‘- .

Honorable tiond

County Attorney Lavaca County Hallettsville, TE



## ATTORNEY GENERAL OP TEXAS
AUSTIN 

## 1s.

TExas
April 12, 1962

G. Schwartz

!xas Opinion No. w-1308

Re: Whether a county surveyormay make private surveys for compensation of lands in his countywithout being licensed underArticle 5282a, Dear IIr

. Schwartz: V.C.S. You have requested an opinion on the following subject:

- duly electedand acting county surveyor surveyprivate ?%dz for compensationwithout qualifyinras a registeredpublic surveyor pursuant to the Registered, Pub& SurveyorsAct of 1955? The 54thTexas Legislature enacted the Registered Public SurveyorsAct of 1955, codified as Article 5282a,Vernon’s Civil Statutes. One indication of the legislative intent in the enactment is found in the Act’s Emergency Clause (Section12), which reads as follows:

“The fact that many persons are now engaging in the practiceof Public Surveyingwithout adequate preparationand qualification therefor,with resulting confusionto persons dealing with such persons, createsan emergency and imperativepublic necessity that the ConstitutionalRule requiring bills to be read on three several days in each House be suspended
. . .‘I Section2(b) of the Act defines public surveyingas: 11

. . . the science or practice of landmeasurenent according to established and recognized methods engaged in and practiced as a professionor service available to the public generally for compensation,and comprises the determinationbymeans of survey, of the location or relocation of land boundariesand land boundary corners; the calculation of area and the preparation of field note

..Honorable Ammond G. Schwartz,.page2 

### NW-1308)

description of surveyedland; the preparation of maps showing the boundaries and areas of the subdivision of tractsof land into smaller tracts;the preparationof official plats or maps of said land and subdivisionsthereof; and such other duties as sound surveying practicewould direct." Section 2(b) also states that a public surveyor is any person engaged in the public surveying defined in the Act, and who is employed as a surveyoror who holds himself out to the public as such. Section 6 requires the registration of any person, except those exempted from the Act by Section 3, who engages or continues in the practiceof public surveying after January 1, 

### 1956. Section 

### 8 providesthat after January 1, 1956:

II any personwho shall practice, or offer io'plactice, the profession of Public Surveying in this Statewithout being registered or exempted in accordancewith the provisions of this Act, or any personpresenting or attempting to use as his OlJn the Certificate of Registration or the seal of another,
. . . shall be fined not less than One HundredDollars ($100)nor more than Five HundredDollars (:$500), or be confined in jail for'a periodnot exceeding three (3) months, or both. Each day of such violation shall be a separateoffense." Section 

### 3 states that the provisions of the Act shall not apply, amongtothers, to.a "CountySurveyor Qfficial cawaci v as authorizedbv law." (Emphasisadded

The office of county surveyor is created by Section44 of Article XVI of the Constitutionof Texas,which states:

"The Legislatureshall prescribe the duties and provide for the electionby the qualifiedvoters of each county in the State, of a county treasurer and a countv survevor who shall hold their office for two years,and Anti1 their successors are qualified; and shallhave such compensationas may be providedby law." (Emphasisadded) Articles 5283-5298,Vernon's Civil Statutes, relate to the office of County Surveyor. As stated in Attorney General Opinion No. O-3940 (September15, 19411, neither the Constitution nor the statutes prescribeany particular qualificationsor require a county surveyor to be a licensed land surveyor.

._ .,

Ronorable Ammond G. Schwartz.,

Article 5289 refers survey land, as follows: page 1 

### MJ-1308)

to the duty of a county surveyor to
'IIf any county surveyor fails, neglects or refuses when the amount of lawful surveying fees of any location of land may be tendered to him Qf w werson lezallv entitled to the survev to make or cause such survey to be made within on:! month after such tender)he and his sureties shall be liable on his official bond to such injured parties in the amount of damages or injuries said parties may sustainby reason of such neglect, refusal or failure." (Emphasisadded) The duty and authority of a county surveyorwith respect to the actual survey of land is epitomized by Article 5299,Vernon's Civil Statutes,which states:

"All surveys of public lands shall be made by authority of lalJ, and by a survevor dulv aopointed. elected or licensed, and oualified.t' (Emphasisadded) Considered together, these two statutes indicate that the survey of public land, as opposed to private land, is the statutory duty of the county surveyor. Since the survey of private lands for compensation is not a statutoryduty of county surveyors, the logical conclusion is that a county surveyorwho engages in suchpractice does so in a capacity other than his official capacityas authorized by law. The conclusionnecessarily fOllO>JS , from this, that the survey of private lands by a county surveyor is not within the exception listed in Section 

### 3 of the Registered Public Surveyors Act of 

### 1955, since that section speaks cnly of the actions of a county surveyor which are "in his official capacityas authorized by law."

This conclusion is strengthened S'Jthe fact that the Registered Public Surveyors Act of 

### 1955provided three diff;aEnt methods for qualifying for a certificate of registration. first two methods of qualifyin, 0 were for the benefit of persons actually engaged in public surveyin g prior to the effective date of the Act; both methods contain lesser requirements for qualification than the third method; and both contain cut-off dates (1 and 5 years respectively)after which only the thirdmethod of qualificationmay be utilized... *’

HonorableAmmond G. Schwartz, page 4 

### Ww-1308)

A county surveyorwho surveys private lands for compensation is engaged in the practice of public surveyingas defined in the Registered Public SurveyorsAct of 

### 1955,and a county surveyor so engaged is required by law to possess a certificate of registration issued by the State Board of Registration for Public Surveyors. Yours very truly, WILL WILSON Attorney General of Texas

FRB:zt:wb APPROVED: OPINION COMMITTEE W. V. Geppert Chairman Morgan Nesbitk Elmer McVey NormanV. Suarez John Hofmann F. R. Booth Assistant

REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.