DAN MORALES

.ATTORSEY GSERAL 

## QBffice

of ttp !&tornep Qkneral &dateofIEexae August 27,1992

Mr. Robert H. Norris Executive Director Opinion No. DM-161
Texas Board ofArchitectural Bxaminers Re: Construction of section 16 of 8213 Shoal Creek Blvd., Suite 107 article 249a, V.T.C.S., the act regulating Austin, Texas 78758-7589 the practice of architecture (RQ-186)
Dear Mr. Norris:
You ask whether section 16 of article 249a, V.T.C.S., which regulates the practice of architecture, prohibits an individual, other than one licensed as an architect, from preparing the plans and specifications for the public buildings described by that section.. Section 16 was adopted in 1989 and amended in 1991. See Acts 1989, 71st Leg., ch. 858, 9 8, at 3836; Acts 1991, 72d Leg., ch. 579, 9 2. When first adopted, section 16read as follows:

To protect the public health, safety, and welfare of the citizens of the State of Texas, an architect registered in accordance with this Act must prepare the architectural plans and specifications for a new building intended for education, assembly, or office occupancy whose construction costs exceed One Hundred Thousand Dollars (SlOO,OOO.OO) which is to be constructed by a State agency, a political subdivision of this State, or any other public entity in this State. In 1991 the Texas Board of Architectural Examiners (the “board”) was reestablished after going through sunset review.’ Seegeneral&Acts 1991,72d Leg., ch. 579. Section 16was revised to provide as follows:

(a) To protect the public health, safety, and welfare of the citizens of the State of Texas, an architect registered in

‘The SunsetAdvisory

Committee,

established

by chapter325 of the Government Code, reviews the stateagencies

scheduled forabolition

in eachlegislative

sessionandmakesrecommendations ontheabolition

orcontinuation

oftheagency.Gov’t

CodeP325.012.

p. 847. I
Mr. Robert H. Norris - Page 2 (W-161)

accordance with this Act must prepare the architectural plans and specifications for: (1) a new building that is to be constructed and owned by a State agency, a political subdivision of this State, or any other public entity in this State if the building will be used for education, assembly, or office occupancy and the construction costs exceed SlOO,ooO,

or (2) any alteration or addition to an existing building that is owned by a State agency, a political subdivision of this State, or any other public entity in this State ifthe building is used or w-ill be used for education, assembly, or oftice occupancy, the construction costs of the alteration or addition exceed S50,000, and the alteration or addition requires the removal, relocation, or addition of any walls or partitions or the alteration or addition of an exit. (b) This section does not prohibit an owner of a building from choosing a registered architect or a registered professional engineer as the prime design professional for a building construction, alteration, or addition project. (c) This section does not prevent, limit, or restrict a registered professional engineer from performing any act, performance, or work that is the practice of engineering as defined by The Texas Engineering Practice Act (Article 3271a, Vernon’s Texas Civil Statutes). V.T.C.S. art. 249a, 3 16.2
Article 249a, V.T.C.S., defines the “practice of architecture” as follows:

“Practice of Architecture” shall mean any service or creative work, either public or private, applying the art and science of developing design concepts, planning for functional relationships and intended uses, and establishing the form, appearance+
%Ve address boththe1989

and1991 versions ofarticle ‘249a, V.T.C.S., because thelegislative history of the 1989amendment

is relevant

to yourquestion. Citations in the textto article2494 V.T.C.S., willrefer tothe1991

version ofthisstatute

unless otherwise spetied.

p. 848Mr. Robert H. Norris - Page 3 KM-161)

aesthetics, and construction details, for any building or buildings, or environs, to be constructed..

.the proper application of which requires architectural education, training and experience. V.T.C.S. art. 249a, 5 10(a). Briefs submitted in connection with this request argue that professional engineers registered pursuant to the Texas Engineering Practice Act, V.T.C.S. art. 3271a. are authorized to design buildings under their licensing statute and need not be licensed as architects to do so. Cases from other states have determined that the professions of architect and engineer overlap in the area of designing buildings, SO that some building designs may be prepared by a person with either license. See Smith v.American Packing& Providon Co., 130 P.2d 951 (Utah 1942); see aLro Annot., 82 kLR.2d 1013, 1026 (1962) (architectural and engineering services within license requirements). Section 10(b) of article 249a, V.T.C.S., suggests that the professions of architect and engineer overlap in Texas as well. This provision states in part:

[I]t is the intent of this Act to acknowledge .the necessity of professional inter-relations and cooperation between the professions for the benefit of the public and to achieve the highest standards in design, planning, and building. Therefore, nothing in this Act..

. shall

. . .prevent, limit or restrict any professional engineer licensed under the laws of this State from performing any act, service or work within the definition of the practice of professional engineering as defined by the Texas Engineering Practice Act. V.T.C.S. art. 249a, 3 10(b) (footnote deleted).
An examination of the Texas Engineering Practice Act shows that the practice of engineering includes building design. The State Board of Registration for Professional Engineers licenses persons to engage in the practice of engineering, defined as follows:

“practice of engineering” or practice of professional engineering” shall mean any service or creative work, either public or private, the performance ofwhich requires engineering education, training and experience in the application of special

p. 849Mr. Robert H. Norris - Page 4 (EN-161)

knowledge of the mathematical, physical, or engineering sciences to such services or creative work. V.C.T.S. art. 3271a. 52(4). A rule promulgated by the Board of Registration for Professional Engineers (BRPE) defines professional engineering as follows:

Professional engineering-Professional service which may include
...phnning design& or direct supervidon 

### Of conshuction, in connection with anypublic orprivate utiliries, stmctum, buildings,
...when such professional service requires the application of engineering principles and the interpretation ofengineering data. 22 T.A.C. 0 131.18 (emphasis added). When the Texas Engineering Practice Act was first adopted in 1937.it defined the practice ofprofessional engineering as “any professional service, such as consultation, investigation, evaluation, planning, designing,or responsible supervision ofconstruction in connection with any public or private utilities, structures, buikfings,
...when such professional service requires the application of engineering principles and interpretation of engineering data.” Acts 1937,44th Leg, ch. 404,s 2 (emphases added). Like the BRPB’srule quoted above, the definition expressly included building design In 1965 the definition of the

“practice of professional engineering” was amended to read as it does today. Acts 1965, 59th Leg., ch. 85, at 209. The amending legislation was adopted to prevent unqualified persons from practicing engineering. Id 5 10 (emergency clause). The definition of the “practice ofprofessional engineering” was amended to broaden the coverage of the Engineering Practice Act, and not to omit engineering services already covered by the act. Section 19(a) of article 3271a, V.T.C.S.,makes it unlawful for the state or any of its political subdivisions to engage in the construction of certain public works

‘unless the engineering plans and speci6catiom and estimates have been prepared by... a registered professional engineer.” Section 20 exempts certain persons from the registration provisions of the statute, provided that they are not represented as being legally qualified to engage in the practice of engineering. Among other persons, section 20 exempts the following:

A person, firm, partnership, joint stock association or private corporation..

.drawing pltms Md specifiatiins for: (1) any private dwelling, or apartments not exceeding eight units per building for one story buildings, or apartments not exceeding

p. 850Mr. Robert H. Norris - Page 5 @I-161)

four units per building and having a maximum height of two stories. or garages or other structures pertinent to such buildings; or (2) private buildings which are to be used exclusively for farm, ranch or agricultural purposes.. . or (3) other buildings, except public buildings included under Section 19 of this Act, having no more than one story..
. [further describing building]; provided that no representation is made or implied that engineering services have been or willbe offered to the public. V.T.C.S. art. 3271a, 520(f) (emphasis added); see &o V.T.C.S. art. 249a, # 14 (similar exemption for licensing requirement for architects). Thus, there is an exemption for persons who draw plans and specifications for the described buildings. Since these persons would be engaging in the practice of engineering if they did not have the benefit of this exception, the legislature understood that the drawing of plans and specifications for buildings ordinarily constituted the practice of engineering. The practice of engineering includes preparing building plans and designs when that service requires the application of engineering principles and the interpretation ofengineering data.
A report prepared to assist the sunset review process reviewed the authority of the Board of Architectural Ekaminers, and in doing so, recognized that licensed engineers were authorized to prepare building designs under the engineer’s licensing statute. TEXASSUNSET ADVISORY

COMMISSION,

TEXASBOARDOFARCHITECNRALEXAMINERS, STAFFREPORTTO SUNSETADVISORYCOMMISSION (1991). Until article 249a, V.T.C.S., was amended in 1989, the Board of Architectural Examiners enforced a “title act,” which restricted the use of the title of architect and the ability to offer services entitled architectural services to individuals who had been registered by the board.3 Id at 1;see ako House Comm. on Bus. and

3A“title act’rqoircs ioditidulswhouseanoccopatioaaI orprofessioaaI

titletoregister

with theappropriate

licensing agency and become subjcdtoitsregulation.

Itdoesnotauthorize

theagency to regulate

persons whodo the workof the occopation or profession

without osiogthe titIe. For example, when artide2494 V.T.C.S., was adoptedin 1937,it exempted persoosandfirmsthat prepared plans’aad

specilicatioas

fora buildin&

aslongastheydidnotrepresent them&es to be architects.

Ads 1937.45th

Leg., ch.478, P16(3), at1279. A “practice

statute,” in contrast,

authorizes

a stateagemyto regulatethe practice of a profession

01Occupation,

andprohibits

individuals

whoarenotIicensed

bytheagency

from providing

p. 851Mr. Robert H. Norris - Page 6 (M-161)

Corn..Bill Analysis, S.B.743,71st Leg. (1989). Thus, the board could not restrict an individual from providing building design services as long as he used a title other than architect, such as building designer. TEXAS SUNSET ADVISORY

COMMISSION,
**supra,** at 1. The 1989amendments authorized the board to regulate the practice of architecture and prohibited individuals who were not registered architects from providing architectural services for certain types ofbuildings. Id
In discussing the exemptions from the registration requirements of article 249a, V.T.C.S., as amended in 1989.the report indicates that the engineer’s license still allowed the licensee to design buildings, despite the adoption of section 16:

The statute [V.T.C.S. art. 249a] contains two different kinds of exemptions from the registration requirements for architects. One set of exemptions concerns activities that are exempt because they are not considered architectural practices. For example, engineers or interior designexsmay perfotm building designservicesasport oftheirwork,but may not hold themsehw outasarchitects. TEXAS SUNSET ADVISORY

COMMISSION, **SU~M,** at 7 (emphasis added).
The second set of exemptions covers architectural activities that are exempt from the practice provisions of the act. Id. at 8. These include an exemption for persons who prepare architectural plans and specifications for a privately owned building used as a single-family or two-family home. See V.T.C.S. art. 249a, 0 14. In addition, the report states the architects’ law “also exempts persons who perform design work for new public buildings that cost less that SlOO,OOO.” TEXASSUNSET ADVISORYCOMMISSION. supro, at 8. This reference to section 16 of article 249a, V.T.C.S., informs us that section 16 concerns building design work. An engineer’s license confers authority to perform building design services requiring the application of engineering principles and the interpretation of engineering data for public buildings described by section 16.

(footnote continued) thekind ofprofessional

services itregulates.

lEws SUNSET

**ADVISORY**

**COMMISSION,**

**TEXAS BOARD**  **OF ARCHITEXTU** 

RAL EXAMINERS,

S-MT**REPORT I-U**  **SUNSET ADVISORY** **COMMISSION (EM),**  at 1; HouseComm.

011 Gov’t Org., Bill Analyxis, S.B. 429,?2d Leg.(1991).

p. 852Mr. Robert H. Norris - Page 7 (IX’+161)

The licensed engineer’s authority to prepare building plans for public buildings described in section 16 of article 249a, V.T.C.S., has been made even more clear by the 1991addition of subsections 16(b) and (c) to that section. House Comrr~ on Gov’t Org., Bill Analysis, S.B. 429, 726 Leg. (1991). Section 16(a) provides that a registered architect must prepare the architectural plans for new buildings of a certain description.4 Subsection 16(b) qualifies subsection (a) by authorizing the owner of a building to choose “aregistered professional engineer as the prime design professional for a building construction, alteration, or addition project.” V.T.C.S. art. 249a, 0 16(b). Section 16(c) preserves the authority of registered engineers to design buildings pursuant to the Texas Engineering Practice Act. Subsection 10(j), also enacted in 1991,provides that a registered professional engineer who has an architectural engineering degree is not prohibited from using the title “architectural engineer.” The 1991 amendments to section 16 of article 249a, V.T.CS., as well as subsection 106) of that statute, recognize the overlap between the work of an architect and an engineer in the area ofbuilding design. Section 16 does not bar a registered professional engineer from preparing plans and specifications. Such preparation requires the application ofengineering principles and the interpretation of engineering data for “a new building that is to be constructed and owned by a State agency, a political subdivision of this State, or any other public entity in this State if the building will be used for education, assembly, or office occupancy and the construction costs exceed $100,000. Id. 8 16(a)(l). Licensed engineers continue to have the authority to prepare building designs and specifications that they had prior to the adoption ofsection 16in 1989. 

### SUMMARY
Section 16 of article 249a, V.T.C.S., the statute regulating the practice of architecture, does not bar a professional engineer licensed under article 3271a, V.T.C.S., from preparing plans and specifications, the preparation of which requires the application of engineering principles and the interpretation of engineering data, for “anew building that is to be constructed and owned by

%e preparation

of “architectural

plans”presumably

would requirethe application of “architectural

education,

training, and experience.”

V.T.CS. art. 2494D lo(a).

p. 853Mr. Robert H. Norris - Page 8 (LX-161)

a State agency, a political subdivision of this State, or any other public entity in this State if the building till be used for education, assembly, or office occupancy and the construction costs exceed $100,000.”

DAN MORALES Attorney General ofTexas
WILL PRYOR First Assistant Attorney General
MARYKBLLER Deputy Assistant Attorney General
REN’EAHICKS Special Assistant Attorney General
MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by Susan L. Garrison Assistant Attorney General

p. 854