### THEATTORNEY GENERAL

WI& WILSON **ATTORNEY OENERAL** 

Honorable Charles CriminalDistrict Harrison County P. 0. Box $949 Marshall, Texas

Dear Mr. Allen: 

### OF-TEXAS

Ausnlv 

### .a*.

TEXAS

March 29, 1961

A. Allen OpinionNo. NW-1029 Attorney Re': Whether, under

1 > . . the manaatory provisions of the Harrison County Road Law, the Commissioners'Court of Harrison County, Texas, is required to employ and have in Its constant employ a "registeredprofessional" civil engineer?
In your letters

of March 

### 7, 1961,you request the
__. opinion of this office on the following question:

"Under the mandatory provisions of the Harrison County Road Law is the Commlssioners' Court of Harrison County, Texas required to employ and have In its constant employ a 'registeredprofessional' civil engineer?"
In OpinionNo. V-1407, to which we adhere, this office expressed the opinion that:

"HouseBill No. 

### 812,Acts 42nd Leg., Special Laws R.S. 1931, ch. 156, p. 303 (HarrisonCounty Road Law),makes It mandatory for the commissioners'court of Harrison County to employ a county engineer and to have a county engineer in constant employmentwith Harrison County." Section 4 of House Bill No. 

### 812,Acts 42nd Lee;., Special Laws, R.S. 1931, ch. 156, p. 303 requires that 'Said County Engineer shallbe a qualified Civil Engineer and a resident of the State of Texas;

. . . ' The question thus evolves: Must the "qualifiedCivil Engineer" requiredby Section 4 be a "registeredprofessional" civil engineer?Honorable Charles A. Allen, Page 2 (w-1029)

The duties of the county engineer are set forth in Sections 2, 

### 3 and 4 of the Harrison County Road Law, providing in part as follows:

"Sec. 2. The Commissloners~Court of Harrison County is hereby authorized and empowered to employ a County Engineer,whose duties, compensationand liabilities shallbe such as are imposedby this Act. The said County Engineer shall devotehis entire time to the constructionand maintenance of the county roads.
"Sec. 

### 3. That said County Engineer shall be appointed by the Commissioners' Court of said countywithin ninety (90)days after the nassage of this Act at a Regular Meeting or-Called Session thereof. That he shall have charge of all public road construction and public roadmaintenance, together with the building of bridges and culverts, in his County except as is otherwise herein expresslyprovided.

. . . “Sec.

### 4. Said County Engineer shall be a qualified Civil Engineer and a resident of the State of Texas;

. . . That said County Engineer shall subject to the orders of the Commissioners'Court,have general supervision over the constructionand maintenance of all public roads and highways of his county, together with the building of bridges and culverts; he shall superintendthe laying out of new roads subject to the orders of the Commissioners' Court, and shall forthwithmake or cause to be made a roadmap of the county showing the location,mileage, and classificationof the different roads and highways in said county,

. . .' (Emphasisadded throughout)
The pertinent sections of Article 3271a, Vernon's Civil Statutes,defining and regulating the practice of professional engineering in the State of Texas, provide in part:

"Section 1. That In order to safeguard life, health, and property, any person practicing or offering to practice the professionHonorable CharlesA. Allen, Page 3 (WW-1029)

of engineeringas hereinafter defined shall hereafter be required to submit evidence that he is qualified so to practice and shallbe registered as hereinafterprovided; and it shall be unlawful for any person to practice or offer to practice the profession of engineering In this State,

. . .unless such person has been duly registered or exempted under the provisions of this Act.

"DEFINITIONS
"Sec. 2. The term professional engineer as used in this Act shallmean a person who, by reason of his knowledge ofmathematics, the physical sciences,and the principles of engineering, acquired by professional education and practical experience, Is qualified to engage in engineeringpractice as hereinafter defined.
'Thepractice of professional engineering within the meaning and Intent of this Act includes any professional service, such as consultation, investigation,evaluation,planning, designing, or responsible supervisionof construction in connectionwith any public or private utilities, structures,bulldlnsts. machines. equipment,processes,works, or projects,where: in the public welfare, or the safeguardingof life, health or property is concerned or involved, when such professional service requires the application of engineeringprinciples and lnterpretation of engineeringdata. ,t

. . . "Sec. 19. After the first day of January, 

### 1938,it shall be unlawful for this State, or for any of its nolltlcal subdivisions.for any county; city, or town, to engage in the construction of any publicwork involvingprofessional engineering,where public health, public welfare or public safety is involved, unless the engineeringplans and specifications and estimateshave been preparedby,Honorable Charles A. Allen, Page 4 (WW-1029)

and the engineering construction is to be executedunder the direct supervision f a registeredprofessional engineer; zrovided that nothingln~&isAct shall be held io apply to any public work wherein the contemplated expenditure for the completed reject does not exceed Three Thousand (

$3,OOO.OO)Dollars. Provided, that this Act shall not apply to any road maintenance or bettermentwork undertaken by the County Commissioners'Court." (Fmphasisadded throughout)
The term, "publicworks" is defined In Volume 34 of Texas Jurisprudenceat page 731, as embracing "all constructlorsandimprovements--ordinarilyof a fixed nature--designedfor public use, protection or enjoyment. Clearly included among public works are bridges, school buildings,waterworks, dams, sewers, canals and channels, levees and seawalls,wharves and piers, irrigation,reclamation and drainageprojects, and highways and streets. Indeed, everywork undertaken by the State, a county, municipality, or otherpublic agency Is necessarily, in the broadest sense, a 'publicwork.'" The term "public welfare" is defined as "theprosperity,well-being, or convenience of the public at large, or of a whole community, as distinguished from the advantage of an individual or limited class." Black's Law Dictionary.

It is the opinion of this office that the duties imposedupon the county engineerby the Harrison County Road Law are encompassedby the definition of the practice of professional engineering contained In Section 2 of Article 3271a.
In response to a request from the County Auditor of Harrison County, relative to the authority of the Commlssioners Court to appoint a person not possessing the qualiflcations of a "professionalengineer"as a superintendentof maintenance and construction of county roads and other public works, this office expressed the following opinion:

"It is the opinion of this department, under the facts stated, that Section 19, supra, does not prohibit the Commissioners' Court from appointing a person not possessing the qualificationsof an engineer asHonorable Charles A. Allen, Page 5 (WW-1029)

defined In Article 327la,V. A. C. S., as a superintendent In the construction of public works where the contemplated expenditure for the completedproject does not exceed $3,000.00;nor does said section prohibit the Commissioners'Court from appointing such a person to supervise any road maintenance or road betterment work undertaken by the county Commlssioners' Court. "Where,however, the county Commissioners' Court engages in the construction of public works wherein the contemplated expenditure for the completedproject exceeds $3,000.00,and suchwork involves public health, public welfare or public safety, and also involvesprofessional engineering, it is the opinion of this department that,while a non-engineer could be appointed as general supervisor of such construction, Section 19 requires the county to employ a registeredprofessional engineer to prepare the engineeringplans and specificationsand estimates,and the engineering construction,likewise,must be executedunder the direct supervision of such engineer.
"Whetherthe construction of a particular publicwork involves 'professional engineering'and whether 'publichealth, public welfare or public safety' Is involved, are questions of fact, and consequently not subject to being ruled on by this department." Copies of this opinion, No. o-3505, and of OpinionNo. V-1407 are enclosed for your information.

SUMMARY Under the mandatory provisions of the Harrison County Road Law and the provisions of Article 327la,Vernon's CivilHonorable Charles A. Allen, Page 

### 6 (NW-1029)

Statutes, the Commissioners Court of Harrison County, Texas, is required to employ and have In Its constant employ a "registeredprofessional" civil engineer. Very truly yours,
WILL WILSON AttorneyGeneral of Texas

BY J+&A&-yd.b Dudley D. McCalla Assistant

DDM:hmc
APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman
Jack N. Price John Reeves L. P. Lollar John Leonarz
REVIEWED FOR THE ATTORNEY GENERAL
BY: Morgan Nesbltt