‘- .
ATTORNEY GENERAL
OP TEXAS
AUSTIN 1s.TExas
April 12, 1962
Honorable tiond G. Schwartz
County Attorney
Lavaca County
Hallettsville, TE!xas
Opinion No. w-1308
Re : Whether a county surveyor may make
private surveys for compensation
of lands in his county without be-
ing licensed under Article 5282a,
Dear IIr. Schwartz: V.C.S.
You have requested an opinion on the following subject:
- duly elected and acting county surveyor survey private
?%dz for compensation without qualifyinr as a registered public
surveyor pursuant to the Registered,Pub& Surveyors Act of 1955?
The 54th Texas Legislature enacted the Registered Pub-
lic Surveyors Act of 1955, codified as Article 5282a, Vernon’s
Civil Statutes. One indication of the legislative intent in the
enactment is found in the Act’s Emergency Clause (Section 12),
which reads as follows:
“The fact that many persons are now engaging
in the practice of Public Surveying without ade-
quate preparation and qualification therefor, with
resulting confusion to persons dealing with such
persons, creates an emergency and imperative public
necessity that the Constitutional Rule requiring
bills to be read on three several days in each
House be suspended . . .‘I
Section 2(b) of the Act defines public surveying as:
11
. . . the science or practice of land mea-
surenent according to established and recognized
methods engaged in and practiced as a profession or
service available to the public generally for com-
pensation, and comprises the determination by means
of survey, of the location or relocation of land
boundaries and land boundary corners; the calcula-
tion of area and the preparation of field note
..
Honorable Ammond G. Schwartz,.page 2 NW-1308)
description of surveyed land; the preparation
of maps showing the boundaries and areas of the
subdivision of tracts of land into smaller
tracts;the preparation of official plats or maps
of said land and subdivisions thereof; and such
other duties as sound surveying practice would
direct."
Section 2(b) also states that a public surveyor is any
person engaged in the public surveying defined in the Act, and
who is employed as a surveyor or who holds himself out to the
public as such. Section 6 requires the registration of any per-
son, except those exempted from the Act by Section 3, who engages
or continues in the practice of public surveying after January
1, 1956. Section 8 provides that after January 1, 1956:
II any person who shall practice, or
offer io'plactice, the profession of Public Sur-
veying in this State without being registered or
exempted in accordance with the provisions of
this Act, or any person presenting or attempting
to use as his OlJn the Certificate of Registration
or the seal of another, . . . shall be fined not
less than One Hundred Dollars ($100) nor more
than Five Hundred Dollars (:$500),or be confined
in jail for'a period not exceeding three (3)
months, or both. Each day of such violation
shall be a separate offense."
Section 3 states that the provisions of the Act shall
not apply, amongtothers, to.a "County Surveyor
Qfficial cawaci v as authorized bv law." (Emphasis added
The office of county surveyor is created by Section 44
of Article XVI of the Constitution of Texas, which states:
"The Legislature shall prescribe the duties
and provide for the election by the qualified vot-
ers of each county in the State, of a county treas-
urer and a countv survevor who shall hold their
office for two years, and Anti1 their successors
are qualified; and shall have such compensation as
may be provided by law." (Emphasis added)
Articles 5283-5298, Vernon's Civil Statutes, relate to
the office of County Surveyor. As stated in Attorney General
Opinion No. O-3940 (September 15, 19411, neither the Constitution
nor the statutes prescribe any particular qualifications or re-
quire a county surveyor to be a licensed land surveyor.
._ .
,
Ronorable Ammond G. Schwartz., page 1 MJ-1308)
Article 5289 refers to the duty of a county surveyor to
survey land, as follows:
'IIfany county surveyor fails, neglects or
refuses when the amount of lawful surveying fees
of any location of land may be tendered to him Qf
w werson lezallv entitled to the survev to make
or cause such survey to be made within on:!month
after such tender) he and his sureties shall be
liable on his official bond to such injured parties
in the amount of damages or injuries said parties
may sustain by reason of such neglect, refusal or
failure." (Emphasis added)
The duty and authority of a county surveyor with respect
to the actual survey of land is epitomized by Article 5299, Ver-
non's Civil Statutes, which states:
"All surveys of public lands shall be made
by authority of lalJ, and by a survevor dulv ao-
pointed. elected or licensed, and oualified.t'
(Emphasis added)
Considered together, these two statutes indicate that
the survey of public land, as opposed to private land, is the
statutory duty of the county surveyor. Since the survey of priv-
ate lands for compensation is not a statutory duty of county sur-
veyors, the logical conclusion is that a county surveyor who en-
gages in such practice does so in a capacity other than his offi-
cial capacity as authorized by law. The conclusion necessarily
fOllO>JS , from this, that the survey of private lands by a county
surveyor is not within the exception listed in Section 3 of the
Registered Public Surveyors Act of 1955, since that section speaks
cnly of the actions of a county surveyor which are "in his offi-
cial capacity as authorized by law."
This conclusion is strengthened S'Jthe fact that the
Registered Public Surveyors Act of 1955 provided three diff;aEnt
methods for qualifying for a certificate of registration.
first two methods of qualifyin,
0 were for the benefit of persons
actually engaged in public surveying prior to the effective date
of the Act; both methods contain lesser requirements for qualifi-
cation than the third method; and both contain cut-off dates (1
and 5 years respectively) after which only the third method of
qualification may be utilized.
.. *’
Honorable Ammond G. Schwartz, page 4 Ww-1308)
A county surveyor who surveys private lands
for compensation is engaged in the practice of
public surveying as defined in the Registered
Public Surveyors Act of 1955, and a county sur-
veyor so engaged is required by law to possess a
certificate of registration issued by the State
Board of Registration for Public Surveyors.
Yours very truly,
WILL WILSON
Attorney General of Texas
F. R. Booth
FRB:zt:wb Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert Chairman
Morgan Nesbitk
Elmer McVey
Norman V. Suarez
John Hofmann
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.