Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Mr. Philip D. Creer, FAIA opinion No. W-568
Supreme Court Building Executive Director
P. 0. Box 12546 Re: title,
Texas Board of Architectural Use of the
Austin, TX. 76711. 2546
Examiners “Architectural Engineer”
5121475.2501
Telex 9101674-1367 5555 N. Lamar Boulevard
Telecopier 512/475-0266 Building H-117
Austin, Texas 78751
1607 Main St., Suite 1400
Dear Mr. Creer:
Dallas, TX. 75201-4709
2141742.6944
On behalf of the Texas Board of Architectural Examiners you have
asked about the use of the title “Architectural Engineer” by one
4624 Alberta Ave., Suite 160
licensed under article 3721a, V.T.C.S., the Texas Engineering Practice
El Paso, TX. 79905.2793
9151533.3464
Act, but not under article 249a. V.T.C.S., the Architects Registration
Law. You advise that the individual currently “is holding himself
out” as an “Architectural Engineer,” but do not state that he is
1220 Dallas Ave., Suite 202 practicing architecture. Thus, the issue is whether a person who
Houston. TX. 77002.6966
holds himself out as an “Architectural Engineer” must be licensed as
71316504666
an architect.
606 Broadway, Suite 312 The first section of article 249a commands only that “no person
Lubbock. TX. 79401.3479 shall practice architecture, as herein defined... unless he be a
6061747.5236 as provided by this Act.”
registered architect, Prior to 1969,
section 10(b) specified, “[nlothing in this Act shall prevent
4309 N. Tenth, Suite 6 qualified professional engineers from planning and supervising work...
McAHen, TX. 76501.1665 but such engineers shall not employ the title ‘architect’ in any
5121662.4547 w. . . .” That language no longer appears in the act. Instead,
section 10 now reads in pertinent part:
200 Main Plaza. Suite 400
San Antonio. TX. 76205.2797 10(a). ‘Practice of Architecture’ shall mean
5121225.4191 any service or creative work, either public or
private, wlying the art and science of
developing design concepts. planning for
An Equal Opportunity/
Affirmative Action Employer
functional relationships and intended uses, and
establishing the form, appearance, aesthetics, and
construction details, for any building or
buildings, or environs, to be constructed.
enlarged or altered, the proper application of
which requires architectural education. training
and experience. ‘Practice architecture’ or
‘practicing architecture’ shall mean performing or
p. 2091
Mr. Philip D. Creer - Page 2 (MW-568)
doing, or offering or attempting to do or perform
any service, work, act or thing within the scope
of the practice of architecture.
(b). Notwithstanding any other provision of
this Act or any rule or regulation of the Board of
Architectural Examiners, it is the intent of this
Act to acknowledge the necessity of urofessional
inter-relations -and cooperation detween the
professions for the benefit of the public and to
achieve the highest standards in design, planning,
and building. Therefore, nothing in this Act or
any such rule or regulation, heretofore or
hereafter adopted, shall be construed or given
effect in any manner whatsoever so as to 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.
....
(h) . A firm, partnership, association or
corporation, including firms, partnerships,
corporations and joint stock associations carrying
on the practice of engineering under Section 17 of
the Texas Engineering Practice Act, may engage in
the practice of architecture and may hold itself
out to the public as offering architectural
SXViCl?S, provided that the actual practice of
architecture on behalf of such firms, partnerships
or corporations is carried on, conducted and
performed only by architects registered, and
licensed in this State.
(0. No firm, partnership, association, or
corporation w engage in the practice of
architecture, or hold itself out to the public as
being engaged in the practice of architecture or
use the word ‘architect’ or ‘architecture’ in its
name in any manner unless all architectural
services are rendered by and through persons to
whom registration certificates have been duly
issued, and which certificates are in full force
and effect.
p. 2092
. .
Mr. Philip D. Creer - Page 3 (MW-568)
As used above, in our opinion, the word "firm" signifies a
business unit or enterprise. See Black's Law Dictionary, 571 (5th Ed.
1979) ; Webster's Third New International Dictionary of the English
Language Unabridged 856 (1961). It is broad enough to include a
business operated as a sole proprietorship. See Kempf V. Joint School
District No. 3, Town of Fredonia. 94 N.W.2dT72 (Wis. 1959). cf.
Dodson V. Warren Hardware Company, 162 S.W. 952 (Tex. Civ. App. -
Amarillo 1913, no writ); City of Madison V. Frank Lloyd Wright
Foundation, 122 N.W.2d 409 (Wis. 1963). Section 17 of the Texas
Engineering Practice Act, article 3271a, V.T.C.S., referred to in
subsection (h) above, permits "firms" and other business organizations
to engage in the practice of engineering so long as it is carried on
only by registered professional engineers.
There is a difference between furnishing architectural services
and performing them. Seaview Hospital V. Medicenters of America, 570
S.W.2d 35 (Tex. Civ. App. - Corpus Christ1 1978, no writ). In the
absence of facts suggesting that a person neither registered under the
statute nor exempt therefrom is performing or rendering architectural
services -- that is, practicing architecture -- we cannot say the use
here of the term "architectural engineer" violates article 249a,
V.T.C.S. You suggest that section 13, the penalty provision, might
require a different result. Under section 13, the use alone of the
title "architect" is not enough. To violate the provision, a
non-exempt person must use the title and pursue the practice or
profession of architecture or engage in theprofession or business of
planning, designing, or supervising the construction of buildings to
be erected for other persons. Section 13 has been strictly construed.
See Herold V. City of Austin, 310 S.W.2d 368 (Tex. Civ. Aip. - Austin
1958, writ ref'd n.r.e.); Attorney General Opinion O-3392 (1941). Cf.
State Board of Registration fo; Professional Engineers‘". wich'ii;
Engineering Company, 504 S.W.2d 606 (Tex. Civ. App. - Fort Worth 1973,
writ ref'd n.r.e.) (use of "engineer"). See generally 7 Tex. Jur. III
Architects and Engineers §5, at 78.
You advise that Rule 7.01 promulgated by the Texas Board of
Architectural Examiners provides that firms or persons other than
those registered by the board may not "employ the title 'Architect' or
constructions of the word 'architect' to describe persons or services"
and that such persons have no "authority to solicit, offer or execute"
architectural services. However, a rule promulgated by the board
cannot validly contradict the statute, which specifically allows firms
composed of non-registered persons to hold themselves out as offering
architectural services. See 2 Tex. Jur. III Administrstive Law 816,
at 209. Moreover, section 10(b) expressly provides that its terms are
to apply "[nlotwithstanding any other provision of this Act or any
rule or regulation of the Board of Architectural Examiners." Rule
7.01 cannot control the matter at issue.
p. 2093
Mr. Philip D. Creer - Page 4 (MW-568)
SUMMARY
Without more, the use of the title
"Architectural Engineer" by one registered under
the Texas Engineering Practice Act but not under
the Architects Registration Law does not violate
article 249a, V.T.C.S.
Very truly yours,
-MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Bruce Youngblood
p. 2094