Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January lo,2006

The Honorable Ismael “Kino” Flores Opinion No. GA-039 1

Chair, Committee on Licensing and

Administrative Procedures Re: Whether a professional engineer may

Texas House of Representatives prepare all plans and specifications for a public

Post Office Box 2910 building described in Occupations Code section

Austin, Texas 78768-2910 105 1.703(a) without engaging the services of a

licensed architect (RQ-0360-GA)

Mr. Gordon E. Landreth, AIA

Chair, Texas Board of Architectural Examiners

Post Office Box 12337

Austin, Texas 7871 l-2337

Dear Representative Flares and Mr. Landreth:

Representative Flares asks broadly whether a professional engineer may prepare all plans and

specifications for the public buildings described in section 105 1.703 of the Occupations Code

without engaging the services of a licensed architect.’ The Texas Board of Architectural Examiners

(the “TBAE”) poses additional related questions:* (1) whether the legislature intended to regulate

the practice of architecture as a profession distinct from the practice of engineering; (2) whether the

legislature has created a distinction between the practices by defining the practice of architecture as

design of a building “for human use or occupancy”;3 (3) whether the exemption for engineers in

chapter 1051 of the Occupations Code is absolute, so that engineers may freely practice architecture

without registering with the TBAE; (4) alternatively, whether the exception for engineers is limited

to an act, service, or work involving “special knowledge or judgment of the mathematical, physical,

‘See Letter from Honorable Ismael “Kino” Flores, Chair, Committee on Licensing and Administrative

Procedures, Texas House of Representatives, to Honorable Greg Abbott, Attorney General of Texas (July 7,2005) (on

file with Opinion Committee, also avaiZabZeat http://www.oag.state.tx.us).

‘See Letter from Gordon E. Landreth, ALA,Chair, Texas Board of Architectural Examiners, to Honorable Greg

Abbott, Attorney General of Texas (July 6, 2005) [hereinafter TBAE Brief I]; Letter from Gordon E. Landreth, AIA,

Chair, Texas Board of Architectural Examiners, to Nancy S. Fuller, Chair, Opinion Committee, Office of Attorney

General (Sept. 8, 2005) (briefs on tile with Opinion Committee).

‘TEx. Oct. CODEAm. 5 105 l.OOl(7) (Vernon Supp. 2005).

The Honorable Ismael “Kino” Flares - Page 2 (GA-0391)

Mr. Gordon E. Landreth, AIA

or engineering sciences”;4 (5) wh eth er, for a building intended for human use or occupancy, an

engineer is limited to designing the building’s components of a “mechanical, electrical, electronic,

chemical, hydraulic, pneumatic, geotechnical, or thermal nature”;5 and (6) whether Attorney General

Opinion DM-161 (1992) is correctly interpreted to mean that the entire scope of building design,

including architecture, is an element of engineering.

Building design has generally been recognized as an area of overlap between the practice of

architecture and the practice of engineering. See, e.g., Schmidt v. Kan. State Bd. of Technical

Professions, 21 P.3d 542, 547, 550-5 1 (Kan. 2001); Rosen v. Bureau of Prof’l & Occupational

Affairs, 763 A.2d 962,965 (Pa. Commw. 2000), appeal denied, 78 1 A.2d 150 (Pa. Super. Ct. 2001);

Tex. Att’y Gen. Op. No. DM-161 (1992). In some states the overlap is complete, so that building

design projects may be performed by a member of either profession.6 Other states maintain a line

of demarcation between the two professions.7 The reason for the lack of nationwide uniformity is

due largely to the particular wording of the jurisdictions’ licensing provisions and courts’

construction of them.’

In Texas, the legislature recognized the overlap between the two professions as recently as

2003, when both the TBAE and the Texas Board of Professional Engineers (“TBPE”) underwent

Sunset Act review.’ While it was determined that both boards should continue as independent

agencies, the legislature created the Joint Advisory Committee (“advisory committee” or

4T~~. Oct. CODEANN. 9 1001.003(b) (Vernon Supp. 2005).

5zd. 9 1001.003(c)(10).

6See, e.g., State of Ala. Bd. of Registered Architects v. Jones, 267 So.2d 427,43 1 (Ala. 1972); Verich v. Flu.

State Bd. of Architecture, 239 So.2d 29, 3 l-32 (Fla. 4th Dist. Ct. App. 1970); Ga. State Bd. for Exam., Qualif &

Registration ofArchitects v. Arnold, 292 S.E.2d 830,832 (Ga. 1982); Rosen, 763 A.2d at 967-69.

‘See, e.g., Hollowcly v. Ark. State Bd. ofArchitects, 101 S.W.3d 805,812 (Ark. 2003); State Bd. of Technical

Registration v. McDaniel, 326 P.2d 348,354 (Ariz. 1958) (stating “[i]f the legislature had not intended the professions

to be distinguishable, requiring separate registration for each, they would not have so provided”); State of NJ Bd. of

Architects v. North, 484 A.2d 1297, 1301 (N.J. Super. Ct. Ch. Div. 1984). See generally NATIONALCOIJNCLL OF

ARCHITECTURAL REGISTRATIONBOARDS, Practice Requirements for NCARB Member Boards, available at

http://www.ncarb.org/stateboards/MBRfaqpractice.asp (NCARB survey of states, territories and other jurisdictions

in which members in 11jurisdictions responded that engineersare “permitted to practice architecture in your jurisdiction

(other than when incidental to engineering practice)“; 42 responded to the contrary).

‘Compare Holloway, 101 S.W.3d at 811-12 (construing Arkansas statutory defmition of architecture and

exception for engineering services “incidental to the practice of engineering” as meaning “that architects plan and design

buildings primarily intended for people to live and work in, and engineers plan and design buildings primarily ‘intended

for accommodation of equipment, vehicles, goods, and/or processes.“‘), with Verich, 239 So.2d at 3 1 (resolving conflict

in Florida statutes “by concluding that the statutes mean a registered architect can plan and design and supervise

construction of a building as the practice of architecture and a registered professional engineer can plan and design and

supervise construction of a building as a professional engineer.“).

‘See Act of May 3 1,2003,78th Leg., R.S., ch. 33 1, $ 1.04,2003 Tex. Gen. Laws 1425, 1427 (TBAE); Act of

May 3 1,2003,78th Leg., R.S., ch. 1168, 5 2,2003 Tex. Gen. Laws 3307,3308 (TBPE).

The Honorable Ismael “Kino” Flores - Page 3 (GA-0391)

Mr. Gordon E. Landreth, AIA

“committee”), the principal purpose of which is to “work to resolve issues that result from the

overlap between activities that constitute the practice of engineering and those that constitute the

practice of architecture.” TEX. Oct. CODEANN. 99 100 1.216(d) (concerning TBPE), 105 1.212(d)

(concerning TBAE) (Vernon 2004).

Earlier this year the advisory committee issued an opinion addressing the “historical

disagreement between the respective Boards concerning the statutory authority over comprehensive

building design.” JOINT ADVISORY COMMITTEEON THE PRACTICEOF ENGINEERINGAND

ARCHITECTURE, Building Design Joint Advisory Opinion (Apr. 7,2005).” Following the advisory

committee’s opinion, the TBPE issued its own advisory opinion. See TEXAS BOARD OF

PROFESSIONAL ENGINEERS, Policy Advisory Opinion Regarding Building Design (June 1,2005) 30

TEX. REG. 3461-62 (2005).” The opinion concluded that the practice of engineering, which is

exempt from chapter 105 1‘s regulation of the practice of architecture, includes building design which

“therefore may be performed exclusively by a licensed professional engineer competent in this field.”

Id.

The TBPE’s advisory opinion prompted your requests. To address your questions, we review

the statutory licensing provisions for both professions, which currently are located in title 6 of the

Occupations Code, entitled “Regulation of Engineering, Architecture, Land Surveying, and Related

Practices.” TEX. OCC. CODE ANN. $5 1001.001-1051.801 (Vernon 2004 & Supp. 2005).

I. ChaDter 1001. Redatine the Practice of Ewineering

In chapter 100 1, an “engineer” is defined simply as a person licensed to practice engineering.

Id. $ 1001.002(2) (Vernon 2004). The chapter broadly defines the practice of engineering:

In this chapter, “practice of engineering” means the performance of

or an offer or attempt to perform any public or private service or

creative work, the adequate performance of which requires

engineering education, training, and experience in applying special

knowledge or judgment of the mathematical, physical, or engineering

sciences to that service or creative work.

%xhibitA attached

to TBAE Brief I, supra note 2.

“The TBAE disputes the TBPE’s authority to issue the opinion because the TBPE is authorized to opine about

chapter 100 1 of the Occupations Code, concerning engineering, while the opinion it issued involved analysis of chapter

105 1 ofthe Occupations Code, concerning architecture. See TBAE Brief I, supra note 2, at 5 n.2; TEX. Oct. CODEANN.

§ 1001.601 (Vernon Supp. 2005). However, as explored below, chapters 1001 and 105 1 define the practice of

engineering and the practice of architecture one in relation to the other. For that reason, it is not inappropriate for the

TBPE to consider chapter 105 1 in an advisory opinion about the practice of engineering. CJ Rosen, 763 A.2d at 965

(concluding that because Pennsylvania’s engineering and architecture licensing statutes both recognize that the

professions overlap, but neither statute establishes a clear, mutually exclusive delineation between the professions, the

statutes must be construed together). We address the substantive conclusions in the TBPE opinion inza.

The Honorable Ismael “Kino” Flares - Page 4 (GA-0391)

Mr. Gordon E. Landreth, AIA

Id. 3 1001.003(b) (V emon Supp. 2005). Subsection 1001.003(c) adds a list of conduct included in

the definition, most notably

a service, design, analysis, or other work performed for a public or

private entity in connection with a utility, structure, building,

machine, equipment, process, system, work, project, or industrial or

consumer product or equipment of a mechanical, electrical,

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

nature[.]

Id. $ 1001.003(c)(10).12

“In full, section 100 1.003(c) provides:

(c) The practice of engineering includes:

(1) consultation, investigation, evaluation, analysis, planning, engineering

for program management, providing an expert engineering opinion or testimony,

engineering for testing or evaluating materials for construction or other engineering

use, and mapping;

(2) design, conceptual design, or conceptual design coordination of

engineering works or systems;

(3) development or optimization of plans and specifications for

engineering works or systems;

(4) planning the use or alteration of land or water or the design or analysis

of works or systems for the use or alteration of land or water;

(5) responsible charge of engineering teaching or the teaching of

engineering;

(6) performing an engineering survey or study;

(7) engineering for construction, alteration, or repair of real property;

(8) engineering for preparation of an operating or maintenance manual;

(9) engineering for review ofthe construction or installation of engineered

works to monitor compliance with drawings or specifications;

(10) a service, design, analysis, or other work performed for a public or

private entity in connection with a utility, structure, building, machine, equipment,

process, system, work, project, or industrial or consumer product or equipment of

a mechanical, electrical, electronic, chemical, hydraulic, pneumatic, geotechnical,

or thermal nature;

(11) providing an engineering opinion or analysis related to a certificate

of merit under Chapter 150, Civil Practice and Remedies Code; or

(continued...)

The Honorable Ismael “Kino” Flores - Page 5 (GA-039 1)

Mr. Gordon E. Landreth, AIA

Only a person licensed under chapter 1001 may engage in the practice of engineering. Id.

9 1001.301(a) (Vernon 2004). The purpose of restricting the practice to licensed engineers is to

“protect the public health, safety, and welfare;” to help the state and public identify authorized

engineers; and to fix responsibility for engineering work and services. Id. 5 1001.004(a)-(b).

Chapter 1001 is to be liberally construed to carry out the intent of the legislature, which is stated as

ensuring that the privilege of engaging in the practice of engineering is restricted to licensed

engineers. Id. 9 1001.004(c)-(d).

Chapter 1001 exempts public work projects not involving electrical or mechanical

engineering when the project’s completed expense is $20,000 or less. Id. 5 100 1.053(2). There is

an exemption for drawing plans or specifications for private dwellings, smaller apartment buildings,

private farm, ranch, and agricultural structures, and certain garages, provided there has been no

representation that the services provided constitute engineering. Id. $ 1001.056(a). Also, there is

an exemption for services concerning a one-story building having a total floor area of not more than

5,000 square feet that “does not contain a clear span between supporting structures greater than 24

feet on the narrow side.” Id. $ 1001.056(a)(2)(F)(i)-(iii). If such a building has a span between

supporting structures greater than 24 feet, “only the trusses, beams, or other roof supporting members

must be engineered or pre-engineered.” Id. $100 1.056(b). However, an engineer must prepare the

engineering plans, specifications, and estimates, and supervise the engineering construction by the

state or its political subdivisions of “a public work involving engineering in which the public health,

welfare, or safety is involved.” Id. $ 100 1.407. Chapter 100 1 contains an exemption for architects

engaged in the practice of architecture. Id. 0 1001.063.

II. Chapter 1051, Remlatiw the Practice of Architecture

In the Occupations Code, the term “architect” is defined simply as a person licensed to

practice architecture. See id. $ 105 1.001(l) (Vernon Supp. 2005). The “practice of architecture”

is more comprehensively defined as

a service or creative work applying the art and science of developing

design concepts, planning for functional relationships and intended

uses, and establishing the form, appearance, aesthetics, and

construction details for the construction, enlargement, or alteration of

a building or environs intended for human use or occupancy, the

proper application of which requires education, training, and

experience in those matters.

“(...continued)

(12) any other professional service necessary for the planning, progress,

or completion of an engineering service.

TEX. Oct. CODEANN. 9 100 1.003(c) (Vernon Supp. 2005), as amended by Act of May 16, 2005, 79th Leg., R.S., ch.

259,§ 1,2005 Tex. Gen. Laws 460,460 (adding a new section (11) and renumbering old section (11) as section (12)).

The Honorable Ismael “Kino” Flores - Page 6 (GA-039 1)

Mr. Gordon E. Landreth, AL4

Id. 0 1051.001(7). Among other changes to the statute made during the last regular session, the

legislature added a list of specific examples of the practice of architecture:

The term [practice of architecture] includes:

(A) establishing and documenting the form, aesthetics,

materials, and construction technology for a building, group of

buildings, or environs intended to be constructed or altered;

(B) preparing, or supervising and controlling the preparation of,

the architectural plans and specifications that include all integrated

building systems and construction details, unless otherwise permitted

under Section 105 1.606(a)(4) [specified exceptions];

(C) observing the construction, modification, or alteration of

work to evaluate conformance with architectural plans and

specifications described in Paragraph (B) for any building, group of

buildings, or environs requiring an architect;

(D) programming for construction projects, including

identification of economic, legal, and natural constraints and

determination of the scope and spatial relationship of functional

elements;

(E) recommending and overseeing appropriate construction

project delivery systems;

03 consulting, investigating, and analyzing the design, form,

aesthetics, materials, and construction technology used for the

construction, enlargement, or alteration of a building or environs and

providing expert opinion and testimony as necessary;

(G) research to expand the knowledge base of the profession of

architecture, including publishing or presenting findings in

professional forums; and

(H) teaching, administering, and developing pedagogical theory

in academic settings offering architectural education,

The Honorable Ismael “Kino” Flores - Page 7 (GA-0391)

Mr. Gordon E. Landreth, AIA

Id. $ 105 1.001(7)(A)-(H). A person may not practice architecture as defined in section

105 1.OO1(7)(A)-(C) without registering with the TBAE or otherwise quali@ing for an exception.

See id. 0 1051.701(a).13

Chapter 105 1 allows persons who do not represent themselves as architects to prepare

architectural plans or render other services in connection with certain privately owned buildings,

such as those used primarily for “farm, ranch, or agricultural purposes”; for raw agricultural

commodity storage; single family, dual-family and smaller multifamily dwellings; smaller

commercial buildings; and warehouses with limited public access. See id. $ 105 1.606(a)(4)(A)-(E)

(Vernon 2004). However, section 105 1.703 provides that architectural plans or specifications for

certain buildings may be prepared only by an architect. Id. 5 105 1.703. l4 Most notably, the section

“Section 105 1.70 l(b) provides additionally that a firm, partnership, corporation, or joint stock association,

including those engaged in the practice of engineering, may practice architecture or offer architectural services only if

such services are performed by or through a registered architect. See TEX. OCC. CODEANN. 5 105 1.701(b) (Vernon

supp. 2005).

141nfull, section 105 1.703 provides:

(a) An architectural plan or specification for any of the following may be

prepared only by an architect:

(1) a new building or modification of an existing building intended for

occupancy on a 24-hour basis by persons who are receiving custodial care from

the proprietor or operator of the building, regardless of the number of stories

or square footage of the building;

(2) a new building having construction costs exceeding $100,000 that is

to be:

(A) constructed and owned by a state agency, a political subdivision

of this state, or any other public entity in this state; and

(B) used for education, assembly, or office occupancy; or

(3) an alteration or addition having construction costs exceeding $50,000

that:

(A) is to be made to an existing building that:

(i) is owned by a state agency, a political subdivision of this

state, or any other public entity in this state; and

(ii) is or will be used for education, assembly, or office

occupancy; and

(B) requires the removal, relocation, or addition of a wall or

partition or the alteration or addition of an exit.

(b) This section does not prohibit an owner of a building from choosing an

architect or engineer as the prime design professional for a building construction,

alteration, or addition project.

Id. 3 1051.703 (Vernon 2004).

The Honorable Ismael “Kino” Flores - Page 8 (GA-0391)

Mr. Gordon E. Landreth, AIA

requires an architect to prepare plans or specifications for new construction exceeding $100,000 or

modifications exceeding $50,000 in cost of a building that is owned by a public entity and is “used

for education, assembly, or office occupancy.” Id. 105 1.703(a)(2)-(3).15

In addition, section 105 1.60 1 generally exempts licensed engineers from chapter 105 1 and

rules adopted thereunder to the extent they perform acts, services, or works within the scope of the

practice of engineering:

(a) This chapter and any rule adopted under this chapter do not

limit the right of an engineer licensed under Chapter 100 1 to perform

an act, service, or work within the scope of the practice of

engineering as defined by that chapter.

(b) This chapter does not prohibit an engineer licensed under

Chapter 1001 from:

(1) planning and supervising work on:

(A) a construction project primarily intended for

engineering use, including a railroad, hydroelectric work, or

industrial plant; or

(B) a structure incidental to a construction project

described by Paragraph (A); or

(2) planning, designing, or supervising the mechanical,

electrical, or structural features of a building.

Id. 5 105 1.60 1(a)-(b)(1)-(2).

III. Analvsis and Conclusion

A. Statutory Construction

The primary goal of statutory interpretation is to ascertain legislative intent and give

it effect. See McIntyre v. Ramirez, 109 S.W.3d 741,745 (Tex. 2003). To discern the legislature’s

intent, we begin with a statute’s plain language because the words the legislature chooses are the

surest guide to its intent. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864,

865-66 (Tex. 1999). When a statute is plain and unambiguous on its face, it should generally be

construed as written. Id. Legislative intent must be derived from an examination of an act as a

whole, not just isolated portions. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).

“Section 105 1.703 “does not prohibit an owner of a building Ii-om choosing an architect or engineer as the

prime design professional for a building construction, alteration, or addition project.” Id. 9 105 1.703(c).

The Honorable Ismael “Kino” Flores - Page 9 (GA-0391)

Mr. Gordon E. Landreth, AIA

B. Section 1001.003

Section 1001.003(b) generally defines the practice of engineering as service or work,

“the adequate performance of which requires engineering education, training, and experience.” TEX.

Oct. CODEANN. $ 1001.003(b) (Vernon Supp. 2005). This general definition does not expressly

state whether building design is the practice of engineering. However, if the adequate performance

of a work or service for a particular building design project requires engineering education, training,

and experience, it falls within the general defmition. See id.

The TBAE asks whether the definition in section 1001.003(c)(10) authorizes engineers to

engage in comprehensive building design.. TBAE Brief I, supra note 2, at 41-44. The recent

advisory opinion by the TBPE, which states that an engineer may engage in comprehensive and

complete building design without the services of an architect, relies extensively on section

lOOl.O03(c)(lo), which defines the practice of engineering as including:

a service, design, analysis, or other work performed for a public or

private entity in connection with a utility, structure, building,

machine, equipment, process, system, work, project, or industrial or

consumer product or equipment of a mechanical, electrical,

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

nature[.]

TEx. Oct. CODEANN.5 100 l.O03(c)( 10) (Vernon Supp. 2005); see TEXASBOARDOFPROFESSIONAL

ENGINEERS,Policy Advisory Opinion Regarding Building Design (June 1, 2005) 30 TEX. REG.

3461-62 (2005). The opinion notes that the statute includes the words and phrases “design,” “in

connection with,” and “building” and concludes that building design “may be performed exclusively

by a licensed professional engineer competent in this field. ” See id. The TBAE, on the other hand,

contends that the phrase “of a mechanical, electrical, electronic, chemical, hydraulic, pneumatic,

geotechnical, or thermal nature” qualifies all of the terms preceding it. See TBAE Brief I, supra note

2, at 39-44.

Under either construction, section 100 l.O03(c)( 10) does not resolve whether an engineer may

engage in comprehensive building design without the assistance of an architect. While section

lOOl.O03(c)(10) states that the practice of engineering includes design in connection with a building,

it does not say that all building design of any nature is engineering. If that were the case, then any

“service, design, analysis, or other work” that could be rendered in connection with a building would

also be engineering. But while section lOOl.O03(c)(10) does not expressly include comprehensive

building design within the practice of engineering, neither does the statute exclude it. Section

lOOl.O03(c)(10) is but one of several examples of services or work included in the definition of the

practice of engineering. “Including” is not a term “of limitation or exclusive enumeration, and use

of the [term] does not create a presumption that components not expressed are excluded.” TEX.

GOV’TCODEANN. 0 3 11.005( 13) (Vernon 2005). The examples in section 100 1.003(c) do not in

any way limit or restrict the general definition of the practice of engineering in section 100 1.003(b).

The Honorable Ismael “Kino” Flores - Page 10 (GA-0391)

Mr. Gordon E. Landreth, AIA

Thus section 1001.003(c)(10) does not answer whether the practice of engineering includes

comprehensive building design.

C. Sections 1051.001 and 1051.703

The TBAE asks whether the legislature has established a “line of demarcation”

between the practice of architecture and the practice of engineering in sections 105 1.OOl and

105 1.703, thereby generally restricting the design of buildings intended for human use or occupancy

to architects. TBAE Brief I, supra note 2, at 12. Section 105 1.OOl defines the practice of

architecture in relation to “a building or environs intended for human use or occupancy.” TEX. Oct.

CODEANN. $1051.001(7)(V emon Supp. 2005). Section 105 1.703 provides for architects to prepare

the architectural plans for major projects concerning a building owned or to be owned by a public

entity and “used for education, assembly, or office occupancy.” Id. 9 105 1.703(a)(2)-(3) (Vernon

2004). From the quoted phrase, the TBAE suggests that the legislature has expressed an intent that

only architects are authorized to design major public buildings intended for human use or occupancy,

while engineers may comprehensively design buildings only that are incidental to an engineering

project or are otherwise exempted from chapter 105 1. TBAE Brief I, supra note 2, at 16.

The phrase “intended for human use or occupancy” was added to the definition ofthe practice

of architecture in section1 05 1.OO1 in the recent regular session along with a number of other changes

to the statute. See Act of May 18,2005,79th Leg., R.S., ch. 208, $1,2005 Tex. Gen. Laws 369,369

(codified as an amendment to TEX. OCC. CODE ANN. 5 1051 .OOl). The bill analyses for this

amendment state generally that the purpose of the changes is to make the definition more accurately

reflect the activities that architects currently and typically perform. See SENATECOMM.ONBUSINESS

& COMMERCE,BILLANALYSIS,Tex. Comm. Substitute H.B. 1573,79th Leg., R.S. (2005); HOUSE

COMM. ONLICENSING & ADMINISTRATIVE PROCEDURES, BILLANALYSIS,Tex. Comm. Substitute

H.B. 1573,79th Leg., R.S. (2005). Neither bill analysis specifically addresses the purpose of adding

the phrase “intended for human use or occupancy.” However, section 105 1.OO1, as it read before

the recent amendment and as it reads currently, defines the practice of architecture but does not do

so in exclusive terms. To the contrary, both sections 105 1.OOl and 105 1.703 are subject to the

exception for engineers in section 1051.601. Under 1051.601, an engineer may engage in

architecture provided the service or work also constitutes the practice of engineering. See TEX. Oct.

CODEANN. $ 105 1.601(a) (Vernon 2004). We are thus returned again to the general definition of

the practice of engineering under section 1001.003(b), which is service or work, “the adequate

performance of which requires engineering education, training, and experience.” Id. $100 1.003(b)

(Vernon Supp. 2005).

D. Attorney General Opinion DM-161

The TBAE asks if the recent opinion by TBPE correctly construes Attorney General

Opinion DM-161 as establishing that all building design is the practice of engineering. TBAE

Brief I, supra note 2, at 44-45. See Tex. Att’y Gen. Op. No. DM-161 (1992). The question

presented then was “whether the plain language of Section 16 [of article 249a, Texas Revised Civil

Statutes] prohibits an individual, other than one licensed as an architect, from preparing the plans

The Honorable Ismael “Kino” Flores - Page 11 (GA-0391)

Mr. Gordon E. Landreth, AIA

and specifications for the type of public works covered by Section 16?“16 Section 16 of article 249a

was the predecessor to Occupations Code section 105 1.703 concerning plans and specifications that

must be prepared by an architect. The opinion stated that “[tlhe practice of engineering includes

preparing building plans and designs when that service requires the application of engineering

principles and the interpretation of engineering data.” Tex, Att’y Gen. Op. No. DM-161 (1992) at

5. The opinion determined that “[a]n engineer’s license confers authority to perform building design

services requiring the application of engineering principles and the interpretation of engineering data

for public buildings described by section 16.” Id. at 6. It concluded in summary:

Section 16 of article 249a, V.T.C.S., the statute regulating the practice

of architecture, does not bar a professional engineer licensed under

article 327 1a, V.T.C.S., from preparing plans and specifications, the

preparation of which requires the application of engineering

principles and the interpretation of engineering data, for “a new

building that is to be constructed and owned by a State agency, a

political subdivision of this State, or any other public entity in this

State if the building will be used for education, assembly, or office

occupancy and the construction costs exceed $100,000.”

Id. at 7-8. The opinion clearly established that section 16 of the former statute did not prevent an

engineer from preparing plans and specifications for a building when it constitutes the practice of

engineering. We agree with that conclusion as extended to the present statute, Occupations Code

section 105 1.703. However, DM- 16 1 does not attempt to resolve whether all aspects of building

design constitute the practice of engineering. Nor does it address whether an engineer may engage

in comprehensive design without the involvement of any other professional. That question requires

a determination of whether a particular work or service constitutes the practice of engineering as

defined in section 1001.003(b).

E. Sections 1001.003(b), 1001.063, and 1051.601

Examining individual statutes in chapter 100 1 and chapter 105 1 and as a whole, we

do not discern a legislative intent to establish a categorical rule about whether an engineer may

engage in comprehensive building design, We may conclude from the exception for engineers in

chapter 105 1 that the legislature did not intend for the practice of engineering to encompass the

practice of architecture. Section 1051.601 does not create an absolute exemption for engineers, but

instead exempts only work or service that constitutes the practice of engineering. See TEX. OCC.

CODE ANN. $ 105 1.601(a) (Vernon 2004) (engineering exception). If the legislature had intended

the practice of engineering to subsume the practice of architecture, it could easily have written a

categorical exemption for licensed engineers. See, e.g., id. 6 1053.002(a)(2) (stating that the chapter

requiring interior design registration “does not apply to a person who is registered to practice

architecture in this state”), Moreover, section 105 1.60 1 provides a further specific exception for

licensed engineers to plan and supervise work on “structures incidental” to “a construction project

‘%e Letter from Robert H. Norris, Executive Director, Texas Board ofArchitectural Examiners, to Honorable

Dan Morales, Attorney General of Texas (Sept. 20, 199 1) (on file with Opinion Committee).

The Honorable Ismael “Kino” Flores - Page 12 (GA-0391)

Mr. Gordon E. Landreth, AIA

primarily intended for engineering use.” Id. 3 105 1.601(b)(1)-(2). This specific exception would

be unnecessary if the practice of engineering included all of the practice of architecture. A

comparable statute exempts architects from the requirement to register as an engineer under chapter

1001, but only when they are engaged in the practice of architecture. Id 5 1001.063. These limited

exceptions suggest an intent to maintain the practice of engineering and the practice of architecture

as distinct professions, so that an engineer is not authorized to practice all aspects of architecture.

These sections recognize an area of overlap between the professions without attempting to establish

the overlap’s precise boundaries.

The clearest expression of legislative intent is in section 1001.003(b), the general definition

of the practice of engineering, and in section 105 1.OOl(7), the general definition of the practice of

architecture. Under section 1001.003(b), a particular service or creative work is the practice of

engineering if “the adequate performance of [such service or creative work] requires engineering

education, training, and experience in applying special knowledge or judgment of the mathematical,

physical, or engineering sciences.” Id. 5 1001.003(b) (Vernon Supp. 2005). Under section

1051.001(7), a service or creative work is the practice of architecture if it is the application of

the art and science of developing design concepts, planning for

functional relationships and intended uses, and establishing the form,

appearance, aesthetics, and construction details for the construe tion,

enlargement, or alteration of a building or environs intended for

human use or occupancy, the proper application of which requires

education, training, and experience in those matters.

Id. 0 1051.001(7). Examining the statutes side by side, it is clear that whether a particular work or

service is the practice of engineering, the practice of architecture, or both, requires a determination

of the education, training, and experience necessary to adequately and properly perform the work or

service. Under these statutes, an engineer may comprehensively design a project when its adequate

performance requires engineering education, training, and experience. The statutes do not provide

a basis to answer categorically whether an engineer may engage in comprehensive building design,

contrary to the conclusion in the TBPE’s advisory opinion. To this extent, the TBPE’s advisory

opinion is incorrect.

We have received extensive materials concerning the education, training, and experience

required to be licensed as an engineer compared to that required to be licensed as an architect.

However, whether a particular service or work may be adequately performed by one with the

education, training, and experience of an engineer, but not that of an architect, or vice versa, is

intensely a question of fact, generally requiring expert testimony. See, e.g., Holloway, 101 S.W.3d

at 8 13; North, 484 A.2d at 1299. Resolving questions of fact is beyond the scope of the opinion

process. See Tex. Att’y Gen. Op. No. GA-0003 (2002) at 1.

The legislature has authorized the TBPE to determine whether particular conduct constitutes

the practice of engineering. See TEX. OCC. CODEANN. $6 1001.201, .202, .304 (Vernon 2004). It

has charged the TBAE to determine whether conduct is the unlicensed practice of architecture. Id.

The Honorable Ismael “Kino” Flares - Page 13 (GA-0391)

Mr. Gordon E. Landreth, AIA

$$ 1051.501.-.701(a) (Vernon 2004 & Supp. 2005). To do so, the TBAE must determine whether

the conduct falls within one of the exceptions, such as the exception for engineers engaged in the

practice of engineering. See id. 9 105 1.601 (Vernon 2004). As the legislature has given overlapping

jurisdiction to TBPE and TBAE, a court may not be constrained to give complete deference to the

interpretation of one over the other in the area of overlap. See, e.g., Rosen, 763 A.2d at 968 (stating

that the Pennsylvania architecture licensing board is not entitled to the usual deference given to an

agency’s construction of its statutes because the agency shares jurisdiction with the engineering

board); see also TEXAS SI.JNSET ADVISORYCOMMISSION STAFFEVALUATION: Texas Board of

ArchitecturaE Examiners 17- 18 (199 1) (suggesting that the regulation of the professions remain

separate but recommending that the “investigators responsible for enforcing laws for these

professions should have expertise in the professional aspects of both artihitectural and engineering

areas.“). Examining chapters 100 1 and 105 1 as a whole reveals an intent to regulate the practice of

engineering and the practice of architecture as distinct professions, while at the same time permitting

a degree of overlap between the two professions. There is no attempt in the statutes to sharply

circumscribe the boundaries of the overlap, leaving that to be refined by the TBPE and the TBAE.

As long ago as 1973, the legislature provided

it is the intent of this Act to acknowledge the necessity of professional

inter-relations and cooperation between the professions for the benefit

of the public and to achieve the highest standards in design, planning,

and building.

See Act of May 19, 1973,63d Leg., R.S., ch. 361, 5 8, sec. 10(b), 1973 Tex. Gen. Laws 801,804.

In 2003, the legislature established the joint advisory committee to address the areas of overlap

between the two professions.17 The advisory committee, composed of three members from each

board, a practicing architectural engineer, and a practicing architect, “shall assist each agency in

protecting the public rather than advancing the interests of either agency or the profession it

regulates.” TEX. Oct. CODE ANN. $9 1001.216(d), 105 1.212(d) (Vernon 2004). To that end, the

committee is directed to issue advisory opinions to both boards.” While the statute does not purport

to make advisory committee opinions binding on either the TBPE or the TBAE, the apparent goal

is to develop a body of precedent to guide the advisory committee when it addresses future questions.

See id. $3 1001.216(f), 105 1.212(f). However, as the committee is given only advisory powers,

chapters 1001 and 105 1 continue to reflect an intent to regulate the two professions through

cooperation between the two boards. Whether the TBPE and the TBAE, with the assistance of the

joint advisory committee, are able to satisfactorily implement the legislative intent in this regard is

a matter for the legislature.

17SeeAct ofMay 3 1,2003,78th Leg., R.S., ch. 1168, 9 18,2003 Tex. Gen. Laws 3307,33 14-15 (TBPE); Act

of May 3 1,2003,78th Leg., R.S., ch. 33 1, 9 1.21,2003 Tex. Gen. Laws 1425, 143 1 (TBAE).

“The specific subjects of joint advisory committee opinions are: (1) whether certain activities constitute the

practice of engineering or the practice of architecture or landscape architecture; (2) the specific disciplinary proceedings

initiated by either the TBAE or the TBPE; and (3) the need for persons working on particular projects to be registered

by the TBAE or licensed by the TBPE. TEX. OCC.CODEANN. $3 1001.216(e), 1051.212(e) (Vernon 2004).

The Honorable Ismael “Kino” Flores - Page 14 (GA-039 1)

Mr. Gordon E. Landreth, AIA

With reference to the TBAE’s specific questions: (1) chapters 1001 and IO51 construed as

a whole reveal an intent to regulate the practice of engineering and the practice of architecture as

distinct professions, while at the same time permitting overlap between the two professions; (2) the

inclusion of the phrase “for human use or occupancy” in the definition of the practice of architecture

in section 105 1.601 of the code does not create a distinction between the practice of architecture and

the practice of engineering; (3) the exemption for engineers in section 105 1.601 is not absolute and

does not permit engineers to freely practice architecture without registering with TBAE; (4) the

exemption in section 105 1.60 1 is limited to an act, service, or work that constitutes the practice of

engineering as defined in chapter 1001; (5) section lOOl.O03(c)(10) does not limit engineers’

authority to engage in building design to the “components of a mechanical electrical, electronic,

chemical, hydraulic, pneumatic, geotechnical, or thermal nature”; (6) Attorney General Opinion

DM- 161 (1992) determined that the predecessor to Occupations Code section 105 1.703 did not

preclude engineers from preparing building plans and specifications but did not determine, as

suggested by TBPE, that the entire scope of building design, including architecture, is an element

of engineering.

We conclude by addressing Representative Flores’ more general question. Chapters 1001

and 105 1 of the Occupations Code do not establish as a categorical proposition whether an engineer

may engage in comprehensive and complete building design of a project without the involvement

of an architect. The answer to that question will depend on whether the adequate performance of

the particular service or work in connection with that project requires a person with engineering

education, training, and experience. Whether adequate performance of a particular service or work

requires a person with engineering education, training, and experience is a question of fact that

cannot be resolved in the opinion process.

The Honorable Ismael “Kino” Flores - Page 15 (GA-0391)

Mr. Gordon E. Landreth, AIA

SUMMARY

Chapters 1001 and 1051 of the Occupations Code maintain

the practice of engineering and the practice of architecture as distinct

professions. These chapters recognize that the two professions

overlap concerning building design, but they do not precisely define

the overlap’s boundaries. On one hand, the provisions in chapter

105 1 are subject to an exception for engineers engaged in the practice

of engineering as defined in chapter 100 1. On the other hand, neither

the statutes nor Attorney General Opinion DM-161 establish that

engineering includes all aspects of building design.

Chapters 1001 and 105 1 of the Occupations Code do not

provide a basis to answer categorically whether an engineer may

comprehensively design a building without the involvement of an

architect, and to that extent the Board of Professional Engineers’

policy advisory opinion regarding building design, dated June 1,

2005, is.not correct. Rather, the answer to that question will depend

on whether the adequate performance of the particular service or

work requires a person with engineering education, training, and

experience. Whether adequate performance of a particular service or

work requires a person with engineering education, training, and

experience is a question of fact that cannot be resolved in the opinion

process.

Very truly yours,

Attom Ge era1 of Texas

egg

BARRY R. MCBEE

First Assistant Attorney General

NANCY S. FULLER

Chair, Opinion Committee

William A. Hill

Assistant Attorney General, Opinion Committee