K3y 12, 1987 

Honorable Mark W. Stiles 

Chairman 

County Affairs Committee 

Texas Rouse of Representatives 

P. 0. Box 2910 

Austin. Texas 78769 

Opinion No. JM-693 

Re: Whether the Engineering Practice 

Act, article 3271a. V.T.C.S., applies 

to work done by licensed air conditioning contractors under article 

8861. V.T.C.S. 

Dear Representative Stiles: 

As chairman of the House Committee on County Affairs, you request 

our opinion regarding the proper interpretation of article 8861, 

V.T.C.S.. the Air Conditioning Contractor License Law, and article 

3271a, V.T.C.S.. the Engineering Practice Act. You inform us that, in 

some instances, the Engineering Practice Act has been construed to 

apply to work done by licensed air conditioning contractors. You 

assert that, In some cases, air conditloaing cotitractors have been 

required to obtain the seal of a registered professional engineer for 

design work chat thhy have performed under the Air Conditioning 

Concraccor License Law. You ask whether the Engineering Practice Act 

applies to design work performed by licensed air conditioning 

contractors as authorized by article 8861, V.T.C.S. Because article 

8861, V.T.C.S., serves as an exception to article 3271a, V.T.C.S., 

with regard to "design" of air conditioning systems. we conclude that 

the answer is "no." 

Article 8861. V.T.C.S., governs the regulation and licensure of 

air conditioning contractors. The commissioner of the Texas Department 

of Labor and Standards is empowered to adopt rules for the practice of 

air conditioning contracting, including, inter alia. the method and 

content of examinations administered under the act and insurance 

requireplents for persons licensed under the act. V.T.C.S. arc. 8861. 

13. Sectiop 4(a) of the act provides that there are two classes of 

air conditioning contractor licenses. A Class A license entitles the 

licensee to "install. repair. or alter summer or winter envirotiental 

air conditioning systems of any size or capacity." A Class B license 

entitles the licensee to "install, repair, or alter an environmental 

air conditioning system that develops a coral of not more than 25 tons 

cooling capacity and not more than 1.500,OOO British thermal units per 

hour output heating capacity." 

p. 3209 
Honorable Mark W. Stiles - Page 2 (JM-693) 

Section 2 of the act sets foreh the following relevant definitions: 

Sec. 2. In this Act: 

. . . . 

(2) 'Air conditioning contractor' means a 

person licensed under this Act who designs, 

installs, COnsc.NCts, maintains, services, 

repairs, alters, or modifies any heating, veutilating, or air conditioning product, system, or 

equipmenr. 

(3) 'Air conditioning contracting' means 

designing, installing. constructing. maintaining. 

servicing, repairing. altering, or modifying any 

heating, ventilating, or air conditioning product, 

system or equipmenr. The term does not include 

the design. installation. construction. Uldnteuauce, service, repair, alteration, or wodification of a portable or self-contained ductless air 

conditioning or heating product that has a cooling 

capacity of three tons or less or a heating 

capacity of 36,000 British thermal units or less. 

. . . . 

(5) 'Person' meaus an individual. 

(6) 'Air conditioning maintenance work' means 

repair work and all other work required for the 

continued normal performance of a heating, ventilating, or air conditioning system. The term does 

not include the Installation of a total replacement of the system or the installation of boilers 

or pressure vessels that must be installed by 

licensed persons pursuant to rules and regulations 

promulgated by the Texas Department of Labor and 

Standards under the Texas boiler inspection law, 

Chapter 436. Acts of the 45th Legislature. Regular 

.Session. 1937 (Article 5221c, Vernon's Texas Civil 

Statutes). (Emphasis added). 

Section 6 specifically exempts persons who are licensed as professional engineers from the licensing requirements of article B&61. 

V.T.C.S. IC further provides that no person licensed under article 

8861 way perform or offer to perform any act, service, or function 

p. 32LO 
Honorable Mark W. Stiles - Page 3 ON-693) 

chat is defined as the practice of engineering by the Engineering 

Practice Act: 

Sec. 6. (a) This Act does not apply to s 

person who: 

. . . . 

(6) perform air conditioning maintenance 

work if the person is licensed as a professional 

engineer under The Texas Engineering Practice Act 

(Article 3271a. Vernon’s Texas Civil Statutes), 

the work is performed in connection with the 

business in which the person is employed, and the 

person does not engage in the occupation of air 

conditioning contracting for the general public. 

. . . . 

(c) A person licensed under this Act may not 

perform or offer or attempt to perform any act, 

service. or function that is defined as the 

practice of engineering by The Texas Engineering 

Practice Act, as amended (Article 3271a. Vernon’s 

Texas Civil Statutes). This Act does not apply to 

a person licensed in this state as a professional 

engineer and engaged in business as a professional 

engineer. (Emphasis added). 

The Engineering Practice tact, article 3271a, V.T.C.S.. creates 

the State Board of Registration for Professional Engineers and 

provides for the licensing and regulation of professional engineers. 

Sdction 1.2 of the act prohibits certain conduct or the performance of 

certain acts by persons not duly licensed by the board: 

Sec. L.2. From and after the effective date of 

this Act. unless duly licensed and registered in 

accordance with the provisions of this Act. no 

person in this state shall: 

(1) Practice. continue to practice. offer or 

attempt Co practice engineering or any branch or 

part thereof. 

. . . . 

(4) Receive any fee or compensation or the 

promise of any fee or compensation for performing. 

offering or attempting co perform any service, 

p. 3211 
lionorable Mark W. Stiles - Page 4 W-693) 

work, act or thing which is any part of the 

practice of engineering as defined by this Act. 

Within the intent and meaning and for all 

purposes of this Act, any person, firm, partnership, association or corporation which shall do, 

offer or attempt to do any one or more of the acts 

or things set forth in numbered paragraphs (1). 

(2)' (3)' or (4) of this Section 1.2 shall be 

conclusively presumed and regarded as engaged in 

the practice of engineering. 

Section 2(4) of the act contains an extremely broad definition of the 

practice of engineering: 

'Practice of engineering.' or 'practice of professional engineering' shall mean any service or 

creative work. either public or private, the 

performance of which requires engineering education. training and experience in the application of special knowledge of the mathematical, 

physical, or engineering sciences to such services 

or creative work. 

Section 20 of the Engineering Practice Act sets forth exemptions 

from its reach and provides the following in part: 

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 engineeriug: 

. . . . 

(e) Nothing in this Act shall be construed 

to apply to persons doing the actual work of 

installing. operaring, repairing, or servicing 

locomotive or stationary engines. steam boilers, 

Diesel engines, internal combustion engines, 

refrigeration compressors and systems. hoisting 

engines, electrical engines, air couditioning 

equipment and systems, or mechanical and electrical, electronic or communications equipment and 

apparatus; nor shall this Act be construed to 

prevent any citizen from identifying himself 

in the nsme and trade of any engineers' labor 

organization with which he may be affiliated. 

Provided, however, that nothing in this Act shall 

p. 3212 
Eonorable Mark W. Stiles - Page 5 UN-6931 

be construed as permitting any person other than a 

licensed professional engineer affixing his 

signature as such co engineering plans. or 

specifications. (Emphasis added). 

It is clear that, by the very terms of the Engineering Practice 

Act. persons who install. operate, repair, or service air coudicioning 

equipment and systems do uot fall within its reach. It. ia not so 

clear, however, with regard to persons who "design" such systems. 

Article 8861, V.T.C.S., specifically includes persons who design such 

systems within its definition of "air conditioning contractor." Also, 

the act specifically prohibits its licensees from engaging in or 

offering to engage in any practice thae is defined as the practice of 

engineering by the Engineering Practice Act. The conflict arises wirh 

respect to the expansive definition of "practice of engineering,, set 

forth in section 2(4) of the Engineering Practice Act. It is suggeste~d 

that "practice of englneerlng”-is sufficiently broad to include within 

its ambit the "design" of air conditioning systems. As a matter of 

law, absent the Air Conditioner Contracting License Law, the design of 

such systems would fall within the Engineering Practice Act. YOU 

suggest that. since the more specific act passed after the more 

general Engineering Practice Act, the Air Conditioning Contractor 

License Law serves as an exception to the Engineering Practice Act. 

We agree. 

We are required to construe the two statutes in such a way that 

both, if possible, will be effective; 

mareria. 

they must be construed in pari 

Calvert v. Fort Worth National Bank, 356 S.W.2d 918. 921 

(Tex. 1962); Conley v. Daughters of the. Republic, 156 S.W. 197, 201 

(Tex. 1913). The specific statute will.control over the general. 

State v. Mauritz-Wells Co., 175 S.W.2d 238 (Tex. 1943); San Antonio h 

A.P. Railway Co. v. State, 95 S.W.Zd 680 (Tex. 1936). 

The general rule is that when the law makes a 

general provision, apparently for all cases, and a 

special provision for a particular class, the 

general must yield to the special in so far as the 

particular class is concerned. [Citation omitted]. 

This rule is based upon the principal that all 

acts and parts thereof must stand, if possible, 

each occupying its proper place, and that the 

intention of the Legislature is more clearly 

'reflected by a particular statute than by a 

general one. Accordingly, a specific act is 

properly regarded as an exception to, or qualification of, a general law on the same subject 

previously enacted. In such a case both sratutes 

are permitted to stand, the general one being 

p. 3213 
Honorable Mark W. Stiles - Page 6 (JM-693) 

applicable to all cases except the particular one 

embraced in the specific act. [Citation omitted]. 

Sam Bassett Lumber Co. v. City of Houston, 198 S.W.2d 879, 881 (Tex. 

1947); see also Forwood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948). 

The Enalneerlnn Practice Act was first enacted in 1937. The act was 

amended in 1961 to define "practice of engineering." Acts 1961, 57th 

Leg., ch. 282. at 590. The Air Conditioning Contractor License Law 

was first enacted in 1983. Acts 1983, 68th Leg., ch. 555, at 3228. 

The relevant provisions have not been amended since the act’s passage. 

We conclude that, with respect to the design of air conditioning 

systems that licensed air conditioning contractors are permitted to 

perform under article 8861, V.T.C.S.. serves as an exception to the 

Engineering Practice Act. Accordingly. the Engineering Practice Act, 

article 3271a. V.T.C.S.' does not apply to design work performed by 

licensed air conditioning contractors under article 8861, V.T.C.S., 

the Air Conditioning Contractor License Law. 

SUMMARY 

The Engineering Practice Act, article 3271a. 

V.T.C.S., does uot apply to design work done by 

licensed air couditioaing contractors under 

article 8861, V.T.C.S., the Air Conditioning 

Contractor License Law. 

very)tru~y your4 J 

-v 

JIM MATTOX 

Attorney General of Texas 

JACK EIGRTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STF,AKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 3214