K3y 12, 1987

HonorableMark W. Stiles Chairman CountyAffairsCommittee TexasRouse of Representatives P. 0. Box 2910 Austin.Texas 78769 OpinionNo. JM-693

Re: Whether theEngineeringPractice Act, article 3271a.V.T.C.S., applies to work done by licensed air conditioning contractors under article 8861.V.T.C.S.

Dear RepresentativeStiles:

As chairmanof theHouse Committeeon CountyAffairs,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.. theEngineeringPracticeAct. You informus 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 cotitractorshave been required to obtain the seal of a registeredprofessional engineer for design work chat thhy have performed under the Air Conditioning ConcraccorLicense 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 conditioningcontractors.The commissionerof theTexas Department of Labor and Standardsis empowered to adopt rules for thepractice of air conditioning contracting, including, inter alia. the method and content of examinations administered under the act and insurance requireplents

for persons licensedunder 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 conditioningsystem thatdevelopsa coral of notmore than 25 tons coolingcapacityandnot more than 1.500,OOOBritish thermalunits per hour outputheating capacity."

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

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

Sec. 2. In thisAct:

. . . . (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 conditioningproduct, system or equipmenr. The term does not include the design. installation. construction. Uldnteuauce, service,repair, alteration, or wodification of a portable or self-containedductless air conditioningor heating product thathas a cooling capacity of three tons or less or a heating capacity of 36,000British thermalunits 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 conditioningsystem. The term does not include the Installation of a total replacement of the system or the installationof boilers or pressure vessels that must be installed by licensedpersons 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 45thLegislature.Regular .Session.1937 (Article5221c,Vernon's Texas Civil Statutes). (Emphasisadded).
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. 32LOHonorableMark W. Stiles - Page 3 ON-693)

chat is defined as the practice of engineering by the Engineering PracticeAct:

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

personwho:

. . . . (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 conditioningcontractingfor the generalpublic.

. . . . (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 engineerand engaged inbusiness as aprofessional engineer. (Emphasisadded).
The Engineering Practicetact, 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 prohibitscertain conductor theperformance of certainactsby personsnot duly licensedby theboard:

Sec. L.2. From and after the effectivedate 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 compensationforperforming. offering or attempting co perform any service,

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

work, act or thing which is any part of the practice of engineeringas definedby thisAct.
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 thepractice of engineering.
Section 2(4) of the act contains an extremelybroad 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 creativework.
Section 20 of the Engineering Practice Act sets forth exemptions from its reach andprovides the following inpart:

Sec. 20. The followingpersons shallbe exempt from the provisions of this Act, provided that such persons are not represented or held out to the public as duly licensed and registeredby the Board to engage In thepractice 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 communicationsequipment 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. 3212EonorableMark W. Stiles - Page 5 UN-6931

be construedas permittingany personother than a licensed professional engineer affixing his signature as such co engineering plans. or specifications. (Emphasisadded).

It is clear that, by the very terms of the Engineering Practice Act. personswho install.operate,repair, or serviceair 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., specificallyincludespersons who design such systemswithin itsdefinitionof "air conditioningcontractor." Also, the act specifically prohibits its licensees from engaging in or offering to engage in any practice thae is defined as the practice of engineeringby theEngineeringPracticeAct. The conflictariseswirh respect to the expansive definition of "practice of engineering,,set forth in section 2(4) of theEngineeringPracticeAct. It is suggeste~d that "practiceof englneerlng”-is sufficientlybroad to includewithin its ambit the "design" of air conditioning systems. As a matter of law, absent theAir ConditionerContractingLicense Law, thedesign 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. Statev. 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 generalprovision,apparently for all cases, and a special provision for a particular class, the generalmust yield to the special in so far as the particularclass is concerned. [Citationomitted]. 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. 3213HonorableMark W. Stiles - Page 6 (JM-693)

applicable to all cases except the particular one embraced in the specificact. [Citationomitted].

Sam Bassett Lumber Co. v. City of Houston, 198 S.W.2d 879, 881 (Tex. 1947); see also Forwoodv. 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 relevantprovisionshavenot 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., theAir ConditioningContractorLicense 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 ContractorLicense Law. very)tru~y your4 J

-v JIM MATTOX Attorney General of Texas
JACK EIGRTOWER First Assistant Attorney General

MARY KELLER ExecutiveAssistantAttorney General

JUDGE ZOLLIE STF,AKLEY SpecialAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee Prepared by JimMoellinger AssistantAttorney General

p. 3214