Untitled Texas Attorney General Opinion

Mr. D. C. Greer Opinion No. C-476' State Highway Engineer Texas Highway Department Re: Whether employees of the Austin, Texas Highway Department are ex- empt from the provisions of Article 7621e, Vernon's Civil Statutes (The Water Well Drillers Act), under the stated facts and re- Dear Sir: lated questions. You have requested our opinion concerning the applicability of the Water Well Drillers Act to certain Highway Department employees who may, during the course of their employment, find it nec~essaryto drill an occasionalwater well on prop- erty owned by the State. In your request you state that: "In the course of this Department's operationswe drill approximatelyfive (5) waterwells per year on State land with State equipment and State employees. "* * + II our employees are not primarily engaged ior compensationin the drilling of water wells since this is considered a minor activity to their regular duties inasmuch as these employees are primarily engaged by the Department for core drilling to provide sam- ples for testing soil structure. II . . . our employees will be drilling water wells on our own property and none other." You then ask: II . since our employees may occasionally . . drill a water well with no separate compensa- tion from their regular pay with these few wells being constructedby State employees on -2255- Mr. D. C. Greer, page 2 (C-476) State land with State equipment,are we exempt from the provisions as set forth in this Act? "If as a State agency we are not exempt with the above In consideration,we would like to know if State employees are exempt from the payment of registrationand renewal fees. "If our employees are not exempt from the provisions of this Act, would it suffice for us to have one supervisoryemployee registered with the responsibilityof compliancewith this Act for any wells our crews drill. "Do the provisions of this Act relating to bonding require that a State employee provide bond In the amount of $2,000.00?" The Water Well Drillers Act, Acts 59th Leg., R.S. 1965, Ch. 264, p. 509, codified as Article 7621e, Vernon's Civil Statutes, is an act designed to provide minimum standards and qualificationsfor persons who are engaged In the drilling of water wells for compensationin this State. Legislative ln- tent in passing the Act is manifested In the caption which provides that it is "an act designed to aid In the prevention of pollution of the State's undergroundwater by providing minimum water well drillers qualificationsand standards. Section 3(a) of the Act states: "It shall be unlawful for any person to act as or to offer to perform services as a water well driller without first obtaining a certl- ficate of registrationin the manner rescribed Ah 27 Water herein and pursuant to the rules of _ Well Drillers Board." Section 13(a) of the Act provides: 'Any person not holding a certificateof registrationas a registeredwater well driller who drills, bores, cores or constructsany water well in this State for compensationshall be guilty of a misdemeanor. . . ." Mr. D. C. Greer, page 3 (C-476) Section 13(a), standing alone, could be subject to a somewhat broader interpretationwith regard to what specific action is unlawful. At the same t$me, reading the various sections of the Act together,particularly Sections 2(e) and 3(a), the conclusionisoinescapablethat the law intends to regulate those who hold themselves out to the public or who perform the services of a water well driller for the public for compensationand to make these activitiesunlaw- ful unless the person holds a certificateof registration from the Water Well Drillers Board, A "water well driller" is defined in Section 2(e) as: I, . . . any person (includingowner, operator, and drilling supervisor)who engages for com- pensation in the drilling, boring, coring, or constructionof any water well In this State. The term, however, shall not include any person who drills,~bores,cores, or constructsa water well on his.own property for his own use or a person who assists In the constructionof a water well under the direct supervisionof a registeredwater well driller and Is not prl- marily responsiblefor the drilling operations." This section, as does Section 13(a), places the regulated activity in context of persons who are engaged In the business of drilling wells for the pub,licfor profit, The mere fact that a person who drills or engages in well drilling activities receives compensationis not conclusive in determiningwhether a certificateof registrationis mandatory, however, because the definition of the regulated activity exempts both persons who drill on their own property for their own use and persons who work for or under the supervisionof a registeredwater well driller. This office held in Attorney General's Opinion V-549, April 23, 1948, that Article 6243-101, Vernon's Civil Statutes, by exempting from the Plumbing License Law persons who perform plumbing on their own property, also exempts servants of the property owner performing plumbing under his supervisionand control on his own property. The same analogy no doubt is applicable to the Water Well Drillers Act. From the facts stated in the request for opinion, the employees involved receive compensationonly by virtue of -2257- Mr. D. C. Greerm page 4 (c-476) their general employment by the State and not for the purposes of drilling water wells. They also do not act or offer to perform services as water well drillers and are engaged in the occasionaldrilling of water wells on their employer's --the State's--ownland. Under these facts, we hold that the State employees concerned fall within the exemptions contained in the Water Well Drillers Act and are not re- quired by the law to be registeredwater well drillers. The remaining questions become moot with this conclusion. SUMMARY Employees of the State Highway Department drilling or supervisingthe drilling of an occasionalwater well on land owned by the State are exempt from the Water Well Drillers Act, codified as Article 7621e, Vernon's Civil Statutes, and are not required to be registeredwater well drillers. Yours very truly, WAGGONER CARR Attorney General of Texas APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Pat Bailey Linward Shivers Milton Richardson Robert Lemens APPROVED FOR THE A!ll'ORN?TfGENERAL By T. B. Wright -2258-