (a) and (b) of Section 12 clearly wrote in
the disjunctive.  Subsection (b) applies only if the applicant
does not qualify under (a). Further, the language of Sub-
section (g) clearly imposes on the Board a mandate to register
an applicant who has the necessary qualifications prescribed
in the Act, which of course includes Subsection 12(a), where
no requirement of an examination is made.

          We are also of the opinion that the rule proposed
by the Board does not meet the test of being referable to and
consistent with one or more specific provisions of Article
3271a. See Texas State Board v. Carp, 412 S.W.Zd 307 (Tex.
Sup. 1967).

          Neither this department nor the State Board of Regis-
tration for Professional Engineers may enlarge or in any way
modify the statutory requirements as laid down by the Legisla-
ture. Attorney General's Opinion No. M-30 (1967). This was
discussed in Railroad Commission v. Ft. Worth & D.C.R.R.Co.,
161 S.W.Zd 560 (Tex.Civ.App. 1942, err. ref. w.o.m.), where
the court held:

          "It is also true that though such statutes
     and orders will be liberally construed to carry
     out the intent of the legislature, the Commission
     can exercise only the powers expressly delegated
     to it by law, or necessarily implied from those
     so delegated: and cannot enlarge such delegated
     powers by its own orders."  (citing authorities)


                            -3957-
Mr. Donald C. Klein, P. E., page 5         (M-816)


           Only under the licensing procedure provided in Sub-
section 12(b) may the Board impose the requirement of a written
examination, and then conditioned that the Board makes no re-
quirement that is unreasonable, arbitrary, or capricious.

          In Attorney General's Opinion No. M-609-A (1970), this
office considered the rule-making power of the State Health De-
partment under Article 459013, and wrote as follows:

           "However, the statute does not authorize
     the issuance of rules and regulations which are
     in excess of or inconsistent with the statutory
     provisions: nor may such an administrative body
     impose any additional burdens, conditions, or
     restrictions in that regard. Kellv v. Industrial
     Accident Board, 350 S.W.Zd 874 (Tex.Civ.App. 1962,
     error ref.). Such regulations or rules cannot be
     used in construing the law so as to give it a
     higher mandate than that of the statute. Bailey
     v. Texas Indemnity Insurance Co., 14 S.W.Zd 798,
     802 (Tex.Civ.App. 1929)."

          For the reasons discussed above, we are of the opinion
that the State Board of Registration for Professional Engineers
does not have the authority to make and enforce a rule requiring
everv applicant for a license as a professional engineer to take
a written examination.

                       SUMMARY

          Under the provisions of Article 3271a,
     V.C.S., the State Board of Registration for
     Professional Engineers does not have the au-
     thority to make and enforce a rule requiring
     every applicant for a license as a professional
     engineer to take a written examination.

                                 Very truly yours,

                                 CRAWFORD C. MARTIN
                                          General of


                                     NOW  WHITE
                                     First Assistant

                            -3958-
Mr. Donald C. Klein, P. E.. page 6    (~-816)




Prepared by James S. Swearingen
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Bob Lemens
Melvin COrley
Bob Lattimore
Jerry Roberts

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant




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