December 29, 1969

Hon. R. W. Olson, P. E. OpinionNo. M-545 Chairman Texas State Board of Registration for ProfessionalEngineers Room 200, 1400 Congress Ave. Austin, Texas 78701

Dear Mr. Olson: Re: Application of Texas Engineering Practice Act (Articie3271a, 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 referencedmatter states, In part, as follows:

"(T)heBoard respectfullyrequests the Attorney General's opinion In regard to the following: "(1) Are the provisions of the Texas Englneerin@:PracticeAct applicable to the State Department of Publlrc Health in establishing standards for the design and constructionof 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 institutionwhich do not bear the seal of a ProfessionalEngineer licensedby the State of Texas? "(8) Is it lawful for the State Department of Health to approve designs, plans or specifications for the constructionof hospitals, nursing homes or related institutions involving structural,mechanical, electrical or other Engineering principlesbut which does not bear the seal of a ProfessionalEngineer licensedby the State of Texas?

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"(4) Is the legal effect of Sec. 20(f), Texas Engineering PracticeAct, that plans and specificationsfor structures larger in height or area than those specified in Section 201(f) must bear the seal of a licensedEngineer? The Texas Hospital Licensing Law, which Is Article 4437f, Vernon's Civil Statutes, provides, $.n part, as follows:

I,

. . . “Sec.5. The LicensingAgency '(TheDepartment of Health)
. , . shall adopt, amend, promulgate,~ and enforce suchrules, 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 applicantand the hospital complywith the provisions of thisAct, [gated and t e ru es, re u a hereunder.
. . D "Sec.9. The LicensingAgency shallhave the authority to deny
. . .a license in any case where it finds there has been a substantialfailure to comy-yft ffns, if;z;a;dards

Article 4442c, convalescentand 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 informationas the Licensing Agent -9 (theDepartment of Health) i%-i%-- ~.-__.. IPAS whtrh y nclude affirmative evidence ??-+mTEy to 0, comply with reasonable standards,rules and regulations as are lawfullyprescribedhereunder. , . . _-
11

. . .

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“Sec. 6. The LicensingAgency
. . . is authorized to deny
. . . the license in any case In which it finds that there has been a substantial failure to complywith the requirements established under this law.
. e a “Sec. 7. The LicensingAgency is authorized to adopt, amend, promulgate,publish and enforcemfnimum standards in relation to: Constructionof the home or institution

. . .' (a (imphasisadded.) Your first question Is answered in the negative. The foregoing quotations from the statutesmake it apparent tnat the Legislature intended that the Department of Health promulgate Its own standardsrelating to the design, constructionand licensing of hospitals, nursing and convalescenthomes, and related institutions. Articles 4437f and 4442~ nowhere require the Department of Health to impose the engineering standardspromulgatedby the Texas State Board of Registration for ProfessionalEngineers. Except in regard to Sec. 19 of Article 3271a,Vernon's Civil Statutes, which deals with publicworks and which will be hereinafterdiscussed, the Department of Health is nowhere required to consider the requirements of the Texas Engineering PracticeAct in regard to the approval of designs, plans and specifications.

Your second and third questions involve the Department of Health's right~toapprove designs for the constructionof hospitals and related institutionswhich do not bear the seal of a Professional Engineer licensedby the State of Texas.

We assume that the "designs,plans and speciffcations"for cc:nstruction

of hospitals and related Institutionsand the "structuralpmechanical, electrical,and engfneerdngprinciples"mentioned in your second and third questions fall withfn the definition of "practiceof engineerfng' set forth in Section 2(5) of the Act.

Sectfon 15 of the Act provides, in part, as follows: !'Each registranthereunder shallupon registration obtain a seal of the desfgn authorizedby the Board, bearing the registrant'sname and the legend "RegfsteredProfessionalEngineer." Plans, speciflcatlons,plats, and reports issuedby a registrant shallbe stampedwith the said seal when filedwith public authori.ti.es. D
. .' -(Emphasis

added.) Thus, unless the person filing suchdesigns with public ?uthorLtSes (Includingthe Department of Health) is exempted by Section 20 of the Act from the provisions of that Act, the person

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submlttfng such designs to a public authority must see to it that suchdesigns possess the seal.

However, in view of our opinion that the Act is not applicable to the Department In establishing standards, your questionmust be answered in the affirmative, to public works coveredby Section 19 of Artic will be discussed below. To hold .otherwisewould be to encroach % th i ht f the Department of Health to set and maintain its staEd&?ds'forthe 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 disciplinaryaction against the person submitting such plans.

With reference to your second and third questions,a differentrule applies when the conditionsdescribed in Section 19 of Article 3271a are present.

Section 19 of Article 3271a is as follows: "After the first day of January, 1938, it shallbe 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 involvingprofessional engineering, wnere public health, public welfare or public safety Is involved,unless the engineeringplans and specificationsand estimateshave been prepared by3and the engineering construction is to be executed under the direct supervisionof a registered professionalengineer;provided, that nothing in this Act shall be held to apply to any publicwork wherefn the contemplatedexpenditure for the comect does not exceed Three Thousand

Provided, that thisAct 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 costmore than Three Thousand ( 3,OOO.OO)Dollars and is to be constructedb the State or any of Its olitical su visions --- zze;yu;l;;;n;y,cit.;,or to=, the constructiin cannot lebgz:lyprohe engineeringplans and specificationsand estimates have been prepared by a registered professional engineer. In such a situation, sinceplans and specificationswhich are not prepared

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

by a registered engineer cannot be lawfullyused, it is our opinion that the approval of such plans and specifications would be In contraventionof the Board's responsibilities. In giving a reasonable construction to Article 4437f,we think It anticipates that the Board will only approve plans and specificationsthat 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 followingpersons shall,be exempt from the provisions of thisAct, provided that such persons are not represented or held out to the public as duly licensedand registeredby 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 specificationsfor: (1) any private dwelling, or apartments not exceeding eightunits per building for one story buildings, or apartments not exceeding fourunits per bullding and having a maximum height of two stories, or garages or other structurespertinent 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 includedunder 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 supportingmembers need to be engineered or pre-engineered;provided that no representation ismade or implied that engineering s$rviceshave been or will be offered to the public. Section 20 of the Act, in addition to exempting from its provisionspeople constructingbuildings 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 engineeringdesigns. Such excepteddesigns couldbe larger in height or area than those adverted to in Section 20(f) supra. Thus, it does not follow that a sealwould be required on designs differing from those set forth in Section 20(f), supra,provided the persons designingplans for structures larger than those specified in Section 20(f), supra,do not represent or hold out to the public that they are duly licensedand registeredby 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 licensedby the Texas State Board of Registration for ProfessionalEngineers, prov.ldedthat 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 PracticeAct are not required

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

to bear the seal of a registered Professional Engineer, provided the person creating such designs is exemptunder one of the other subsections of Section 20 of the Texas Engineering PracticeAct.

Preparedby Austin C. Bray, Jr. AssistantAttorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman AlfredWalker, Co-Chairman Scott Garrison Ralph Rash Wardlow Lane Arthur Sandli,n
MEADE F. GRIFFIN Staff Legal Assistant WCLAWHZTE F,irst Assistant

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