‘- . 

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 surveyor may make 

private surveys for compensation 

of lands in his county without being licensed under Article 5282a, 

Dear IIr . Schwartz: V.C.S. 

You have requested an opinion on the following subject: 

- duly elected and acting county surveyor survey private 

?%dz for compensation without qualifyinr as a registered public 

surveyor pursuant to the Registered, Pub& Surveyors Act of 1955? 

The 54th Texas Legislature enacted the Registered Public Surveyors Act 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 (Section 12), 

which reads as follows: 

“The fact that many persons are now engaging 

in the practice of Public Surveying without adequate preparation and qualification therefor, with 

resulting confusion to persons dealing with such 

persons, creates an emergency and imperative public 

necessity that the Constitutional Rule requiring 

bills to be read on three several days in each 

House be suspended . . . ‘I 

Section 2(b) of the Act defines public surveying as: 

11 . . . the science or practice of land measurenent according to established and recognized 

methods engaged in and practiced as a profession or 

service available to the public generally for compensation, and comprises the determination by means 

of survey, of the location or relocation of land 

boundaries and land boundary corners; the calculation of area and the preparation of field note 

. . 
Honorable Ammond G. Schwartz,.page 2 NW-1308) 

description of surveyed land; the preparation 

of maps showing the boundaries and areas of the 

subdivision of tracts of land into smaller 

tracts;the preparation of official plats or maps 

of said land and subdivisions thereof; and such 

other duties as sound surveying practice would 

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 surveyor or 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 practice of public surveying after January 

1, 1956. Section 8 provides that after January 1, 1956: 

II any person who shall practice, or 

offer io'plactice, the profession of Public Surveying in this State without being registered or 

exempted in accordance with the provisions of 

this Act, or any person presenting or attempting 

to use as his OlJn the Certificate of Registration 

or the seal of another, . . . shall be fined not 

less than One Hundred Dollars ($100) nor more 

than Five Hundred Dollars (:$500), or be confined 

in jail for'a period not exceeding three (3) 

months, or both. Each day of such violation 

shall be a separate offense." 

Section 3 states that the provisions of the Act shall 

not apply, amongt others, to.a "County Surveyor 

Qfficial cawaci v as authorized bv law." (Emphasis added 

The office of county surveyor is created by Section 44 

of Article XVI of the Constitution of Texas, which states: 

"The Legislature shall prescribe the duties 

and provide for the election by the qualified voters 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 shall have such compensation as 

may be provided by law." (Emphasis added) 

Articles 5283-5298, Vernon's Civil Statutes, relate to 

the office of County Surveyor. As stated in Attorney General 

Opinion No. O-3940 (September 15, 19411, neither the Constitution 

nor the statutes prescribe any particular qualifications or 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 sustain by reason of such neglect, refusal or 

failure." (Emphasis added) 

The duty and authority of a county surveyor with 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' 

(Emphasis added) 

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 statutory duty of county surveyors, the logical conclusion is that a county surveyor who engages in such practice does so in a capacity other than his official capacity as authorized by law. The conclusion necessarily 

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 capacity as authorized by law." 

This conclusion is strengthened S'J the fact that the 

Registered Public Surveyors Act of 1955 provided three diff;aEnt 

methods for qualifying for a certificate of registration. 

first two methods of qualifyin, 0were 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 third method of 

qualification may be utilized. 
. . *’ 

Honorable Ammond G. Schwartz, page 4 Ww-1308) 

A county surveyor who surveys private lands 

for compensation is engaged in the practice of 

public surveying as defined in the Registered 

Public Surveyors Act 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 

Norman V. Suarez 

John Hofmann 

F. R. Booth 

Assistant 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Houghton Brownlee, Jr.