1-1 By: Ratliff S.B. No. 784
1-2 (In the Senate - Filed February 27, 1995; February 28, 1995,
1-3 read first time and referred to Committee on State Affairs;
1-4 April 21, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 11, Nays 0; April 21, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 784 By: Luna
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the regulation of the practice of engineering;
1-11 providing penalties.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 1.1, The Texas Engineering Practice Act
1-14 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
1-15 as follows:
1-16 Sec. 1.1. In recognition of the vital impact which the rapid
1-17 advance of knowledge of the mathematical, physical and engineering
1-18 sciences as applied in the practice of engineering is having upon
1-19 the lives, property, economy and security of our people and the
1-20 national defense, it is the intent of the Legislature, in order to
1-21 protect the public health, safety and welfare, that the privilege
1-22 of practicing engineering be entrusted only to those persons duly
1-23 licensed<, registered> and practicing under the provisions of this
1-24 Act and that there be strict compliance with and enforcement of all
1-25 the provisions of this Act, and, in order that the state and
1-26 members of the public may be able to identify those duly authorized
1-27 to practice engineering in this state and fix responsibility for
1-28 work done or services or acts performed in the practice of
1-29 engineering, only licensed <and registered> persons shall practice,
1-30 offer or attempt to practice engineering or call themselves or be
1-31 otherwise designated as any kind of an "engineer" or in any manner
1-32 make use of the term "engineer" as a professional, business or
1-33 commercial identification, title, name, representation, claim or
1-34 asset, and all the provisions of this Act shall be liberally
1-35 construed and applied to carry out such legislative intent. In
1-36 furtherance of such intent and purpose of the Legislature, the
1-37 practice of engineering is hereby declared a learned profession to
1-38 be practiced and regulated as such, and its practitioners in this
1-39 state shall be held accountable to the state and members of the
1-40 public by high professional standards in keeping with the ethics
1-41 and practices of the other learned professions in this state.
1-42 There is specifically reserved to graduates of all public
1-43 universities recognized by the American Association of Colleges and
1-44 Universities the right to disclose any college degrees received by
1-45 such individual and use the word Graduate Engineer on his
1-46 stationery, business cards, and personal communications of any
1-47 character.
1-48 SECTION 2. Section 1.2, The Texas Engineering Practice Act
1-49 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
1-50 as follows:
1-51 Sec. 1.2. From and after the effective date of this Act,
1-52 unless duly licensed <and registered> in accordance with the
1-53 provisions of this Act, no person in this state shall:
1-54 (1) Practice, continue to practice, offer or attempt
1-55 to practice engineering or any branch or part thereof.
1-56 (2) Directly or indirectly, employ, use, cause to be
1-57 used or make use of any of the following terms or any combinations,
1-58 variations or abbreviations thereof as a professional, business or
1-59 commercial identification, title, name, representation, claim,
1-60 asset or means of advantage or benefit: "engineer," "professional
1-61 engineer," "licensed engineer," "registered engineer," "registered
1-62 professional engineer," "licensed professional engineer,"
1-63 "engineered."
1-64 (3) Directly or indirectly, employ, use, cause to be
1-65 used or make use of any letter, abbreviation, word, symbol, slogan,
1-66 sign or any combinations or variations thereof, which in any manner
1-67 whatsoever tends or is likely to create any impression with the
1-68 public or any member thereof that any person is qualified or
2-1 authorized to practice engineering unless such person is duly
2-2 licensed<, registered> under and practicing in accordance with the
2-3 provisions of this Act.
2-4 (4) Receive any fee or compensation or the promise of
2-5 any fee or compensation for performing, offering or attempting to
2-6 perform any service, work, act or thing which is any part of the
2-7 practice of engineering as defined by this Act.
2-8 Within the intent and meaning and for all purposes of this
2-9 Act, any person, firm, partnership, association or corporation
2-10 which shall do, offer or attempt to do any one or more of the acts
2-11 or things set forth in numbered paragraphs (1), (2), (3) or (4) of
2-12 this Section 1.2 shall be conclusively presumed and regarded as
2-13 engaged in the practice of engineering.
2-14 SECTION 3. Section 1.3, The Texas Engineering Practice Act
2-15 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
2-16 as follows:
2-17 Sec. 1.3. Every person licensed <and registered> by the
2-18 Board to engage in the practice of engineering shall in the
2-19 professional use of his name on any sign, directory, listing,
2-20 contract, document, pamphlet, stationery, letterhead,
2-21 advertisement, signature, or any other such means of professional
2-22 identification, written or printed, use one of the following
2-23 legally required identifications: Engineer, Professional Engineer
2-24 or P. E.
2-25 SECTION 4. Subdivisions (1) and (3), Section 2, The Texas
2-26 Engineering Practice Act (Article 3271a, Vernon's Texas Civil
2-27 Statutes), are amended to read as follows:
2-28 (1) "Board" shall mean the Texas <State> Board of
2-29 <Registration for> Professional Engineers, provided for by this
2-30 Act.
2-31 (3) "Engineer," "professional engineer," "registered
2-32 engineer," "registered professional engineer," <or> "licensed
2-33 professional engineer," or "licensed engineer" shall mean a person
2-34 who has been duly licensed <and registered> by the Board to engage
2-35 in the practice of engineering in this state.
2-36 SECTION 5. Section 3, The Texas Engineering Practice Act
2-37 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
2-38 as follows:
2-39 Sec. 3. TEXAS <STATE> BOARD OF <REGISTRATION FOR>
2-40 PROFESSIONAL ENGINEERS--APPOINTMENT OF MEMBERS--TERMS. The Texas
2-41 <A State> Board of <Registration for> Professional Engineers is
2-42 hereby created whose duty it shall be to administer the provisions
2-43 of this Act. The Board shall consist of six (6) professional
2-44 engineers and three (3) representatives of the general public, who
2-45 shall be appointed by the Governor of the State, without regard to
2-46 the race, creed, sex, religion, or national origin of the
2-47 appointees and with the advice and consent of the Senate. At the
2-48 expiration of the term of each member first appointed, his
2-49 successor shall be appointed by the Governor of the State and he
2-50 shall serve for a term of six (6) years or until his successor
2-51 shall be appointed and qualified. Before entering upon the duties
2-52 of his office each member of the Board shall take the
2-53 Constitutional Oath of office and the same shall be filed with the
2-54 Secretary of State.
2-55 SECTION 6. Section 3a, The Texas Engineering Practice Act
2-56 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
2-57 as follows:
2-58 Sec. 3a. SUNSET PROVISION. The Texas <State> Board of
2-59 <Registration for> Professional Engineers is subject to Chapter
2-60 325, Government Code (Texas Sunset Act). Unless continued in
2-61 existence as provided by that chapter, the board is abolished and
2-62 this Act expires September 1, 2003.
2-63 SECTION 7. Subsection (d), Section 4, The Texas Engineering
2-64 Practice Act (Article 3271a, Vernon's Texas Civil Statutes), is
2-65 amended to read as follows:
2-66 (d) The Board by majority vote may limit the participation
2-67 of general public members in the evaluations of applications for
2-68 licensure <registration> except in those instances in which the
2-69 evaluations take place at an official meeting of the Board.
2-70 SECTION 8. Subsections (a) and (b), Section 8, The Texas
3-1 Engineering Practice Act (Article 3271a, Vernon's Texas Civil
3-2 Statutes), are amended to read as follows:
3-3 (a) In addition to any other powers and duties, the Board
3-4 shall have the authority and power to make and enforce all rules
3-5 and regulations and bylaws consistent with this Act as necessary
3-6 for the performance of its duties, the governance of its own
3-7 proceedings, and the regulation of the practice of engineering in
3-8 this state and may establish standards of conduct and ethics for
3-9 engineers in keeping with the purposes and intent of this Act and
3-10 to insure strict compliance with and enforcement of this Act. The
3-11 violation by any engineer of any provision of this Act or any rule
3-12 or regulation of the Board shall be a sufficient cause to suspend
3-13 or revoke the license <certificate of registration> of or to issue
3-14 a formal or informal reprimand to such engineer. In addition to
3-15 any other action, proceeding or remedy authorized by law, the Board
3-16 shall have the right to institute an action in its own name in a
3-17 district court of Travis County against any individual person to
3-18 enjoin any violation of any provision of this Act or any rule or
3-19 regulation of the Board and in order for the Board to sustain such
3-20 action it shall not be necessary to allege or prove, either that an
3-21 adequate remedy at law does not exist, or that substantial or
3-22 irreparable damage would result from the continued violation
3-23 thereof. Either party to such action may appeal to the appellate
3-24 court having jurisdiction of said cause. The Board shall not be
3-25 required to give any appeal bond in any cause arising under this
3-26 Act. The Attorney General shall represent the Board in all actions
3-27 and proceedings to enforce the provisions of this Act.
3-28 (b) The Board may promulgate rules restricting competitive
3-29 bidding. The Board may not promulgate rules restricting
3-30 advertising by a license holder <registrants> except to prohibit
3-31 false, misleading, or deceptive practices by the license holder
3-32 <registrants>. The Board may not include in its rules to prohibit
3-33 false, misleading, or deceptive practices by a person regulated by
3-34 the Board a rule that:
3-35 (1) restricts the person's use of any medium for
3-36 advertising;
3-37 (2) restricts the person's personal appearance or use
3-38 of his personal voice in an advertisement;
3-39 (3) relates to the size or duration of an
3-40 advertisement by the person; or
3-41 (4) restricts the person's advertisement under a trade
3-42 name.
3-43 SECTION 9. Subsection (a), Section 10, The Texas Engineering
3-44 Practice Act (Article 3271a, Vernon's Texas Civil Statutes), is
3-45 amended to read as follows:
3-46 (a) The Board shall keep a record of its proceedings and
3-47 register of all applications for licensure <registration>, which
3-48 register shall show (a) the name, age and residence of each
3-49 applicant; (b) the date of the application; (c) the place of
3-50 business of such applicant; (d) his educational and other
3-51 qualifications; (e) whether or not an examination was required; (f)
3-52 whether the applicant was rejected; (g) whether a license
3-53 <certificate of registration> was granted; (h) the date of the
3-54 action of the Board; and (i) such other information as may be
3-55 deemed necessary by the Board.
3-56 The records of the Board shall be available to the public at
3-57 all times and shall be prima facie evidence of the proceedings of
3-58 the Board set forth therein, and a transcript thereof, duly
3-59 certified by the Secretary of the Board under seal, shall be
3-60 admissible in evidence with the same force and effect as if the
3-61 original was produced.
3-62 SECTION 10. Section 11, The Texas Engineering Practice Act
3-63 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
3-64 as follows:
3-65 Sec. 11. ROSTER OF LICENSED <REGISTERED> ENGINEERS. A
3-66 roster showing the names and places of business of all licensed
3-67 <registered> professional engineers shall be prepared and published
3-68 by the Board each biennium at a time determined by the Board.
3-69 Copies of this roster shall be furnished without charge to any
3-70 engineer licensed <registered> by the Board on the written request
4-1 of the engineer, placed on file with the Secretary of State, and
4-2 furnished to any person upon written request who tenders a
4-3 reproduction fee set by the Board.
4-4 SECTION 11. Section 12, The Texas Engineering Practice Act
4-5 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
4-6 as follows:
4-7 Sec. 12. GENERAL REQUIREMENTS FOR LICENSURE <REGISTRATION>.
4-8 (a) The following shall be considered as minimum evidence
4-9 satisfactory to the Board that the applicant is qualified for
4-10 licensure <registration> as a professional engineer:
4-11 (1) graduation from an approved curriculum in
4-12 engineering that is approved by the Board as of satisfactory
4-13 standing, passage of the examination requirements prescribed by the
4-14 Board, and a specific record of an additional four (4) years or
4-15 more of active practice in engineering work, of a character
4-16 satisfactory to the Board, indicating that the applicant is
4-17 competent to be placed in responsible charge of such work; or
4-18 (2) graduation from an engineering or related science
4-19 curriculum at a recognized institution of higher education, other
4-20 than a curriculum approved by the Board under Subdivision (1) of
4-21 this subsection, passage of the examination requirements prescribed
4-22 by the Board, and a specific record of at least eight (8) years of
4-23 active practice in engineering work of a character satisfactory to
4-24 the Board and indicating that the applicant is competent to be
4-25 placed in responsible charge of such work.
4-26 (b) Provided, that no person shall be eligible for licensure
4-27 <registration> as a professional engineer who is not of good
4-28 character and reputation; and provided further, that any engineer
4-29 licensed <registered> under this Act shall be eligible to hold any
4-30 appointive engineering position with the State of Texas.
4-31 (c) In considering the qualifications of applicants,
4-32 responsible charge of engineering teaching may be construed as
4-33 responsible charge of engineering work. The mere execution, as a
4-34 contractor, of work designed by a professional engineer, or the
4-35 supervision of the construction of such work as foreman or
4-36 superintendent shall not be deemed to be active practice in
4-37 engineering work.
4-38 (d) Any person having the necessary qualifications
4-39 prescribed in this Act to entitle him to licensure <registration>
4-40 shall be eligible for such licensure <registration> though he may
4-41 not be practicing at the time of making his application.
4-42 SECTION 12. Subsections (a), (b), and (d), Section 13, The
4-43 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
4-44 Statutes), as amended by Chapters 947 and 1090, Acts of the 71st
4-45 Legislature, Regular Session, 1989, are amended to read as follows:
4-46 (a) Applications for licensure <registration> shall be on
4-47 forms prescribed and furnished by the Board, be sworn, and contain:
4-48 (1) statements showing personal information about the
4-49 applicant, as required by Board rule, and describing the
4-50 applicant's education;
4-51 (2) a detailed summary of the applicant's actual
4-52 engineering work;
4-53 (3) a statement describing any earlier professional
4-54 engineering registrations or licenses by or denials, revocations,
4-55 or suspensions of professional engineering registrations or
4-56 licenses of the applicant;
4-57 (4) a statement describing any criminal offenses of
4-58 which the applicant has been convicted; and
4-59 (5) not less than five (5) references from individuals
4-60 with personal knowledge of the applicant's character, reputation,
4-61 and general suitability for licensure <registration>, of whom three
4-62 (3) or more shall be licensed <registered> engineers having
4-63 personal knowledge of the applicant's engineering experience.
4-64 (b) The Board shall establish reasonable and necessary fees
4-65 for the administration of this Act in amounts not to exceed:
4-66 1. License <Registration> fee $50
4-67 2. Annual renewal fee 75
4-68 3. Reciprocal license <registration> fee 50
4-69 4. Duplicate license <certificate of registration> 5
4-70 5. Engineer-in-training certificate 15
5-1 6. Roster of engineers 10
5-2 7. Examination fee 100
5-3 (d) The Board by rule may adopt reduced licensure and annual
5-4 renewal fees for licensed <registered> engineers who are at least
5-5 65 years of age.
5-6 SECTION 13. Subsections (a) and (c), Section 13B, The Texas
5-7 Engineering Practice Act (Article 3271a, Vernon's Texas Civil
5-8 Statutes), are amended to read as follows:
5-9 (a) Each of the following fees imposed by or under another
5-10 section of this Act is increased by $200:
5-11 (1) license <registration> fee;
5-12 (2) annual renewal fee; and
5-13 (3) reciprocal license <registration> fee.
5-14 (c) Subsection (a) does not apply to a licensed <registered>
5-15 professional engineer who meets the qualifications for an exemption
5-16 from licensure <registration> under Section 20(g) or (h) of this
5-17 Act but who does not claim that exemption.
5-18 SECTION 14. Subsection (a), Section 14, The Texas
5-19 Engineering Practice Act (Article 3271a, Vernon's Texas Civil
5-20 Statutes), is amended to read as follows:
5-21 (a) On payment of the examination fee, oral or written
5-22 examinations shall be administered to qualified applicants at such
5-23 time and place as the Board shall determine. The scope of the
5-24 examinations and the methods of procedure shall be prescribed by
5-25 the Board with special reference to the applicant's ability to
5-26 design and supervise engineering works, which shall insure the
5-27 safety of life, health, and property. Examinations shall be given
5-28 for the purpose of determining the qualifications of applicants for
5-29 licensure <registration> in professional engineering. The Board
5-30 may permit reexamination of an applicant on payment of an
5-31 appropriate reexamination fee in an amount set by the Board.
5-32 SECTION 15. Section 15, The Texas Engineering Practice Act
5-33 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
5-34 as follows:
5-35 Sec. 15. CERTIFICATES, SEALS. (a) The Board shall issue a
5-36 license <certificate of registration> upon payment of the license
5-37 <registration> fee as provided for in this Act, to any applicant,
5-38 who, in the opinion of the Board, has satisfactorily met all the
5-39 requirements of this Act. The license <In case of a registered
5-40 engineer, the certificate> shall authorize the practice of
5-41 professional engineering. A license <Certificates of registration>
5-42 shall show the full name of the license holder <registrant>, shall
5-43 have a serial number, and shall be signed by the Chairman and the
5-44 Secretary of the Board under seal of the Board. The issuance of a
5-45 license <certificate of registration> by this Board shall be
5-46 evidence that the person named therein is entitled to all rights
5-47 and privileges of a licensed <registered> professional engineer,
5-48 while the said certificate remains unrevoked or unexpired.
5-49 (b) Each license holder <registrant> hereunder shall upon
5-50 licensure <registration> obtain a seal of the design authorized by
5-51 the Board, bearing the license holder's <registrant's> name and the
5-52 legend "Licensed <"Registered> Professional Engineer". Plans,
5-53 specifications, plats, and reports issued by a license holder
5-54 <registrant> must include the license holder's <registrant's> seal
5-55 affixed to the document. It shall be unlawful for any one to affix
5-56 a seal on any document if the license <certificate> of the license
5-57 holder <registrant> named thereon has expired or has been suspended
5-58 or revoked, unless said license <certificate> shall have been
5-59 renewed or reissued.
5-60 (c) This Act applies to all engineering practiced in this
5-61 state that is not exempted under this Act. A public official of
5-62 this state or of a political subdivision of this state who is
5-63 charged with the enforcement of laws, ordinances, codes, or
5-64 regulations that affect the practice of engineering may only accept
5-65 plans, specifications, and other related documents prepared by a
5-66 licensed engineer <registered engineers>, as evidenced by the seal
5-67 of the engineer. A public official shall report violations of this
5-68 Act to the proper authorities.
5-69 SECTION 16. Section 16, The Texas Engineering Practice Act
5-70 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
6-1 as follows:
6-2 Sec. 16. EXPIRATIONS AND RENEWALS. (a) It shall be the
6-3 duty of the Board to notify every person licensed <registered>
6-4 under this Act of the date of the expiration of his license
6-5 <certificate> and the amount of the fee that shall be required for
6-6 its renewal for one year; such notice shall be mailed at least one
6-7 month in advance of the date of the expiration of said license
6-8 <certificate> to the last address provided by the license holder
6-9 <registrant> to the Board.
6-10 (b) A person may renew an unexpired license <certificate of
6-11 registration> by paying to the Board before the expiration date of
6-12 the license <certificate of registration> the required renewal fee.
6-13 (c) If a person's license <certificate of registration> has
6-14 been expired for not longer than 90 days, the person may renew the
6-15 license <certificate of registration> by paying to the Board the
6-16 required renewal fee and a penalty fee as set by the Board.
6-17 (d) If a person's license <certificate of registration> has
6-18 been expired for longer than 90 days but less than two years, the
6-19 person may renew the license <certificate of registration> by
6-20 paying to the Board all unpaid renewal fees and a penalty fee as
6-21 set by the Board.
6-22 (e) If a person's license <certificate of registration> has
6-23 been expired for two years or longer, the person may not renew the
6-24 license <certificate of registration>. The person may obtain a new
6-25 license <certificate of registration> by complying with the
6-26 requirements and procedures for obtaining an original license
6-27 <certificate of registration> that are in effect at the time the
6-28 person applies.
6-29 SECTION 17. Section 16.1, The Texas Engineering Practice Act
6-30 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
6-31 as follows:
6-32 Sec. 16.1. EXPIRATION DATES OF LICENSES <CERTIFICATES OF
6-33 REGISTRATION>. The board by rule may adopt a system under which
6-34 licenses <certificates of registration> expire on various dates
6-35 during the year, and the dates for reinstatement shall be adjusted
6-36 accordingly.
6-37 SECTION 18. Section 17, The Texas Engineering Practice Act
6-38 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
6-39 as follows:
6-40 Sec. 17. FIRMS, PARTNERSHIPS, CORPORATIONS AND JOINT STOCK
6-41 ASSOCIATIONS. A firm, or a co-partnership, or a corporation, or a
6-42 joint stock association may engage in the practice of professional
6-43 engineering in this State, provided such practice is carried on by
6-44 only professional engineers licensed <registered> in this State.
6-45 SECTION 19. Section 18, The Texas Engineering Practice Act
6-46 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
6-47 as follows:
6-48 Sec. 18. No firm, partnership, association, corporation or
6-49 other business entity shall hold itself out to the public or any
6-50 member thereof as being engaged in the practice of engineering
6-51 under any assumed, trade, business, partnership or corporate name
6-52 or employ, use, cause to be used or make use of in any manner
6-53 whatsoever any such words or terms as "engineer," "engineering,"
6-54 "engineering services," "engineering company," "engineering, inc.,"
6-55 "professional engineers," "licensed engineer," "registered
6-56 engineer," "licensed professional engineer," "registered
6-57 professional engineer," "engineered," or any combinations,
6-58 abbreviations or variations thereof, or in combination with any
6-59 other words, letters, initials, signs or symbols on, in or as a
6-60 part of, directly or indirectly, any sign, directory, listing,
6-61 contract, document, pamphlet, stationery, letterhead,
6-62 advertisement, signature, trade name, assumed name, corporate or
6-63 other business name unless such firm, partnership, association,
6-64 corporation or other business entity is actually and actively
6-65 engaged in the practice of engineering or offering engineering
6-66 services to the public, and any and all services, work, acts or
6-67 things performed or done by it which constitute any part of the
6-68 practice of engineering are either personally performed or done by
6-69 a licensed <registered> engineer or under the responsible
6-70 supervision of a licensed <registered> engineer.
7-1 SECTION 20. Subsection (a), Section 19, The Texas
7-2 Engineering Practice Act (Article 3271a, Vernon's Texas Civil
7-3 Statutes), is amended to read as follows:
7-4 (a) It is unlawful for this State or for any of its
7-5 political subdivisions, including any county, city, or town, to
7-6 engage in the construction of any public work involving
7-7 professional engineering, where public health, public welfare or
7-8 public safety is involved, unless the engineering plans and
7-9 specifications and estimates have been prepared by, and the
7-10 engineering construction is to be executed under the direct
7-11 supervision of a licensed <registered> professional engineer.
7-12 However nothing in this Act shall be held to apply to any public
7-13 work wherein the contemplated expenditure for the completed project
7-14 does not exceed Eight Thousand ($8,000.00) Dollars.
7-15 SECTION 21. Section 20, The Texas Engineering Practice Act
7-16 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
7-17 as follows:
7-18 Sec. 20. EXEMPTIONS. The following persons shall be exempt
7-19 from the licensure <registration> provisions of this Act, provided
7-20 that such persons are not directly or indirectly represented or
7-21 held out to the public to be legally qualified to engage in the
7-22 practice of engineering:
7-23 (a) A person not a resident of and having no
7-24 established place of business in this state if that person:
7-25 (1) has filed an application for licensure
7-26 <registration> as a professional engineer with the Board and the
7-27 application is pending Board action;
7-28 (2) is legally qualified to practice engineering
7-29 in another jurisdiction whose requirements for practice are at
7-30 least as strict as those required by this state; and
7-31 (3) affixes the person's seal from the
7-32 jurisdiction in which the person is legally qualified to practice
7-33 on all work completed while the application for licensure
7-34 <registration> to practice in this state is pending.
7-35 (b) A person who has recently become a resident of
7-36 this state if that person:
7-37 (1) has filed an application for licensure
7-38 <registration> as a professional engineer with the Board and the
7-39 application is pending Board action;
7-40 (2) is legally qualified to practice engineering
7-41 in another jurisdiction whose requirements for practice are at
7-42 least as strict as those required by this state; and
7-43 (3) affixes the person's seal from the
7-44 jurisdiction in which the person is legally qualified to practice
7-45 on all work completed while the application for licensure
7-46 <registration> to practice in this state is pending.
7-47 (c) An employee or a subordinate of a person holding a
7-48 license <certificate of registration> under this Act, or any
7-49 employee of a person exempted from licensure <registration> by
7-50 classes (a) and (b) of this Section; provided, his practice does
7-51 not include responsible charge of design or supervision.
7-52 (d) Officers and employees of the Government of the
7-53 United States while engaged within this state in the practice of
7-54 the profession of engineering for said Government.
7-55 (e) A person doing the actual work of installing,
7-56 operating, repairing, or servicing locomotive or stationary
7-57 engines, steam boilers, Diesel engines, internal combustion
7-58 engines, refrigeration compressors and systems, hoisting engines,
7-59 electrical engines, air conditioning equipment and systems, or
7-60 mechanical and electrical, electronic or communications equipment
7-61 and apparatus; this Act may not be construed to prevent any citizen
7-62 from identifying himself in the name and trade of any engineers'
7-63 labor organization with which he may be affiliated, however, this
7-64 exemption may not be construed to permit any person other than a
7-65 licensed <registered> professional engineer to affix his signature
7-66 to engineering plans, or specifications and may not be construed to
7-67 permit a person to use the term "engineer" or "engineering" in any
7-68 manner prohibited by this Act.
7-69 (f) A person, firm, partnership, joint stock
7-70 association or private corporation, erecting, constructing,
8-1 enlarging, altering or repairing, or drawing plans and
8-2 specifications for: (1) any private dwelling, or apartments not
8-3 exceeding eight units per building for one story buildings, or
8-4 apartments not exceeding four units per building and having a
8-5 maximum height of two stories, or garages or other structures
8-6 pertinent to such buildings; or (2) private buildings which are to
8-7 be used exclusively for farm, ranch or agricultural purposes, or
8-8 used exclusively for storage of raw agricultural commodities; or
8-9 (3) other buildings, except public buildings included under Section
8-10 19 of this Act, having no more than one story and containing no
8-11 clear span between supporting structures greater than 24 feet on
8-12 the narrow side and having a total floor area not in excess of five
8-13 thousand square feet; provided that on unsupported spans greater
8-14 than 24 feet on such buildings only the trusses, beams, or other
8-15 roof supporting members need to be engineered or pre-engineered;
8-16 provided that no representation is made or implied that engineering
8-17 services have been or will be offered to the public.
8-18 (g) Any regular full time employee of a private
8-19 corporation or other private business entity who is engaged solely
8-20 and exclusively in performing services for such corporation and/or
8-21 its affiliates; provided, such employee's services are on, or in
8-22 connection with, property owned or leased by such private
8-23 corporation and/or its affiliates or other private business entity,
8-24 or in which such private corporation and/or its affiliates or other
8-25 business entity has an interest, estate or possessory right, or
8-26 whose services affect exclusively the property, products, or
8-27 interests of such private corporation and/or its affiliates or
8-28 other private business entity; and, provided further, that such
8-29 employee does not have the final authority for the approval of, and
8-30 the ultimate responsibility for, engineering designs, plans or
8-31 specifications pertaining to such property or products which are to
8-32 be incorporated into fixed works, systems, or facilities on the
8-33 property of others or which are to be made available to the general
8-34 public. This exemption includes the use of job titles and
8-35 personnel classifications by such persons not in connection with
8-36 any offer of engineering services to the public, providing that no
8-37 name, title, or words are used which tend to convey the impression
8-38 that an unlicensed person is offering engineering services to the
8-39 public.
8-40 (h) Any regular full time employee of a privately
8-41 owned public utility or cooperative utility and/or affiliates who
8-42 is engaged solely and exclusively in performing services for such
8-43 utility and/or its affiliates; provided, that such employee does
8-44 not have the final authority for the approval of, and the ultimate
8-45 responsibility for engineering designs, plans or specifications to
8-46 be incorporated into fixed works, systems, or facilities on the
8-47 property of others or which are to be made available to the general
8-48 public. This exemption includes the use of job titles and
8-49 personnel classifications by such persons not in connection with
8-50 any offer of engineering services to the public, providing that no
8-51 name, title, or words are used which tend to convey the impression
8-52 that an unlicensed person is offering engineering services to the
8-53 public.
8-54 (i) Qualified scientists engaged in scientific
8-55 research and investigation of the physical or natural sciences,
8-56 including the usual work and activities of meteorologists,
8-57 seismologists, geologists, chemists, geochemists, physicists and
8-58 geophysicists.
8-59 (j) Nothing in this Act shall be construed or applied
8-60 so as to prohibit or in any way restrict any person from giving
8-61 testimony or preparing exhibits or documents for the sole purpose
8-62 of being placed in evidence before any administrative or judicial
8-63 tribunal of competent jurisdiction.
8-64 (k) Nothing in this Act shall apply to any
8-65 agricultural work being performed in carrying out soil and water
8-66 conservation practices.
8-67 (l) This Act shall not be construed as applying to
8-68 operating telephone companies and/or affiliates or their employees
8-69 in respect to any plans, designs, specifications, or services which
8-70 relate strictly to the science and art of telephony. This
9-1 exemption includes the use of job titles and personnel
9-2 classifications by such persons not in connection with any offer of
9-3 engineering services to the public, providing that no name, title,
9-4 or words are used which tend to convey the impression that an
9-5 unlicensed person is offering engineering services to the public.
9-6 SECTION 22. Section 21, The Texas Engineering Practice Act
9-7 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
9-8 as follows:
9-9 Sec. 21. LICENSURE <REGISTRATION> BY NONRESIDENTS. A person
9-10 who holds a valid <certificate of registration or> license issued
9-11 to him by proper authority of any state or territory or possession
9-12 of the United States, the District of Columbia, or any foreign
9-13 country may apply for licensure <registration> in this state.
9-14 SECTION 23. Section 22, The Texas Engineering Practice Act
9-15 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
9-16 as follows:
9-17 Sec. 22. DENIAL, REVOCATION, SUSPENSION, PROBATION,
9-18 REPRIMAND, RE-ISSUANCE AND REFUSAL OF LICENSE <CERTIFICATE>.
9-19 (a) The Board shall revoke, suspend, or refuse to renew a license
9-20 <registration>, shall reprimand a license holder <registrant>, may
9-21 deny an application for licensure <registration>, or may probate
9-22 any suspension of any license holder <registrant> who is determined
9-23 by the Board to be censurable for:
9-24 (1) The practice of any fraud or deceit in obtaining a
9-25 license <certificate of registration>;
9-26 (2) Any gross negligence, incompetency, or misconduct
9-27 in the practice of professional engineering as a licensed
9-28 <registered> professional engineer;
9-29 (3) Any documented instance of retaliation by an
9-30 applicant against an individual who has served as a reference for
9-31 that applicant;
9-32 (4) A violation of this Act or a Board rule; or
9-33 (5) A failure to timely provide plans and
9-34 specifications to the Texas Department of Licensing and Regulation
9-35 as required by Article 9102, Revised Statutes.
9-36 (b) Any person who may feel himself aggrieved by reason of
9-37 the revocation of his license <certificate of registration> by the
9-38 Board, as hereinabove authorized, shall have the right to file suit
9-39 in the district court of the county of his residence, or of the
9-40 county in which the alleged offense relied upon as grounds for
9-41 revocation took place, to annul or vacate the order of the Board
9-42 revoking the license <certificate of registration>.
9-43 (c) If the Board proposes to suspend or revoke a person's
9-44 license <certificate of registration>, the person is entitled to a
9-45 hearing before the Board. Proceedings for the suspension or
9-46 revocation of a license <certificate of registration> are governed
9-47 by Chapter 2001, Government Code <the Administrative Procedure and
9-48 Texas Register Act, as amended (Article 6252-13a, Vernon's Texas
9-49 Civil Statutes)>.
9-50 (d) The Board, for reasons it may deem sufficient, may
9-51 re-issue a license <certificate of registration> to any person
9-52 whose license <certificate> has been revoked, provided six (6) or
9-53 more members of the Board vote in favor of such re-issuance. A new
9-54 license <certificate of registration>, to replace any license
9-55 <certificate> revoked, lost, destroyed, or mutilated, may be
9-56 issued, subject to the rules of the Board.
9-57 SECTION 24. Section 22A, The Texas Engineering Practice Act
9-58 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
9-59 as follows:
9-60 Sec. 22A. INFORMATION ABOUT COMPLAINTS. (a) The Board
9-61 shall keep an information file about each complaint filed with the
9-62 Board relating to a license holder <registrant>.
9-63 (b) If a written complaint is filed with the Board relating
9-64 to a license holder <registrant>, the Board, at least as frequently
9-65 as quarterly, shall notify the parties to the complaint of the
9-66 status of the complaint until final disposition unless the
9-67 notification would jeopardize an undercover investigation.
9-68 SECTION 25. The Texas Engineering Practice Act (Article
9-69 3271a, Vernon's Texas Civil Statutes) is amended by adding Section
9-70 22C to read as follows:
10-1 Sec. 22C. ADMINISTRATIVE PENALTIES. (a) The Board may
10-2 impose an administrative penalty against a person licensed under
10-3 this Act or any other person who violates this Act or a rule or
10-4 order adopted under this Act. The Board may include in the amount
10-5 of the administrative penalty the actual costs of investigating and
10-6 prosecuting the violation.
10-7 (b) The penalty for a violation may be in an amount not to
10-8 exceed $3,000. Each day a violation continues or occurs is a
10-9 separate violation for purposes of imposing a penalty.
10-10 (c) The amount of the penalty shall be based on:
10-11 (1) the seriousness of the violation, including the
10-12 nature, circumstances, extent, and gravity of any prohibited acts,
10-13 and the hazard or potential hazard created to the health, safety,
10-14 or economic welfare of the public;
10-15 (2) the economic harm to property or the environment
10-16 caused by the violation;
10-17 (3) the history of previous violations;
10-18 (4) the amount necessary to deter future violations;
10-19 (5) efforts to correct the violation; and
10-20 (6) any other matter that justice may require.
10-21 (d) The director of the Board may hold informal conferences,
10-22 hold peer reviews, or perform any other procedures, including the
10-23 subpoenaing of witnesses and records, to determine whether a
10-24 violation has occurred. On the determination by the director that
10-25 a violation has occurred, the director may issue to the Chairman of
10-26 the Board a report that states the facts on which the determination
10-27 is based and the director's recommendation on the imposition of a
10-28 penalty, including a recommendation on the amount of the penalty.
10-29 (e) Within 14 days after the date the report is issued, the
10-30 director shall give written notice of the report to the person.
10-31 The notice may be given by certified mail. The notice must include
10-32 a brief summary of the alleged violation and a statement of the
10-33 amount of the recommended penalty and must inform the person that
10-34 the person has a right to a hearing on the occurrence of the
10-35 violation, the amount of the penalty, or both the occurrence of the
10-36 violation and the amount of the penalty.
10-37 (f) Within 20 days after the date the person receives the
10-38 notice, the person in writing may accept the determination and
10-39 recommended penalty of the director or may make a written request
10-40 for a hearing on the occurrence of the violation, the amount of the
10-41 penalty, or both the occurrence of the violation and the amount of
10-42 the penalty.
10-43 (g) If the person accepts the determination and recommended
10-44 penalty of the director, the Board by order shall approve the
10-45 determination and impose the recommended penalty.
10-46 (h) If the person requests a hearing or fails to respond
10-47 timely to the notice, the director shall set a hearing and give
10-48 notice of the hearing to the person. The hearing shall be held by
10-49 an administrative law judge of the State Office of Administrative
10-50 Hearings. The administrative law judge shall make findings of fact
10-51 and conclusions of law and promptly issue to the Board a proposal
10-52 for a decision about the occurrence of the violation and the amount
10-53 of a proposed penalty. Based on the findings of fact, conclusions
10-54 of law, and proposal for a decision, the Board by order may find
10-55 that a violation has occurred and impose a penalty or may find that
10-56 no violation occurred.
10-57 (i) The notice of the Board's order given to the person
10-58 under Chapter 2001, Government Code, must include a statement of
10-59 the right of the person to judicial review of the order.
10-60 (j) Within 30 days after the date the Board's order becomes
10-61 final as provided by Section 2001.144, Government Code, the person
10-62 shall:
10-63 (1) pay the amount of the penalty;
10-64 (2) pay the amount of the penalty and file a petition
10-65 for judicial review contesting the occurrence of the violation, the
10-66 amount of the penalty, or both the occurrence of the violation and
10-67 the amount of the penalty; or
10-68 (3) without paying the amount of the penalty, file a
10-69 petition for judicial review contesting the occurrence of the
10-70 violation, the amount of the penalty, or both the occurrence of the
11-1 violation and the amount of the penalty.
11-2 (k) Within the 30-day period, a person who acts under
11-3 Subsection (j)(3) of this section may:
11-4 (1) stay enforcement of the penalty by:
11-5 (A) paying the amount of the penalty to the
11-6 court for placement in an escrow account; or
11-7 (B) giving to the court a supersedeas bond that
11-8 is approved by the court for the amount of the penalty and that is
11-9 effective until all judicial review of the Board's order is final;
11-10 or
11-11 (2) request the court to stay enforcement of the
11-12 penalty by:
11-13 (A) filing with the court a sworn affidavit of
11-14 the person stating that the person is financially unable to pay the
11-15 amount of the penalty and is financially unable to give the
11-16 supersedeas bond; and
11-17 (B) giving a copy of the affidavit to the
11-18 director by certified mail.
11-19 (l) On receipt by the director of a copy of an affidavit
11-20 under Subsection (k)(2) of this section, the director may file with
11-21 the court, within five days after the date the copy is received, a
11-22 contest to the affidavit. The court shall hold a hearing on the
11-23 facts alleged in the affidavit as soon as practicable and shall
11-24 stay the enforcement of the penalty on finding that the alleged
11-25 facts are true. The person who files an affidavit has the burden
11-26 of proving that the person is financially unable to pay the amount
11-27 of the penalty and to give a supersedeas bond.
11-28 (m) If the person does not pay the amount of the penalty and
11-29 the enforcement of the penalty is not stayed, the director may
11-30 refer the matter to the attorney general for collection of the
11-31 amount of the penalty.
11-32 (n) Judicial review of the order of the Board:
11-33 (1) is instituted by filing a petition as provided by
11-34 Subchapter G, Chapter 2001, Government Code; and
11-35 (2) is under the substantial evidence rule.
11-36 (o) If the court sustains the occurrence of the violation,
11-37 the court may uphold or reduce the amount of the penalty and order
11-38 the person to pay the full or reduced amount of the penalty. If
11-39 the court does not sustain the occurrence of the violation, the
11-40 court shall order that no penalty is owed.
11-41 (p) When the judgment of the court becomes final, the court
11-42 shall proceed under this subsection. If the person paid the amount
11-43 of the penalty and if that amount is reduced or is not upheld by
11-44 the court, the court shall order that the appropriate amount plus
11-45 accrued interest be remitted to the person. The rate of the
11-46 interest is the rate charged on loans to depository institutions by
11-47 the New York Federal Reserve Bank, and the interest shall be paid
11-48 for the period beginning on the date the penalty was paid and
11-49 ending on the date the penalty is remitted. If the person gave a
11-50 supersedeas bond and if the amount of the penalty is not upheld by
11-51 the court, the court shall order the release of the bond. If the
11-52 person gave a supersedeas bond and if the amount of the penalty is
11-53 reduced, the court shall order the release of the bond after the
11-54 person pays the amount.
11-55 (q) A penalty collected under this section shall be remitted
11-56 to the comptroller for deposit in the general revenue fund, except
11-57 that the portion of the penalty that represents the costs of the
11-58 Board in investigating and prosecuting the violation shall be
11-59 remitted to the Board for enforcement purposes.
11-60 (r) All proceedings under this section are subject to
11-61 Chapter 2001, Government Code.
11-62 SECTION 26. Subsection (a), Section 23, The Texas
11-63 Engineering Practice Act (Article 3271a, Vernon's Texas Civil
11-64 Statutes), is amended to read as follows:
11-65 (a) Any person who shall practice, or offer to practice, the
11-66 profession of engineering in this State without being licensed
11-67 <registered> or exempted from licensure <registration> in
11-68 accordance with the provisions of this Act, or any person
11-69 presenting or attempting to use as his own the license <certificate
11-70 of registration> or the seal of another, or any person who shall
12-1 give any false or forged evidence of any kind to the Board or to
12-2 any member thereof in obtaining a license <certificate of
12-3 registration>, or any person who shall violate any of the
12-4 provisions of this Act, commits an offense. An offense under this
12-5 subsection is a Class A misdemeanor.
12-6 SECTION 27. Section 26, The Texas Engineering Practice Act
12-7 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
12-8 as follows:
12-9 Sec. 26. CONFIDENTIALITY OF CERTAIN INFORMATION. A statement
12-10 made by a person providing a reference for an applicant and other
12-11 pertinent information compiled by or submitted to the Board
12-12 relating to an applicant for licensure <registration> under this
12-13 Act is privileged and confidential and may be used only by the
12-14 Board or employees or agents of the Board who are directly involved
12-15 in the application or licensure <registration> process. The
12-16 information is not subject to discovery, subpoena, or other
12-17 disclosure.
12-18 SECTION 28. Subsection (d), Section 13, The Texas
12-19 Engineering Practice Act (Article 3271a, Vernon's Texas Civil
12-20 Statutes), as added by Section 1, Chapter 1090, Acts of the 71st
12-21 Legislature, Regular Session, 1989, is repealed.
12-22 SECTION 29. The Professional Engineers' Fund, as that fund
12-23 is described by Section 9, The Texas Engineering Practice Act
12-24 (Article 3271a, Vernon's Texas Civil Statutes), is re-created as a
12-25 special fund to be used for the purposes described by that section.
12-26 SECTION 30. This Act takes effect September 1, 1995, and
12-27 applies only to a violation of The Texas Engineering Practice Act
12-28 (Article 3271a, Vernon's Texas Civil Statutes) or a rule adopted
12-29 under that Act that occurs on or after that date. A violation that
12-30 occurs before that date is governed by the law in effect on the
12-31 date the violation occurred, and the former law is continued in
12-32 effect for that purpose.
12-33 SECTION 31. The change in law made by this Act relating to
12-34 the change in the type of credential issued to practice as an
12-35 engineer does not affect the validity of a certificate of
12-36 registration issued before the effective date of this Act.
12-37 SECTION 32. The importance of this legislation and the
12-38 crowded condition of the calendars in both houses create an
12-39 emergency and an imperative public necessity that the
12-40 constitutional rule requiring bills to be read on three several
12-41 days in each house be suspended, and this rule is hereby suspended.
12-42 * * * * *