The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General
Mr. W. T. Satterwhite, Chairman Opinion No. MW-541
Supreme Court Building
Texas Board of Land Surveying
P. 0. Box 12546
Austin, TX. 76711. 2546 1106 Clayton Lane, Suite 210~ Re: whether county surveyor
5121475.2501 Austin, Texas 78723 must be licensed under the
Telex 9101674-1367 Land Surveyor’s Practices Act
Telecopier 5121475.0266 of 1979
1607 Main St., Suite 1400
Dear Mr.. Satterwhite:
Dallas, TX. 75201-4709
2141742.6944 You have asked two questions ‘concerning the application of the
Land Surveying Practices Act of 1979. article 5282~. V.T.C.S.:
4624 Alberta Ave.. Suite 160
El Paso, TX. 79905-2793 1. Can a county surveyor engage in the
9151533.3464 practice of surveying as defined in the Land
Surveying Practices Act of 1979 without being a
registered surveyor pursuant to the requirements
1220 Dallas Ave.. Suite 202
Houston. TX. 77002-6986
of the act?
7131650-0666
2. Is a person required to be a registered
surveyor under the Land Surveying Practices Act of
606 Broadway. Suite 312 1979 in order to become a candidate for the office
Lubbock. TX. 79401.3479
of county surveyor?
6061747-5238
As yet there are no appellate court cases interpreting the new
4309 N. Tenth. Suite B enactment which consolidated the State Board of Registration for
McAllen, TX. 76501-1665 Public Surveyors and the Board of Examiners of Licensed State Land
5121662.4547
Surveyors into the Texas Board oft Land Surveying. However, the answer
to your first question is provided in a straightforward manner by
200 Main Plaza. Suite 400 section 4, subsections (1) and (2) of the new statute.
San Antonio, TX. 78205-2797
5121225.4191 Section 3 of the act makes it unlawful “for any person to
practice or offer to practice land surveying” in the state unless the
An Equal Opportunity/ individual is duly registered, licensed, or exempted under the act.
Affirmative Action Employer But subsections (1) and (2) of section 4 read:
Sec. 4 The provisions of this Act do not apply
to any of the following:
(1) a county surveyor acting in an official
capacity as authorized by law in counties under
25,000 population, but only until the expiration
of the term of persons currently holding such
office;
p.1962
Mr. W. T. Satterwhite - Page 2 (MW-541)
(2) an officer of a state, county (except as
provided by Subsection (1) of this section when
applicable), city, or other political subdivision
whose official duties include land surveying when
acting in his official capacity, but only ux
the expiration of the tetm of persons currently
holding such office.... (Emphasis added).
It is apparent from this language that a county surveyor cannot engage
in the private practice of land surveying without being either a
registered surveyor or a licensed state land surveyor under the act,
even though the unexpired term of the county surveyor’s office may
have commenced prior to the effective date of the act. It is equally
clear that a county surveyor who is neither licensed nor registered
and whose unexpired term commenced prior to the effective date of the
act may continue to discharge his official duties until his term
expires.
The Land Surveying Practices Act of 1979 purports to both
regulate the private practice of land surveying and establish
qualifications for the public office of county land surveyor. The
obvious intent of the legislation is to require that county surveyors
be licensed or registered under the act in order to hold office,
exempting during the unexpired portion of their terms only those
holding office at the time the act took effect. -Cf. Attorney General
Opinion O-3940 (1941).
Statutes respecting the office of county surveyor. generally, are
now found in the Natural Resources Code, chapter 23. The place of a
county surveyor’s residence and office location are specified, but
licensure requirements are not. Article XVI, section 44 of the Texas
Constitution, which establishes the office, does not itself specify
any qualifications for it.
Statutory restrictions on the right to hold public office are
strictly construed, Willis V. Potts, 377 S.W.Zd 622 (Tex. 1964), and
it was held in Burroughs V. Lyles, 181 S.W.Zd 570 (Tex. 1944). that
where the constitution prescribes qualifications for an office, it is
beyond the legislative power to change or add to those qualifications,
unless the constitution gives that power. Where the constitution does
not itself prescribe any qualifications for an office it creates,
however, more recent cases suggest the legislature may prescribe
qualifications for it. See Phagan ‘I. State, 510 S.W.Zd 655 (Tex. Civ.
APP. - Fort Worth 1974,Tit ref’d n.r.e.); Green V. County Attorney
of Anderson County, 592 S.W.Zd 69 (Tex. Civ. App. - Tyler 1979, no
writ).
Both the Green and Phagan cases involved licenses to practice
law. Green and Phagan were district attorneys. Both were disbarred
while still in office. Article V, section 21 of the constitution
creates the office of district attorney but specifies no
p. 1963
Mr. W. T. Sattewhite - Page 3 (MW-541)
qualifications for holding it. However, article 332, V.T.C.S.,
provides that only duly licensed attorneys are eligible to the office.
Both the Phagan and Green courts held that loss of their licenses made
the men ineligible for the office, ipso facto.
The constitutional issue was not expressly addressed in either
case, but the action of the supreme court in refusing a writ of error
in the Phagan case with a "no reversible error" notation leads us to
conclude that the legislature may validly require, as a qualification
for office, that county surveyors he either licensed or registered
pursuant to article 5282c, V.T.C.S.
In Kothmann V. Daniels, 397 S.W.Zd 940 (Tex. Civ. App. - San
Antonio 1965, no writ), the court concluded that in the absence of
specification, "eligibility" requirements for public office refer to
the time a person assumes office rather than to the time of his
election, where the disqualification is of such a nature that its
continuation or termination is not within the control of the person
seeking office. See also Rose V. White, 536 S.W.Zd 395 (Tex; Civ.
APP. - Dallas 1976, no writ). Cf. Mills V. Bartlett, 377 S.W.Zd 636
(Tex. 1964) (residence reauirement). Whether a disaualification is of
"such a na&&e" is often a quest& of fact, which *this office cannot
resolve in its opinion process.
We therefore advise you that a county surveyor may not engage in
the private practice of land surveying without being registered or
licensed pursuant to the Land Surveying Practices Act of 1979, nor is
a person eligible to election as county surveyor unless at the time he
takes office he is registered or licensed pursuant to the act. -Cf.
V.T.C.S. art. 5282c, 625(b).
SUMMARY
A county surveyor may not engage in the private
practice of land surveying without being
registered or licensed pursuant to the Land
Surveying Practices Act of 1979, nor is a person
eligible to election as county surveyor unless at
the time he takes office he is registered or
licensed pursuant to the act.
A
-MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
p. 1964
Mr. W. T. Satterwhite - Page 4 (Mw-541)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Patricia Hino-josa
Margaret McGloin
Jim Moellinger
Bruce Youngblood
p. 1965