DAN MORALES 

.ATTORSEY GSERAL 

QBffice of ttp !&tornep Qkneral 

&date of IEexae 

August 27,1992 

Mr. Robert H. Norris 

Executive Director 

Opinion No. DM-161 

Texas Board of Architectural 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 16 read 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.’ See general& Acts 1991, 72d Leg., 

ch. 579. Section 16 was 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 Sunset Advisory Committee, established by chapter 325 of the Government Code, 

reviews the state agencies scheduled for abolition in each legislative session and makes recommendations on the abolition or continuation of the agency. Gov’t Code P 325.012. 

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 if the 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 both the 1989 and 1991 versions of article ‘249a, V.T.C.S., because the legislative 

history of the 1989 amendment is relevant to your question. Citations in the text to article 2494 

V.T.C.S., will refer to the 1991 version of this statute unless otherwise spetied. 

p. 848 
Mr. 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 of which requires engineering 

education, training and experience in the application of special 

p. 849 
Mr. 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. 5 2(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 any public or private utiliries, 

stmctum, buildings, . . . when such professional service requires 

the application of engineering principles and the interpretation 

of engineering 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 of professional engineering as “any 

professional service, such as consultation, investigation, evaluation, planning, 

designing, or responsible supervision of construction 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’s rule 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 of professional 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 

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Mr. 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 will be offered to 

the public. 

V.T.C.S. art. 3271a, 5 20(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 of engineering 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. TEXAS SUNSET ADVISORY COMMISSION, TEXAS BOARD OF ARCHITECNRAL EXAMINERS, STAFF REPORT TO SUNSET ADVISORY COMMISSION 

(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 ioditiduls who use an occopatioaaI or professioaaI title to register with 

the appropriate licensing agency and become subjcd to its regulation. It does not authorize the agency 

to regulate persons who do the work of the occopation or profession without osiog the titIe. For 

example, when artide 2494 V.T.C.S., was adopted in 1937, it exempted persoos and firms that 

prepared plans’aad specilicatioas for a buildin& as long as they did not represent them&es to be 

architects. Ads 1937.45th Leg., ch. 478, P 16(3), at 1279. 

A “practice statute,” in contrast, authorizes a state agemy to regulate the practice of a 

profession 01 Occupation, and prohibits individuals who are not Iicensed by the agency from providing 

p. 851 
Mr. 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 1989 amendments authorized the board to regulate the practice of 

architecture and prohibited individuals who were not registered architects from 

providing architectural services for certain types of buildings. 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 designexs may perfotm building 

design services asport of their work, but may not hold themsehw 

out as architects. 

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.TEXAS ” SUNSET 

ADVISORY COMMISSION. 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) 

the kind of professional services it regulates. lEws SUNSET ADVISORY COMMISSION, TEXAS BOARD 

OF ARCHITEXTU RAL EXAMINERS, S-MT REPORT I-U SUNSET ADVISORY COMMISSION (EM), at 1; 

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

p. 852 
Mr. 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 1991 addition 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 “a registered 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 of building design. Section 16 does not bar a 

registered professional engineer from preparing plans and specifications. Such 

preparation requires the application of engineering 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 of section 16 in 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 “a new building that is to be constructed and owned by 

%e preparation of “architectural plans” presumably would require the application of 

“architectural education, training, and experience.” V.T.CS. art. 2494 D lo(a). 

p. 853 
Mr. 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 of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARYKBLLER 

Deputy Assistant Attorney General 

REN’EA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 854