ATTORNEY GENERAL OF TEXAS GREG ABBOTT

Mr. Lance Kinney, P.E. Executive Director Texas Board ofProfessional Engineers 1917 South Interstate 35 Austin, Texas 78741-3702

Dear Mr. Kinney: July 25,2012
Opinion No. GA-0955 Re: Whether a federally appointed designated engineering representative must be licensed by the Board of Professional Engineers under the Texas Engineering Act, chapter 1001, Occupations Code (RQ-1047-GA)

You ask whether a person who is appointed by the Federal Aviation Administration (the "FAA") as a "designated engineering representative" (a "DER") must, while serving in such appointment, be licensed as a professional engineer by the Board of Professional Engineers (the "Board") under the Texas Engineering Act, chapter 1 00 1, Occupations Code. l
You furnish the following information regarding the functions ofa DER: The [FAA] employs engineers directly and uses non-agency engineers, DERs, for limited consultation, data analysis and reports and approvals regarding aircraft design and certification. We believe there is no question that DERs are assisting the FAA in the performance ofthefederalfunction of ensuring the airworthiness of aircraft and thus the public health, safety and welfare. RequestLetter at 3 (emphasis added). According to yourrequest letter, DERs are "appointedby the FAAthrough one ofthe 10 Aircraft Certification Offices ("ACO")." Id. You note that there are two types ofDERs: a company DER and a consultant DER. "A consultant DER works for multiple clients and is not a direct employee of a manufacturer or airline." Id. Your question is limited to the licensing of consultant DERs. Id. Federal law imposes three requirements governing DER appointments: "(1) an accredited engineering degree in the appropriate field plus 4 years directly relatedexperienceoreightyears' experiencein the appropriatefield; (2) threereferences confirming

'Letter from Lance Kinney, P.E., Exec. DiL, Tex

. Bd. ofProf1Eng'rs, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Mar. 20, 2012), http://texasattorneygeneral.gov/opin ("Request Letter").Mr. Lance Kinney, P.E.

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the work experience; [and] (3) mandatory orientation and demonstrated knowledge of FAA regulations." 

### !d. See also U.S. DEP'T OF TRANSP., FED. AVIATION ADMIN., Designee Mgmt. Handbook, Order 8100.8D, at 4-2, & app. A, at A4 (Oct. 28, 2011) ["DER Requirements"]. By contrast, an applicant for aTexas professional engineeringlicense is subjectto numerous additional requirements, including, mostsignificantly,passage ofan examinationprescribedbytheBoard. See TEX

. Oee. CODE ANN. § 1001.302(a) (West 2012). We note that holding a Texas professional engineering license is not among the federal requirements governing a DERdesignation. See supra DERRequirements. You indicate that, atpresent, only nineteen of 130DERs withTexas addresses "appear to have an active Texas [professional engineering] license." Request Letter at 3. We assume for purposes ofthis opinion that you are correctin concludingthat aDER, under the circumstances you describe, is engaged in the practice ofengineering. See Request Letter at 4. Even so, wenotethattheTexasLegislatureexemptedfederal employeesfromtheTexasEngineering Act, which governs the licensing of professional engineers in this state. TEX. Oee. CODE ANN. § 1001.054 (West 2012). In Attorney General Opinion JC-0390, this office concluded thatpersons who practice engineering under contracts procured by the federal government are also exempted from the requirements ofchapter 1001. Tex. Att'y Gen. Op. No. JC-0390 (2001) at 9 (relating to "contractsprocuredbythe federal governmentpursuantto federal procurementlaws andregulations under which the federal government assesses engineers' qualifications"). Although we have found no information that would lead us to believe that a DER functions as a federal contractor, Opinion JC-0390relied on two United States Supreme Courtcases that arerelevantto the question you pose. In Miller v. Arkansas, the Court considered an Arkansas statute that required contractors performing construction work of a certain value to obtain a license from the state. Miller v. Arkansas, 352 U.S. 187, 188 (1956). The Courtcontrastedthe requirements for obtaining a federal contract with therequirements for securing an Arkansas license. [d. at 188-89. The Supreme Court declared that [m]ere enumeration of the similar grounds for licensing under the state statute and for finding "responsibility" underthe federal statute and regulations is sufficient to indicate conflict between this license requirement which Arkansas places on a federal contractor and the action which Congress and the Department ofDefense have taken to insure the reliability ofpersons and companies contracting with the Federal Government. Subjectingafederalcontractorto theArkansas contractor license requirements would give the State's licensing board a virtual power ofreview over thefederal determination of "responsibility" andwouldthus frustrate the expressedfederalpolicy of selecting the lowest responsible bidder. [d. at 189-90 (emphasis added). The Court quoted from an earlier case, Johnson v. State of Maryland, 254 U.S. 51, 57 (1920), that described "the immunity of the instruments ofthe United States from state control in the performance oftheir duties." In that case, the Supreme Court struckMr. Lance Kinney, P.E.

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down the state's attempts to require "qualifications III addition to those that the [Federal] Government has pronounced sufficient." Likewise, in Sperry v. Florida, 373 U.S. 379 (1963), theSupremeCourtheldthatFloridawas prohibited from enjoining a nonlawyer registered to practice before the United States Patent Office from preparing and prosecuting patent applications in Florida, notwithstanding that such activity constituted the practice oflaw in Florida. The Court reasoned thus: A State may notenforce licensing requirements which, though valid in the absence offederal regulation, give "the State's licensing board a virtual power of review over the federal determination" that a person or agency is qualified and entitled to perform certain functions, or which impose upon the performance of activity sanctionedby federal license additionalconditionsnotcontemplated by Congress. [d. at 385 (emphasis added). These Supreme Court decisions make it likely that a court would conclude that, when a federal statute or regulation sets forth requirements by which to assess qualifications ofappointees, a state maynot addto those requirements andthereby interfere with the federal determination ofa person's suitability to perform certain federal functions. Under the facts presented in your request letter, the FAA, through one ofits ACOs, prescribes the qualifications for appointment as a DER. None ofthose qualifications include possessing a Texas-issued license to practice engineering. As a result, United States Supreme Court precedent would likely require a court to conclude that a federally appointed DER is not required to be licensed as a Texas professionalengineer. Wenote, however, thatto the extentthat an individual engages in thepractice ofengineering in Texas outside the scope ofhis capacity as a federally appointed DER, he must be licensed by the Board ofProfessional Engineers. See TEX. Occ. CODE ANN. § 1001.301(a) (West 2012).

### Mr. Lance Kinney, P.E.

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### SUMMARY United States Supreme Court precedent would likely lead a court to conclude that a person appointed as a "designated engineering representative" by the Federal Aviation Administration is not, while serving in that capacity, required to be licensed as a professional engineerby the Texas Board ofProfessional Engineers. To the extent, however, that a person engages in the practice of engineering in Texas outside the scope ofhis capacity as a federally appointed "designated engineering representative," he must be licensed by the Board. Very truly yours,

DANIEL T. HODGE First Assistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee