ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

Mr. Lance Kinney, P.E. 

Executive Director 

Texas Board of Professional 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 representati ve 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 of a 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. 

Request Letter at 3 (emphasis added). According to your request letter, DERs are "appointed by the 

FAA through one ofthe 10 Aircraft Certification Offices ("ACO")." Id. You note that there are two 

types of DERs: 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 

related experience or eight years' experience in the appropriate field; (2) three references confirming 

'Letter from Lance Kinney, P.E., Exec. DiL, Tex. Bd. of Prof 1 Eng'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. - Page 2 (GA-0955) 

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 a Texas professional engineering license is subject to numerous additional 

requirements, including, most significantly, passage of an examination prescribed by the Board. 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 DER designation. See supra 

DER Requirements. You indicate that, at present, only nineteen of 130 DERs with Texas addresses 

"appear to have an active Texas [professional engineering] license." Request Letter at 3. 

We assume for purposes of this opinion that you are correct in concluding that a DER, under 

the circumstances you describe, is engaged in the practice of engineering. See Request Letter at 4. 

Even so, we note that the Texas Legislature exempted federal employees from the Texas Engineering 

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 that persons 

who practice engineering under contracts procured by the federal government are also exempted 

from the requirements of chapter 1001. Tex. Att'y Gen. Op. No. JC-0390 (2001) at 9 (relating to 

"contracts procured by the federal government pursuant to federal procurement laws and regulations 

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-0390 relied on two United States Supreme Court cases that are relevant to 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 Court contrasted the requirements for obtaining a federal 

contract with the requirements 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" under the 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 of Defense have taken to 

insure the reliability of persons and companies contracting with the 

Federal Government. Subjecting afederal contractor to the Arkansas 

contractor license requirements would give the State's licensing 

board a virtual power of review over the federal determination of 

"responsibility" and would thus frustrate the expressedfederal policy 

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 of the United 

States from state control in the performance of their duties." In that case, the Supreme Court struck 
Mr. Lance Kinney, P.E. - Page 3 (GA-0955) 

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), the Supreme Court held that Florida was 

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 of law in Florida. The Court reasoned thus: 

A State may not enforce licensing requirements which, though valid 

in the absence of federal 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 

sanctioned by federal license additional conditions not contemplated 

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 of appointees, a state may not add to those requirements and thereby interfere with the 

federal determination of a person's suitability to perform certain federal functions. Under the facts 

presented in your request letter, the FAA, through one of its ACOs, prescribes the qualifications for 

appointment as a DER. None of those 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 

professional engineer. We note, however, that to the extent that an individual engages in the practice 

of engineering in Texas outside the scope of his capacity as a federally appointed DER, he must be 

licensed by the Board of Professional Engineers. See TEX. Occ. CODE ANN. § 1001.301(a) (West 

2012). 
Mr. Lance Kinney, P.E. - Page 4 (GA-0955) 

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 engineer by the Texas Board of Professional Engineers. 

To the extent, however, that a person engages in the practice of 

engineering in Texas outside the scope of his 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