NO. 03-14-00552-CV

IN THE THIRD COURT OF APPEALS

AT AUSTIN, TEXAS

RAGHUNATH DASS, PE

Appellant,

v.

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

-iACCEPTED

03-14-00552-CV

4398448

THIRD COURT OF APPEALS

AUSTIN, TEXAS

3/6/2015 11:40:04 AM

JEFFREY D. KYLE

CLERK
IDENTITY OF PARTIES AND COUNSEL

NO. 03-14-00552-CV

RAGHUNATH DASS, PE

Appellant,

v.

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

-ii-
Texas Board of Professional

Engineers

Jennifer Lyn Hopgood

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

-iii-
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

-iv-
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

-v-
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

-vi-
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

-vii-
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),

available at https://www.tsl.texas.gov/ref/senaterecordings/

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

-viii-
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

-ix-
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.

-x-
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.

-xi-
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.

-xii-
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.

-xiii-
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.

-xiv-
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

I.

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

L e g . , R . S . , ( 1 9 9 7 ) , ( e m p h a s i s a d d e d ) , a v a i l a b l e a t

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.

V.

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

1

Order Granting Defendant’s Motion for Summary Judgment,

June 24, 2014 (C.R. at 465)

2

Act of May 15, 1997, 75th Leg., R.S., 1997 Tex. Gen. Laws 344.

Introduced and Enrolled Versions (S.B. 623)

3

Texas Government Code

§ 2001.003

§ 2001.174

§ 2001.1775

§ 2254.002

§ 2254.003

4

Texas Occupations Code

§ 1001.003

§ 1001.202

§ 1001.203

§ 1001.301

§ 1001.407

5

Texas Board of Professional Engineer Policy Advisory Opinion

Regarding Construction Materials Engineering (August 20,

2009). (A.R. Ex. 2)

6

T.S.I. Laboratories, Inc. February 18, 2009 bid proposal to San

Patricio County (C.R. at 392-94)

7

Excerpts from SOAH Transcript of Contested Case Hearing on

April 18, 2012; Case No. D-31480; SOAH Docket No. 460-12-

3264

8

Texas Board of Professional Engineer Amended Final Order

(November 21, 2013) (C.R. at 62-66, 367-69)

29
TAB Document

9

Appellant’s Motion to Withdraw Appeal; No. 03-13-0711-CV

(C.R. at 370-72)

10

Texas Court of Appeals, Third District, Judgment Rendered

December 18, 2013, Dismissed on Appellant’s Motion (C.R. at

379)

30
TAB

1

31
465

Fax Server 

Notice sent: Final 

Parties: -------l 

6/10/2014 9:39:16 AM PAGE 

DC BK14182 PG1746 

code: CVD I CLS ---~ 

2/002 Fax Server 

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

RAGHUNATH DASS, P.E., 

PlaintJ_jf, 

v. 

TEXAS BOARD OF 

PROFESSIONAL ENGINEERS, 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT 

TRi\.VIS COUNTY, TE:Xi\S 

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. 
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. 

 (c) In considering the qualifications of applicants, responsible charge of engineering teaching 

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. 

 (c) This Act applies to all engineering practiced in this state that is not exempted under 

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. 

 (c) If a person's license [certificate of registration] has been expired for not longer than 

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. 

 (c) [(e)] A person doing the actual work of installing, operating, repairing, or 

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]. 

 (c) If the Board proposes to suspend or revoke a person's license [certificate of 

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. 

 (c) The Board shall adopt rules that permit the Board to receive and investigate 

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. 

 (c) The amount of the penalty shall be based on: 

 (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 

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. Subdivisions (1), (3), and (4), Section 2, 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. 

 To the extent the following services or types of creative work meet this definition, the term 

includes consultation, investigation, evaluation, analysis, planning, engineering for program 

management, providing an expert engineering opinion or testimony, engineering for 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; engineering for construction, alteration, or repair of real 
property; engineering for preparation of operating and maintenance manuals; and engineering for 

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, designs, analyses, or 

other 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 

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

professional 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. Subsection (d), Section 4, 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. Subsections (a) and (b), Section 8, 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, firm, partnership, or other entity 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. Subsection (a), Section 10, 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. 

 (c) In considering the qualifications of applicants, responsible charge of engineering teaching 

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. Section 13, 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, is amended by amending Subsections (a), (b), and (d) and adding 

Subsection (e) 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. 

 (e) The Board by rule may adopt reduced licensure and annual renewal fees for licensed 

engineers who are disabled and who are not currently engaged in the active practice of 

engineering. For purposes of this subsection, an individual is "disabled" if the individual has a 

mental or physical impairment that substantially limits the ability of the individual to earn a 
living as a licensed engineer, other than an impairment caused by a current condition of addiction 

to the use of alcohol or an illegal drug or controlled substance. A licensed engineer entitled to 

reduced fees under this subsection because the engineer is not engaged in the active practice of 

engineering shall notify the Board of the resumption of active practice not later than the 15th day 

after the date the engineer resumes active practice. 

 SECTION 13. Subsections (a) and (c), Section 13B, 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: 

 (1) meets the qualifications for an exemption from licensure [registration] under 

Section 20(e) [20(g)] or (f) [(h)] of this Act but who does not claim that exemption; or 

 (2) is disabled for purposes of Section 13(e) of this Act. 

 SECTION 14. Subsection (a), Section 14, 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. 

 (c) This Act applies to all engineering practiced in this state that is not exempted under 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. 

 (c) If a person's license [certificate of registration] has been expired for not longer than 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. FIRMS, PARTNERSHIPS, CORPORATIONS AND JOINT STOCK 

ASSOCIATIONS. 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. Subsection (a), Section 19, 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. 

 (c) [(e)] A person doing the actual work of installing, operating, repairing, or 

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. 

 (k) This Act or a rule adopted under this Act does not prevent, limit, or restrict a 

person licensed as an architect, landscape architect, or interior designer under the laws of this 

state from performing an act, service, or work that is within the definition of the person's practice 

as an architect under Chapter 478, Acts of the 45th Legislature, Regular Session, 1937 (Article 

249a, Vernon's Texas Civil Statutes), as a landscape architect under Chapter 457, Acts of the 

61st Legislature, Regular Session, 1969 (Article 249c, Vernon's Texas Civil Statutes), or as an 

interior designer under Article 249e, Revised Statutes. 
 (l) This Act does not apply to a regular full-time employee of a private corporation 

or other private business entity who is engaged in erecting, constructing, enlarging, altering, 

repairing, rehabilitating, or maintaining an improvement to real property in accordance with 

plans and specifications that bear the seal of a licensed engineer. This exemption includes the 

use of job titles and personnel classifications by the employee that are not in connection with any 

offer of 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]. 

 (c) If the Board proposes to suspend or revoke a person's license [certificate of 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. 

 (c) The Board shall adopt rules that permit the Board to receive and investigate confidential 

complaints against license holders or any other person who may have violated this Act. The 

Board shall 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. ADMINISTRATIVE PENALTY. (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. 

 (c) The amount of the penalty shall be based on: 

 (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. Subsection (a), Section 23, 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 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 30. 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 31. 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. 

_______________________________ _______________________________ 

 President of the Senate Speaker of the House 

 I hereby certify that S.B. No. 623 passed the Senate on April 7, 1997, by the following vote: 

Yeas 30, Nays 0. 

 _______________________________ 

 Secretary of the Senate 

 I hereby certify that S.B. No. 623 passed the House on May 13, 1997, by a non-record vote. 

 _______________________________ 

 Chief Clerk of the House 

Approved: 

_______________________________ 
 Date 

_______________________________ 

 Governor 
TAB

3

33
TEXAS GOVERNMENT CODE

CHAPTER 2001. ADMINISTRATIVE PROCEDURE

SUBCHAPTER A. GENERAL PROVISIONS

§ 2001.003 Definitions. In this chapter:

(1) “Contested case” means a proceeding, including a ratemaking or licensing proceeding, in which

the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity

for adjudicative hearing.

(2) “License” includes the whole or a part of a state agency permit, certificate, approval,

registration, or similar form of permission required by law.

(3) “Licensing” includes a state agency process relating to the granting, denial, renewal, revocation,

suspension, annulment, withdrawal, or amendment of a license.

(4) “Party” means a person or state agency named or admitted as a party.

(5) “Person” means an individual, partnership, corporation, association, governmental subdivision,

or public or private organization that is not a state agency.

(6) “Rule”:

(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.

(7) “State agency” means a state officer, board, commission, or department with statewide

jurisdiction that makes rules or determines contested cases. The term includes the State Office of

Administrative Hearings for the purpose of determining contested cases. The term does not include:

(A) a state agency wholly financed by federal money;

(B) the legislature;

(C) the courts;

(D) the Texas Department of Insurance, as regards proceedings and activities under Title

5, Labor Code, of the department, the commissioner of insurance, or the commissioner of workers’

compensation; or

(E) an institution of higher education.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by: Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec.

6.007, eff. September 1, 2005.

TEXAS GOVERNMENT CODE

CHAPTER 2001. ADMINISTRATIVE PROCEDURE

SUBCHAPTER G. CONTESTED CASES: JUDICIAL REVIEW

§ 2001.174. Review under Substantial Evidence Rule or Undefined Scope of Review. If the law

authorizes review of a decision in a contested case under the substantial evidence rule or if the law does

not define the scope of judicial review, a court may not substitute its judgment for the judgment of the state

agency on the weight of the evidence on questions committed to agency discretion but:

(1) may affirm the agency decision in whole or in part; and

(2) shall reverse or remand the case for further proceedings if substantial rights of the appellant

have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

Page 1 of 3
(A) in violation of a constitutional or statutory provision;

(B) in excess of the agency’s statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence considering the reliable and probative

evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted

exercise of discretion.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.

§ 2001.1775. Modification of Agency Findings or Decision. 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.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 5.21(a), eff. Sept. 1, 1995.

TEXAS GOVERNMENT CODE

CHAPTER 2254. PROFESSIONAL AND CONSULTING SERVICES

SUBCHAPTER A. PROFESSIONAL SERVICES

§ 2254.002. Definitions. In this subchapter:

(1) “Governmental entity” means:

(A) a state agency or department;

(B) a district, authority, county, municipality, or other political subdivision of the state;

(C) a local government corporation or another entity created by or acting on behalf of a

political subdivision in the planning and design of a construction project; or

(D) a publicly owned utility.

(2) “Professional services” means services:

(A) within the scope of the practice, as defined by state law, of:

(i) accounting;

(ii) architecture;

(iii) landscape architecture;

(iv) land surveying;

(v) medicine;

(vi) optometry;

(vii) professional engineering;

(viii) real estate appraising; or

(ix) professional nursing; or

(B) provided in connection with the professional employment or practice of a person who

is licensed or registered as:

(i) a certified public accountant;

(ii) an architect;

(iii) a landscape architect;

(iv) a land surveyor;

(v) a physician, including a surgeon;

Page 2 of 3
(vi) an optometrist;

(vii) a professional engineer;

(viii) a state certified or state licensed real estate appraiser; or

(ix) a registered nurse.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 244, Sec. 1, eff. Sept.

1, 1997; Acts 1999, 76th Leg., ch. 1542, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1409, Sec. 8, eff. Sept. 1, 2001.

§ 2254.003. Selection of Provider; Fees.

(a) A governmental entity may not select a provider of professional services or a group or

association of providers or award a contract for the services on the basis of competitive bids submitted for

the contract or for the services, but shall make the selection and award:

(1) on the basis of demonstrated competence and qualifications to perform the services; 

and

(2) for a fair and reasonable price.

(b) The professional fees under the contract may not exceed any maximum provided by law.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1213 (H.B.

1886), Sec. 14, eff. September 1, 2007.

Page 3 of 3
TAB

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34
TEXAS OCCUPATIONS CODE

CHAPTER 1001. ENGINEERS

SUBCHAPTER A. GENERAL PROVISIONS

§ 1001.003. Practice of Engineering.

(a) In this section:

(1) “Design coordination” includes the review and coordination of technical submissions

prepared by others, including the work of other professionals working with or under the direction

of an engineer with professional regard for the ability of each professional involved in a

multidisciplinary effort.

(2) “Engineering survey” includes any survey activity required to support the sound

conception, planning, design, construction, maintenance, or operation of an engineered project. 

The term does not include the surveying of real property or other activity regulated under Chapter

1071.

(b) 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.

(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 of the 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

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

an engineering service.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 1, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 1276, Sec.

14A.001(a), eff. Sept. 1, 2003. Amended by: Acts 2005, 79th Leg., Ch. 259 (H.B. 1817), Sec. 1, eff. September 1, 2005.

Page 1 of 3
TEXAS OCCUPATIONS CODE

CHAPTER 1001. ENGINEERS

SUBCHAPTER E. BOARD POWERS AND DUTIES

§ 1001.202. Rules. The board may adopt and enforce any rule or bylaw necessary to perform its duties,

govern its proceedings, and regulate the practice of engineering.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 1, eff. June 1, 2003.

§ 1001.203. Rules Restricting Advertising or Competitive Bidding.

(a) The board by rule shall prescribe standards for compliance with Subchapter A, Chapter 2254,

Government Code.

(b) Except as provided by Subsection (a), the board may not adopt rules restricting advertising or

competitive bidding by a license holder except to prohibit false, misleading, or deceptive practices.

(c) In its rules to prohibit false, misleading, or deceptive practices, the board may not include a rule

that:

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

(2) restricts the use of a license holder’s personal appearance or voice in an advertisement;

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

(4) restricts the license holder’s advertisement under a trade name.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 1, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 1168, Sec. 13, eff.

Sept. 1, 2003.

TEXAS OCCUPATIONS CODE

CHAPTER 1001. ENGINEERS

SUBCHAPTER G. LICENSE REQUIREMENTS

§ 1001.301. License Required.

(a) A person may not engage in the practice of engineering unless the person holds a license issued

under this chapter.

(b) Except as provided by Subsection (f), a person may not, unless the person holds a license issued

under this chapter, directly or indirectly use or cause to be used as a professional, business, or commercial

identification, title, name, representation, claim, asset, or means of advantage or benefit any of, or a

variation or abbreviation of, the following terms:

(1) “engineer”;

(2) “professional engineer”;

(3) “licensed engineer”;

(4) “registered engineer”;

(5) “registered professional engineer”;

(6) “licensed professional engineer”; or

(7) “engineered.”

(c) Except as provided by Subsection (f), a person may not directly or indirectly use or cause to

be used an abbreviation, word, symbol, slogan, or sign that tends or is likely to create an impression with

the public that the person is qualified or authorized to engage in the practice of engineering unless the

person holds a license and is practicing under this chapter.

(d) A person may not receive any fee or compensation or the promise of any fee or compensation

for engaging in the practice of engineering unless the person holds a license issued under this chapter.

(e) A person, sole proprietorship, firm, partnership, association, or corporation that engages in or

Page 2 of 3
offers or attempts to engage in conduct described by this section is conclusively presumed to be engaged

in the practice of engineering.

(f) Notwithstanding the other provisions of this chapter, a regular employee of a business entity

who is engaged in engineering activities but is exempt from the licensing requirements of this chapter

under Sections 1001.057 or 1001.058 is not prohibited from using the term “engineer” on a business card,

cover letter, or other form of correspondence that is made available to the public if the person does not:

(1) offer to the public to perform engineering services; or

(2) use the title in any context outside the scope of the exemption in a manner that

represents an ability or willingness to perform engineering services or make an engineering

judgment requiring a licensed professional engineer.

(g) Subsection (f) does not authorize a person to use a term listed in Subsections (b)(2)-(6) or a

variation or abbreviation of one of those terms.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 1, eff. June 1, 2003. Amended by Acts 2003, 78th Leg., ch. 1168, Sec. 22, eff.

Sept. 1, 2003.

TEXAS OCCUPATIONS CODE

CHAPTER 1001. ENGINEERS

SUBCHAPTER I. PRACTICE OF ENGINEERING

§ 1001.407. Construction of Certain Public Works. The state or a political subdivision of the state may

not construct a public work involving engineering in which the public health, welfare, or safety is involved,

unless:

(1) the engineering plans, specifications, and estimates have been prepared by an engineer; 

and

(2) the engineering construction is to be performed under the direct supervision of an

engineer.

Added by Acts 2001, 77th Leg., ch. 1421, Sec. 1, eff. June 1, 2003.

Page 3 of 3
TAB

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35


TAB

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36
392

T.S.t LABORATORIES, INC. 

!HINtrifsoiCsiNvisni;ATION' 

'<Hll .::;()l)TH l/IU!<HH 

il0:1'i11llA. IEXAS 11!.11!1 

OP!dWI'IAdti 

Slln Patrfdc county Ccmrttlous• 

4(}0 W•n tinton St. 

Slnton, f)( Tli337 

R!r; Ccm>!tud.:m Materl!!la f~Jallrtfl Prope!~itl 

Sl!llt Paltlelo Op~nty Fl!llrfifOI.t!ldi\1 N4W H~:~ma B•rn Facllilly 

Proposal No,: 0203.8 

Mr. Wendel: 

Trlnlti Soil$ lnW!el!gs!ions{TSI Labararortet, lno,) 11 pltmal'lli to !l!!bi'nlloor Conslroctloo Malenal.e 

T~>Sl!ng (C'MTJ proposal ror tes!!ng and !na~ctton .lrefll!ca~J for lne abovs rt~l'W'Ill'itl3d proJect 

T!!r>l\y Sff~il lnii<!!S!i<J!!llt>rls ,11111 hMn fl'l hull~tloa!ll lor tNI:lr 14 yeam. TSI \Qehl\llilan.!l h'lv<i: 

n::qll!r!ln Vntfl:l\1111 AC! ilnd 11la!ll corl!lu:a!looa ill\!l Ueon«us lor tellffl'l~ tmd aMt(lllll ot 1wli!l, 

~nmre!l!f, !1'1$Jlh!ilt, am:l ii!Ml ma!erlllht T::ll t;lhomlmius, lne, <:erv:!tw:Ja ellllfll !~\!!ill nf m!l!W!I!l$ 

lt1 ilc<::mda!IC~l will> ~biG, hOOT, \J.$. Amrt Corp:~ ol FnjJll1ema, ASTM ami NlftiOMI 5tflndan:ia 

il!Ri llaa atclJtai~J nm1 r.;'lihmtuct !llt<llNJI-UJ!Hlft lasllniJ !!<iHipmeont 

The- !O!al £~stlmal~ l';{lSt for our iM~mctlOI'I aM tesi!flg ssrvh;es tor lha obov& rderented project >!! 

$1' ,iHl4,{10 • Thta nl>llmiitll ts biii~!!d 011 anllclpato;d ~:~uunlil\1'1$ 11/ld work sctw®le\i, I! !Mr~.t ar!! 

ilny change•, ltte cost wm be ~tdj\lllled .woorolf!gly, Thla ptopeaal l\l vaU4 for a pQrk!d of si)( 

:nonrl'\li from lllllme dil'!e, 

;:;:!111P~lly Subrnl!t!!',l, 

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6 T!1p!i !0 jobs~ x j ZtH!O Q;u;h '"~$-~.\.~J2Q 

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• TMTII In! rot 3(1 ~ 
TAB

7

37
SOAH DOCKET NO. 460-12-3264 

TEXAS BOARD OF 

PROFESSIONAL ENGINEERS 

BEFORE THE STATE OFFICE 

VS. OF 

RAGHUNATH DASS ADMINISTRATIVE HEARINGS 

********************************************** 

CONTESTED CASE HEARING 

April 18, 2012 

BEFORE ADMINISTRATIVE LAW JUDGE RICHARD WILLFONG 

********************************************** 

BE IT REMEMBERED that the above-capt 

matter came on for hearing on the 18th day of April, 

2012, between the hours 9:10 a.m. and 1:07 p.m., at 

300 W. 15th Street, 4th , 408D, Austin, Texas 

78701, and the following proceedings were report by 

Nichols, CSR, and reduced to writing and set out 

as follows: 
Contested Case Hearing - 4/18/2012 

1 A P PEA RAN C E S 

2 FOR THE TEXAS BOARD OF PROFESSIONAL ENGINEERS: 

3 Mr. Dewey E. Helmcamp,III, J.D. 

TEXAS BOARD OF PROFESSIONAL ENGINEERS 

4 1917 S. Interstate 35 

Austin, Texas 78741-3702 

5 Telephone: 512.440.3061 

Fax: 512.40.0417 

6 E-mail: dewey.helmcamp@engineers.texas.gov 

7 

FOR THE RESPONDENT, RAGHUNATH DASS: 

8 

Mr. Raghunath Dass, Pro Se 

9 8719 Copperbrook 

Houston, Texas 77095 

10 Telephone: 713.367.4445 

Fax: 281.858.5092 

11 E-mail: rdass47@gmail.com 

12 

13 

14 ALSO PRESENT: 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Ms. Valarica fers 

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) 

Contested Case Hearing - 4/18/2012 

1 

2 

3 

4 

5 

6 

7 

8 

I N D E X 

Appearance s. . . . . . . . . . . . . . . . . 

OPENING STATEMENT BY MR. HELMCAMP 

OPENING STATEMENT BY MR. DASS 

PRESENTATION ON BEHALF OF THE PETITIONER 

TEXAS BOARD OF PROFESSIONAL ENGINEERS 

9 CLARENCE WILLIAM CLARK, JR. 

10 

11 

12 

13 

14 

15 

16 

Direct Examination by Mr Helmcamp . . . . . . 

Continued Direct Examination by Mr. Helmcamp 

Cross Examination by Mr. Dass ......... . 

Clarifying Examination by ALJ Willfong ... . 

LEWIS SHRIER 

Direct Examination by Mr Helmcamp 

Cross-Examination by Mr. Dass .. 

1 7 RAGHUNATH DASS 

18 

19 

20 

21 

22 

23 

24 

25 

Voir re Examination By Mr. Helmcamp ..... 

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12 

16 

22 

74 

87 

92 

46 

63 

97 

3 
Contested Case Hearing - 4/18/2012 

4 

1 

PRESENTATION ON BEHALF OF THE RESPONDENT 

2 

RAGHUNATH DASS 

3 

4 DAVID WENDEL (via telephone) 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Direct Examination by Mr. Dass ...... . 

Cross-Examination by Mr Helmcamp . . . . . . 

RAGHUNATH DASS 

Dire Testimony By Mr. Dass ...... . 

Cross-Examination by Mr Helmcamp . . . . . 

Clarifying Examination by ALJ Willfong .... 

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41 

108 

117 

126 
1 

2 NO. 

3 1 

4 

5 

6 

2 

7 

8 

9 

3 

10 

11 

12 

4 

13 

14 

15 5 

16 

17 

6 

18 

19 

7 

20 

21 8 

22 

23 

24 

25 

Contested Case Hearing - 4/18/2012 

PETITIONER EXHIBITS 

DESCRIPTION 

Texas Engineering Practice 

Act and Rules Concerning the 

Practice of Engineering and 

Professional Engineering 

censure 

Policy Advisory Opinion 

Regarding Construction 

Mate als Engineering, 

8/20/09 

Fax Transmittal from Shrier 

to Pennington, transmitting 

TSI Laboratories, Inc., 

Propos No. 02036 

Various unsealed sting 

reports of TSI Laboratories, 

Inc. 

Various sealed testing 

reports of TSI Laboratories, 

Inc. 

3/30/12 Email, Dass to 

Shrier, with reply 

3/29/12 Email, Dass to Wendel 

Policy Advisory Opinion 

Regarding Construction 

Materials Engineering, 

8/20/09 

MARKED 

20 

20 

21 

49 

57 

59 

60 

76 

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ADMITTED 

20 

21 

21 

56 

60 

59 

61 

76 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Contested Case Hearing - 4/18/2012 

RESPONDENT EXHIBITS 

NO. DESCRIPTION 

1 

Va ous records 

2 

Records labeled as 

"Mr. Wendel, Mr. Shrier, 

Mr. Mark Communication File" 

3 

Various records 

CLOSING STATEMENT BY MR. HELMCAMP 

CLOSING STATEMENT BY MR. DASS 

REPORTER'S CERTIFICATE 

MARKED 

95 

95 

95 

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ADMI 

103 

103 

107 

144 

147 

150 

6 

D 
Contested Case Hearing - 4/18/2012 

1 PRO C E E DIN G S 

2 ALJ WILLFONG: Good morning. It is now 

3 about 10 minutes after ne the morning. s is 

4 Wednesday, April the 18th, 2012. My name is Richard 

5 Willfong and I'm the Administ ive Law Judge that's 

6 been assigned to this case. 

7 This is SOAH Docket No. 460-12-3264, and 

8 it's the Texas Board of Professional Engineers Case 

9 No. 1480, and the matter is styled The Texas Board of 

10 Pro ssional Engineers Vs. Raghunath ss, fessional 

11 Engineer. s license number is 90119. 

12 This hearing is being held in the SOAH 

13 hearing facility in Austin, Texas. And we'll begin 

14 today by taking appearances, and I'll take the 

15 appearance first of the Board. 

16 MR. HELMCAMP: Thank you, Judge. My 

17 name, for the record, is Dewey E. Imcamp, III. I'm a 

18 s ff attorney for the Board of Professional Engineers. 

19 To my immediate right is Ms. Valarica 01 rs, who is the 

20 prime investigator, or who was the prime investigator on 

21 this case. I would like to also designate r as a 

22 party representative to be with me the table. 

23 To Ms. Olfers' immediate right is Mr. C.W. 

24 Clark. Mr. Clark is the director of the Compliance and 

25 Enforcement Division of the Board of Pro ssional 

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Contested Case Hearing - 4/18/2012 

8 

1 Engineers. He too I would like to designate as a party 

2 representative, but he will also be giving testimony on 

3 the merits, as well, on certain aspects of this case. 

4 ALJ WILLFONG: Thank you. 

5 And Mr. Dass, would you please note your 

6 appearance, as well. 

7 MR. DASS: Thank you, Your Honor. I am 

8 Raghu Dass. I'm a pro ssional engineer in state of 

9 Texas. I do geotechnical engineering and construction 

10 materials engineering and testing for my profession, and 

11 I have a Ph.D. degree in foundational engineering and a 

12 master's degree in geotechnical engineering from 

13 Southern Illinois University. And I have been in Texas 

14 since '98 providing service, professional service in 

15 dif rent capacities in Houston and different parts of 

16 Texas. 

17 ALJ WILLFONG: Thank you. And for the 

18 record, I need to ask you a couple of things about your 

19 appearance today without counsel. 

20 You understand that in a hearing such as 

21 this, you have a right to hire a lawyer to represent you 

22 in this proceeding. You understand that? 

23 MR. DASS: Yes, sir. 

24 ALJ WILLFONG: And for some time during 

) 

25 the course of this proceeding, you, in fact, were 

Integrity gal Support Solutions 

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Contested Case ng - 4/18/2012 

1 come about, and what does it particularly say to the 

2 professional engineers in Texas? 

3 A. Interestingly enough, this particular icy 

4 advisory had been -- the issue had been around a 

5 number of years even prior to s process being 

6 implemented a er 2003. The issue has to do with 

7 construction mate als testing and at what point does an 

8 engineer need to be involved in the evaluation or 

9 analysis of that testing. 

10 It had been determined r a number of 

11 years that CMT, or construction materials testing, in 

12 and of itself was not -- did not require a pro sional 

13 engineer's involvement. However, when it's involving a 

14 public works project, then -- or any other, even if it 

15 was not a public works, it would require an engineer's 

16 involvement if the test data had to be analyzed and a 

17 determination either for acceptance would have to be 

18 done by a professional engineer. 

19 Q. All right. And these general thoughts are 

20 contained within the paragraphs comprising this Policy 

21 Advisory Opinion; is that correct? 

22 A. Yes, it is. 

23 Q. Now, I notice toward the bottom there is the 

24 mention which you have referred to of "Public Works, n 

25 and I'd like to ask you, before we completely get into 

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26 
) 

Contested Case Hearing - 4/18/2012 

1 Q. So how you select? You have two companies and 

2 two sets of SOQs and two sets of testing proposals. So 

3 how you select, based on what criteria? 

4 A. As I had stated to, I believe was the 

5 investigator several years ago, my best recollection is 

6 that I presented it to our county judge and one of our 

7 commissioners, and they reviewed it and selected TSI to 

8 provide the service for us, but I do not recall what 

9 their cri t a was for the selection. 

10 So, you know, it could have been price. 

11 I'm not real sure exactly what their thought process 

12 was. As I had told the investigator earlier also, to 

13 the best of my knowledge, because it was not something 

14 of a great dollar value, that was not pres ed 

15 commissioner's court. It was just treated as a regular 

16 departmental purchase. 

17 Q. During the testing or during the construction 

18 of the project, TSI provided the service. Who was your 

19 engineer of record onsite? 

20 A. On the Horse Barn Project, the engineer I 

21 believe was Naismith Engineering, was in charge of, you 

22 know, basically the design and the drawing and the 

23 monitoring of the project. TSI, and then later Rock, as 

24 I recall, were only responsible for the materials 

25 testing. 

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Contested Case Hearing - 4/18/2012 

1 A. Since 1983. For a while. 

2 Q. Okay. Do you have any particular -- I know 

3 there's not a specialization within the field of 

4 engineering, but do you have a field, like structural or 

5 mechanical or anything of that nature, civil? 

6 A. ght. I've pra iced as a structural 

7 engineer. 

8 Q. Okay. And approximately how long have you 

9 been employed with Naismith Engineering? 

10 A. A little over 10 years. I started in 2001. 

11 Q. All right. And therefore, by that answer you 

12 were clearly employed in the spring of 2009 with regard 

13 to a That's an awkward question, let me start over. 

14 You were clearly, then, employed by 

15 Naismith Engineering in the spring of 2009? 

16 A. Yes. 

17 Q. Do you have a recollection of a project that 

18 we are referring to as the Horse Barn Project at the San 

19 Patricio County Fairgrounds? 

20 A. Yes. 

21 Q. Would you tell the Judge what, in brief, was 

22 Naismith Engineering's responsibilities, and yours in 

23 particular, with regard to that project. 

24 A. Well, we were what was called the prime 

25 consultant on the project. It was -- the County had 

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Contested Case Hearing - 4/18/2012 

49 

1 hired Naismith Engineering to do all the neering and 

2 oversee construction of Horse Barn 

3 

4 Q. As a part of that, were you also -- did your 

5 duties or responsibilities include receiving what we are 

6 referring to as construction material test results, or 

7 CMT work? 

8 A. Yes. 

9 Q. And do you recall, sir, who initially was 

10 awarded -- I think a term would be "subcontract" to do 

11 the CMT testing? 

12 A. Right. TSI Laboratories, I lieve. 

13 Q. All right. At this time, Your Honor, I would 

14 like to approach the witness. 

15 ALJ WILLFONG: You may. 

16 (Board Exhibit No. 4 ma . ) 

17 MR. HELMCAMP: I am providing a copy of 

18 what lIve marked as Board Exhibit 4 to Mr. Dass. I 

19 would provide this time a copy to the witness, and 

20 then lIm going some questions about this. 

21 Q. (BY MR. HELMCAMP) Sir, lIve handed you what's 

22 been marked but not admitted yet as Board Exhibit 4. 

23 I'd like you to take a moment. You'll see that the 

24 sub-pages are numbered 4{a) through, I believe 4(1). 

25 Would you tell the Judge what these appear to be? 

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52 

1 A. Well, when I was first made aware of this 

2 Advisory, I read it several times; and even after 

3 reading it, I wasn't a hundred pe sure what it was 

4 telling me. So I called the Texas Board and asked for 

5 some advice from one of their folks who gives advice 

6 about these kind of things, and basically what they told 

7 me is that if -- that the dif rence between 

8 construction material engineering and construction 

9 materi testing is, I could ask construction 

10 material testing without engineering if I had sufficient 

11 experience on my own to be considered a geotechnical 

12 engineer to review those kind of things. And I asked 

13 myself if I could do that, and I said, no, I really 

14 don't have that expe ence. 

15 And so at that point, then I understood 

16 what this me , and that meant that I'd need to 

17 construction materi s engineering and not j testing, 

18 because I'm not qualified to make those kind of 

19 determinations. 

20 Q. And in doing that, sir, as you can look at 

21 and if you feel the need, please refresh and look at the 

22 actual Advisory Opinion. But if that's the case, on 

23 Page 2, the Board has provided this guidance: "A 

24 licensed professional engineer must directly supervise 

25 any element of acceptance testing from data collection 

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1 but I didn't have any doubts that TSI was doing their 

2 job appropriately. 

3 Q. When we go there, there is an engineer onsite 

4 during the construction phase during the working hours 

5 a~~ the time from Naismith as the engineer of record, 

6 but the testing people, they come and go, pick up a 

7 sample. And the compactor comes, they go pick up the 

8 sample. The proof will come after the compaction 

9 ro~lers are done. They put as to the density and get 

10 it -- They're not during the -- the testing lab is not 

11 there eight hours a day all days during the 

12 construction. The engineer at the trailer -- or the 

13 superintendent has a set drawings. They always follow 

14 the set of drawings and specifications and they tell, 

15 based on the legend, this passes or fails. The 

16 specification and description of the -- interpretation 

17 of the test result is done by engineer onsite, not at 

18 the engineer in the ~ab. 

19 ALJ WILLFONG: Mr. Dass, I understand 

20 that's your position, but at this time you need to 

21 phrase any questions you have of Mr. Shrier. 

22 MR. DASS: Yeah, I'm going to do that. 

23 Q. (BY MR. DASS) According to the TSI proposa~, 

24 TSI staff provided testing service upon se~ection. Did 

25/ you have any problem with this se~ection? 

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Contested Case Hearing - 4/18/2012 

1 That's why I'm here. 

2 The last one is "Respondent violated 

3 Board Rule 137.63(a) when he submitted sixteen CMT 

4 reports to the Board on June 28, each of which are 

5 signed and sealed but undated in an apparent attempt to 

6 persuade the Board that he had signed and sealed the CMT 

7 reports before each was released to Naismith as he was 

8 required to do as the engineer of record for TSI on the 

9 San Patricio horse barn pro] ect. " 

10 Your Honor, I was not the engineer of 

11 record for the CMT. I was the quality engineer or the 

12 vice-president of engineering of this company. When a 

) 13 project manager did not do his job properly in the field 

14 for one month and he -- I called, after knowing some 

15 concern. He was so low on attacking the quality of the 

16 work of TSI so that I had - after listening to him, 

17 then I then he told me that he's not competent to do 

18 the -- do the check, quality check, quality check on the 

19 'tests because he was a structural engineer, though 

20 though it was not a requirement for him to be that 

21 qualified. 

22 Because anything, anything that goes from 

23 a company outside has the engineer's work stamp, because 

24 engineer ensures that the tests were performed according 

25 to the ASTM manual. The technicians were qualified and 

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Contested Case Hearing - 4/18/2012 

1 have the experience of doing the particular tests on 

2 soil, being the most difficult test -- material to test 

3 because it has a lot of variability, and I have been 

4 working for that company ready one and a half year at 

5 that time. 

6 Then we're requested by the Count 

7 contracted project engineer, Mr. Shrier, during a 

8 telephone conversation on 17th. The Respondent 

9 performed a quality check of the laboratory test data, 

10 including the lab sheets, and certi ed them as a 

11 quality engineer of the 'rSI. This test reports 

12 remains CMT report, testing report, not engineering 

) 13 report but tes ng report, and CMT's report should not 

14 be signed, sealed, and dated by a P.E. 

15 Alternatively, construction material 

16 engineering reports should be signed by a proj ect P. E. , 

17 a project manager who's a P.E., according to the 

18 standard of care. Sealing is above the standard of care 

19 for construction -- That's why I gave you some other 

20 companies' standard of care how they seal their reports. 

21 MR. HELMCAMP: I would just mention, Your 

22 Honor, that -- excuse me -- that those were not admitted 

23 into evidence, so they're not before the record. 

24 

25 

ALJ WILLFONG: Sustained. 

MR. DASS: During an informal conference 

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) 

Contested Case Hearing - 4/18/2012 

1 so there's no call for me to --

2 Q. Yeah, I undershand. And again, I hhink fairly 

3 summarizing your hashimony, No.1, you didn'h hhink hhat 

4 the CMT required your presence. Thah's basically your 

5 position? 

6 A. No. CMT requires only my quality position, 

7 that anything -- because under the highest percentage of 

8 engineering, anything goes out out of the door has my 

9 oversight and quality. The equipments are calibrated, 

10 the test methods are followed, the calculations are 

11 right. That I have -- I have. 

12 Q. Okay. 

13 A. But not the -- to say this particular project 

14 did not come onto my radar until 17, April 17, because 

15 it's -- When a project is hourly, then we have a 

16 problem. But CMT, it goes to another file. The CME, it 

17 goes to another file. So I'll not even worry about 

18 that, except every day I get -- I'm geotechnical 

19 engineer. Every day I get test report from the lab per 

20 my geotechnical. So I have been doing that, so -- that 

21 quality. Otherwise, I'll not be signing the 

22 geotechnical report. 

23 Q. Is ih your heshimony on hhis projech, hhe 

24 Horse Barn Project, hhah you were seeing hhe CMT reporhs 

25 every day? 

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62

D-1-GN-14-000568 

SOAH DOCKET NO. 460-12-3264 

TBPE CASE NOS. n-31480 

4/22/201410:49:53 AM 

Amalia Rodriguez-Mendoza 

District Clerk 

Travis County 

D-1-GN-14-000568 

TEXAS BOARil OF PROFESSION/\!, 

JsNGINEERS 

BEFORE THE ATE OFFICE 

v. 

HAGH:NlJATH DASS, P.E. 

LICENSE NO. 901 ,>\.UMINISTR.\ TIVE HEARINGS 

Tf:XA.S .BOARll OF PROFESSIONAL ENGINEERS' AMENDED FINAL ORDER 

Be. it that on this date the n"Hltkr ofthe Board (Board) 

'VS. Rnghnuath Dass, P License 90119 (Respondent) \Vas heard the Board in an open 

meeting on Kovcmbcr2 i, 20 l3. Board notice was given to 

the above styled case \Vas heard an Administrathrc Judge assigned to the State 

Off1ce of /\.drninistrati\ie. I A.ustin, on April 1 

represented himself. Board was represented by Staff 

Fol1mving the prescnlation of evidence, the i\dm1nistmtivc LH\/ c!oscd the On 

J unc l 2012, the ALJ pn~parcd a fc1r Decision (PFD) 'I.Vhich found that Respondent . . . 

T sections 13 7 .33(b), 1 and I .63(b) (2) and rcccm.u:ncnded a sanction a 

Formal Reprimand, a suspension ofRespondenfs license two \Vllh 

probated, and a $4,000.00 

Administrative Procedure 

Order to a Distrk:t 27,201 theCourt, hearing 

arguments of the /\dm.inistrativc a Final Judgrnent in \vhich 

the Court f(mnd that Findings of f<v::l 16 und 17, and 8, \Vcre not 
63

by however, ofFactand of Law 

case to the 

Board fbr further action the Board deems appropriate .. 

The Bo~rd having previously reviewed Com::lu:"ions ofLaw, 

of the 

including the 

Conclusions ofLa.,v, except Finding 16 and 17, and 

L 

4. 

based on the now approved Findings 

l. f''lN.DINGS OF 

(Respondent) is a 

H'-''"u., ..... , rmmber 901 issued the 

applicable to th:i8 he was 

Trinity Soils lnv(:stigation Laboratories, Inc. (TSI}. 

On Decen:tber 8~ 1, Board (Staft) sent a 

Respondent proposing a two~year probated 

and an 

The notice of hearing contained a sta:ternent time. place, 

statement of the legal authority and jurisdiction under 

.-~·t,_..,..,r,,. to .'icctions of the statutes and 

statemE:n1 

to 

nature a 

hearing 'l?ilas to be held; a 

involved; an.d a short plain 

The hearing on the was held on April 18, 2m2, befi1re Adtnin.istrahve Law Judge 

'>.A¥.H ..... 'c< R. 

Floor, Austin, Texas" 

renres1:mt<:a by 

record closed 

the \ViH:iam Ciernenl<; 300 West l Street, Fourth 

appeared and hearing_ The was 

Helmea:rnp The 
64

5. TSI submitted a tmn:w!sat to pcrfon11''"'''"t•··n"* 

for San Patricio fairgrounds barn 

proposal included a quote, 

6. Pnoject is a public works project, 

7,. 

9. 

lL 

From February 17, 2009, through. April 7, 2009, 

the 

of the i 6 CMT .-.......... .,.,.."' 

licensed professional enginee.;r. 

L;r;.est.Kmacm_ did not perform or directly''"""'"'"'"'·""'·'~ 

submitted 16 

reports stibrnitted to San Pat..'"icio County for the ~-""'''""'''t 

no of the project or actions 

Project, before Aprill7, 2009. 

On April 20, Respondent added undate-d signature and 

16 C?v·fT reports and them to Patricio 

respect to the 

to copies 

12. provided 16 CI\.fr beruing undated signature and seai 

Hi 

he attended an infomtal '~onference with the Board on June 28, 20 l 0. 

Respondent fa.Hed to exe.rcise reasonable care 

onmo·sal for material the 

te reaS\)nable care diligence to from ....... ,,t,.,.,c,..,;, ... .,. 

construction material testing for the Project without having the tests perfonued or directly 

,,...,F•nn""'"'' by a !ken~ed professional en.gineer. 

Respondent 

CMT reports 

Respondent added his signature and sc.a! to 

dat11, to appease Shricr' s concern that 

a !lCiemrea ....... , ...... ~.·~~ 

reports, after re\..Jcv\'00 the testing 

""'""c'"'" needed to be ~igned and sealed by 

1 Staff failed to prove a common understanding and interpretation a:rnong professional 

engineers concerning the requirements relating to rnateria! confonnrmce with 

Pmfes.sionaJ Procurement Act (PSPA). 

18. Respondent no history 
65

!9 .. not result in 

Respondent did not prz1t"lt from 

H. CONCLUSIONS o·F 

1. The of Professional Engineer~ (Board) is charged adrninistcring 

and pn;,., ... , .. ,.~, the ofthe Texas Engineers Act and the Board Rules, 

A.nrL §§ i00L207, 100L45L WOL452, ;:~nd 1001.454. 

2, The State Office A.drn1nistrativc H~:.;'.{lrings jurisdiction over the hearing 

proceeding, the authority to issue a proposal for \Vith proposed findings of 

and conclusions oflavv', pursuant Tex. Go-;,,'t Code Ann. Ch. 

crf the cornp!aint and of the on the \'vas as required by 

§ 1305 and by the Administmtiv1.~ Procedure . Gov't Code Ann. 

§§ 2001.05 i and 2001 

4. ·rhc Board had the burden of proving the case by a prcpondenmcc ofthe evidence pursuant lo 

6. 

'7 '-

1 0., 

1 Tex. Admin_ (TAG)§ 155.41. 

Based on the above Findings of Fact, Respondent 

failed to the pcrtrrrmance of the CMf testmg. 

Based on the above Findings Fact} Respondent violated § 137 when he 

allmvcd to the CMT reports without having signed, dated, and sealed C~·iT 

'Y"''''"4'"' bcfhrc they \Verc 

Respondent · 

care and diligence ton,...,,,, .. , .• ,~-· tton1 subrniUing a,..,..,,.,.,'"'''"' 

-:::ngineering in ·violation of PSPA. 

Board is authorize,] to assess an vc penalty no more tban $3000 per 

violat1rm of Board and mny include in the pcna.hy the costs in vcstigating the 

action. Code Ann.§ 100! (a) and (c). 

san.ctions suggested by 22 TAC § l39.35(b) for each 

t\lv'O-year probated suspension ofRespondcnfs license~ a 

a fine to $2,500_ 

Taking into consideration set forth in § 1 

Respondent's violations are a 

formal nr 1nt:xrnal, and 

abm·e Findings of 

support a severe sanction to deter future miset'"'lnduct 
66

11 Respondent's hc.cr!sc should a of hvo and the period 

should fully In addition, Respondent ::;hould a fcmna1 

reprimand and be an administrati vc S 1 ,500.00, inclusive of any cost 

incurred of this maHer. 

ORDEft 

\VHEREFOR E, PRBliiS ES Board Engineers does 

hereby issue a of Texas engineer 

heldhyl\·1r. Raghunath Dass, P.E? License Nurnbcr9Gl 1 foregoing 

Final Board Order, to be fully probated fen· the cntin.~ period contingent upor1 Respondent's 

of a $1,500.00 administrativt..~ pc:nahy to !he Board thirty days of the date this 

Order is linal and appcnlable. to 

thirty days of the this Final Order is final and appealable shall constitute a "·<''''~"'"r-" 

violation of the Act rn.ay re::m!t in further disciplinary against Respondent 

but not lirnited to Respondent's probat!on being vacated by ....,...,,,., .. ,,t, ofhnv 

\Vithout any further other ti:u'Ul notice frurn Executive Director. The 

probation 'NiH ihrthcr contingent upon Rc:->pcmdcnt not being found in violation of a ser,1aratc 

offense of the Act or Board rules during ~aid period of probation the Board, 

fSSUED: 21:201 by the 

MEbilBERS OF TllE AL ENGINEERS: 
TAB

9

39
370

V, 

COURT OF APP.EALS NUMBER: 63*U..O!J711·CV 

TiUAL COURT CASE NUMBER: O·M¥N-t2~003397 

§ COURT OF APPEALS 

§ TWRU DIS'nm:::r OF TEXAS 

§ 

§ 

§ AUSTIN, TEXAS 

!i 

TEXAS BOARD OF 

PROi'il:SS!ONAL ENGINEERS 

§ 

* § 

§ 

Al:PEU..&Nl:'S: MOl'I{)N :W >YIIiWB&»: All!MJ.. 

COMES NOW the Appellant, Raghunath Dass, PE and 

Thtrd. Court plli'l'!uant to Texas Ru1es of Appellate Procedure l 0. l (a) (5) that 

the Court allows him to withdmw tim pending appeal in support of this motion, Appellant 

l. TmvJs County Dlsttkt Conn entered a final Judgment on September 27, 2013 beaed on 

3, During lhe time lhat pru;sed fmm the filing ofNotlce ofAppeal and tl1is motion, 

Appellee conducted a pmc~ditlg on November 21, 2013 in the light of the final 

judgment from Travis Co\mty District Court and issued an Amende<! Fimt! Order from 

4. Appelllmt believes that Notke of Appeal has become moot due to the ru:nende<i Flnru 

Order from Appellee. A copy of the order is herewith attached. 
371

Raghunath Dw, PE 

8719 Cc:pperbrook Drhte 

Ho1,!8ton, Texas 77095 

Email: roas~7@Y!iho,.M.om 

(21ft) 248 3983 

ATIORNEY FOR APPELLEE 
372

I hereby certify that l conferred with too ootmst~! regarding; tlus n1ationon 

o~.mb~r 2, l<m. 

VeenaMohan 

Assistant Attorney Omtii:ral 

Oflioo of the Attorney O<.lnerru 

Administrative U!w Divisi\lll 

P.O. B.ox 12548, Capitol Smtion 

Austl.n. Texas 7S111~2548 

Telephone: (512) 936-0535 

F~.~Caimile: (S12) 457~4676 

V c~uun9han@attomeygenaru.gov 

ATTORNEY FOR APPELLEE 
TAB

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40
379

TF~XAS COURT OF APPEALS, THIRD DISTRICT, AT AlJSTlN 

JUDGMENT RENDEREO DJ.3C.KfViBER 18, 2013 

Raghunath Dass, P.E., Appellant 

v, 

Texas Board of Professional Engineers, Appellee 

APPEAL FROM 419TH DISTRICT COURT OF TRI\ VIS COlJNTY 

BEFORE JUSTICES PURYEAR, l~OSE Al\f}} (;OODWIN 

DISlVHSSEH ON APPELLANT'S MOTION ~~OPINION BY .JUSTICE ROSE 

This is an appeal from the final judgment signed by the trial court on September 27, 20! 3. The 

appellant Raghunath Dass, P.E. has filed a motion to dismiss the appeaL and having reviewed the 

record, the Cmm that the appeal should be dismissed, Theretore, the Court grants the 

motion and the appeaL The appellant pay all costs relating to this appeal, both in 

this Court and the court beJo-..v. 

EXHIBIT