                           QBfficeof ttp !&tornep Qkneral
                                       &date of IEexae
DAN MORALES                              August 27,1992
 .ATTORSEY
       GESERAL


     Mr. Robert H. Norris                          Opinion No. DM-161
     Executive Director
     Texas Board of Architectural Bxaminers        Re: Construction of section 16 of
     8213 Shoal Creek Blvd., Suite 107             article 249a, V.T.C.S., the act regulating
     Austin, Texas 78758-7589                      the practice of architecture (RQ-186)

     Dear Mr. Norris:

             You ask whether section 16 of article 249a, V.T.C.S., which regulates the
     practice of architecture, prohibits an individual, other than one licensed as an
     architect, from preparing the plans and specifications for the public buildings
     described by that section.. Section 16 was adopted in 1989 and amended in 1991.
     See Acts 1989, 71st Leg., ch. 858, 9 8, at 3836; Acts 1991, 72d Leg., ch. 579, 9 2.
     When first adopted, section 16 read as follows:

               To protect the public health, safety, and welfare of the citizens
               of the State of Texas, an architect registered in accordance with
               this Act must prepare the architectural plans and specifications
               for a new building intended for education, assembly, or office
               occupancy whose construction costs exceed One Hundred
               Thousand Dollars (SlOO,OOO.OO)    which is to be constructed by a
               State agency, a political subdivision of this State, or any other
               public entity in this State.
             In 1991 the Texas Board of Architectural Examiners (the “board”) was
     reestablished after going through sunset review.’ See general& Acts 1991, 72d Leg.,
     ch. 579. Section 16 was revised to provide as follows:
                    (a) To protect the public health, safety, and welfare of the
               citizens of the State of Texas, an architect registered in

             ‘The Sunset AdvisoryCommittee,establishedby chapter325 of the GovernmentCode,
     reviewsthe state agenciesscheduledfor abolitionin each legislativesession and makesrecommen-
     dationson the abolitionor continuation
                                          of the agency.Gov’tCodeP 325.012.




                                              p. 847
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        Mr. Robert H. Norris - Page 2              (W-161)




                  accordance with this Act must prepare the architectural plans
                  and specifications for:
                       (1) a new building that is to be constructed and owned by a
                  State agency, a political subdivision of this State, or any other
                  public entity in this State if the building will be used for
                  education, assembly, or office occupancy and the construction
                  costs exceed SlOO,ooO,or
                      (2) any alteration or addition to an existing building that is
                  owned by a State agency, a political subdivision of this State, or
                  any other public entity in this State if the building is used or w-ill
                  be used for education, assembly, or oftice occupancy, the
                  construction costs of the alteration or addition exceed S50,000,
                  and the alteration or addition requires the removal, relocation,
                  or addition of any walls or partitions or the alteration or
                  addition of an exit.
                      (b) This section does not prohibit an owner of a building
                  from choosing a registered architect or a registered professional
                  engineer as the prime design professional for a building
                  construction, alteration, or addition project.
                       (c) This section does not prevent, limit, or restrict a
                  registered professional engineer from performing any act,
                  performance, or work that is the practice of engineering as
                  defined by The Texas Engineering Practice Act (Article 3271a,
                  Vernon’s Texas Civil Statutes).
        V.T.C.S. art. 249a, 3 16.2

               Article 249a, V.T.C.S., defines the “practice of architecture” as follows:
                  “Practice of Architecture” shall mean any service or creative
                  work, either public or private, applying the art and science of
                  developing design concepts, planning for functional relationships
                  and intended uses, and establishing the form, appearance+

                %Veaddressboth the 1989and 1991versionsof article‘249a,V.T.C.S.,becausethe legislative
        historyof the 1989 amendmentis relevantto your question. Citationsin the text to article 2494
        V.T.C.S.,will referto the 1991versionof thisstatuteunlessotherwisespetied.




                                                  p. 848
Mr. Robert H. Norris - Page 3            KM-161)




          aesthetics, and construction details, for any building or buildings,
          or environs, to be constructed.. . the proper application of
          which requires architectural education, training and experience.
V.T.C.S. art. 249a, 5 10(a).

        Briefs submitted in connection with this request argue that professional
engineers registered pursuant to the Texas Engineering Practice Act, V.T.C.S. art.
3271a. are authorized to design buildings under their licensing statute and need not
be licensed as architects to do so. Cases from other states have determined that the
professions of architect and engineer overlap in the area of designing buildings, SO
that some building designs may be prepared by a person with either license. See
Smith v. American Packing & Providon Co., 130 P.2d 951 (Utah 1942); see aLro
Annot., 82 kLR.2d 1013, 1026 (1962) (architectural and engineering services
within license requirements). Section 10(b) of article 249a, V.T.C.S., suggests that
the professions of architect and engineer overlap in Texas as well. This provision
states in part:
          [I]t is the intent of this Act to acknowledge .the necessity of
          professional inter-relations and cooperation between the
          professions for the benefit of the public and to achieve the
          highest standards in design, planning, and building. Therefore,
          nothing in this Act.. . shall . . . prevent, limit or restrict any
          professional engineer licensed under the laws of this State from
          performing any act, service or work within the definition of the
          practice of professional engineering as defined by the Texas
          Engineering Practice Act.
V.T.C.S. art. 249a, 3 10(b) (footnote deleted).

        An examination of the Texas Engineering Practice Act shows that the
practice of engineering includes building design. The State Board of Registration
for Professional Engineers licenses persons to engage in the practice of engineering,
defined as follows:
          “practice of engineering” or practice           of professional
          engineering” shall mean any service or creative work, either
          public or private, the performance of which requires engineering
          education, training and experience in the application of special




                                        p. 849
Mr. Robert H. Norris - Page 4             (EN-161)




          knowledge of the mathematical, physical, or engineering
          sciences to such services or creative work.
V.C.T.S. art. 3271a. 5 2(4). A rule promulgated by the Board of Registration for
Professional Engineers (BRPE) defines professional engineering as follows:
              Professional engineering-Professional service which may
          include . ..phnning      design&    or direct supervidon Of
          conshuction, in connection with any public or private utiliries,
          stmctum, buildings, . . . when such professional service requires
          the application of engineering principles and the interpretation
          of engineering data.
22 T.A.C. 0 131.18 (emphasis added). When the Texas Engineering Practice Act
was first adopted in 1937. it defined the practice of professional engineering as “any
professional service, such as consultation, investigation, evaluation, planning,
designing,or responsible supervision of construction in connection with any public or
private utilities, structures, buikfings,. . . when such professional service requires the
application of engineering principles and interpretation of engineering data.” Acts
1937,44th Leg, ch. 404,s 2 (emphases added). Like the BRPB’s rule quoted above,
the definition expressly included building design In 1965 the definition of the
“practice of professional engineering” was amended to read as it does today. Acts
1965, 59th Leg., ch. 85, at 209. The amending legislation was adopted to prevent
unqualified persons from practicing engineering. Id 5 10 (emergency clause). The
definition of the “practice of professional engineering” was amended to broaden the
coverage of the Engineering Practice Act, and not to omit engineering services
already covered by the act.

        Section 19(a) of article 3271a, V.T.C.S., makes it unlawful for the state or any
of its political subdivisions to engage in the construction of certain public works
‘unless the engineering plans and speci6catiom and estimates have been prepared
by... a registered professional engineer.” Section 20 exempts certain persons from
the registration provisions of the statute, provided that they are not represented as
being legally qualified to engage in the practice of engineering. Among other
persons, section 20 exempts the following:
              A person, firm, partnership, joint stock association or
          private corporation.. . drawing pltms Md specifiatiins for: (1)
          any private dwelling, or apartments not exceeding eight units per
          building for one story buildings, or apartments not exceeding




                                         p. 850
Mr. Robert H. Norris - Page 5                @I-161)




           four units per building and having a maximum height of two
           stories. or garages or other structures pertinent to such
           buildings; or (2) private buildings which are to be used
           exclusively for farm, ranch or agricultural purposes.. . or (3)
           other buildings, except public buildings included under Section
           19 of this Act, having no more than one story.. . [further
           describing building]; provided that no representation is made or
           implied that engineering services have been or will be offered to
           the public.
V.T.C.S. art. 3271a, 5 20(f) (emphasis added); see &o V.T.C.S. art. 249a, # 14
(similar exemption for licensing requirement for architects).

        Thus, there is an exemption for persons who draw plans and specifications
for the described buildings. Since these persons would be engaging in the practice
of engineering if they did not have the benefit of this exception, the legislature
understood that the drawing of plans and specifications for buildings ordinarily
constituted the practice of engineering. The practice of engineering includes
preparing building plans and designs when that service requires the application of
engineering principles and the interpretation of engineering data.

        A report prepared to assist the sunset review process reviewed the authority
of the Board of Architectural Ekaminers, and in doing so, recognized that licensed
engineers were authorized to prepare building designs under the engineer’s
licensing statute. TEXAS SUNSETADVISORYCOMMISSION,TEXAS BOARDOF AR-
CHITECNRAL EXAMINERS,STAFF REPORT TO SUNSET ADVISORY COMMISSION
(1991). Until article 249a, V.T.C.S., was amended in 1989, the Board of Archi-
tectural Examiners enforced a “title act,” which restricted the use of the title of
architect and the ability to offer services entitled architectural services to individuals
who had been registered by the board.3 Id at 1; see ako House Comm. on Bus. and


        3A “titleact’rqoircs ioditiduls who use an occopatioaaIor professioaaI
                                                                             title to registerwith
the appropriatelicensingagencyandbecomesubjcdto its regulation.It does not authorizethe agency
to regulatepersonswho do the workof the occopationor professionwithoutosiog the titIe. For
example,when artide 2494 V.T.C.S.,was adoptedin 1937, it exemptedpersoos and firms that
preparedplans’aadspecilicatioasfor a buildin&as long as they did not representthem&es to be
architects.Ads 1937.45thLeg.,ch. 478,P 16(3),at 1279.

        A “practicestatute,”in contrast,authorizesa state agemy to regulatethe practiceof a
profession01 Occupation,
                       and prohibitsindividualswho are not Iicensedby the agencyfromproviding



                                            p. 851
Mr. Robert H. Norris - Page 6          (M-161)




Corn.. Bill Analysis, S.B. 743,71st Leg. (1989). Thus, the board could not restrict an
individual from providing building design services as long as he used a title other
than architect, such as building designer. TEXASSUNSETADVISORYCOMMISSION,
supra, at 1. The 1989 amendments authorized the board to regulate the practice of
architecture and prohibited individuals who were not registered architects from
providing architectural services for certain types of buildings. Id

         In discussing the exemptions from the registration requirements of article
249a, V.T.C.S., as amended in 1989. the report indicates that the engineer’s license
still allowed the licensee to design buildings, despite the adoption of section 16:
         The statute [V.T.C.S. art. 249a] contains two different kinds of
         exemptions from the registration requirements for architects.
         One set of exemptions concerns activities that are exempt
         because they are not considered architectural practices. For
         example, engineers or interior designexs may perfotm building
         design services asport of their work, but may not hold themsehw
         out as architects.
TEXASSUNSETADVISORYCOMMISSION,
                            SU~M, at 7 (emphasis added).



       The second set of exemptions covers architectural activities that are exempt
from the practice provisions of the act. Id. at 8. These include an exemption for
persons who prepare architectural plans and specifications for a privately owned
building used as a single-family or two-family home. See V.T.C.S. art. 249a, 0 14. In
addition, the report states the architects’ law “also exempts persons who perform
design work for new public buildings that cost less that SlOO,OOO.”  TEXAS SUNSET
ADVISORYCOMMISSION.supro, at 8. This reference to section 16 of article 249a,
V.T.C.S., informs us that section 16 concerns building design work. An engineer’s
license confers authority to perform building design services requiring the
application of engineering principles and the interpretation of engineering data for
public buildings described by section 16.




(footnotecontinued)
                                                      ADVISORYCOMMISSION,
the kindof professionalservicesit regulates.lEws SUNSET                 TEXASBOARD
OF ARCHITEXTU  RALEXAMINERS,      S-MT REPORTI-U SUNSETADVISORY COMMISSION(EM), at 1;
HouseComm.011Gov’tOrg.,BillAnalyxis,S.B.429,?2dLeg.(1991).




                                      p. 852
Mr. Robert H. Norris - Page 7            (IX’+161)




         The licensed engineer’s authority to prepare building plans for public
buildings described in section 16 of article 249a, V.T.C.S., has been made even
more clear by the 1991 addition of subsections 16(b) and (c) to that section. House
Comrr~ on Gov’t Org., Bill Analysis, S.B. 429, 726 Leg. (1991). Section 16(a)
provides that a registered architect must prepare the architectural plans for new
buildings of a certain description.4 Subsection 16(b) qualifies subsection (a) by
authorizing the owner of a building to choose “a registered professional engineer as
the prime design professional for a building construction, alteration, or addition
project.” V.T.C.S. art. 249a, 0 16(b). Section 16(c) preserves the authority of
registered engineers to design buildings pursuant to the Texas Engineering Practice
Act. Subsection 10(j), also enacted in 1991, provides that a registered professional
engineer who has an architectural engineering degree is not prohibited from using
the title “architectural engineer.”

        The 1991 amendments to section 16 of article 249a, V.T.CS., as well as
subsection 106) of that statute, recognize the overlap between the work of an
architect and an engineer in the area of building design. Section 16 does not bar a
registered professional engineer from preparing plans and specifications. Such
preparation requires the application of engineering principles and the interpretation
of engineering data for “a new building that is to be constructed and owned by a
State agency, a political subdivision of this State, or any other public entity in this
State if the building will be used for education, assembly, or office occupancy and
the construction costs exceed $100,000. Id. 8 16(a)(l).           Licensed engineers
continue to have the authority to prepare building designs and specifications that
they had prior to the adoption of section 16 in 1989.


                                 SUMMARY

               Section 16 of article 249a, V.T.C.S., the statute regulating
          the practice of architecture, does not bar a professional engineer
          licensed under article 3271a, V.T.C.S., from preparing plans and
          specifications, the preparation of which requires the application
          of engineering principles and the interpretation of engineering
          data, for “a new building that is to be constructed and owned by


       %e preparationof “architecturalplans”presumablywould require the applicationof
“architectural
            education,training,andexperience.”V.T.CS.art.2494 Dlo(a).




                                        p. 853
Mr. Robert H. Norris - Page 8          (LX-161)




         a State agency, a political subdivision of this State, or any other
         public entity in this State if the building till be used for
         education, assembly, or office occupancy and the construction
         costs exceed $100,000.”




                                                  DAN      MORALES
                                                  Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARYKBLLER
Deputy Assistant Attorney General

REN’EA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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