Raghunath Dass, P.E. v. Texas Board of Professional Engineers

ACCEPTED
03-14-00552-CV
4398448
THIRD COURT OF APPEALS
March 6, 2015 AUSTIN, TEXAS
3/6/2015 11:40:04 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00552-CV

IN THE THIRD COURT OF APPEALS
AT AUSTIN, TEXAS

RAGHUNATH DASS, PE
Appellant,

TEXAS BOARD OF PROFESSIONAL ENGINEERS
Appellee.

Appealed from the 201ST Judicial District Court of Travis County, Texas

APPELLANT’S BRIEF

JIMMY ALAN HALL Jimmy Alan Hall, PLLC
Texas Bar No. 08759800 4600 Mueller Blvd., Suite 2121
jahall@fbjah.com Austin, TX 78723-3372
Tel: (512) 722-3190
Fax: (512) 857-9195

ATTORNEYS FOR APPELLANT

APPELLANT REQUESTS ORAL ARGUMENT

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IDENTITY OF PARTIES AND COUNSEL

NO. 03-14-00552-CV

RAGHUNATH DASS, PE
Appellant,

TEXAS BOARD OF PROFESSIONAL ENGINEERS
Appellee.

PARTIES COUNSEL
Raghunath Dass, Ph.D., P.E. Jimmy Alan Hall
JIMMY ALAN HALL, PLLC
Texas Bar No. 08759800
4600 Mueller Blvd., Suite 2121
Austin, TX 78723-3372
Tel: (512) 722-3190
Fax: (512) 857-9195
jahall@fbjah.com

J. Woodfin Jones
Texas Bar No. 10911700
ALEXANDER DUBOSE JEFFERSON &
TOWNSEND LLP
515 Congress Ave., Suite 2350
Austin, TX 78701-3562
Tel: (512) 482-9300
Fax: (512) 482-9303
wjones@adjtlaw.com

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Texas Board of Professional Jennifer Lyn Hopgood
Engineers ATTORNEY GENERAL’S OFFICE,
ADMINISTRATIVE LAW DIVISION
Texas Bar No. 24073010
P.O. Box 12548, Capitol Station
Austin, TX 78711-2548
Tel: (512) 936-1660
Fax: (512) 320-0167
jennifer.hopgood@texasattorneygeneral.gov

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
REQUEST FOR ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Issue No. 1: This Court must determine whether the Amended Final Order of
the Board is void because the agency was without any authority to modify its August
16, 2012 Final Order while that order was under judicial review.. . . . . . . . . . . . . . 7

Issue No. 2: Appellee, the Texas Board of Professional Engineers, did not and
does not have subject-matter jurisdiction to regulate construction material testing
(CMT), and for this additional reason its November 21, 2013 Amended Final Order
is void ab initio... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Issue No. 3: The Board’s Conclusion of Law No. 7 violates the TEPA
provision limiting the TBPE’s authority to restrict bidding.. . . . . . . . . . . . . . . . . 16

Issue No. 4: The Court should reverse the Board’s decision because that
decision relied on the 2005/2009 CME Policy Advisory Opinion, which is an invalid
and unenforceable standard.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Issue No. 5: Even assuming that the 2005/2009 CME Policy Advisory Opinion
was an enforceable “rule,” neither the ALJ nor the TBPE had any evidence upon
which either could determine whether the acts of Appellant were CME and not CMT,
and therefore, the Amended Final Order should be reversed because it is not
supported by any substantial evidence in the record.. . . . . . . . . . . . . . . . . . . . . . . 21

Issue No. 6: Even if the PSPA, or Section 1001.407 of the TEPA, or the CME
Advisory Opinion required a conclusion of law that the sampling and testing (CMT)
that TSI Labs performed under its contract with the County was actually CME, then

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the supervising engineer was the “project engineers” for the County, and not
Appellant. Therefore, the agency has taken action not against the engineer who
performed the supervisory and acceptance role under the facts, but against Appellant
who never served in that role.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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INDEX OF AUTHORITIES

CASES

Chocolate Bayou Water Co. & Sand Supply v. Texas Natural Res. Conservation
Comm’n, 124 S.W.3d 844, 853 (Tex. App.—Austin 2003, pet. denied). . . . 9

City of Celina v. Dynavest Joint Venture, 253 S.W.3d 399, 403 (Tex. App.—Austin
2008)(no pet.)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm’n, 247 S.W.3d 709, 714
(Tex. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991). . . . . . . . . . . . . . . . 11, 16

State Dept. of Public Safety v. Cox, 279 S.W.2d 661 (Tex. Civ. App.—Dallas
1955)(no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Texas Emp’t Comm’n v. Int’l Union of Elec., Radio & Mach. Workers Local 782, 352
S.W.2d 252, 253 (Tex. 1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16

Texas Highway Comm’n v. Texas Ass’n of Steel Imp., Inc., 372 S.W.2d 525, 530
(Tex. 1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Texas State Bd. of Pharmacy v. Witcher, 447 S.W.3d 520, 527 (Tex. App.—Austin
2014, pet. filed). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

STATUTES

Act of May 15, 1997, 75th Leg., R.S., 1997 Tex. Gen. Laws 344. (Now codified at
Tex. Occ. Code § 1001.003(c), following a recodification without substantive
alteration. Acts of May 24, 2001, 2001, 77th Leg., ch. 1421, § 1, eff. June 1,
2003.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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Act of May 15, 1997, Introduced Version, Tex. S.B. 623, Sec. 4 (§2(4)),¶¶ 4-27–5-1,
75th Leg., R.S., (1997), available at http://www.legis.state.tx.us/tlodocs/75R/
billtext/html/SB00623I.htm). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Act of May 15, 1997, (Enrolled Version, Tex. S.B. 623, Sec. 4 (§2(4)),¶¶ 5-8–5-9,
75th Leg., R.S., (1997), (emphasis added), available at
http://www.legis.state.tx.us/tlodocs/75R/billtext/html/SB00623F.htm)... . 13

Act of May 29, 2005, 79th Leg., R.S., ch. 1145, § 5, sec. 13.2451 (b), 2005 Tex. Gen.
Laws 3771, 3773 (“2005 version”) (amended 2007, 2011, 2013) (current
version at Tex. Water Code Ann. § 13.2451 (b).. . . . . . . . . . . . . . . . . . . . . 10

Acts of May 24, 2001, 77th Leg., ch. 1421, § 1, eff. June 1, 2003.. . . . . . . . . 12, 13

Texas Gov’t Code § 2001.003(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Tex. Gov’t Code § 2001.174(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Tex. Gov’t Code § 2001.174(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16

Tex. Gov’t Code § 2001.1775. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 10

Tex. Gov’t Code, § 2254.002(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Tex. Gov’t Code § 2254.002(2)(A)(vii) and (B)(vii). . . . . . . . . . . . . . . . . . . . . . . 17

Tex. Gov’t Code, § 2254.003(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17

Tex. Occ. Code § 1001.003(b); Enrolled Version, at Sec. 4 (§2(4)).. . . . . . . . . . . 13

Tex. Occ. Code § 1001.003(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. Occ. Code §§ 1001.202, .003(b), .003(c)(1), .301(a). . . . . . . . . . . . . . . . . . . 11

Tex. Occ. Code § 1001.203(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Tex. Occ. Code, § 1001.407. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 23

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OTHER

Recording 751133a (Tape 1 of 3, Side 1), Public Hearing on Tex. S.B. 623 Before the
S. Comm. on State Affairs, 75th Leg., R.S., 0:609-0:619 (Mar. 20, 1997),
a va ila b le a t h ttp s: / / www.t sl.texas.gov/ref/senaterecording s /
75th-R.S./751133a/index.html .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Texas Board of Professional Engineer Policy Advisory Opinion Regarding
Construction Materials Engineering (August 20, 2009).
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 18, , 19, 21, 22, and throughout

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STATEMENT OF THE CASE

Nature of the case. Appellee, the Texas Board of Professional Engineers (“the

Board” or “the TBPE”), sanctioned appellant for alleged violations of the Texas

Engineering Practices Act. Appellant Mr. Dass denies that he committed any

violation and asserts that the TBPE does not have jurisdiction over the facts of this

case and did not have the authority to amend its final order because the case was

under judicial review when the Board did so.

Course of proceedings. On April 18, 2012, the State Office of Administrative

Hearings (SOAH) held a contested-case hearing. C.R. at 343. On June 13, 2012, the

Administrative Law Judge (ALJ) issued a Proposal for Decision (PFD) that proposed

that the Board adopt three conclusions of law that Appellant violated the rules of the

TBPE. C.R. at 359. On August 16, 2012, the Board adopted these three conclusions

of law in its Final Order. C.R. at 363-64. Subsequently, Appellant filed a motion for

rehearing of the Board’s decision, which was overruled by operation of law.

Appellant then, October 30, 2012, filed suit for judicial review of the Board’s August

16, 2012 final order. On September 27, 2013, Judge Gisela Triana, sitting as the 419th

District Court of Travis County, in Cause No. D-1-GN-12-003397, issued a Final

Judgment, which struck Findings of Fact Nos. 16 and 17 and Conclusion of No. Law

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8 because they were not supported by substantial evidence, and upheld the remainder

of the Board’s August 16, 2012 final order. However, “[in] light of the Court’s

decision to strike limited portions of the Final Order, the Court remands this matter

to the Board for any further action it deems appropriate given the ruling.” C.R. at

365-66. On October 24, 2013, Appellant filed an appeal of the District Court’s

September 27, 2013 final judgment. C.R. 379. Subsequently, on November 21, 2013,

the Board adopted an Amended Final Order under the same case number as the

August 16, 2012 Final Order, conforming it to the District Court’s judgment by

striking previously numbered Findings of Fact Nos. 16 and 17 and Conclusion of No.

Law 8. C.R. at 62-66, 367-69. Then on December 3, 2013, Appellant moved to

withdraw the first appeal that he previously filed with the Third Court of Appeals.

C.R. at 370-72. The Third Court of Appeals dismissed this appeal on December 18,

2013. C.R. at 379.

On December 10, 2013, Appellant filed a motion for rehearing on the

November 21, 2013 Amended Final Order. C.R. at 380. That motion for rehearing

was overruled by operation of law. C.R. at 10. On February 24, 2014, Appellant then

filed suit for judicial review of the November 21, 2013 Amended Final Order. C.R.

at 4.

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District court disposition. The 201st District Court granted defendant’s/the TBPE’s

motion summary judgment, upholding the Board’s Amended Final Order. C.R. at 465.

Appellant timely moved for a new trial. C.R. at 466. Judge Yelenosky denied that

motion for new trial. C.R. at 471.

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REQUEST FOR ORAL ARGUMENT

This Court should grant oral argument because it would allow the Court to

better analyze the complicated legal issues of first impression presented in this

appeal. See Tex. R. App. P. 39.1(b)–(c).

No appellate court has yet determined whether construction materials testing

(CMT) is within the jurisdiction of the Texas Board of Professional Engineers.

Because the scope of the TBPE’s jurisdiction depends on technical distinctions within

the industry that were incorporated by reference into the Texas Engineering Practice

Act, oral argument would help clarify the Legislature’s intent.

In addition, no appellate court has yet ruled on the validity of the Board’s

2005/2009 CME Policy Advisory Opinion that is a component of the appeal. The

validity of a standard adopted by a state agency is a specific inquiry into the

standard’s application and the procedures of its adoption, which oral argument could

explain more thoroughly.

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ISSUES PRESENTED

Issue No. 1: This Court must determine whether the Amended Final Order of

the Board is void because the agency was without any authority to modify its August

16, 2012 Final Order while that order was under judicial review.

Issue 2. This Court must determine whether the Board has the authority to

regulate Construction Materials Testing (CMT) under the Texas Engineering

Practices Act. This determination hinges on the language defining the “practice of

engineering” in the Texas Occupation Code, and the legislative history behind that

definition.

Issue 3. This Court must also determine whether the Board has the authority

to restrict a testing firm from submitting a competitive bid for CMT for a public

works project when no registered professional engineer from that firm was employed

in connection with the services provided.

Issue No. 4. This Court must determine whether the TBPE’s CME Policy

Advisory Opinion constitutes an invalid standard because it was not promulgated in

accordance with the mandatory procedures prescribed under the Administrative

Procedure Act.

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Issue No. 5. Even assuming that the CME Policy Advisory Opinion were an

enforceable “rule,” this Court must determine whether the record contains any

substantial evidence supporting a conclusion that Appellant practiced professional

engineering in this case.

Issue No. 6. Even assuming that the PSPA, or Section 1001.407 of the TEPA,

or the CME Advisory Opinion required a conclusion that the sampling and testing in

this case was actually CME, then this Court must determine who the “supervising

engineer” was for the Project.

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STATEMENT OF FACTS

1. Appellant, Raghunath Dass, Ph.D., P.E. is a professional engineer, holding

Texas License Number 90119. C.R. at 62, (FoF No. 1).

2. At all relevant times, Appellant was employed by Trinity Soil Investigation

Laboratories, Inc., (TSI Labs), TBPE Firm License No. 9236. C.R. at 62, (FoF No.

1).

3. In February 2009, San Patricio County (the County) solicited competitive

bids for a Horse Barn Project at the County fairgrounds in Sinton, Texas. A.R.1 at

263. In response to the advertisements, TSI Labs submitted a proposal to perform

CMT for the County on February 18, 2009. C.R. at 392-94, 418. Because the

advertisement for bids and TSI Labs’ proposal did not have any engineering

1
Please note, pursuant to Texas Rule of Appellate Procedure 34.5 (a), Appellant requested
in his September 15, 2014 letter to the Travis County District Clerk that the Administrative Record
(SOAH Transcript and Exhibits) filed in Cause No. D-1-GN-12-003397 be included in the Clerk’s
Record for this appeal. Additionally, Appellant obtained a formal bill of exception in which the
Administrative Record in Cause No. D-1-GN-12-003397 would be part of the Clerk’s Record for
Cause No. D-1-GN-14-000568 filed in this appeal. February 9, 2015 S.C.R. at 12-13. However, the
District Clerk did not include the Administrative Record with her original Clerk’s Record of October
30, 2014 nor with her Supplemental Clerk’s Record of February 9, 2015. Upon discovering that the
compact disc/DVD with the Administrative Record was not included with the February 9, 2015
Supplemental Clerk’s Record, Appellant contacted the Travis County District Clerk’s Office,
informed that office of the omission, and requested that the Administrative Record be sent to this
Court. The District Clerk’s Office replied that the compact disc/DVD would be pulled from storage
and sent to the Clerk of this Court as soon as possible. Therefore, the page references to “A.R.” in
this brief are to the page numbers of the SOAH Reporter’s transcript.

1
functions, TSI Labs did not make Appellant aware of this TSI Labs testing proposal

at that time. C.R. at 64, (FoF No. 10).

4. Naismith Engineering, Inc. was the engineering firm of record for the

Project. C.R. at 344. The County assigned all engineering functions to Naismith

Engineering. A.R. at 34, ll.17-23. The County subcontracted TSI Labs only to do

sampling and testing. A.R. at 34, ll.23-25.

5. On March 11, 2009, Rock Engineering and Testing Laboratory, Inc. (RETL

or “Rock Engineering and Testing”) also submitted a proposal to the County, to

perform construction materials engineering (CME) and CMT for the Project. C.R. at

399-406.

6. From March 17 through April 7, 2009, TSI Labs submitted 16 CMT reports

to Naismith Engineering, the supervising and acceptance engineers for the Project.

C.R. at 38 (FoF No. 7), 344, 419-24.

7. Lewis Shrier, P.E., a Senior Structural Engineer and Project Manager at

Naismith Engineering, served as “project engineer” for the Project. A.R. at 48, l.21

to 49, l. 3. Receiving and accepting the CMT reports was Mr. Shrier’s responsibility.

A.R. at 49, ll.4-8. Mr. Shrier understood that Naismith Engineering was responsible

for all engineering functions. A.R. at 48, l.21-25, at 49, ll. 1-3. Mr. Shrier

acknowledged that TSI Labs was only subcontracted to do sampling and testing.

2
A.R. at 49, ll .9-12. Mr. Shrier’s review of the CMT Reports allowed him to conclude

that TSI Labs was doing their job appropriately. A.R. at 67, ll. 1-2.

8. Appellant first became aware of the Project on April 17, 2009, when Mr.

Shrier emailed him the TBPE’s 2005 CME Policy Advisory Opinion. C.R. at 38 (FoF

No. 10); C.R. at 64 (FoF No. 10); A.R. at 256.

9. To address Mr. Shrier’s concerns, Appellant performed a discretionary

quality review of the test data in the TSI Labs CMT reports, and signed and sealed

copies of the reports on April 20, 2009 to indicate that Appellant’s quality review

revealed that the equipment had been calibrated properly, the calculations were

correct, that the technicians were qualified, that TSI Labs had used the correct

programs and forms, and that TSI Labs had selected the applicable ASTM test

methods. A.R. at 113, l.22 to 114, l.1; at 118, ll.9-11.

10. Upon learning that TSI Labs had been hired for the Project instead of

RETL, Mark Rock, P.E. (License No. 71395), the owner of RETL, searched the

TBPE’s database on licensed engineers to determine what engineers were in the

employ of TSI Labs and filed TBPE Complaint No. D-31480 on April 22, 2009. C.R.

at 397, ¶¶C-E.

11. Mr. Shrier remained in contact with Mark Rock and Curtis Rock, and son

of Mark Rock and employee of RETL, during the selection process, and encouraged

3
RETL to submit a proposal to the County. A.R. at 301. During the selection process,

when the County asked Shrier to evaluate TSI Labs’s proposal, Mr. Shrier

volunteered that he strongly preferred RETL to TSI Labs. A.R. at 307. After TSI

Labs had been selected, Mr. Shrier later encouraged the County to fire TSI Labs and

hire RETL instead. A.R. at 307, 313. Mr. Shrier was the first person who Mark Rock

contacted about his intent to file a complaint against TSI Labs. A.R. at 308.

12. Mr. Shrier became concerned about the lack of an engineer’s supervision

after Mark Rock sent him the TBPE’s 2005 CME Advisory Opinion. C.R. at 349.

Thereafter, Mr. Shrier contacted the TBPE to determine his obligations as project

engineer. C.R. at 349. The TBPE staff advised Mr. Shrier that the Project required

supervision by an engineer, which he could do if he had sufficient geotechnical

experience. C.R. at 349. Mr. Shrier felt he lacked sufficient experience, and at this

point contacted TSI Labs to inquire about an engineer’s supervision. C.R. at 349.

13. Due to the concerns that Mr. Rock and Mr. Shrier raised, the County

discontinued its contract with TSI Labs and hired RETL in April 2009 to perform the

same testing. C.R. at 344.

4
SUMMARY OF THE ARGUMENT

The TBPE took action against Appellant affecting his professional engineer’s

license. However, when the TBPE did so, it did not have the authority to do so and

thereby issued a void order. The Administrative Procedure Act prohibits any agency

from modifying a decisions that it has made in a contested case during the judicial

review of that case. Tex. Gov’t Code, § 2001.1775. Thus, the Board’s action on

November 21, 2013 in Appellant’s contested case was void because that case was

then under judicial review. Furthermore, a collateral attack on an agency order may

be maintained successfully if the order is void.

An additional reason that the Board’s November 21, 2013 was void ab initio

is because the TBPE did not have subject-matter jurisdiction to regulate construction

material testing (CMT) within the definition of “professional engineering.”

The TBPE also exceeded its authority when it found that Appellant violated an

TBPE rule by applying a requirement from the Professional Services Procurement

Act (PSPA) to CMT, which is not professional engineering, and thus is outside of the

requirements of the PSPA.

The TBPE also applied an invalid and unenforceable legal standard in judging

Appellant and his actions, which application prejudiced Appellant’s substantial rights

requiring the reversal of the subject order. The TBPE applied its advisory opinions

5
regarding construction material engineering that it had not and has not adopted as a

valid rule under the Administrative Procedure Act.

Even assuming that the subject advisory opinion was an enforceable “rule,” the

record is devoid of any evidence applying the standards in that advisory opinion to

determine whether the actions by Appellant’s employer were simply CMT or were

CME to support any findings and conclusions that Appellant committed any

violations of the TBPE’s rules.

Finally, even if the CMT in this case were CME, the “supervising engineer”

under that logic was not Appellant, but Naismith Engineering, the actual supervising

engineer for the Project.

6
ARGUMENT AND AUTHORITIES

Issue No. 1: The Amended Final Order of the Texas Board of Professional

Engineers is void because the agency was without any authority to modify its

August 16, 2012 Final Order while that order was under judicial review.

Summary of Argument

Because the Administrative Procedure Act deprives the TBPE of the authority

to modify its decisions in a contested case while that contested case is under judicial

review, the Board’s action on November 21, 2013 in Appellant’s contested case was

void because that contested case was under judicial review on that date and until, at

least, December 18, 2013.

Argument

Section 2001.1775 of the Texas Government Code states:

Except as provided by Section 2001.175(c), an agency may not modify
its findings or decision in a contested case after proceedings for
judicial review of the case have been instituted under Section 2001.176
and during the time that the case is under judicial review.

(Emphasis added).

As noted in the Course of Proceedings under the Statement of the Case above,

on October 30, 2012, Appellant initiated proceedings for judicial review of the

TBPE’s contested case against him by filing suit in district court, and then continued
7
those proceedings by filing an appeal of the district court’s September 27, 2013 final

judgment with this Court of Appeals. However, while that contested case was

continuing under judicial review, on November 21, 2013, the Board reconvened and

adopted an Amended Final Order under the same case number as the August 16, 2012

final order. C.R. at 12-16. Then on December 3, 2013, Appellant moved to withdraw

the first appeal that he previously filed with the Third Court of Appeals. C.R. at 370.

The Third Court of Appeals dismissed this appeal on December 18, 2013. C.R. at

379.

The Board did not have any authority to take its November 21, 2013 action

when it amended its August 16, 2012 Final Order because that Final Order was still

under judicial review at that time. Therefore, the Amended Final Order is void. By

this issue, Appellant is not asserting that the Board’s amended order is voidable, but

rather that it is wholly and completely void.

Any action of an agency is void and cannot be validated by waiver, consent,

or any other doctrine. This Court has consistently confirmed this basic principal of

jurisprudence.

Applying this same principal that any agency action that is beyond the scope

of that agency’s authority is void, the Texas Supreme Court held that a Texas

Highway Commission “Minute Order is void because it is contrary to the competitive

8
bidding statute, there can be no basis for saying that the disputed order was

authorized by law. It was wholly nugatory . . . .” Texas Highway Comm’n v. Texas

Ass’n of Steel Imp., Inc., 372 S.W.2d 525, 530 (Tex. 1963). See also State Dept. of

Public Safety v. Cox, 279 S.W.2d 661 (Tex. Civ. App.—Dallas 1955)(no writ)(The

Dallas Court of Civil Appeals stated “As already pointed out, a conformity to

statutory requirements is essential to the exercise of jurisdiction by that agency,”

when holding that the alleged administrative suspension of a drivers license was void

because the agency’s actions did not comply with but fell outside of the scope of and

restrictions in the legislation delegating the administrative authority to the agency).

This Court has also held that a collateral attack on an agency order may be

maintained successfully if the order is void. Chocolate Bayou Water Co. & Sand

Supply v. Texas Natural Res. Conservation Comm’n, 124 S.W.3d 844, 853 (Tex.

App.—Austin 2003, pet. denied). An agency order is void in the requisite sense if

“the order shows on its face that the agency exceeded its authority.” Id. This Court

restated this principal in holding that the trial court did have the authority under the

declaratory judgment act to determine whether an order of the Texas Commission on

Environmental Quality (“the TCEQ”) to amend the City of Celina’s certificate of

convenience and necessity was void because the order violated a restrictive provision

in the Texas Water Code, rather than only in a direct appeal of the agency order. City

9
of Celina v. Dynavest Joint Venture, 253 S.W.3d 399, 403 (Tex. App.—Austin

2008)(no pet.). Section 13.2451(b) of the Texas Water Code, as it then existed,

restricted the TCEQ’s authority to extend a municipality’s certificate beyond its

extraterritorial jurisdiction. Act of May 29, 2005, 79th Leg., R.S., ch. 1145, § 5, sec.

13.2451 (b), 2005 Tex. Gen. Laws 3771, 3773 (“2005 version”) (amended 2007,

2011, 2013) (current version at Tex. Water Code Ann. § 13.2451 (b).

In this case, the Board did not have any authority to act upon, including

amending, its August 16, 2013 order while that order was still under judicial because

of the proscription in the Texas Government Code. Tex. Gov’t Code, § 2001.1775.

Because the Board’s Amended Final Order of November 21, 2013 is void for

the reason asserted above in this Issue No. 1, this Court need not reach the remaining

issues raised in this Appellant’s Brief. In an abundance of caution, however,

Appellant submits the following additional issues.

II.

Issue No. 2: Appellee, the Texas Board of Professional Engineers, did not

and does not have subject-matter jurisdiction to regulate construction material

testing (CMT), and for this additional reason its November 21, 2013 Amended

Final Order is void ab initio.

10
Summary of Argument

The Court should declare that the Board’s Amended Final Order is void

because that order exceeds the Board’s jurisdiction to regulate the practice of

engineering. Texas Emp’t Comm’n v. Int’l Union of Elec., Radio & Mach. Workers

Local 782, 352 S.W.2d 252, 253 (Tex. 1961); Mapco, Inc. v. Carter, 817 S.W.2d 686,

687 (Tex. 1991)(Lack of jurisdiction is considered a fundamental error, and thus is

subject to review even if raised for the first time on appeal.). The Administrative

Procedure Act (APA) requires reversal of an agency decision made in excess of the

agency’s statutory authority. Tex. Gov’t Code § 2001.174(2)(B). The Legislature

authorized the Texas Board of Professional Engineers under the Texas Engineering

Practice Act (TEPA) only to “regulate the practice of engineering.” Tex. Occ. Code

§§ 1001.202, .003(b), .003(c)(1), .301(a).

Argument

The Board’s Amended Final Order is dependent on and limited to the Board’s

belief that the Board has the authority to regulate CMT for a public works project.

A.R. p. 26, ll. 10-18. The Amended Final Order is limited to three alleged violations

by Appellant stated in three conclusions of law, all of which are limited to CMT.

(Conclusion of Law Nos. 5, 6, and 7) These three conclusions of law hinge upon

findings of fact, all of which are limited to CMT within a public works project.

11
(Findings of Fact Nos. 6 - 9, 11-17). The three “violations” are that Appellant: (1)

“failed to supervise the performance of the CMT testing,” (2) “allowed TSI [Labs]

to release CMT reports without having signed, dated, and sealed the CMT reports,”

and (3) “failed to exercise reasonable care and diligence to prevent TSI [Labs] from

submitting a competitive bid for [CMT that became CME because it was for a public

works project] in violation of the [Professional Services Procurement Act] PSPA.”

However, the “practice of engineering,” as defined by the TEPA, does not

include CMT. The Legislature clarified that CME does not include CMT when it last

modified the definition of the “practice of engineering,” in 1997, by adding an

illustrative list of services included under the general definition. Tex. S.B. 623, 75th

Leg., R.S., 1997 Tex. Gen. Laws 344. This list previously appeared at Tex. Rev. Civ.

Stat. art. 3271a Sec.2 (4), and now appears at Tex. Occ. Code § 1001.003(c),

following a recodification without substantive alteration. Acts 2001, 77th Leg., ch.

1421, § 1, eff. June 1, 2003.) The Introduced Version of S.B. 623 included “testing

or evaluating materials for construction” in this list. (Introduced Version, Tex. S.B.

623, Sec. 4 (§2(4)), ¶¶ 4-27–5-1, 75th Leg., R.S., (1997), available at

http://www.legis.state.tx.us/tlodocs/75R/billtext/html/SB00623I.htm) However, the

Senate Committee inserted the words “engineering for” before this phrase, so the

enrolled and enacted versions read “engineering for testing or evaluating materials

12
for construction. Enrolled Version, Tex. S.B. 623, Sec. 4 (§2(4)), ¶¶ 5-8–5-9, 75th

Leg., R.S., (1997), (emphasis added), available at

http://www.legis.state.tx.us/tlodocs/ 75R/billtext/html/SB00623F.htm.

The Committee also added language emphasizing that coverage under the list

was limited “[t]o the extent the following services . . . meeting [the general]

definition.” Id. at Sec. 4 (§2(4)), ¶¶ 5-4–5-5. Although this emphatic language does

not appear in the current definition at Tex. Occ. Code § 1001.003(c), no substantive

change was intended by the recodification that omitted this language. Act of May 24,

2001, 77th Leg., ch. 1421, § 1, eff. June 1, 2003. Thus, the general principle that the

illustrative list is limited by the general definition remains in effect. The general

definition states that the practice of engineering “requires engineering education,

training, and experience.” Tex. Occ. Code § 1001.003(b); Enrolled Version, Tex. S.B.

623 at Sec. 4 (§2(4)). At the public hearing on S.B. 623, Senator Ratliff explained

that this alteration “addresses some concerns that have been raised by the

architectural community, surveyors, and some contractors.” Recording 751133a

(Tape 1 of 3, Side 1), Public Hearing on Tex. S.B. 623 Before the S. Comm. on State

Affairs, 75th Leg., R.S., 0:609-0:619 (Mar. 20, 1997), available at

https://www.tsl.texas.gov/ref/senaterecordings/ 75th-R.S./751133a/index.html.

13
If the Legislature had intended to include pure CMT, which does not require

engineering education, training, and experience, among the practices that the TBPE

was authorized to regulate, it would not have added the phrase “engineering for” as

a qualifier. The Legislature’s addition of this qualifier indicates that it intended for

the TBPE’s jurisdiction to be limited to CME, and not to include CMT. This specific

application conforms to the general definition of the “practice of engineering,”

because CME requires engineering education, training, and experience, but CMT

does not.

Moreover, neither the TEPA nor the PSPA requires CMT to be treated as CME

for a public works project, and thus extend the TBPE’s jurisdiction to CMT

performed specifically for a public works project. All that Section 1001.407 of the

TEPA requires is that if the State or a political subdivision of the State constructs “a

public work involving engineering,” then that agency must have an engineer prepare

“the engineering plans, specifications, and estimates” and must have an engineer

directly supervise the performance of “the engineering construction.” Tex. Occ.

Code, § 1001.407 (Emphasis added). That provision does not even address CMT,

much less require CMT to be performed under the supervision of an engineer.

The PSPA requires only that governmental entities select providers of certain

“professional services” or award contracts for those services “on the basis of

14
demonstrated competence and qualifications” and “for a fair and reasonable price.”

Tex. Gov’t Code, §2254.003(a). However, none of those “professional services” in

the PSPA include CMT. Tex. Gov’t Code, §2254.002(2).

Because TSI Labs submitted a proposal to perform CMT only2 and performed

CMT only,3 the CMT that TSI Labs did for the County for the Project is not subject

to the PSPA and is outside the scope of the TBPE’s jurisdiction. Therefore, the TBPE

cannot penalize Appellant for TSI Labs’ actions or Appellant’s actions related to the

Project, and the Board’s Amended Final Order is void ab initio and should be

reversed.

Because the Board’s Amended Final Order is November 21, 2013 is void for

the reason asserted above in this Issue No. 2, this Court need not reach the remaining

issues raised in this Appellant’s Brief. In an abundance of caution, however,

Appellant submits the following additional issues.

2
This fact is undisputed. Am. Final Order, Finding of Fact No. 5. C.R. 14.
3
This fact is undisputed. Am. Final Order, Finding of Fact No. 7. C.R. 14.

15
III.

Issue No. 3: The Board’s Conclusion of Law No. 7 violates the TEPA

provision limiting the TBPE’s authority to restrict bidding.

Summary of Argument

The Board’s amended order should be reversed because Conclusion of Law No.

7 exceeds the Board’s jurisdiction over competitive bidding.4 Conclusion of Law No.

7 of the Amended Final Order claims, “Respondent violated 22 TAC § 137.63(b)(2)

when he failed to exercise reasonable care and diligence to prevent TSI from

submitting a competitive bid for professional engineering services in violation of the

PSPA.” C.R. at 65. The APA requires reversal of an agency decision made in excess

of the agency’s statutory authority. Tex. Gov’t Code § 2001.174(2)(B).

Argument

The Board’s power to restrict competitive bidding under the TEPA is narrowly

limited for the purposes of ensuring compliance with the Professional Services

Procurement Act (PSPA) and prohibiting false, misleading, or deceptive practices.

Tex. Occ. Code §1001.203(a). The Board based its finding of a violation by

Appellant on the PSPA alone. Tex. Gov’t Code §2254.003(a).

4
Lack of jurisdiction is considered a fundamental error, and thus is subject to review
even if raised for the first time on appeal. Texas Emp’t Comm’n v. Int’l Union of Elec., Radio &
Mach. Workers Local 782, 352 S.W.2d 252, 253 (Tex. 1961); Mapco, Inc. v. Carter, 817 S.W.2d
686, 687 (Tex. 1991).

16
The PSPA prohibits a government entity from selecting a provider of

professional services on the basis of competitive bidding. Tex. Gov’t Code §

2254.003(a). “Professional services” that are relevant with respect to the TEPA are

either “professional engineering services” as defined by Texas law, or services

provided in connection with the employment of a registered professional engineer.

Tex. Gov’t Code § 2254.002(2)(A)(vii) and (B)(vii).

The CMT that TSI Labs performed for the County was not a “professional

service” as defined by the PSPA, because CMT does not meet Texas law’s definition

of “professional engineering service.”5 In addition, the County did not employ

Appellant as a professional engineer to perform any engineering, including CME, in

connection with the County’s acceptance of the TSI Labs proposal under the

County’s own bid advertisement terms. Rather, the County employed a testing firm

for CMT for which Appellant worked.6 Thus, the TBPE exceeded the limits of its

authority when it found that TSI Labs’ proposal and the County’s acceptance of that

proposal constituted a violation of the PSPA, because: (1) the CMT services that TSI

Labs performed for the Project were not “professional engineering services,” (2) the

5
See supra Part II.
6
The undisputed fact is that Appellant did not have any knowledge of the Project until
after TSI Labs had already completed the CMT on the Project. Am. Final Order, Finding of Fact No.
10, C.R. 14.

17
scope of the work for which the County contract with TSI Labs was sampling and

testing only and not any professional engineering services or any work that would

require a registered professional engineer, and (3) Appellant never provided any

engineering services to the County under the subject contract, for he was unaware of

the existence of that contract until the actual supervising engineers on the Project

contacted Appellant. Therefore, the Amended Final Order should be reversed.

IV.

Issue No. 4: The Court should reverse the Board’s decision because that

decision relied on the 2005/2009 CME Policy Advisory Opinion, which is an

invalid and unenforceable standard.

Summary of Argument

The Court should reverse the Board’s Amended Final Order because the Board

applied an invalid legal standard in judging Appellant and his actions. An agency

decision based on an invalid standard that prejudices the appellant’s substantial rights

must be reversed. Texas State Bd. of Pharmacy v. Witcher, 447 S.W.3d 520, 527

(Tex. App.—Austin 2014, pet. filed); Tex. Gov’t Code §2001.174(2). The

suspension of a professional license “undeniably affect[s]” the license holder’s

substantial rights. Id.

18
Argument

The 2005/2009 CME Policy Advisory Opinion (“CME Advisory Opinion” of

“Advisory Opinion”) is an invalid or unenforceable standard.7 If a standard that an

state agency is attempting to enforce against a regulated person meets the Texas

Government Code’s definition of a “rule,” and that agency did not promulgate that

standard as a “rule” in accordance with the mandatory procedures established by the

Administrative Procedure Act (APA), then that standard is invalid and unenforceable.

El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm’n, 247 S.W.3d 709, 714

(Tex. 2008).

The CME Advisory Opinion that the TBPE used as its standard to determine

what is CME and what is CMT meets the APA’s definition of a “rule.” The APA

defines a “rule” as follows:

(A) means a state agency statement of general applicability that:
i. implements, interprets, or prescribes law or policy; or
ii. describes the procedure or practice requirements of a state
agency;
(B) includes the amendment or repeal of a prior rule; and
(C) does not include a statement regarding only the internal management
or organization of a state agency and not affecting private rights or
procedures.

Texas Gov’t Code § 2001.003(6).

7
This error was first raised by Dass. Pl. Mot. For Reh’g, ¶1, C.R. 382. The grounds
were identified with greater specificity later. Pl. Mot. For New Trial, ¶16, C.R. 468.

19
The CME Advisory Opinion is the TBPE’s statement of general applicability

regarding CME and CMT that it used as the standard in its enforcement action against

Appellant.8

The TBPE never adopted this Advisory Opinion as a rule under the APA.

Therefore, it is unenforceable against Appellant.

Underscoring the policy behind the APA rule-making requirement is that the

record in this matter is replete with the confusion that this Advisory Opinion creates

and continues to create. The ALJ summarized part of the testimony of Mr. Lewis

Shrier, Senior Structural Engineer and Project Manager for Naismith Engineering for

the Project, as “after reading the CME Advisory Opinion several times, he still had

some questions.” C.R. 349; A.R. 52, ll. 1-4. David Wendel testified that the County

did not understand that the material testing services would fall under the PSPA. C.R.

350. Most telling is Finding of Fact No. 17 in the Amended Board Order because it

admits to this confusion and lack of enforceability by stating “Staff failed to prove a

common understanding and interpretations among professional engineers concerning

the requirements relating to materials testing in conformance with the Professional

Services Procurement Act (PSPA).” C.R. 38.

8
C.R. 38, 347-48, 354-56.

20
Underscoring the arbitrariness and capriciousness of the TBPE’s application

of a confusing non-rule to the regulated community and to Appellant are the decisions

of the TBPE and the ALJ to punish Appellant while admitting to the confusion of the

non-rule advisory opinion and the ALJ’s belittling Appellant for simply disagreeing

with the TBPE’s asserting that it has authority beyond the scope of its enabling

legislation. The ALJ went so far as to say “The ALJ specially notes for the Board’s

consideration that at times Mr. Dass appeared to persist with the argument that

material testing, even for a public works project, is not engineering. This appeared

to be so even after the PSPA and the CME Advisory Opinion were clearly brought

to his attention in this proceeding. For this reason, the Board may want to consider

requiring Mr. Dass to attend an appropriate continuing education course.” C.R. 356,

fn. 37.

Issue No. 5: Even assuming that the 2005/2009 CME Policy Advisory

Opinion was an enforceable “rule,” neither the ALJ nor the TBPE had any

evidence upon which either could determine whether the acts of Appellant were

CME and not CMT, and therefore, the Amended Final Order should be reversed

because it is not supported by any substantial evidence in the record.

21
Summary of Argument

The record does not have any evidence applying the standards set in the

2005/2009 CME Policy Advisory Opinion to determine whether the actions by

Appellant’s employer, TSI Labs, were simply CMT or were CME, thus depriving the

record of any evidence to support the application of this non-rule advisory opinion

to Appellant or his employer.

Argument

The CME Advisory Opinion states, in part:

The CMT, within the context of CME includes collecting samples,
performing well-defined test procedures, and reporting data. In certain
situations, performing tests and sampling by using well-defined
engineering specifications may not be considered engineering
activities.
The ALJ did not propose, and the TBPE did not adopt any findings of fact or

conclusions of law regrading whether the services that TSI Labs provided under its

proposal that the County accepted were the practice of professional engineering or

any type of engineering practices, i.e., what type of tests, what type of samples, etc.

Even applying this non-rule advisory opinion to Appellant through the work

he did not perform (but that his employer performed for the County), would require

the TBPE to make findings and conclusions based on the non-rule advisory opinion.

However, the TBPE never did so. Therefore, the Amended Board Order is facially

and factually unsupported by any evidence, even when ignoring the TBPE’s lack of

22
jurisdiction and use of an invalid rule, for it does not contain findings of fact and

conclusions of law that establish that the TBPE has jurisdiction over the CMT under

the facts of this case, and therefore, should be reversed.

VI.

Issue No. 6: Even if the PSPA, or Section 1001.407 of the TEPA, or the

CME Advisory Opinion required a conclusion of law that the sampling and

testing (CMT) that TSI Labs performed under its contract with the County was

actually CME, then the supervising engineer was the “project engineers” for the

County, and not Appellant. Therefore, the agency has taken action not against

the engineer who performed the supervisory and acceptance role under the facts,

but against Appellant who never served in that role.

Summary of Argument

Even if the CMT in this case were CME, the “supervising engineer” under that

logic was not Appellant, but Naismith Engineering, the actual supervising engineer

for the Project.

Argument.

The CME Advisory Opinion does not state that CMT becomes CME under a

public project, and therefore, an engineer must perform the sampling and testing of

construction materials. Rather, it states “When constructing public works, the state

23
or political subdivision of the state must ensure that the engineering construction is

performed under the direct supervision of a licensed engineer. . . . This supervision

must include the direct supervision of materials testing and engineering necessary

. . . for verification of compliance with construction plans . . . .” C.R. at 390. Thus,

the supervising engineer may use an outside certified lab if the work is performed

under that engineer’s supervision. In this case, the County arranged this Project with

a private engineering firm (Naismith Engineering) as the supervising engineer and a

private lab (TSI Labs) as the sampling and testing lab that the supervising engineer

would use. The acceptability of this type of arrangement for a public works project

is recognized in the CME Advisory Opinion, which states “For public entities with

staff engineers [or private engineers under contract with public entities] who make

acceptance decisions, the engineers must be in a position to determine if the testing

and inspection services are properly performed at a frequency the provides

confidence that the materials and work meet (or reasonably conform in some cases)

the contract requirements or standards of practice” with the inserted factual situation

being a valid and frequent standard arrangement for public entities without staff

engineers. As the next sentence states, this supervision and acceptance

determinations, whether by a staff engineer or a contracted engineer, “requires

reviewing qualifications, monitoring inspection and testing services and review of

24
test and inspection data.” Again, the standard is that the engineer supervise and

review the sampling and testing and not perform the sampling and testing.

Therefore, for this Project, the supervising engineers were Naismith

Engineering and not an professional engineer who was an employee of TSI Labs and

who was not even working in the TSI Labs facility in San Patricio County, but who

just happened to be an employee of a multi-office corporation that has its main office

in Victoria, Texas. Moreover, TSI Labs was a testing lab that submitted a CMT

proposal on sampling and testing only, which services are not subject to the PSPA.

Thus, the supervising engineers for this Project, and thus for the CMT for the

Project, was Naismith Engineering, the engineering firm that the County selected

following the PSPA procedures. Consequently, Appellant was the wrong engineer

about which the complainant, Mark Rock, P.E., of Rock Engineering and Testing (the

losing bidder who found Appellant on the rolls of the TBPE), should have

complained and against whom the TBPE should take action, if any. An analogous

view is that the TBPE did not have in personam jurisdiction over Appellant because

he did not have the proper contacts with the Project, including any agreement with

the County to provide “engineering” for the Project at any time.

Even setting aside the several lack of authority and other legal defects in the

TBPE decisions in this case, its decision is not supported by any substantial evidence

25
and is arbitrary and capricious because the agency sought enforcement against the

wrong supervising engineer.

PRAYER

For the reasons stated above, Appellant Raghunath Dass, Ph.D., P.E. prays that

the Court find that:

(1) the Amended Final Order was and is void;

(2) the Texas Engineering Practices Act does not grant the Texas Board of

Professional Engineers the authority to regulate construction materials testing;

(3) any actions of the Texas Board of Professional Engineers to assert authority

or jurisdiction over construction materials testing is void and unenforceable;

(4) neither the Texas Engineering Practices Act nor the Professional Services

Procurement Act convert construction materials testing into construction material

testing when such testing is part of a public work project;

(5) the Texas Board of Professional Engineers’ 2005/2009 CME Policy

Advisory Opinion is an enforceable “rule”; and

(6) even if the construction material testing that TSI Labs performed under its

contract with the San Patricio County was actually construction materials

engineering, then the supervising engineer was the “project engineers” for the

County, and not Appellant;

26
and that the Court reverse all orders of the Texas Board of Professional Engineers that

affect Appellant in the agency’s Case No. D-31480.

Respectfully submitted this 4th day of March, 2015.

JIMMY ALAN HALL, PLLC
4600 Mueller Boulevard, Suite 2121
Austin, Texas 78723-3294
Telephone: 512-722-3190
Telecopier: 512-857-9195
jahall@fbjah.com

/s/ Jimmy Alan Hall
JIMMY ALAN HALL
Texas Bar No.08759800

ATTORNEYS FOR APPELLANT RAGHUNATH
DASS, PH.D., P.E.

27
CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this brief contains 5,654 words (excluding the caption, table of contents, table of
authorities, signature, proof of service, certification, and certificate of compliance).
This is a computer generated document created in WordPerfect X6, using 14-point
typeface for all text, except for footnotes which are 12-point typeface. In making this
certificate of compliance, I am relying on the word count provided by the software
used to prepare the document.

/s/ Jimmy Alan Hall
JIMMY ALAN HALL

CERTIFICATE OF SERVICE

I, Jimmy Alan Hall, do hereby certify that a true and correct copy of the
foregoing document, with appendix, was served by electronic service on the
following parties or attorneys of record on the 5th day of March 2015.

Jennifer L. Hopgood
Assistant Attorney General
Administrative Law Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 936-1660
Facsimile: (512) 320-0167
jennifer.hopgood@texasattorneygeneral.gov

/s/ Jimmy Alan Hall
JIMMY ALAN HALL

28
APPENDIX TO APPELLANT’S BRIEF
TABLE OF CONTENTS

TAB Document
Order Granting Defendant’s Motion for Summary Judgment,
1
June 24, 2014 (C.R. at 465)
Act of May 15, 1997, 75th Leg., R.S., 1997 Tex. Gen. Laws 344.
2
Introduced and Enrolled Versions (S.B. 623)
Texas Government Code
§ 2001.003
§ 2001.174
3
§ 2001.1775
§ 2254.002
§ 2254.003
Texas Occupations Code
§ 1001.003
§ 1001.202
4
§ 1001.203
§ 1001.301
§ 1001.407
Texas Board of Professional Engineer Policy Advisory Opinion
5 Regarding Construction Materials Engineering (August 20,
2009). (A.R. Ex. 2)
T.S.I. Laboratories, Inc. February 18, 2009 bid proposal to San
6
Patricio County (C.R. at 392-94)
Excerpts from SOAH Transcript of Contested Case Hearing on
7 April 18, 2012; Case No. D-31480; SOAH Docket No. 460-12-
3264
Texas Board of Professional Engineer Amended Final Order
8
(November 21, 2013) (C.R. at 62-66, 367-69)

29
TAB Document
Appellant’s Motion to Withdraw Appeal; No. 03-13-0711-CV
9
(C.R. at 370-72)
Texas Court of Appeals, Third District, Judgment Rendered
10 December 18, 2013, Dismissed on Appellant’s Motion (C.R. at
379)

30
TAB
1

31
Fax Server 6/10/2014 9:39:16 AM PAGE 2/002 Fax Server
DC BK14182 PG1746
Notice sent: Final
Parties:
-------l
code: CVD I CLS ---~

CAUSE NO. D-1-GN-14-000568

RAGHUNATH DASS, P.E., § IN THE DISTRICT COURT
PlaintJ_jf, §
§
v. §
§ TRi\.VIS COUNTY, TE:Xi\S
§
TEXAS BOARD OF §
PROFESSIONAL ENGINEERS, §
Defendant. § 201'' JUDICIAL DISTRICT

ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT

TI1e Court considered on submission the Motion of Defendant Texas Board of

P:cfessional Engineers for Su:nmary Judgcnent and the response filed by the Plaintiff.

j\f~er considering the motions, the admissible summary judgment evidence, a..'ld the

rr:a:ters and autl-10rit1es presented, the Court fmds that the Defendant's Matton should be

anc is hereby grantee.

It is L'1e::efore ORDERED, ADJUDGED, .AND DECREED that Defendant's

Motion for Sum.mary Judgment 1s GRANTED in all respects.

A] relief not expressly granted 1s herein DENIED. This Order constitutes a.-rJd is

intended to be a fmal and appealable judgment, disposing of all parties and claims.

465
TAB
2

32
INTRODUCED VERSION
By RatliffS.B. No. 623

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of the practice of engineering; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 1.1, The Texas Engineering Practice Act (Article 3271a, Vernon's

Texas Civil Statutes), is amended to read as follows:

Sec. 1.1. In recognition of the vital impact which the rapid advance of knowledge of the

mathematical, physical and engineering sciences as applied in the practice of engineering is

having upon the lives, property, economy and security of our people and the national defense, it

is the intent of the Legislature, in order to protect the public health, safety and welfare, that the

privilege of practicing engineering be entrusted only to those persons duly licensed[, registered]
and practicing under the provisions of this Act and that there be strict compliance with and

enforcement of all the provisions of this Act, and, in order that the state and members of the

public may be able to identify those duly authorized to practice engineering in this state and fix

responsibility for work done or services or acts performed in the practice of engineering, only
licensed [and registered] persons shall practice, offer or attempt to practice engineering or call
themselves or be otherwise designated as any kind of an "engineer" or in any manner make use

of the term "engineer" as a professional, business or commercial identification, title, name,

representation, claim or asset, and all the provisions of this Act shall be liberally construed and

applied to carry out such legislative intent. In furtherance of such intent and purpose of the

Legislature, the practice of engineering is hereby declared a learned profession to be practiced

and regulated as such, and its practitioners in this state shall be held accountable to the state and

members of the public by high professional standards in keeping with the ethics and practices of

the other learned professions in this state. There is specifically reserved to graduates of all
public universities recognized by the American Association of Colleges and Universities the

right to disclose any college degrees received by such individual and use the word Graduate

Engineer on his stationery, business cards, and personal communications of any character.

SECTION 2. Section 1.2, The Texas Engineering Practice Act (Article 3271a, Vernon's

Texas Civil Statutes), is amended to read as follows:

Sec. 1.2. From and after the effective date of this Act, unless duly licensed [and registered] in

accordance with the provisions of this Act, no person in this state shall:

(1) Practice, continue to practice, offer or attempt to practice engineering or any

branch or part thereof.

(2) Directly or indirectly, employ, use, cause to be used or make use of any of the

following terms or any combinations, variations or abbreviations thereof as a professional,

business or commercial identification, title, name, representation, claim, asset or means of

advantage or benefit: "engineer," "professional engineer," "licensed engineer," "registered

engineer," "registered professional engineer," "licensed professional engineer," "engineered."

(3) Directly or indirectly, employ, use, cause to be used or make use of any letter,

abbreviation, word, symbol, slogan, sign or any combinations or variations thereof, which in any

manner whatsoever tends or is likely to create any impression with the public or any member

thereof that any person is qualified or authorized to practice engineering unless such person is

duly licensed[, registered] under and practicing in accordance with the provisions of this Act.
(4) Receive any fee or compensation or the promise of any fee or compensation for

performing, offering or attempting to perform any service, work, act or thing which is any part of

the practice of engineering as defined by this Act.

Within the intent and meaning and for all purposes of this Act, any person, firm, partnership,

association or corporation which shall do, offer or attempt to do any one or more of the acts or

things set forth in numbered paragraphs (1), (2), (3) or (4) of this Section 1.2 shall be

conclusively presumed and regarded as engaged in the practice of engineering.
SECTION 3. Section 1.3, The Texas Engineering Practice Act (Article 3271a, Vernon's

Texas Civil Statutes), is amended to read as follows:

Sec. 1.3. Every person licensed [and registered] by the Board to engage in the practice of

engineering shall in the professional use of his name on any sign, directory, listing, contract,

document, pamphlet, stationery, letterhead, advertisement, signature, or any other such means of

professional identification, written or printed, use one of the following legally required

identifications: Engineer, Professional Engineer or P. E.

SECTION 4. Sections 2(1), (3), and (4), The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), are amended to read as follows:

(1) "Board" shall mean the Texas [State] Board of [Registration for] Professional

Engineers, provided for by this Act.

(3) "Engineer," "professional engineer," "registered engineer," "registered

professional engineer," [or] "licensed professional engineer," or "licensed engineer" shall mean a

person who has been duly licensed [and registered] by the Board to engage in the practice of

engineering in this state.

(4) "Practice of engineering," or "practice of professional engineering" shall mean

any service or creative work, either public or private, the adequate performance of which
requires engineering education, training and experience in the application of special knowledge
or judgment of the mathematical, physical, or engineering sciences to such services or creative

work.

The term includes consultation, investigation, evaluation, analysis, planning, program

management, providing an expert engineering opinion or testimony, testing or evaluating

materials for construction and other engineering uses, and mapping; design, conceptual design,

or conceptual design coordination of engineering works and systems; development or

optimization of plans and specifications for engineering works and systems; planning the use or

alteration of land and water or the design or analysis of works or systems for the use or alteration

of land and water; teaching advanced engineering subjects; performing engineering surveys and
studies; construction, alteration, or repair of real property; preparation of operating and

maintenance manuals; and review of the construction or installation of engineered works to
monitor compliance with drawings and specifications.

The activities included in the practice of engineering include services or work performed for a

public or private entity in connection with utilities, structures, buildings, machines, equipment,

processes, systems, works, projects, and industrial or consumer products or equipment of a

mechanical, electrical, electronic, chemical, hydraulic, pneumatic, geotechnical, or thermal

nature and include other professional services necessary for the planning, progress, and

completion of any engineering service.

In this subdivision:

(A) "Design coordination" includes the review and coordination of

technical submissions prepared by others, including the work of other professionals working

under the direction of an engineer with due professional regard for the professional abilities of all

parties involved in a multidisciplinary effort.

(B) "Engineering surveys" includes all survey activities required to support

the sound conception, planning, design, construction, maintenance, and operation of an

engineered project, but does not include the surveying of real property and other activities
regulated under the Professional Land Surveying Practices Act (Article 5282c, Vernon's Texas
Civil Statutes).

SECTION 5. Section 3, The Texas Engineering Practice Act (Article 3271a, Vernon's Texas

Civil Statutes), is amended to read as follows:

Sec. 3. TEXAS [STATE] BOARD OF [REGISTRATION FOR] PROFESSIONAL

ENGINEERS--APPOINTMENT OF MEMBERS--TERMS. The Texas [A State] Board of

[Registration for] Professional Engineers is hereby created whose duty it shall be to administer

the provisions of this Act. The Board shall consist of six (6) professional engineers and three (3)

representatives of the general public, who shall be appointed by the Governor of the State,

without regard to the race, creed, sex, religion, or national origin of the appointees and with the
advice and consent of the Senate. At the expiration of the term of each member first appointed,

his successor shall be appointed by the Governor of the State and he shall serve for a term of six

(6) years or until his successor shall be appointed and qualified. Before entering upon the duties

of his office each member of the Board shall take the Constitutional Oath of office and the same

shall be filed with the Secretary of State.

SECTION 6. Section 3a, The Texas Engineering Practice Act (Article 3271a, Vernon's Texas

Civil Statutes), is amended to read as follows:

Sec. 3a. SUNSET PROVISION. The Texas [State] Board of [Registration for] Professional

Engineers is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in

existence as provided by that chapter, the board is abolished and this Act expires September 1,

2003.

SECTION 7. Section 4(d), The Texas Engineering Practice Act (Article 3271a, Vernon's

Texas Civil Statutes), is amended to read as follows:

(d) The Board by majority vote may limit the participation of general public members in the

evaluations of applications for licensure [registration] except in those instances in which the

evaluations take place at an official meeting of the Board.

SECTION 8. Sections 8(a) and (b), The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), are amended to read as follows:
(a) In addition to any other powers and duties, the Board shall have the authority and power

to make and enforce all rules and regulations and bylaws consistent with this Act as necessary

for the performance of its duties, the governance of its own proceedings, and the regulation of

the practice of engineering in this state and may establish standards of conduct and ethics for

engineers in keeping with the purposes and intent of this Act and to insure strict compliance with

and enforcement of this Act. The violation by any engineer of any provision of this Act or any

rule or regulation of the Board shall be a sufficient cause to suspend or revoke the license

[certificate of registration] of or to issue a formal or informal reprimand to such engineer. In

addition to any other action, proceeding or remedy authorized by law, the Board shall have the
right to institute an action in its own name in a district court of Travis County against any

individual person to enjoin any violation of any provision of this Act or any rule or regulation of

the Board and in order for the Board to sustain such action it shall not be necessary to allege or

prove, either that an adequate remedy at law does not exist, or that substantial or irreparable

damage would result from the continued violation thereof. Either party to such action may

appeal to the appellate court having jurisdiction of said cause. The Board shall not be required to

give any appeal bond in any cause arising under this Act. The Attorney General shall represent

the Board in all actions and proceedings to enforce the provisions of this Act.

(b) The Board may promulgate rules restricting competitive bidding. The Board may not

promulgate rules restricting advertising by a license holder [registrants] except to prohibit false,

misleading, or deceptive practices by the license holder [registrants]. The Board may not include

in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the

Board a rule that:

(1) restricts the person's use of any medium for advertising;

(2) restricts the person's personal appearance or use of his personal voice in an

advertisement;

(3) relates to the size or duration of an advertisement by the person; or

(4) restricts the person's advertisement under a trade name.
SECTION 9. Section 10(a), The Texas Engineering Practice Act (Article 3271a, Vernon's

Texas Civil Statutes), is amended to read as follows:

(a) The Board shall keep a record of its proceedings and register of all applications for

licensure [registration], which register shall show (a) the name, age and residence of each

applicant; (b) the date of the application; (c) the place of business of such applicant; (d) his

educational and other qualifications; (e) whether or not an examination was required; (f) whether

the applicant was rejected; (g) whether a license [certificate of registration] was granted; (h) the

date of the action of the Board; and (i) such other information as may be deemed necessary by

the Board.
The records of the Board shall be available to the public at all times and shall be prima facie

evidence of the proceedings of the Board set forth therein, and a transcript thereof, duly certified

by the Secretary of the Board under seal, shall be admissible in evidence with the same force and

effect as if the original was produced.

SECTION 10. Section 11, The Texas Engineering Practice Act (Article 3271a, Vernon's

Texas Civil Statutes), is amended to read as follows:

Sec. 11. ROSTER OF LICENSED [REGISTERED] ENGINEERS. A roster showing the

names and places of business of all licensed [registered] professional engineers shall be prepared

and published by the Board each biennium at a time determined by the Board. Copies of this

roster shall be furnished without charge to any engineer licensed [registered] by the Board on the

written request of the engineer, placed on file with the Secretary of State, and furnished to any

person upon written request who tenders a reproduction fee set by the Board.

SECTION 11. Section 12, The Texas Engineering Practice Act (Article 3271a, Vernon's

Texas Civil Statutes), is amended to read as follows:

Sec. 12. GENERAL REQUIREMENTS FOR LICENSURE [REGISTRATION]. (a) The

following shall be considered as minimum evidence satisfactory to the Board that the applicant is

qualified for licensure [registration] as a professional engineer:
(1) graduation from an approved curriculum in engineering that is approved by the
Board as of satisfactory standing, passage of the examination requirements prescribed by the

Board, and a specific record of an additional four (4) years or more of active practice in

engineering work, of a character satisfactory to the Board, indicating that the applicant is

competent to be placed in responsible charge of such work; or

(2) graduation from an engineering or related science curriculum at a recognized

institution of higher education, other than a curriculum approved by the Board under Subdivision

(1) of this subsection, passage of the examination requirements prescribed by the Board, 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.

(b) Provided, that no person shall be eligible for licensure [registration] as a professional

engineer who is not of good character and reputation; and provided further, that any engineer

licensed [registered] under this Act shall be eligible to hold any appointive engineering position

with the State of Texas.

may be construed as responsible charge of engineering work. The mere execution, as a

contractor, of work designed by a professional engineer, or the supervision of the construction of

such work as foreman or superintendent shall not be deemed to be active practice in engineering

work.

(d) Any person having the necessary qualifications prescribed in this Act to entitle him to

licensure [registration] shall be eligible for such licensure [registration] though he may not be

practicing at the time of making his application.

(e) The Board may adopt rules providing for the waiver of all or part of the examination

requirement under this Act to permit the issuance or reissuance of a license to an applicant.

Before the Board may waive the requirement, the Board must find that the applicant possesses
sufficient qualifications to justify the waiver of all or part of the examination requirement and
that issuance or reissuance of the license to the applicant does not pose a threat to the public

health, safety, or welfare.

SECTION 12. Sections 13(a), (b), and (d), The Texas Engineering Practice Act (Article

3271a, Vernon's Texas Civil Statutes), as amended by Chapters 947 and 1090, Acts of the 71st

Legislature, Regular Session, 1989, are amended to read as follows:

(a) Applications for licensure [registration] shall be on forms prescribed and furnished by the

Board, be sworn, and contain:

(1) statements showing personal information about the applicant, as required by

Board rule, and describing the applicant's education;
(2) a detailed summary of the applicant's actual engineering work;

(3) a statement describing any earlier professional engineering registrations or
licenses by or denials, revocations, or suspensions of professional engineering registrations or

licenses of the applicant;

(4) a statement describing any criminal offenses of which the applicant has been

convicted; and

(5) not less than five (5) references from individuals with personal knowledge of the

applicant's character, reputation, and general suitability for licensure [registration], of whom

three (3) or more shall be licensed [registered] engineers having personal knowledge of the

applicant's engineering experience.

(b) The Board shall establish reasonable and necessary fees for the administration of this Act

in amounts not to exceed:

1. License [Registration] fee$50

2. Annual renewal fee 75

3. Reciprocal license [registration] fee 50

4. Duplicate license [certificate of registration] 5

5. Engineer-in-training certificate 15

6. Roster of engineers 10
7. Examination fee120 [100]
(d) The Board by rule may adopt reduced licensure [registration] and annual renewal

fees for licensed [registered] engineers who are at least 65 years of age.

SECTION 13. Sections 13B(a) and (c), The Texas Engineering Practice Act (Article

3271a, Vernon's Texas Civil Statutes), are amended to read as follows:

(a) Each of the following fees imposed by or under another section of this Act is

increased by $200:

(1) license [registration] fee;

(2) annual renewal fee; and
(3) reciprocal license [registration] fee.

(c) Subsection (a) does not apply to a licensed [registered] professional engineer who
meets the qualifications for an exemption from licensure [registration] under Section 20(g) or (h)

of this Act but who does not claim that exemption.

SECTION 14. Section 14(a), The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), is amended to read as follows:

(a) On payment of the examination fee, oral or written examinations shall be

administered to qualified applicants at such time and place as the Board shall determine. The

scope of the examinations and the methods of procedure shall be prescribed by the Board with

special reference to the applicant's ability to design and supervise engineering works, which shall

insure the safety of life, health, and property. Examinations shall be given for the purpose of

determining the qualifications of applicants for licensure [registration] in professional

engineering. The Board may permit reexamination of an applicant on payment of an appropriate

reexamination fee in an amount set by the Board.

SECTION 15. Section 15, The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), is amended to read as follows:

Sec. 15. LICENSES [CERTIFICATES], SEALS. (a) The Board shall issue a license
[certificate of registration] upon payment of the license [registration] fee as provided for in this
Act, to any applicant, who, in the opinion of the Board, has satisfactorily met all the

requirements of this Act. The license [In case of a registered engineer, the certificate] shall

authorize the practice of professional engineering. A license [Certificates of registration] shall

show the full name of the license holder [registrant], shall have a serial number, and shall be

signed by the Chairman and the Secretary of the Board under seal of the Board. The issuance of

a license [certificate of registration] by this Board shall be evidence that the person named

therein is entitled to all rights and privileges of a licensed [registered] professional engineer,

while the said license [certificate] remains unrevoked or unexpired.
(b) Each license holder [registrant] hereunder shall upon licensure [registration] obtain

a seal of the design authorized by the Board, bearing the license holder's [registrant's] name and
the legend "Licensed Professional Engineer" or "Registered Professional Engineer". Plans,

specifications, plats, and reports issued by a license holder [registrant] must include the license

holder's [registrant's] seal affixed to the document. It shall be unlawful for any one to affix a seal

on any document if the license [certificate] of the license holder [registrant] named thereon has

expired or has been suspended or revoked, unless said license [certificate] shall have been

renewed or reissued.

this Act. A public official of this state or of a political subdivision of this state who is charged

with the enforcement of laws, ordinances, codes, or regulations that affect the practice of

engineering may only accept plans, specifications, and other related documents prepared by a

licensed engineer [registered engineers], as evidenced by the seal of the engineer. A public

official shall report violations of this Act to the proper authorities.

SECTION 16. Section 16, The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), is amended to read as follows:

Sec. 16. EXPIRATIONS AND RENEWALS. (a) It shall be the duty of the Board to

notify every person licensed [registered] under this Act of the date of the expiration of his license
[certificate] and the amount of the fee that shall be required for its renewal for one year; such

notice shall be mailed at least one month in advance of the date of the expiration of said license

[certificate] to the last address provided by the license holder [registrant] to the Board.

(b) A person may renew an unexpired license [certificate of registration] by paying to

the Board before the expiration date of the license [certificate of registration] the required

renewal fee.

90 days, the person may renew the license [certificate of registration] by paying to the Board the

required renewal fee and a penalty fee as set by the Board.
(d) If a person's license [certificate of registration] has been expired for longer than 90

days but less than two years, the person may renew the license [certificate of registration] by
paying to the Board all unpaid renewal fees and a penalty fee as set by the Board.

(e) If a person's license [certificate of registration] has been expired for two years or

longer, the person may not renew the license [certificate of registration]. The person may obtain

a new license [certificate of registration] by complying with the requirements and procedures for

obtaining an original license [certificate of registration] that are in effect at the time the person

applies.

SECTION 17. Section 16.1, The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), is amended to read as follows:

Sec. 16.1. EXPIRATION DATES OF LICENSES [CERTIFICATES OF

REGISTRATION]. The board by rule may adopt a system under which licenses [certificates of

registration] expire on various dates during the year, and the dates for reinstatement shall be

adjusted accordingly.

SECTION 18. Section 17, The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), is amended to read as follows:

Sec. 17. A firm, or a co-partnership, or a corporation, or a joint stock association may

engage in the practice of professional engineering in this State, provided such practice is carried
on by only professional engineers licensed [registered] in this State.
SECTION 19. Section 18, The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), is amended to read as follows:

Sec. 18. (a) No firm, partnership, association, corporation or other business entity shall

hold itself out to the public or any member thereof as being engaged in the practice of

engineering under any assumed, trade, business, partnership or corporate name or employ, use,

cause to be used or make use of in any manner whatsoever any such words or terms as

"engineer," "engineering," "engineering services," "engineering company," "engineering, inc.,"

"professional engineers," "licensed engineer," "registered engineer," "licensed professional
engineer," "registered professional engineer," "engineered," or any combinations, abbreviations

or variations thereof, or in combination with any other words, letters, initials, signs or symbols

on, in or as a part of, directly or indirectly, any sign, directory, listing, contract, document,

pamphlet, stationery, letterhead, advertisement, signature, trade name, assumed name, corporate

or other business name unless such firm, partnership, association, corporation or other business

entity is actually and actively engaged in the practice of engineering or offering engineering

services to the public, and any and all services, work, acts or things performed or done by it

which constitute any part of the practice of engineering are either personally performed or done

by a licensed [registered] engineer or under the direct [responsible] supervision of a licensed

[registered] engineer who is a regular full-time employee of the firm, partnership, association,

corporation, or other business entity.

(b) This section does not prohibit a licensed engineer from performing engineering

services on a part-time basis.

SECTION 20. Section 19(a), The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), is amended to read as follows:

(a) It is unlawful for this State or for any of its political subdivisions, including any

county, city, or town, to engage in the construction of any public work involving professional

engineering, where public health, public welfare or public safety is involved, unless the
engineering plans and specifications and estimates have been prepared by, and the engineering

construction is to be executed under the direct supervision of a licensed [registered] professional
engineer.

SECTION 21. Section 20, The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), is amended to read as follows:

Sec. 20. EXEMPTIONS. The following persons shall be exempt from the licensure

[registration] provisions of this Act, provided that such persons are not directly or indirectly

represented or held out to the public to be legally qualified to engage in the practice of

engineering:
(a) [A person not a resident of and having no established place of business in this

state if that person:
[(1) has filed an application for registration as a professional engineer

with the Board and the application is pending Board action;

[(2) is legally qualified to practice engineering in another jurisdiction

whose requirements for practice are at least as strict as those required by this state; and

[(3) affixes the person's seal from the jurisdiction in which the person is

legally qualified to practice on all work completed while the application for registration to

practice in this state is pending.

[(b) A person who has recently become a resident of this state if that person:

[(1) has filed an application for registration as a professional engineer

with the Board and the application is pending Board action;

[(2) is legally qualified to practice engineering in another jurisdiction

whose requirements for practice are at least as strict as those required by this state; and

[(3) affixes the person's seal from the jurisdiction in which the person is

legally qualified to practice on all work completed while the application for registration to

practice in this state is pending.
[(c)] An employee or a subordinate of a person holding a license [certificate of
registration] under this Act[, or any employee of a person exempted from registration by classes

(a) and (b) of this Section]; provided, his practice does not include responsible charge of design

or supervision.

(b) [(d)] Officers and employees of the Government of the United States while

engaged within this state in the practice of the profession of engineering for said Government.

servicing locomotive or stationary engines, steam boilers, Diesel engines, internal combustion

engines, refrigeration compressors and systems, hoisting engines, electrical engines, air

conditioning equipment and systems, or mechanical and electrical, electronic or communications
equipment and apparatus; this Act may not be construed to prevent any citizen from identifying

himself in the name and trade of any engineers' labor organization with which he may be

affiliated, however, this exemption may not be construed to permit any person other than a

licensed [registered] professional engineer to affix his signature to engineering plans, or

specifications and may not be construed to permit a person to use the term "engineer" or

"engineering" in any manner prohibited by this Act.

(d) [(f)] A person, firm, partnership, joint stock association or private

corporation, erecting, constructing, enlarging, altering or repairing, or drawing plans and

specifications for: (1) any private dwelling, or apartments not exceeding eight units per building

for one story buildings, or apartments not exceeding 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

used exclusively for storage of raw agricultural commodities; or (3) other buildings, except

public buildings included under Section 19 of this Act, having no more than one story and

containing no clear span between supporting structures greater than 24 feet on the narrow side

and having a total floor area not in excess of five thousand square feet; provided that on

unsupported spans greater than 24 feet on such buildings only the trusses, beams, or other roof

supporting members need to be engineered or pre-engineered; provided that no representation is

made or implied that engineering services have been or will be offered to the public.

(e) [(g)] Any regular full time employee of a private corporation or other private
business entity who is engaged solely and exclusively in performing services for such

corporation and/or its affiliates; provided, such employee's services are on, or in connection with,

property owned or leased by such private corporation and/or its affiliates or other private

business entity, or in which such private corporation and/or its affiliates or other business entity

has an interest, estate or possessory right, or whose services affect exclusively the property,

products, or interests of such private corporation and/or its affiliates or other private business

entity; and, provided further, that such employee does not have the final authority for the
approval of, and the ultimate responsibility for, engineering designs, plans or specifications

pertaining to such property or products which are to be incorporated into fixed works, systems,

or facilities on the property of others or which are to be made available to the general public.

This exemption includes the use of job titles and personnel classifications by such persons not in

connection with any offer of engineering services to the public, providing that no name, title, or

words are used which tend to convey the impression that an unlicensed person is offering

engineering services to the public.

(f) [(h)] Any regular full time employee of a privately owned public utility or

cooperative utility and/or affiliates who is engaged solely and exclusively in performing services

for such utility and/or its affiliates; provided, that such employee does not have the final

authority for the approval of, and the ultimate responsibility for engineering designs, plans or

specifications to be incorporated into fixed works, systems, or facilities on the property of others

or which are to be made available to the general public. This exemption includes the use of job

titles and personnel classifications by such persons not in connection with any offer of

engineering services to the public, providing that no name, title, or words are used which tend to

convey the impression that an unlicensed person is offering engineering services to the public.

(g) [(i)] Qualified scientists engaged in scientific research and investigation of the
physical or natural sciences, including the usual work and activities of meteorologists,
seismologists, geologists, chemists, geochemists, physicists and geophysicists.

(h) [(j)] Nothing in this Act shall be construed or applied so as to prohibit or in

any way restrict any person from giving testimony or preparing exhibits or documents for the

sole purpose of being placed in evidence before any administrative or judicial tribunal of

competent jurisdiction.

(i) [(k)] Nothing in this Act shall apply to any agricultural work being performed

in carrying out soil and water conservation practices.

(j) [(l)] This Act shall not be construed as applying to operating telephone

companies and/or affiliates or their employees in respect to any plans, designs, specifications, or
services which relate strictly to the science and art of telephony. This exemption includes the

use of job titles and personnel classifications by such persons not in connection with any offer of

engineering services to the public, providing that no name, title, or words are used which tend to

convey the impression that an unlicensed person is offering engineering services to the public.

SECTION 22. The Texas Engineering Practice Act (Article 3271a, Vernon's Texas

Civil Statutes) is amended by adding Section 20A to read as follows:

Sec. 20A. TEMPORARY OR PROVISIONAL LICENSE. The Board may adopt rules

providing standards and procedures for the issuance of a temporary or provisional license under

this Act.

SECTION 23. Section 21, The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), is amended to read as follows:

Sec. 21. LICENSURE [REGISTRATION] BY NONRESIDENTS. A person who holds

a valid certificate of registration or license issued to him by proper authority of any state or

territory or possession of the United States, the District of Columbia, or any foreign country may

apply for licensure [registration] in this state.

SECTION 24. Section 22, The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), is amended to read as follows:

Sec. 22. DENIAL, REVOCATION, SUSPENSION, PROBATION, REPRIMAND,
RE-ISSUANCE AND REFUSAL OF LICENSE; STATUS REVIEW [CERTIFICATE]. (a) The
Board shall revoke, suspend, or refuse to renew a license [registration], shall reprimand a license

holder [registrant], may deny an application for licensure [registration], or may probate any

suspension of any license holder [registrant] who is determined by the Board to be censurable

for:

(1) The practice of any fraud or deceit in obtaining a license [certificate of

registration];

(2) Any gross negligence, incompetency, or misconduct in the practice of

professional engineering as a licensed [registered] professional engineer;
(3) Any documented instance of retaliation by an applicant against an individual

who has served as a reference for that applicant;

(4) A violation of this Act or a Board rule; or

(5) A failure to timely provide plans and specifications to the Texas Department

of Licensing and Regulation as required by Article 9102, Revised Statutes.

(b) Any person who may feel himself aggrieved by reason of the revocation of his

license [certificate of registration] by the Board, as hereinabove authorized, shall have the right

to file suit in the district court of the county of his residence, or of the county in which the

alleged offense relied upon as grounds for revocation took place, to annul or vacate the order of

the Board revoking the license [certificate of registration].

registration], the person is entitled to a hearing before the Board. Proceedings for the suspension

or revocation of a license [certificate of registration] are governed by Chapter 2001,

Government Code [the Administrative Procedure and Texas Register Act, as amended (Article

6252-13a, Vernon's Texas Civil Statutes)].

(d) The Board, for reasons it may deem sufficient, may re-issue a license [certificate of

registration] to any person whose license [certificate] has been revoked, provided six (6) or more
members of the Board vote in favor of such re-issuance. A new license [certificate of
registration], to replace any license [certificate] revoked, lost, destroyed, or mutilated, may be

issued, subject to the rules of the Board.

(e) The Board may adopt rules permitting the Board to review the status of a license

holder who the Board believes may have been issued a license through fraud or error or who may

constitute a threat to the public health, safety, or welfare. The Board may suspend or revoke a

license held by a person whose status is reviewed under this subsection.

SECTION 25. Section 22A, The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), is amended to read as follows:
Sec. 22A. INFORMATION ABOUT COMPLAINTS. (a) The Board shall keep an

information file about each complaint filed with the Board relating to a license holder
[registrant].

(b) If a written complaint is filed with the Board relating to a license holder [registrant],

the Board, at least as frequently as quarterly, shall notify the parties to the complaint of the status

of the complaint until final disposition unless the notification would jeopardize an undercover

investigation.

anonymous and confidential complaints against license holders or any other person who may

have violated this Act. The Board shall protect the anonymity of a person who makes an

anonymous complaint and maintain the confidentiality of the complaint during the investigation

of the complaint.

SECTION 26. The Texas Engineering Practice Act (Article 3271a, Vernon's Texas

Civil Statutes) is amended by adding Section 22C to read as follows:

Sec. 22C. (a) The Board may impose an administrative penalty against a person

licensed under this Act or any other person or entity that violates this Act or a rule or order

adopted under this Act. The Board may include in the amount of the administrative penalty the
actual costs of investigating and prosecuting the violation.
(b) The penalty for a violation may be in an amount not to exceed $3,000. Each day a

violation continues or occurs is a separate violation for purposes of imposing a penalty.

(1) the seriousness of the violation, including the nature, circumstances, extent,

and gravity of any prohibited acts, and the hazard or potential hazard created to the health,

safety, or economic welfare of the public;

(2) the economic harm to property or the environment caused by the violation;

(3) the history of previous violations;

(4) the amount necessary to deter future violations;
(5) efforts or resistance to efforts to correct the violation; and

(6) any other matter that justice may require.
(d) The Board shall adopt rules of procedure for the assessment of an administrative

penalty by the Board. Rules adopted under this section must conform to the requirements of

Chapter 2001, Government Code.

(e) Within 30 days after the date the Board's order becomes final as provided by

Section 2001.144, Government Code, the person shall:

(1) pay the amount of the penalty;

(2) pay the amount of the penalty and file a petition for judicial review contesting

the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation

and the amount of the penalty; or

(3) without paying the amount of the penalty, file a petition for judicial review

contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of

the violation and the amount of the penalty.

(f) Within the 30-day period, a person who acts under Subsection (e)(3) of this section

may:

(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court for placement in an
escrow account; or

(B) giving to the court a supersedeas bond that is approved by the court

for the amount of the penalty and that is effective until all judicial review of the Board's order is

final; or

(2) request the court to stay enforcement of the penalty by:

(A) filing with the court a sworn affidavit of the person stating that the

person is financially unable to pay the amount of the penalty and is financially unable to give the

supersedeas bond; and
(B) giving a copy of the affidavit to the executive director by certified

mail.
(g) On receipt by the director of a copy of an affidavit under Subsection (f)(2) of this

section, the director may file with the court, within five days after the date the copy is received, a

contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as

soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts

are true. The person who files an affidavit has the burden of proving that the person is

financially unable to pay the amount of the penalty and to give a supersedeas bond.

(h) If the person does not pay the amount of the penalty and the enforcement of the

penalty is not stayed, the director may refer the matter to the attorney general for collection of

the amount of the penalty.

(i) Judicial review of the order of the Board:

(1) is instituted by filing a petition as provided by Subchapter G, Chapter 2001,

Government Code; and

(2) is under the substantial evidence rule.

(j) If the court sustains the occurrence of the violation, the court may uphold or reduce

the amount of the penalty and order the person to pay the full or reduced amount of the penalty.
If the court does not sustain the occurrence of the violation, the court shall order that no penalty
is owed.

(k) When the judgment of the court becomes final, the court shall proceed under this

subsection. If the person paid the amount of the penalty and if that amount is reduced or is not

upheld by the court, the court shall order that the appropriate amount plus accrued interest be

remitted to the person. The rate of the interest is the rate charged on loans to depository

institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period

beginning on the date the penalty was paid and ending on the date the penalty is remitted. If the

person gave a supersedeas bond and if the amount of the penalty is not upheld by the court, the

court shall order the release of the bond. If the person gave a supersedeas bond and if the
amount of the penalty is reduced, the court shall order the release of the bond after the person

pays the amount.
(l) A penalty collected under this section shall be remitted to the comptroller for

deposit in the general revenue fund, except that the portion of the penalty that represents the

costs of the Board in investigating and prosecuting the violation shall be remitted to the Board as

reimbursement for performance of the Board's regulatory functions.

(m) All proceedings under this section are subject to Chapter 2001, Government Code.

SECTION 27. Section 23(a), The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), is amended to read as follows:

(a) Any person who shall practice, or offer to practice, the profession of engineering in

this State without being licensed [registered] or exempted from licensure [registration] in

accordance with the provisions of this Act, or any person presenting or attempting to use as his

own the license [certificate of registration] or the seal of another, or any person who shall give

any false or forged evidence of any kind to the Board or to any member thereof in obtaining a

license [certificate of registration], or any person who shall violate any of the provisions of this

Act, commits an offense. An offense under this subsection is a Class A misdemeanor.

SECTION 28. Section 26, The Texas Engineering Practice Act (Article 3271a,

Vernon's Texas Civil Statutes), is amended to read as follows:
Sec. 26. CONFIDENTIALITY OF CERTAIN INFORMATION. A statement made by

a person providing a reference for an applicant and other pertinent information compiled by or

submitted to the Board relating to an applicant for licensure [registration] under this Act is
privileged and confidential and may be used only by the Board or employees or agents of the

Board who are directly involved in the application or licensure [registration] process. The

information is not subject to discovery, subpoena, or other disclosure.

SECTION 29. The Texas Engineering Practice Act (Article 3271a, Vernon's Texas

Civil Statutes) is amended by adding Section 27 to read as follows:
Sec. 27. INVESTIGATORS. (a) The Board may employ investigators as the Board

considers necessary to enforce this Act and may commission those investigators as peace
officers. An investigator employed by the Board as a peace officer must meet the requirements

for peace officers imposed under Chapter 415, Government Code. If the Board elects to

commission peace officers, the Board shall appoint an investigator who is commissioned as a

peace officer and who is qualified by training and experience in law enforcement to supervise,

direct, and administer the activities of the commissioned investigators.

(b) An investigator employed by the Board may request the assistance of state and local

law enforcement officers in conducting an investigation authorized by this Act.

SECTION 30. Article 2.12, Code of Criminal Procedure, as amended by Chapters 621

and 729, Acts of the 74th Legislature, Regular Session, 1995, is amended to read as follows:

Art. 2.12. WHO ARE PEACE OFFICERS. The following are peace officers:

(1) sheriffs and their deputies;

(2) constables and deputy constables;

(3) marshals or police officers of an incorporated city, town, or village;

(4) rangers and officers commissioned by the Public Safety Commission and the

Director of the Department of Public Safety;

(5) investigators of the district attorneys', criminal district attorneys', and county
attorneys' offices;

(6) law enforcement agents of the Texas Alcoholic Beverage Commission;

(7) each member of an arson investigating unit commissioned by a city, a county,

or the state;

(8) officers commissioned under Section 37.081, Education Code, or Subchapter

E, Chapter 51, Education Code;

(9) officers commissioned by the General Services Commission;

(10) law enforcement officers commissioned by the Parks and Wildlife

Commission;
(11) airport police officers commissioned by a city with a population of more

than one million, according to the most recent federal census, that operates an airport that serves

commercial air carriers;

(12) airport security personnel commissioned as peace officers by the governing

body of any political subdivision of this state, other than a city described by Subdivision (11),

that operates an airport that serves commercial air carriers;

(13) municipal park and recreational patrolmen and security officers;

(14) security officers commissioned as peace officers by the State Treasurer;

(15) officers commissioned by a water control and improvement district under

Section 51.132, Water Code;

(16) officers commissioned by a board of trustees under Chapter 341, Acts of the

57th Legislature, Regular Session, 1961 (Article 1187f, Vernon's Texas Civil Statutes);

(17) investigators commissioned by the Texas State Board of Medical

Examiners;

(18) officers commissioned by the board of managers of the Dallas County

Hospital District, the Tarrant County Hospital District, or the Bexar County Hospital District

under Section 281.057, Health and Safety Code;

(19) county park rangers commissioned under Subchapter E, Chapter 351, Local

Government Code;

(20) investigators employed by the Texas Racing Commission;

(21) officers commissioned by the State Board of Pharmacy;

(22) officers commissioned by the governing body of a metropolitan rapid transit

authority under Section 451.108, Transportation Code [13, Chapter 141, Acts of the 63rd

Legislature, Regular Session, 1973 (Article 1118x, Vernon's Texas Civil Statutes)], or by a

regional transportation authority under Section 452.110, Transportation Code [10, Chapter 683,

Acts of the 66th Legislature, Regular Session, 1979 ( Article 1118y, Vernon's Texas Civil

Statutes)];
(23) [officers commissioned under the Texas High-Speed Rail Act (Article

6674v.2, Revised Statutes);
[(24)] investigators commissioned by the attorney general under Section 402.009,

Government Code;

(24) [(25)] security officers and investigators commissioned as peace officers

under Chapter 466, Government Code;

(25) [(26)] an officer employed by the Texas Department of Health under Section

431.2471, Health and Safety Code;

(26) [(27)] officers appointed by an appellate court under Subchapter F, Chapter

53, Government Code;

(27) [(28)] officers commissioned by the state fire marshal under Chapter 417,

Government Code; [and]

(28) [(29)] an investigator commissioned by the commissioner of insurance under

Article 1.10D, Insurance Code;[.]

(29) apprehension specialists commissioned by the Texas Youth Commission as

officers under Section 61.0931, Human Resources Code; and

(30) an investigator commissioned by the Texas Board of Professional Engineers
under Section 27, The Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
Statutes).

SECTION 31. The change in law made by this Act applies only to a violation of The

Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes) or a rule adopted

under that Act that is reported on or after the effective date of this Act. A violation that is

reported before that date is governed by the law in effect on the date the violation was reported,

and the former law is continued in effect for that purpose.

SECTION 32. The change in law made by this Act relating to the change in the type of

credential issued to practice as an engineer does not affect the validity of a certificate of

registration issued before the effective date of this Act.
SECTION 33. The importance of this legislation and the crowded condition of the

calendars in both houses create an emergency and an imperative public necessity that the

constitutional rule requiring bills to be read on three several days in each house be suspended,

and this rule is hereby suspended, and that this Act take effect and be in force from and after its

passage, and it is so enacted.
ENROLLED AND FINAL VERSION
S.B. No. 623

AN ACT

relating to the regulation of the practice of engineering; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 1.1, The Texas Engineering Practice Act (Article 3271a, Vernon's

Texas Civil Statutes), is amended to read as follows:

Sec. 1.1. In recognition of the vital impact which the rapid advance of knowledge of the

mathematical, physical and engineering sciences as applied in the practice of engineering is

having upon the lives, property, economy and security of our people and the national defense, it

is the intent of the Legislature, in order to protect the public health, safety and welfare, that the

privilege of practicing engineering be entrusted only to those persons duly licensed[, registered]
and practicing under the provisions of this Act and that there be strict compliance with and

enforcement of all the provisions of this Act, and, in order that the state and members of the

public may be able to identify those duly authorized to practice engineering in this state and fix

responsibility for work done or services or acts performed in the practice of engineering, only

licensed [and registered] persons shall practice, offer or attempt to practice engineering or call
themselves or be otherwise designated as any kind of an "engineer" or in any manner make use

of the term "engineer" as a professional, business or commercial identification, title, name,

representation, claim or asset, and all the provisions of this Act shall be liberally construed and

applied to carry out such legislative intent. In furtherance of such intent and purpose of the

Legislature, the practice of engineering is hereby declared a learned profession to be practiced

and regulated as such, and its practitioners in this state shall be held accountable to the state and

members of the public by high professional standards in keeping with the ethics and practices of

the other learned professions in this state. There is specifically reserved to graduates of all

public universities recognized by the American Association of Colleges and Universities the
right to disclose any college degrees received by such individual and use the word Graduate