Mr. D. C. Greer

State Highway Engineer OpinionNo. C-476' Texas Highway Department Re: Whether employeesof the Austin, Texas Highway Departmentare exempt from the provisions of Article 7621e, Vernon's Civil Statutes (The Water Well DrillersAct), under the stated facts and reDear Sir: lated questions. You have requestedour opinion concerningthe applicability of the Water Well Drillers Act to certain Highway Department employeeswho may, during the course of their employment, find it nec~essary

to drill an occasional water well on property owned by the State. In your request you state that:

"In the course of this Department's operationswe drill approximately five (5) waterwells per year on State land with State equipmentand State employees. "* * + II our employeesare not primarily engaged ior compensationin the drilling of water wells since this is considereda minor activity to their regular duties inasmuchas these employeesare primarily engaged by the Department for core drilling to provide samples for testing soil structure. II

. . . our employeeswill be drillingwater wells on our own property and none other." You then ask:

II

. . . since our employeesmay occasionally drill a water well with no separate compensation from their regularpay with these few wells being constructed by State employeeson

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State land with State equipment,are we exempt from the provisionsas set forth in this Act? "If as a State agency we are not exempt with the above In consideration, we would like to know if State employeesare exempt from the payment of registration and renewal fees. "If our employeesare not exempt from the provisions of this Act, would it suffice for us to have one supervisoryemployeeregistered with the responsibility of compliance

with this Act for any wells our crews drill. "Do the provisionsof this Act relating to bonding require that a State employee provide bond In the amount of $2,000.00?" The Water Well Drillers Act, Acts 59th Leg., R.S. 1965, Ch. 264, p. 509, codifiedas Article 7621e, Vernon's Civil Statutes, is an act designed to provide minimum standardsand qualifications

for persons who are engaged In the drilling of water wells for compensationin this State. Legislativelntent in passing the Act is manifested In the captionwhich provides that it is "an act designed to aid In the prevention of pollution of the State's undergroundwater by providing minimum water well drillers qualifications and standards. Section 3(a) of the Act states: "It shall be unlawful for any person to act as or to offer to perform servicesas a water well drillerwithout first obtaininga certlficate of registrationin the manner rescribed Ah herein and pursuant to the rules of

_ Well DrillersBoard." 

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Section 13(a) of the Act provides: 'Any person not holding a certificateof registration

as a registered

water well driller who drills, bores, cores or constructsany water well in this State for compensationshall be guilty of a misdemeanor.

. . ."Mr. D. C. Greer, page 3 (C-476)

Section 13(a), standingalone, could be subject to a somewhatbroader interpretation with regard to what specific action is unlawful. At the same t$me, reading the various sections of the Act together,particularlySections 2(e) and 3(a), the conclusionisoinescapable that the law intends to regulate those who hold themselvesout to the public or who perform the servicesof a water well driller for the public for compensation and to make these activitiesunlawful unless the person holds a certificateof registration from the Water Well Drillers Board,

A "waterwell driller" is defined in Section 2(e) as: I,

. . . any person (including owner, operator, and drilling supervisor) who engages for compensation in the drilling,boring, coring, or constructionof any water well In this State. The term, however, shall not include any person who drills,~bores, cores, or constructsa water well on his.

own property for his own use or a person who assists In the constructionof a water well under the direct supervisionof a registeredwater well driller and Is not prlmarily responsiblefor the drilling operations." This section,as does Section 13(a), places the regulated activity in context of persons who are engaged In the business of drillingwells for the pub,lic for profit, The mere fact that a person who drills or engages in well drilling activities receives compensationis not conclusive in determining whether a certificateof registrationis mandatory,however, because the definitionof the regulatedactivity exempts both persons who drill on their own property for their own use and persons who work for or under the supervisionof a registeredwater well driller. This office held in AttorneyGeneral'sOpinionV-549, April 23, 1948, that Article 6243-101,Vernon's Civil Statutes, by exempting from the PlumbingLicense Law persons who perform plumbing on their own property, also exempts servants of the property owner performingplumbing under his supervisionand control on his own property. The same analogy no doubt is applicableto the Water Well Drillers Act. From the facts stated in the request for opinion, the employees involvedreceive compensationonly by virtue of

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their general employmentby the State and not for the purposes of drillingwater wells. They also do not act or offer to perform services as water well drillers and are engaged in the occasionaldrilling of water wells on their employer's --the State's--ownland. Under these facts, we hold that the State employees concernedfall within the exemptions contained in the Water Well Drillers Act and are not required by the law to be registeredwater well drillers. The remainingquestionsbecome moot with this conclusion.

SUMMARY Employees of the State Highway Department drilling or supervisingthe drilling of an occasional

water well on land owned by the State are exempt from the Water Well Drillers Act, codified as Article7621e, Vernon's Civil Statutes,and are not required to be registeredwater well drillers. Yours very truly, WAGGONER CARR Attorney General of Texas

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Pat Bailey Linward Shivers Milton Richardson Robert Lemens APPROVED FOR THE A!ll'ORN?Tf GENERAL By T. B. Wright

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