December 29, 1969 

Hon. R. W. Olson, P. E. Opinion No. M-545 

Chairman 

Texas State Board of Registration 

for Professional Engineers 

Room 200, 1400 Congress Ave. 

Austin, Texas 78701 

Dear Mr. Olson: 

Re: Application of Texas 

Engineering Practice 

Act (Articie 3271a, 

Vernon's Civil Statutes) 

to the Texas Hospital 

Licensing Law (Article 

4437f, Vernon's Civil 

Statutes) and to Article 

4442c, Vernon's Clvll 

Statutes. 

Your recent letter requesting the opinion of this office 

concerning the referenced matter states, In part, as follows: 

"(T)he Board respectfully requests the Attorney 

General's opinion In regard to the following: 

"(1) Are the provisions of the Texas Englneerin@: Practice Act applicable to the State Department 

of Publlrc Health in establishing standards for the 

design and construction of hospitals, nursing homes 

and related institutions? 

"(2) Is it lawful for the State Department of 

Health to approve designs, plans and specificatfons 

for the construction of any hospital, nursing home 

or related institution which do not bear the seal 

of a Professional Engineer licensed by the State of 

Texas? 

"(8) Is it lawful for the State Department of 

Health to approve designs, plans or specifications 

for the construction of hospitals, nursing homes or 

related institutions involving structural, mechanical, 

electrical or other Engineering principles but which 

does not bear the seal of a Professional Engineer 

licensed by the State of Texas? 

-2601- 
Hon. R. W. Olson, page 2 (M-545) 

"(4) Is the legal effect of Sec. 20(f), 

Texas Engineering Practice Act, that plans and 

specifications for structures larger in height 

or area than those specified in Section 201(f) 

must bear the seal of a licensed Engineer? 

The Texas Hospital Licensing Law, which Is Article 4437f, 

Vernon's Civil Statutes, provides, $.n part, as follows: 

I, 

. . . 

“Sec. 5. The Licensing Agency '(The Department 

of Health) . , . shall adopt, amend, promulgate,~ and 

enforce such rules, regulations, and minimum standards 

as may be designed to further the purpose of this Act. 

. . . 

I, 

. . . 

“Sec. 8. Upon receipt of an application for 

license, . ~ . the Licensing Agency shall issue a 

license if it finds that the applicant and the 

hospital comply with the provisions of this Act, 

[gated and t e ru es, re u a 

hereunder. . . D 

"Sec. 9. The Licensing Agency shall have the 

authority to deny . . . a license in any case where 

it finds there has been a substantial failure to comy-yft ffns, if; z;a;dard s 

Article 4442c, 

convalescent and nursing 

in part, as follows: 

II 

. . . 

Vernon's Civil Statutes, dealing with 

homes and related Institutions, provides, 

iz 

“Sec. 4. An application for a license shall 

. . . contain such information as the Licensing 

Agent 

-9 

(the Department of Health) i%-i%-- IPAS whtrh ~.-__.. 

y nclude affirmative evidence 0, ??-+mTEy to 

comply with reasonable standards, rules and regulations as are lawfully prescribed hereunder. , . . _- 

11 

. . . 

-2602- 
Hon. R. W. Olson, page 3 (M-545) 

“Sec. 6. The Licensing Agency . . . is authorized to deny . . . the license in any case 

In which it finds that there has been a substantial 

failure to comply with the requirements established 

under this law. . e a 

“Sec. 7. The Licensing Agency is authorized to 

adopt, amend, promulgate, publish and enforce mfnimum 

standards in relation to: Construction of th 

home or institution . . .' e 

(a 

(imphasis added.) 

Your first question Is answered in the negative. The 

foregoing quotations from the statutes make it apparent tnat the 

Legislature intended that the Department of Health promulgate Its 

own standards relating to the design, construction and licensing 

of hospitals, nursing and convalescent homes, and related institutions. Articles 4437f and 4442~ nowhere require the Department 

of Health to impose the engineering standards promulgated by the 

Texas State Board of Registration for Professional Engineers. 

Except in regard to Sec. 19 of Article 3271a, Vernon's Civil 

Statutes, which deals with public works and which will be 

hereinafter discussed, the Department of Health is nowhere 

required to consider the requirements of the Texas Engineering 

Practice Act in regard to the approval of designs, plans and 

specifications. 

Your second and third questions involve the Department of 

Health's right ~to approve designs for the construction of hospitals 

and related institutions which do not bear the seal of a Professional 

Engineer licensed by the State of Texas. 

We assume that the "designs, plans and speciffcations" for 

cc:nstruction of hospitals and related Institutions and the "structural p mechanical, electrical, and engfneerdng principles" mentioned 

in your second and third questions fall withfn the definition of 

"practice of engineerfng' set forth in Section 2(5) of the Act. 

Sectfon 15 of the Act provides, in part, as follows: 

!'Each registrant hereunder shall upon registration obtain a seal of the desfgn authorized by 

the Board, bearing the registrant's name and the 

legend "Regfstered Professional Engineer." Plans, 

speciflcatlons, plats, and reports issued by a 

registrant shall be stamped with the said seal 

when filed with public authori.ti.es. D . .' 

-(Emphasis added.) 

Thus, unless the person filing such designs with public 

?uthorLtSes (Including the Department of Health) is exempted by 

Section 20 of the Act from the provisions of that Act, the person 

-2603- 
Hon. Ft. W. Olson, page 4 (M-545) 

submlttfng such designs to a public authority must see to it 

that such designs possess the seal. 

However, in view of our opinion that the Act is not 

applicable to the Department In establishing standards, your 

question must be answered in the affirmative, 

to public works covered by Section 19 of Artic 

will be discussed below. To hold .otherwise would be to encroach 

% 

th i ht f the Department of Health to set and maintain its 

staEd&?ds'for the construction of hospitals and related lnstitutions. Should the Department approve a design required to 

have the seal but not having one, your Board is free to take 

appropriate disciplinary action against the person submitting 

such plans. 

With reference to your second and third questions, a 

different rule applies when the conditions described in Section 

19 of Article 3271a are present. 

Section 19 of Article 3271a is as follows: 

"After the first day of January, 1938, it 

shall be unlawful for this state, or for any of 

fts political subdivisions, for any county, city, 

or town, to engage in the construction of any 

pu'blic work involving professional engineering, 

wnere public health, public welfare or public 

safety Is involved, unless the engineering plans 

and specifications and estimates have been prepared 

by 3 and the engineering construction is to be executed under the direct supervision of a registered 

professional engineer; provided, that nothing in 

this Act shall be held to apply to any public work 

wherefn the contemplated expenditure for the comect does not exceed Three Thousand 

Provided, that this Act 

shall not apply to any road maintenance or bettermeift 

work undertaken by the County Commissioners' Court. 

Thus, if a hospital, nursin home or related institution 

is to cost more than Three Thousand ( 3,OOO.OO) Dollars and is 

to be constructed b the State or any of Its olitical su visions --- 

zze;yu;l;;;n;y, cit.;, or to=, the constructiin cannot lebgz:ly prohe engineering plans and specifications and estimates 

have been prepared by a registered professional engineer. In such 

a situation, since plans and specifications which are not prepared 

-2604- 
. 

Hon. R. W. Olson, page 5 (M-545) 

by a registered engineer cannot be lawfully used, it is our 

opinion that the approval of such plans and specifications 

would be In contravention of the Board's responsibilities. 

In giving a reasonable construction to Article 4437f, we 

think It anticipates that the Board will only approve plans 

and specifications that can be used without violating Section 

19 of 3271a. 

Your fourth question requests a construction of 

Section 20(f) of the Act. That Section provides, in part, 

as follows: 

"Sec. 20,. The following persons shall,be 

exempt from the provisions of this Act, provided 

that such persons are not represented or held out 

to the public as duly licensed and registered by 

the Board to engage in the practice of engineering: 

II 

. . . 

"(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 bullding and having a maximum height of two stories, or 

garages or other structures pertinent to such 

buildings; or (2) private buildings whfch 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 s$rvices have been or will be offered to 

the public. 

Section 20 of the Act, in addition to exempting from its 

provisions people constructing buildings of the type set forth in 

-2605- 
Hon. R. W. Olson, page 6 (M-545) 

Section 20(f), supra, also exempts several other types of. 

persons and, consequently, their engineering designs. Such 

excepted designs could be larger in height or area than those 

adverted to in Section 20(f) supra. Thus, it does not follow 

that a seal would be required on designs differing from those 

set forth in Section 20(f), supra, provided the persons designing plans for structures larger than those specified in 

Section 20(f), supra, do not represent or hold out to the public 

that they are duly licensed and registered by your Board, and 

provided further that they fall within an exemption in one of 

the other Subsections of Section 20, supra. 

In view of the foregoing, it is the opinion of this 

office that your questions be answered as follows: 

The answer to your first question Is 'no"; 

The answer to your second question is 'yes', provided 

that Sec. 19 of Article 3271a is not applicable. 

The answer to your third question is 'yes", provided 

that Sec. 19 of Article 3271a is not applicable. 

The answer to your fourth question is 'no." 

SUMMARY 

(1) The provisions of the Texas Engineering 

Prac,tEce Act, (Article 327la, Vernon's Civil Statutes) 

are not applicable to the Department. of Health in 

establ,fshing standards for the design of hospitals 

and related institutions. 

(2) The Department of Health may approve 

designs for hospitals and related Institutions 

which do not bear the seal of a registered Profess,ional Engineer licensed by the Texas State 

Board of Registration for Professional Engineers, 

prov.lded that such designs do not fall within 

the purview of Section 19 of Article 3271a of 

Vernon's Civil Statutes, which deals with public 

works. 

(3) Designs for structures larger In height 

or area than those specified In Section 20(f) of 

the Texas Engineering Practice Act are not required 

-2606- 
. . 

Hon. R. w. Olson, Page 7 (M-545) 

to bear the seal of a registered Professional 

Engineer, provided the person creating such 

designs is exempt under one of the other subsections of Section 20 of the Texas Engineering 

Practice Act. 

Prepared by Austin C. Bray, Jr. 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

Alfred Walker, Co-Chairman 

Scott Garrison 

Ralph Rash 

Wardlow Lane 

Arthur Sandli,n 

MEADE F. GRIFFIN 

Staff Legal Assistant 

WCLA WHZTE 

F,irst Assistant 

-2607-