The Attorney General of Texas
November 5, 1981
MARK WHITE
Attorney General
Supreme Court Building
Honorable Robert E. Davis opinion No. Mw-384
P. 0. Box 12548 Chairman
Auslin, TX. 78711 Texas House of Representatives Re: Interpretation of Texas
5121475-2501 Committee on Ways & Means Engineering Practice Act
Telex 9101874.1367
P.O. Box 2910
Telecopier 5121475+3266
Austin, Texas 78769
1607 Main St.. Suite 1400 Dear Mr. Davis:
Dallas. TX. 75201
2141742-8944
You have addressed questions tp us concerning the construction of
the Texas Engineering Practice Act, article 3271a. V.T.C.S.
4624 Alberta Ave.. Suite 160
El Paso, TX. 79905 The Texas Engineering Practice Act is quite comprehensive. The
9151533-3484 act appropriates the terms "engineer," "engineering" and various
derivatives thereof to persons who are duly registered with the Board
1220 Dallas Ave.. Suite 202
of Registration for Professional Engineers. Generally speaking, the
Houston. TX. 77002 act forbids the use of the term "engineer" or any of its derivatives
71316500666 to all except those who are duly registered. Tackett v. State Board
of Registration for Professional Engineers, 466 S.W~.2d332 (Tex. Civ.
806 Broadway. Suite 312
APP. - Corpus Christi 1971. no writ).
Lubbock, TX. 79401
EOWi’47-5238 The act itself contains exemptions, one of which is articulated
in sqction 20(g), which reads as follows:
4309 N. Tenth. Suite B
sec. 20. The following persons shall be
McAllen. TX. 76501
5121682-4547
exempt from the provisions of this Act, provided
that such persons are not represented or held out
to the public as duly licensed and registered by
200 Main Plaza. Suite 400 the Board to engage in the practice of
San Antonio, TX. 78205
engineering.
5121225-4191
. . . .
An Equal Opportunity/
Affiranative Action Employer
CR) 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
Elr.Robert E. Davis - Page 2 (Mw384)
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.
V.T.C.S. art. 3271a, 920.
Your first question is: "Does the exemption stated in article
3271a, section 20 remove engineers in industry from the scope of the
act?" We conclude that engineers in industry are not subject to
licensing requirements if they meet the requirements of section 20(g),
but they are not exempt from the scope of the act.
Section 1.1 of article 3271a, V.T.C.S., sets forth the
legislative purpose of the act, as follows:
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, prw=rty. 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 an 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
. -.-
Mr. Robert E. Davis - Page 3 057-384)
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 1.2 specifically reserves to registrants of the board the
practice of engineering. Subsections (2). (3), and (4) of section 1.2
preclude non- registrants from using the term "engineer" or
derivatives thereof, from using any symbol or abbreviation which
would, in any manner, tend to create a public impression that the
person so using was a registrant of the board, or from receiving any
fee or compensation for "engineering" services. The concluding
paragraph of section 1.2 of the act provides that any entity utilizing
the term "engineer" or otherwise holding itself out to the public as
an engineer "shall be conclusively presumed and regarded as engaged in
the practice of engineering." It is our opinion that the essence of
section 20(g) is to exempt the average engineer in industry from the
requirement of state registration; however, we do not believe that
section 20(g) of the act can be construed in such a way as to thwart
the express purpose of the act by permitting any non-registrant to
hold himself out as a'engineer.
The preamble to section 20 of the act reads as follows:
Sec. 20. The following persons shall be
exempt from the provisions of this Act, eded
that such persons are not represented or held out
to the public as duly licensed and registered by
the Board to engage in the practice of
engineering. (Emphasis added).
p. 1307
c
..
Elr.Rohcrt E. Davis - Page 4 (Mw-384)
You next ask, in the event of a negative answer to question
number one, to what extent the engineer in industry is covered by the
act.
It is our opinion that all persons. not specifically exempted by
the act, are covered by the act. Although a person employed in the
engineering department of a" industry may carry the "in-house"
designation of "engineer" without being registered, such designation
may not be used in such a way that misleads the public into believing
the user is a registrant. It is worthy of note that section 20(g)
specifically provides that "such employee does not have the final
authority for the approval of, and the ultimate responsibility for,
engineering designs, plans or' specifications...." In other words, he
is not authorized to practice engineering.
You next ask the following question: "Does the certification of
engineers in industry as a specialist with respect to specific skills
in a recognized discipline of engineering pursuant to standardized,
nondiscriminatory guidelines fall within the scope of the act?
(a) If the answer to Question 2 is 'yes,'
would such a" undertaking fall within the
definition of the 'practice of engineering' as set
out in the act?
(b) If the answer to Question 2(a) is 'yes,'
would the board be authorized to require
registration of such activity?..
(c) If the answer to Question 2(b) is 'yes,'
under what circumstancei would the board be
authorized to withhold registration of such
activity?
(d) If the answer to Question 2 is 'no.'
would a private nonprofit corporation composed
solely of engineers in industry be authorized to
certify an engineer as possessing the requisite
degree of education, skill, expertise, and
knowledge so as to indicate a specialization in a
particular discipline of engineering if such
certification is pursuant to standardized,
nondiscriminatory guidelines?
(e) If the answer to Question 2(d) is 'yes,'
may the corporation formulate its own procedures
and rules for recognition of a" engineer as a
specialist in a particular discipline of
engineering and, on this basis, issue him a
certificate of specialty?
. 12na
.-:
Mr. Robert E. Davis - Page 5 (MW-384)
In answer to your question concerning certification. if the
result of a certificatio" is to represent the holder as duly licensed
by the board, he is in violation of the licensing provisions of the
act.
The board registers only individuals; a business entity,
incorporated or otherwise, acquires its engineering legitimacy only
through the registration of an individual, who is held responsible for
the engineering work done on behalf of the entity. We therefore
answer your question 2(b) in the affirmative.
We answer your question 2(c) simply by stating that the act
confers broad powers on the board. The principal duty of the board is
to protect the public; if, in the opinion of the board, such a
certification could tend to mislead the public, the registration could
be withheld.
SUMMARY
The Texas Engineering Practice Act, article
3271a. V.T.C.S.. does not exempt persons employed
in industry as 'engineersfrom the operation of the
act; industry certification of an employee as an
engineering specialist falls within the scope of
the act.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Robert W. Gauss
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Robert W. Gauss
Rick~Gilpin
Jim Moellinger
p. 1309