1-1 By: Ratliff, Duncan S.B. No. 623
1-2 (In the Senate - Filed February 17, 1997; February 20, 1997,
1-3 read first time and referred to Committee on State Affairs;
1-4 March 26, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 13, Nays 0; March 26, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 623 By: Carona
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
2-1 used or make use of any letter, abbreviation, word, symbol, slogan,
2-2 sign or any combinations or variations thereof, which in any manner
2-3 whatsoever tends or is likely to create any impression with the
2-4 public or any member thereof that any person is qualified or
2-5 authorized to practice engineering unless such person is duly
2-6 licensed[, registered] under and practicing in accordance with the
2-7 provisions of this Act.
2-8 (4) Receive any fee or compensation or the promise of
2-9 any fee or compensation for performing, offering or attempting to
2-10 perform any service, work, act or thing which is any part of the
2-11 practice of engineering as defined by this Act.
2-12 Within the intent and meaning and for all purposes of this
2-13 Act, any person, firm, partnership, association or corporation
2-14 which shall do, offer or attempt to do any one or more of the acts
2-15 or things set forth in numbered paragraphs (1), (2), (3) or (4) of
2-16 this Section 1.2 shall be conclusively presumed and regarded as
2-17 engaged in the practice of engineering.
2-18 SECTION 3. Section 1.3, The Texas Engineering Practice Act
2-19 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
2-20 as follows:
2-21 Sec. 1.3. Every person licensed [and registered] by the
2-22 Board to engage in the practice of engineering shall in the
2-23 professional use of his name on any sign, directory, listing,
2-24 contract, document, pamphlet, stationery, letterhead,
2-25 advertisement, signature, or any other such means of professional
2-26 identification, written or printed, use one of the following
2-27 legally required identifications: Engineer, Professional Engineer
2-28 or P. E.
2-29 SECTION 4. Subdivisions (1), (3), and (4), Section 2, The
2-30 Texas Engineering Practice Act (Article 3271a, Vernon's Texas Civil
2-31 Statutes), are amended to read as follows:
2-32 (1) "Board" shall mean the Texas [State] Board of
2-33 [Registration for] Professional Engineers, provided for by this
2-34 Act.
2-35 (3) "Engineer," "professional engineer," "registered
2-36 engineer," "registered professional engineer," [or] "licensed
2-37 professional engineer," or "licensed engineer" shall mean a person
2-38 who has been duly licensed [and registered] by the Board to engage
2-39 in the practice of engineering in this state.
2-40 (4) "Practice of engineering," or "practice of
2-41 professional engineering" shall mean any service or creative work,
2-42 either public or private, the adequate performance of which
2-43 requires engineering education, training and experience in the
2-44 application of special knowledge or judgment of the mathematical,
2-45 physical, or engineering sciences to such services or creative
2-46 work.
2-47 The term includes consultation, investigation, evaluation,
2-48 analysis, planning, engineering for program management, providing
2-49 an expert engineering opinion or testimony, testing or evaluating
2-50 materials for construction and other engineering uses, and mapping;
2-51 design, conceptual design, or conceptual design coordination of
2-52 engineering works and systems; development or optimization of plans
2-53 and specifications for engineering works and systems; planning the
2-54 use or alteration of land and water or the design or analysis of
2-55 works or systems for the use or alteration of land and water;
2-56 teaching advanced engineering subjects; performing engineering
2-57 surveys and studies; engineering for construction, alteration, or
2-58 repair of real property; preparation of operating and maintenance
2-59 manuals; and review of the construction or installation of
2-60 engineered works to monitor compliance with drawings and
2-61 specifications.
2-62 The activities included in the practice of engineering
2-63 include services, designs, analyses, or other work performed for a
2-64 public or private entity in connection with utilities, structures,
2-65 buildings, machines, equipment, processes, systems, works,
2-66 projects, and industrial or consumer products or equipment of a
2-67 mechanical, electrical, electronic, chemical, hydraulic, pneumatic,
2-68 geotechnical, or thermal nature and include other professional
2-69 services necessary for the planning, progress, and completion of
3-1 any engineering service.
3-2 In this subdivision:
3-3 (A) "Design coordination" includes the review
3-4 and coordination of technical submissions prepared by others,
3-5 including the work of other professionals working with or under the
3-6 direction of an engineer with due professional regard for the
3-7 abilities of all professional parties involved in a
3-8 multidisciplinary effort.
3-9 (B) "Engineering surveys" includes all survey
3-10 activities required to support the sound conception, planning,
3-11 design, construction, maintenance, and operation of an engineered
3-12 project, but does not include the surveying of real property and
3-13 other activities regulated under the Professional Land Surveying
3-14 Practices Act (Article 5282c, Vernon's Texas Civil Statutes).
3-15 SECTION 5. Section 3, The Texas Engineering Practice Act
3-16 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
3-17 as follows:
3-18 Sec. 3. TEXAS [STATE] BOARD OF [REGISTRATION FOR]
3-19 PROFESSIONAL ENGINEERS--APPOINTMENT OF MEMBERS--TERMS. The Texas
3-20 [A State] Board of [Registration for] Professional Engineers is
3-21 hereby created whose duty it shall be to administer the provisions
3-22 of this Act. The Board shall consist of six (6) professional
3-23 engineers and three (3) representatives of the general public, who
3-24 shall be appointed by the Governor of the State, without regard to
3-25 the race, creed, sex, religion, or national origin of the
3-26 appointees and with the advice and consent of the Senate. At the
3-27 expiration of the term of each member first appointed, his
3-28 successor shall be appointed by the Governor of the State and he
3-29 shall serve for a term of six (6) years or until his successor
3-30 shall be appointed and qualified. Before entering upon the duties
3-31 of his office each member of the Board shall take the
3-32 Constitutional Oath of office and the same shall be filed with the
3-33 Secretary of State.
3-34 SECTION 6. Section 3a, The Texas Engineering Practice Act
3-35 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
3-36 as follows:
3-37 Sec. 3a. SUNSET PROVISION. The Texas [State] Board of
3-38 [Registration for] Professional Engineers is subject to Chapter
3-39 325, Government Code (Texas Sunset Act). Unless continued in
3-40 existence as provided by that chapter, the board is abolished and
3-41 this Act expires September 1, 2003.
3-42 SECTION 7. Subsection (d), Section 4, The Texas Engineering
3-43 Practice Act (Article 3271a, Vernon's Texas Civil Statutes), is
3-44 amended to read as follows:
3-45 (d) The Board by majority vote may limit the participation
3-46 of general public members in the evaluations of applications for
3-47 licensure [registration] except in those instances in which the
3-48 evaluations take place at an official meeting of the Board.
3-49 SECTION 8. Subsections (a) and (b), Section 8, The Texas
3-50 Engineering Practice Act (Article 3271a, Vernon's Texas Civil
3-51 Statutes), are amended to read as follows:
3-52 (a) In addition to any other powers and duties, the Board
3-53 shall have the authority and power to make and enforce all rules
3-54 and regulations and bylaws consistent with this Act as necessary
3-55 for the performance of its duties, the governance of its own
3-56 proceedings, and the regulation of the practice of engineering in
3-57 this state and may establish standards of conduct and ethics for
3-58 engineers in keeping with the purposes and intent of this Act and
3-59 to insure strict compliance with and enforcement of this Act. The
3-60 violation by any engineer of any provision of this Act or any rule
3-61 or regulation of the Board shall be a sufficient cause to suspend
3-62 or revoke the license [certificate of registration] of or to issue
3-63 a formal or informal reprimand to such engineer. In addition to
3-64 any other action, proceeding or remedy authorized by law, the Board
3-65 shall have the right to institute an action in its own name in a
3-66 district court of Travis County against any individual person,
3-67 firm, partnership, or other entity to enjoin any violation of any
3-68 provision of this Act or any rule or regulation of the Board and in
3-69 order for the Board to sustain such action it shall not be
4-1 necessary to allege or prove, either that an adequate remedy at law
4-2 does not exist, or that substantial or irreparable damage would
4-3 result from the continued violation thereof. Either party to such
4-4 action may appeal to the appellate court having jurisdiction of
4-5 said cause. The Board shall not be required to give any appeal
4-6 bond in any cause arising under this Act. The Attorney General
4-7 shall represent the Board in all actions and proceedings to enforce
4-8 the provisions of this Act.
4-9 (b) The Board may promulgate rules restricting competitive
4-10 bidding. The Board may not promulgate rules restricting
4-11 advertising by a license holder [registrants] except to prohibit
4-12 false, misleading, or deceptive practices by the license holder
4-13 [registrants]. The Board may not include in its rules to prohibit
4-14 false, misleading, or deceptive practices by a person regulated by
4-15 the Board a rule that:
4-16 (1) restricts the person's use of any medium for
4-17 advertising;
4-18 (2) restricts the person's personal appearance or use
4-19 of his personal voice in an advertisement;
4-20 (3) relates to the size or duration of an
4-21 advertisement by the person; or
4-22 (4) restricts the person's advertisement under a trade
4-23 name.
4-24 SECTION 9. Subsection (a), Section 10, The Texas Engineering
4-25 Practice Act (Article 3271a, Vernon's Texas Civil Statutes), is
4-26 amended to read as follows:
4-27 (a) The Board shall keep a record of its proceedings and
4-28 register of all applications for licensure [registration], which
4-29 register shall show (a) the name, age and residence of each
4-30 applicant; (b) the date of the application; (c) the place of
4-31 business of such applicant; (d) his educational and other
4-32 qualifications; (e) whether or not an examination was required;
4-33 (f) whether the applicant was rejected; (g) whether a license
4-34 [certificate of registration] was granted; (h) the date of the
4-35 action of the Board; and (i) such other information as may be
4-36 deemed necessary by the Board.
4-37 The records of the Board shall be available to the public at
4-38 all times and shall be prima facie evidence of the proceedings of
4-39 the Board set forth therein, and a transcript thereof, duly
4-40 certified by the Secretary of the Board under seal, shall be
4-41 admissible in evidence with the same force and effect as if the
4-42 original was produced.
4-43 SECTION 10. Section 11, The Texas Engineering Practice Act
4-44 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
4-45 as follows:
4-46 Sec. 11. ROSTER OF LICENSED [REGISTERED] ENGINEERS. A
4-47 roster showing the names and places of business of all licensed
4-48 [registered] professional engineers shall be prepared and published
4-49 by the Board each biennium at a time determined by the Board.
4-50 Copies of this roster shall be furnished without charge to any
4-51 engineer licensed [registered] by the Board on the written request
4-52 of the engineer, placed on file with the Secretary of State, and
4-53 furnished to any person upon written request who tenders a
4-54 reproduction fee set by the Board.
4-55 SECTION 11. Section 12, The Texas Engineering Practice Act
4-56 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
4-57 as follows:
4-58 Sec. 12. GENERAL REQUIREMENTS FOR LICENSURE [REGISTRATION].
4-59 (a) The following shall be considered as minimum evidence
4-60 satisfactory to the Board that the applicant is qualified for
4-61 licensure [registration] as a professional engineer:
4-62 (1) graduation from an approved curriculum in
4-63 engineering that is approved by the Board as of satisfactory
4-64 standing, passage of the examination requirements prescribed by the
4-65 Board, and a specific record of an additional four (4) years or
4-66 more of active practice in engineering work, of a character
4-67 satisfactory to the Board, indicating that the applicant is
4-68 competent to be placed in responsible charge of such work; or
4-69 (2) graduation from an engineering or related science
5-1 curriculum at a recognized institution of higher education, other
5-2 than a curriculum approved by the Board under Subdivision (1) of
5-3 this subsection, passage of the examination requirements prescribed
5-4 by the Board, and a specific record of at least eight (8) years of
5-5 active practice in engineering work of a character satisfactory to
5-6 the Board and indicating that the applicant is competent to be
5-7 placed in responsible charge of such work.
5-8 (b) Provided, that no person shall be eligible for licensure
5-9 [registration] as a professional engineer who is not of good
5-10 character and reputation; and provided further, that any engineer
5-11 licensed [registered] under this Act shall be eligible to hold any
5-12 appointive engineering position with the State of Texas.
5-13 (c) In considering the qualifications of applicants,
5-14 responsible charge of engineering teaching may be construed as
5-15 responsible charge of engineering work. The mere execution, as a
5-16 contractor, of work designed by a professional engineer, or the
5-17 supervision of the construction of such work as foreman or
5-18 superintendent shall not be deemed to be active practice in
5-19 engineering work.
5-20 (d) Any person having the necessary qualifications
5-21 prescribed in this Act to entitle him to licensure [registration]
5-22 shall be eligible for such licensure [registration] though he may
5-23 not be practicing at the time of making his application.
5-24 (e) The Board may adopt rules providing for the waiver of
5-25 all or part of the examination requirement under this Act to permit
5-26 the issuance or reissuance of a license to an applicant. Before
5-27 the Board may waive the requirement, the Board must find that the
5-28 applicant possesses sufficient qualifications to justify the waiver
5-29 of all or part of the examination requirement and that issuance or
5-30 reissuance of the license to the applicant does not pose a threat
5-31 to the public health, safety, or welfare.
5-32 SECTION 12. Section 13, The Texas Engineering Practice Act
5-33 (Article 3271a, Vernon's Texas Civil Statutes), as amended by
5-34 Chapters 947 and 1090, Acts of the 71st Legislature, Regular
5-35 Session, 1989, is amended by amending Subsections (a), (b), and (d)
5-36 and adding Subsection (e) to read as follows:
5-37 (a) Applications for licensure [registration] shall be on
5-38 forms prescribed and furnished by the Board, be sworn, and contain:
5-39 (1) statements showing personal information about the
5-40 applicant, as required by Board rule, and describing the
5-41 applicant's education;
5-42 (2) a detailed summary of the applicant's actual
5-43 engineering work;
5-44 (3) a statement describing any earlier professional
5-45 engineering registrations or licenses by or denials, revocations,
5-46 or suspensions of professional engineering registrations or
5-47 licenses of the applicant;
5-48 (4) a statement describing any criminal offenses of
5-49 which the applicant has been convicted; and
5-50 (5) not less than five (5) references from individuals
5-51 with personal knowledge of the applicant's character, reputation,
5-52 and general suitability for licensure [registration], of whom three
5-53 (3) or more shall be licensed [registered] engineers having
5-54 personal knowledge of the applicant's engineering experience.
5-55 (b) The Board shall establish reasonable and necessary fees
5-56 for the administration of this Act in amounts not to exceed:
5-57 1. License [Registration] fee $50
5-58 2. Annual renewal fee 75
5-59 3. Reciprocal license [registration] fee 50
5-60 4. Duplicate license [certificate of registration] 5
5-61 5. Engineer-in-training certificate 15
5-62 6. Roster of engineers 10
5-63 7. Examination fee 120 [100]
5-64 (d) The Board by rule may adopt reduced licensure
5-65 [registration] and annual renewal fees for licensed [registered]
5-66 engineers who are at least 65 years of age.
5-67 (e) The Board by rule may adopt reduced licensure and annual
5-68 renewal fees for licensed engineers who are disabled and who are
5-69 not currently engaged in the active practice of engineering. For
6-1 purposes of this subsection, an individual is "disabled" if the
6-2 individual has a mental or physical impairment that substantially
6-3 limits the ability of the individual to earn a living as a licensed
6-4 engineer, other than an impairment caused by a current condition of
6-5 addiction to the use of alcohol or an illegal drug or controlled
6-6 substance. A licensed engineer entitled to reduced fees under this
6-7 subsection because the engineer is not engaged in the active
6-8 practice of engineering shall notify the Board of the resumption of
6-9 active practice not later than the 15th day after the date the
6-10 engineer resumes active practice.
6-11 SECTION 13. Subsections (a) and (c), Section 13B, The Texas
6-12 Engineering Practice Act (Article 3271a, Vernon's Texas Civil
6-13 Statutes), are amended to read as follows:
6-14 (a) Each of the following fees imposed by or under another
6-15 section of this Act is increased by $200:
6-16 (1) license [registration] fee;
6-17 (2) annual renewal fee; and
6-18 (3) reciprocal license [registration] fee.
6-19 (c) Subsection (a) does not apply to a licensed [registered]
6-20 professional engineer who:
6-21 (1) meets the qualifications for an exemption from
6-22 licensure [registration] under Section 20(e) [20(g)] or (f) [(h)]
6-23 of this Act but who does not claim that exemption; or
6-24 (2) is disabled for purposes of Section 13(e) of this
6-25 Act.
6-26 SECTION 14. Subsection (a), Section 14, The Texas
6-27 Engineering Practice Act (Article 3271a, Vernon's Texas Civil
6-28 Statutes), is amended to read as follows:
6-29 (a) On payment of the examination fee, oral or written
6-30 examinations shall be administered to qualified applicants at such
6-31 time and place as the Board shall determine. The scope of the
6-32 examinations and the methods of procedure shall be prescribed by
6-33 the Board with special reference to the applicant's ability to
6-34 design and supervise engineering works, which shall insure the
6-35 safety of life, health, and property. Examinations shall be given
6-36 for the purpose of determining the qualifications of applicants for
6-37 licensure [registration] in professional engineering. The Board
6-38 may permit reexamination of an applicant on payment of an
6-39 appropriate reexamination fee in an amount set by the Board.
6-40 SECTION 15. Section 15, The Texas Engineering Practice Act
6-41 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
6-42 as follows:
6-43 Sec. 15. LICENSES [CERTIFICATES], SEALS. (a) The Board
6-44 shall issue a license [certificate of registration] upon payment of
6-45 the license [registration] fee as provided for in this Act, to any
6-46 applicant, who, in the opinion of the Board, has satisfactorily met
6-47 all the requirements of this Act. The license [In case of a
6-48 registered engineer, the certificate] shall authorize the practice
6-49 of professional engineering. A license [Certificates of
6-50 registration] shall show the full name of the license holder
6-51 [registrant], shall have a serial number, and shall be signed by
6-52 the Chairman and the Secretary of the Board under seal of the
6-53 Board. The issuance of a license [certificate of registration] by
6-54 this Board shall be evidence that the person named therein is
6-55 entitled to all rights and privileges of a licensed [registered]
6-56 professional engineer, while the said license [certificate] remains
6-57 unrevoked or unexpired.
6-58 (b) Each license holder [registrant] hereunder shall upon
6-59 licensure [registration] obtain a seal of the design authorized by
6-60 the Board, bearing the license holder's [registrant's] name and the
6-61 legend "Licensed Professional Engineer" or "Registered Professional
6-62 Engineer". Plans, specifications, plats, and reports issued by a
6-63 license holder [registrant] must include the license holder's
6-64 [registrant's] seal affixed to the document. It shall be unlawful
6-65 for any one to affix a seal on any document if the license
6-66 [certificate] of the license holder [registrant] named thereon has
6-67 expired or has been suspended or revoked, unless said license
6-68 [certificate] shall have been renewed or reissued.
6-69 (c) This Act applies to all engineering practiced in this
7-1 state that is not exempted under this Act. A public official of
7-2 this state or of a political subdivision of this state who is
7-3 charged with the enforcement of laws, ordinances, codes, or
7-4 regulations that affect the practice of engineering may only accept
7-5 plans, specifications, and other related documents prepared by a
7-6 licensed engineer [registered engineers], as evidenced by the seal
7-7 of the engineer. A public official shall report violations of this
7-8 Act to the proper authorities.
7-9 SECTION 16. Section 16, The Texas Engineering Practice Act
7-10 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
7-11 as follows:
7-12 Sec. 16. EXPIRATIONS AND RENEWALS. (a) It shall be the
7-13 duty of the Board to notify every person licensed [registered]
7-14 under this Act of the date of the expiration of his license
7-15 [certificate] and the amount of the fee that shall be required for
7-16 its renewal for one year; such notice shall be mailed at least one
7-17 month in advance of the date of the expiration of said license
7-18 [certificate] to the last address provided by the license holder
7-19 [registrant] to the Board.
7-20 (b) A person may renew an unexpired license [certificate of
7-21 registration] by paying to the Board before the expiration date of
7-22 the license [certificate of registration] the required renewal fee.
7-23 (c) If a person's license [certificate of registration] has
7-24 been expired for not longer than 90 days, the person may renew the
7-25 license [certificate of registration] by paying to the Board the
7-26 required renewal fee and a penalty fee as set by the Board.
7-27 (d) If a person's license [certificate of registration] has
7-28 been expired for longer than 90 days but less than two years, the
7-29 person may renew the license [certificate of registration] by
7-30 paying to the Board all unpaid renewal fees and a penalty fee as
7-31 set by the Board.
7-32 (e) If a person's license [certificate of registration] has
7-33 been expired for two years or longer, the person may not renew the
7-34 license [certificate of registration]. The person may obtain a new
7-35 license [certificate of registration] by complying with the
7-36 requirements and procedures for obtaining an original license
7-37 [certificate of registration] that are in effect at the time the
7-38 person applies.
7-39 SECTION 17. Section 16.1, The Texas Engineering Practice Act
7-40 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
7-41 as follows:
7-42 Sec. 16.1. EXPIRATION DATES OF LICENSES [CERTIFICATES OF
7-43 REGISTRATION]. The board by rule may adopt a system under which
7-44 licenses [certificates of registration] expire on various dates
7-45 during the year, and the dates for reinstatement shall be adjusted
7-46 accordingly.
7-47 SECTION 18. Section 17, The Texas Engineering Practice Act
7-48 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
7-49 as follows:
7-50 Sec. 17. FIRMS, PARTNERSHIPS, CORPORATIONS AND JOINT STOCK
7-51 ASSOCIATIONS. A firm, or a co-partnership, or a corporation, or a
7-52 joint stock association may engage in the practice of professional
7-53 engineering in this State, provided such practice is carried on by
7-54 only professional engineers licensed [registered] in this State.
7-55 SECTION 19. Section 18, The Texas Engineering Practice Act
7-56 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
7-57 as follows:
7-58 Sec. 18. (a) No firm, partnership, association, corporation
7-59 or other business entity shall hold itself out to the public or any
7-60 member thereof as being engaged in the practice of engineering
7-61 under any assumed, trade, business, partnership or corporate name
7-62 or employ, use, cause to be used or make use of in any manner
7-63 whatsoever any such words or terms as "engineer," "engineering,"
7-64 "engineering services," "engineering company," "engineering, inc.,"
7-65 "professional engineers," "licensed engineer," "registered
7-66 engineer," "licensed professional engineer," "registered
7-67 professional engineer," "engineered," or any combinations,
7-68 abbreviations or variations thereof, or in combination with any
7-69 other words, letters, initials, signs or symbols on, in or as a
8-1 part of, directly or indirectly, any sign, directory, listing,
8-2 contract, document, pamphlet, stationery, letterhead,
8-3 advertisement, signature, trade name, assumed name, corporate or
8-4 other business name unless such firm, partnership, association,
8-5 corporation or other business entity is actually and actively
8-6 engaged in the practice of engineering or offering engineering
8-7 services to the public, and any and all services, work, acts or
8-8 things performed or done by it which constitute any part of the
8-9 practice of engineering are either personally performed or done by
8-10 a licensed [registered] engineer or under the direct [responsible]
8-11 supervision of a licensed [registered] engineer who is a regular
8-12 full-time employee of the firm, partnership, association,
8-13 corporation, or other business entity.
8-14 (b) This section does not prohibit a licensed engineer from
8-15 performing engineering services on a part-time basis.
8-16 SECTION 20. Subsection (a), Section 19, The Texas
8-17 Engineering Practice Act (Article 3271a, Vernon's Texas Civil
8-18 Statutes), is amended to read as follows:
8-19 (a) It is unlawful for this State or for any of its
8-20 political subdivisions, including any county, city, or town, to
8-21 engage in the construction of any public work involving
8-22 professional engineering, where public health, public welfare or
8-23 public safety is involved, unless the engineering plans and
8-24 specifications and estimates have been prepared by, and the
8-25 engineering construction is to be executed under the direct
8-26 supervision of a licensed [registered] professional engineer.
8-27 SECTION 21. Section 20, The Texas Engineering Practice Act
8-28 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
8-29 as follows:
8-30 Sec. 20. EXEMPTIONS. The following persons shall be exempt
8-31 from the licensure [registration] provisions of this Act, provided
8-32 that such persons are not directly or indirectly represented or
8-33 held out to the public to be legally qualified to engage in the
8-34 practice of engineering:
8-35 (a) [A person not a resident of and having no
8-36 established place of business in this state if that person:]
8-37 [(1) has filed an application for registration
8-38 as a professional engineer with the Board and the application is
8-39 pending Board action;]
8-40 [(2) is legally qualified to practice
8-41 engineering in another jurisdiction whose requirements for practice
8-42 are at least as strict as those required by this state; and]
8-43 [(3) affixes the person's seal from the
8-44 jurisdiction in which the person is legally qualified to practice
8-45 on all work completed while the application for registration to
8-46 practice in this state is pending.]
8-47 [(b) A person who has recently become a resident of
8-48 this state if that person:]
8-49 [(1) has filed an application for registration
8-50 as a professional engineer with the Board and the application is
8-51 pending Board action;]
8-52 [(2) is legally qualified to practice
8-53 engineering in another jurisdiction whose requirements for practice
8-54 are at least as strict as those required by this state; and]
8-55 [(3) affixes the person's seal from the
8-56 jurisdiction in which the person is legally qualified to practice
8-57 on all work completed while the application for registration to
8-58 practice in this state is pending.]
8-59 [(c)] An employee or a subordinate of a person holding
8-60 a license [certificate of registration] under this Act[, or any
8-61 employee of a person exempted from registration by classes (a) and
8-62 (b) of this Section]; provided, his practice does not include
8-63 responsible charge of design or supervision.
8-64 (b) [(d)] Officers and employees of the Government of
8-65 the United States while engaged within this state in the practice
8-66 of the profession of engineering for said Government.
8-67 (c) [(e)] A person doing the actual work of
8-68 installing, operating, repairing, or servicing locomotive or
8-69 stationary engines, steam boilers, Diesel engines, internal
9-1 combustion engines, refrigeration compressors and systems, hoisting
9-2 engines, electrical engines, air conditioning equipment and
9-3 systems, or mechanical and electrical, electronic or communications
9-4 equipment and apparatus; this Act may not be construed to prevent
9-5 any citizen from identifying himself in the name and trade of any
9-6 engineers' labor organization with which he may be affiliated,
9-7 however, this exemption may not be construed to permit any person
9-8 other than a licensed [registered] professional engineer to affix
9-9 his signature to engineering plans, or specifications and may not
9-10 be construed to permit a person to use the term "engineer" or
9-11 "engineering" in any manner prohibited by this Act.
9-12 (d) [(f)] A person, firm, partnership, joint stock
9-13 association or private corporation, erecting, constructing,
9-14 enlarging, altering or repairing, or drawing plans and
9-15 specifications for: (1) any private dwelling, or apartments not
9-16 exceeding eight units per building for one story buildings, or
9-17 apartments not exceeding four units per building and having a
9-18 maximum height of two stories, or garages or other structures
9-19 pertinent to such buildings; or (2) private buildings which are to
9-20 be used exclusively for farm, ranch or agricultural purposes, or
9-21 used exclusively for storage of raw agricultural commodities; or
9-22 (3) other buildings, except public buildings included under Section
9-23 19 of this Act, having no more than one story and containing no
9-24 clear span between supporting structures greater than 24 feet on
9-25 the narrow side and having a total floor area not in excess of five
9-26 thousand square feet; provided that on unsupported spans greater
9-27 than 24 feet on such buildings only the trusses, beams, or other
9-28 roof supporting members need to be engineered or pre-engineered;
9-29 provided that no representation is made or implied that engineering
9-30 services have been or will be offered to the public.
9-31 (e) [(g)] Any regular full time employee of a private
9-32 corporation or other private business entity who is engaged solely
9-33 and exclusively in performing services for such corporation and/or
9-34 its affiliates; provided, such employee's services are on, or in
9-35 connection with, property owned or leased by such private
9-36 corporation and/or its affiliates or other private business entity,
9-37 or in which such private corporation and/or its affiliates or other
9-38 business entity has an interest, estate or possessory right, or
9-39 whose services affect exclusively the property, products, or
9-40 interests of such private corporation and/or its affiliates or
9-41 other private business entity; and, provided further, that such
9-42 employee does not have the final authority for the approval of, and
9-43 the ultimate responsibility for, engineering designs, plans or
9-44 specifications pertaining to such property or products which are to
9-45 be incorporated into fixed works, systems, or facilities on the
9-46 property of others or which are to be made available to the general
9-47 public. This exemption includes the use of job titles and
9-48 personnel classifications by such persons not in connection with
9-49 any offer of engineering services to the public, providing that no
9-50 name, title, or words are used which tend to convey the impression
9-51 that an unlicensed person is offering engineering services to the
9-52 public.
9-53 (f) [(h)] Any regular full time employee of a
9-54 privately owned public utility or cooperative utility and/or
9-55 affiliates who is engaged solely and exclusively in performing
9-56 services for such utility and/or its affiliates; provided, that
9-57 such employee does not have the final authority for the approval
9-58 of, and the ultimate responsibility for engineering designs, plans
9-59 or specifications to be incorporated into fixed works, systems, or
9-60 facilities on the property of others or which are to be made
9-61 available to the general public. This exemption includes the use
9-62 of job titles and personnel classifications by such persons not in
9-63 connection with any offer of engineering services to the public,
9-64 providing that no name, title, or words are used which tend to
9-65 convey the impression that an unlicensed person is offering
9-66 engineering services to the public.
9-67 (g) [(i)] Qualified scientists engaged in scientific
9-68 research and investigation of the physical or natural sciences,
9-69 including the usual work and activities of meteorologists,
10-1 seismologists, geologists, chemists, geochemists, physicists and
10-2 geophysicists.
10-3 (h) [(j)] Nothing in this Act shall be construed or
10-4 applied so as to prohibit or in any way restrict any person from
10-5 giving testimony or preparing exhibits or documents for the sole
10-6 purpose of being placed in evidence before any administrative or
10-7 judicial tribunal of competent jurisdiction.
10-8 (i) [(k)] Nothing in this Act shall apply to any
10-9 agricultural work being performed in carrying out soil and water
10-10 conservation practices.
10-11 (j) [(l)] This Act shall not be construed as applying
10-12 to operating telephone companies and/or affiliates or their
10-13 employees in respect to any plans, designs, specifications, or
10-14 services which relate strictly to the science and art of telephony.
10-15 This exemption includes the use of job titles and personnel
10-16 classifications by such persons not in connection with any offer of
10-17 engineering services to the public, providing that no name, title,
10-18 or words are used which tend to convey the impression that an
10-19 unlicensed person is offering engineering services to the public.
10-20 (k) This Act or a rule adopted under this Act does not
10-21 prevent, limit, or restrict a person licensed as an architect,
10-22 landscape architect, or interior designer under the laws of this
10-23 state from performing an act, service, or work that is within the
10-24 definition of the person's practice as an architect under Chapter
10-25 478, Acts of the 45th Legislature, Regular Session, 1937 (Article
10-26 249a, Vernon's Texas Civil Statutes), as a landscape architect
10-27 under Chapter 457, Acts of the 61st Legislature, Regular Session,
10-28 1969 (Article 249c, Vernon's Texas Civil Statutes), or as an
10-29 interior designer under Article 249e, Revised Statutes.
10-30 (l) This Act does not apply to a regular full-time
10-31 employee of a private corporation or other private business entity
10-32 who is engaged in erecting, constructing, enlarging, altering,
10-33 repairing, rehabilitating, or maintaining an improvement to real
10-34 property in accordance with plans and specifications that bear the
10-35 seal of a licensed engineer. This exemption includes the use of
10-36 job titles and personnel classifications by the employee that are
10-37 not in connection with any offer of engineering services to the
10-38 public.
10-39 SECTION 22. The Texas Engineering Practice Act (Article
10-40 3271a, Vernon's Texas Civil Statutes) is amended by adding Section
10-41 20A to read as follows:
10-42 Sec. 20A. TEMPORARY OR PROVISIONAL LICENSE. The Board may
10-43 adopt rules providing standards and procedures for the issuance of
10-44 a temporary or provisional license under this Act.
10-45 SECTION 23. Section 21, The Texas Engineering Practice Act
10-46 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
10-47 as follows:
10-48 Sec. 21. LICENSURE [REGISTRATION] BY NONRESIDENTS. A person
10-49 who holds a valid certificate of registration or license issued to
10-50 him by proper authority of any state or territory or possession of
10-51 the United States, the District of Columbia, or any foreign country
10-52 may apply for licensure [registration] in this state.
10-53 SECTION 24. Section 22, The Texas Engineering Practice Act
10-54 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
10-55 as follows:
10-56 Sec. 22. DENIAL, REVOCATION, SUSPENSION, PROBATION,
10-57 REPRIMAND, RE-ISSUANCE AND REFUSAL OF LICENSE; STATUS REVIEW
10-58 [CERTIFICATE]. (a) The Board shall revoke, suspend, or refuse to
10-59 renew a license [registration], shall reprimand a license holder
10-60 [registrant], may deny an application for licensure [registration],
10-61 or may probate any suspension of any license holder [registrant]
10-62 who is determined by the Board to be censurable for:
10-63 (1) The practice of any fraud or deceit in obtaining a
10-64 license [certificate of registration];
10-65 (2) Any gross negligence, incompetency, or misconduct
10-66 in the practice of professional engineering as a licensed
10-67 [registered] professional engineer;
10-68 (3) Any documented instance of retaliation by an
10-69 applicant against an individual who has served as a reference for
11-1 that applicant;
11-2 (4) A violation of this Act or a Board rule; or
11-3 (5) A failure to timely provide plans and
11-4 specifications to the Texas Department of Licensing and Regulation
11-5 as required by Article 9102, Revised Statutes.
11-6 (b) Any person who may feel himself aggrieved by reason of
11-7 the revocation of his license [certificate of registration] by the
11-8 Board, as hereinabove authorized, shall have the right to file suit
11-9 in the district court of the county of his residence, or of the
11-10 county in which the alleged offense relied upon as grounds for
11-11 revocation took place, to annul or vacate the order of the Board
11-12 revoking the license [certificate of registration].
11-13 (c) If the Board proposes to suspend or revoke a person's
11-14 license [certificate of registration], the person is entitled to a
11-15 hearing before the Board. Proceedings for the suspension or
11-16 revocation of a license [certificate of registration] are governed
11-17 by Chapter 2001, Government Code [the Administrative Procedure and
11-18 Texas Register Act, as amended (Article 6252-13a, Vernon's Texas
11-19 Civil Statutes)].
11-20 (d) The Board, for reasons it may deem sufficient, may
11-21 re-issue a license [certificate of registration] to any person
11-22 whose license [certificate] has been revoked, provided six (6) or
11-23 more members of the Board vote in favor of such re-issuance. A new
11-24 license [certificate of registration], to replace any license
11-25 [certificate] revoked, lost, destroyed, or mutilated, may be
11-26 issued, subject to the rules of the Board.
11-27 (e) The Board may adopt rules permitting the Board to review
11-28 the status of a license holder who the Board believes may have been
11-29 issued a license through fraud or error or who may constitute a
11-30 threat to the public health, safety, or welfare. The Board may
11-31 suspend or revoke a license held by a person whose status is
11-32 reviewed under this subsection.
11-33 SECTION 25. Section 22A, The Texas Engineering Practice Act
11-34 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
11-35 as follows:
11-36 Sec. 22A. INFORMATION ABOUT COMPLAINTS. (a) The Board
11-37 shall keep an information file about each complaint filed with the
11-38 Board relating to a license holder [registrant].
11-39 (b) If a written complaint is filed with the Board relating
11-40 to a license holder [registrant], the Board, at least as frequently
11-41 as quarterly, shall notify the parties to the complaint of the
11-42 status of the complaint until final disposition unless the
11-43 notification would jeopardize an undercover investigation.
11-44 (c) The Board shall adopt rules that permit the Board to
11-45 receive and investigate confidential complaints against license
11-46 holders or any other person who may have violated this Act. The
11-47 Board shall maintain the confidentiality of the complaint during
11-48 the investigation of the complaint.
11-49 SECTION 26. The Texas Engineering Practice Act (Article
11-50 3271a, Vernon's Texas Civil Statutes) is amended by adding Section
11-51 22C to read as follows:
11-52 Sec. 22C. ADMINISTRATIVE PENALTY. (a) The Board may impose
11-53 an administrative penalty against a person licensed under this Act
11-54 or any other person or entity that violates this Act or a rule or
11-55 order adopted under this Act. The Board may include in the amount
11-56 of the administrative penalty the actual costs of investigating and
11-57 prosecuting the violation.
11-58 (b) The penalty for a violation may be in an amount not to
11-59 exceed $3,000. Each day a violation continues or occurs is a
11-60 separate violation for purposes of imposing a penalty.
11-61 (c) The amount of the penalty shall be based on:
11-62 (1) the seriousness of the violation, including the
11-63 nature, circumstances, extent, and gravity of any prohibited acts,
11-64 and the hazard or potential hazard created to the health, safety,
11-65 or economic welfare of the public;
11-66 (2) the economic harm to property or the environment
11-67 caused by the violation;
11-68 (3) the history of previous violations;
11-69 (4) the amount necessary to deter future violations;
12-1 (5) efforts or resistance to efforts to correct the
12-2 violation; and
12-3 (6) any other matter that justice may require.
12-4 (d) The Board shall adopt rules of procedure for the
12-5 assessment of an administrative penalty by the Board. Rules
12-6 adopted under this section must conform to the requirements of
12-7 Chapter 2001, Government Code.
12-8 (e) Within 30 days after the date the Board's order becomes
12-9 final as provided by Section 2001.144, Government Code, the person
12-10 shall:
12-11 (1) pay the amount of the penalty;
12-12 (2) pay the amount of the penalty and file a petition
12-13 for judicial review contesting the occurrence of the violation, the
12-14 amount of the penalty, or both the occurrence of the violation and
12-15 the amount of the penalty; or
12-16 (3) without paying the amount of the penalty, file a
12-17 petition for judicial review contesting the occurrence of the
12-18 violation, the amount of the penalty, or both the occurrence of the
12-19 violation and the amount of the penalty.
12-20 (f) Within the 30-day period, a person who acts under
12-21 Subsection (e)(3) of this section may:
12-22 (1) stay enforcement of the penalty by:
12-23 (A) paying the amount of the penalty to the
12-24 court for placement in an escrow account; or
12-25 (B) giving to the court a supersedeas bond that
12-26 is approved by the court for the amount of the penalty and that is
12-27 effective until all judicial review of the Board's order is final;
12-28 or
12-29 (2) request the court to stay enforcement of the
12-30 penalty by:
12-31 (A) filing with the court a sworn affidavit of
12-32 the person stating that the person is financially unable to pay the
12-33 amount of the penalty and is financially unable to give the
12-34 supersedeas bond; and
12-35 (B) giving a copy of the affidavit to the
12-36 executive director by certified mail.
12-37 (g) On receipt by the director of a copy of an affidavit
12-38 under Subsection (f)(2) of this section, the director may file with
12-39 the court, within five days after the date the copy is received, a
12-40 contest to the affidavit. The court shall hold a hearing on the
12-41 facts alleged in the affidavit as soon as practicable and shall
12-42 stay the enforcement of the penalty on finding that the alleged
12-43 facts are true. The person who files an affidavit has the burden
12-44 of proving that the person is financially unable to pay the amount
12-45 of the penalty and to give a supersedeas bond.
12-46 (h) If the person does not pay the amount of the penalty and
12-47 the enforcement of the penalty is not stayed, the director may
12-48 refer the matter to the attorney general for collection of the
12-49 amount of the penalty.
12-50 (i) Judicial review of the order of the Board:
12-51 (1) is instituted by filing a petition as provided by
12-52 Subchapter G, Chapter 2001, Government Code; and
12-53 (2) is under the substantial evidence rule.
12-54 (j) If the court sustains the occurrence of the violation,
12-55 the court may uphold or reduce the amount of the penalty and order
12-56 the person to pay the full or reduced amount of the penalty. If
12-57 the court does not sustain the occurrence of the violation, the
12-58 court shall order that no penalty is owed.
12-59 (k) When the judgment of the court becomes final, the court
12-60 shall proceed under this subsection. If the person paid the amount
12-61 of the penalty and if that amount is reduced or is not upheld by
12-62 the court, the court shall order that the appropriate amount plus
12-63 accrued interest be remitted to the person. The rate of the
12-64 interest is the rate charged on loans to depository institutions by
12-65 the New York Federal Reserve Bank, and the interest shall be paid
12-66 for the period beginning on the date the penalty was paid and
12-67 ending on the date the penalty is remitted. If the person gave a
12-68 supersedeas bond and if the amount of the penalty is not upheld by
12-69 the court, the court shall order the release of the bond. If the
13-1 person gave a supersedeas bond and if the amount of the penalty is
13-2 reduced, the court shall order the release of the bond after the
13-3 person pays the amount.
13-4 (l) A penalty collected under this section shall be remitted
13-5 to the comptroller for deposit in the general revenue fund, except
13-6 that the portion of the penalty that represents the costs of the
13-7 Board in investigating and prosecuting the violation shall be
13-8 remitted to the Board as reimbursement for performance of the
13-9 Board's regulatory functions.
13-10 (m) All proceedings under this section are subject to
13-11 Chapter 2001, Government Code.
13-12 SECTION 27. Subsection (a), Section 23, The Texas
13-13 Engineering Practice Act (Article 3271a, Vernon's Texas Civil
13-14 Statutes), is amended to read as follows:
13-15 (a) Any person who shall practice, or offer to practice, the
13-16 profession of engineering in this State without being licensed
13-17 [registered] or exempted from licensure [registration] in
13-18 accordance with the provisions of this Act, or any person
13-19 presenting or attempting to use as his own the license [certificate
13-20 of registration] or the seal of another, or any person who shall
13-21 give any false or forged evidence of any kind to the Board or to
13-22 any member thereof in obtaining a license [certificate of
13-23 registration], or any person who shall violate any of the
13-24 provisions of this Act, commits an offense. An offense under this
13-25 subsection is a Class A misdemeanor.
13-26 SECTION 28. Section 26, The Texas Engineering Practice Act
13-27 (Article 3271a, Vernon's Texas Civil Statutes), is amended to read
13-28 as follows:
13-29 Sec. 26. CONFIDENTIALITY OF CERTAIN INFORMATION. A
13-30 statement made by a person providing a reference for an applicant
13-31 and other pertinent information compiled by or submitted to the
13-32 Board relating to an applicant for licensure [registration] under
13-33 this Act is privileged and confidential and may be used only by the
13-34 Board or employees or agents of the Board who are directly involved
13-35 in the application or licensure [registration] process. The
13-36 information is not subject to discovery, subpoena, or other
13-37 disclosure.
13-38 SECTION 29. The change in law made by this Act applies only
13-39 to a violation of The Texas Engineering Practice Act (Article
13-40 3271a, Vernon's Texas Civil Statutes) or a rule adopted under that
13-41 Act that is reported on or after the effective date of this Act. A
13-42 violation that is reported before that date is governed by the law
13-43 in effect on the date the violation was reported, and the former
13-44 law is continued in effect for that purpose.
13-45 SECTION 30. The change in law made by this Act relating to
13-46 the change in the type of credential issued to practice as an
13-47 engineer does not affect the validity of a certificate of
13-48 registration issued before the effective date of this Act.
13-49 SECTION 31. This Act takes effect September 1, 1997, and
13-50 applies to a license fee, annual renewal fee, or reciprocal license
13-51 fee paid to the Texas Board of Professional Engineers that becomes
13-52 due on or after that date. A fee that is collected by the board on
13-53 or after that date but that became due before that date is governed
13-54 by the law in effect on the date that the fee became due, and the
13-55 former law is continued in effect for that purpose.
13-56 SECTION 32. The importance of this legislation and the
13-57 crowded condition of the calendars in both houses create an
13-58 emergency and an imperative public necessity that the
13-59 constitutional rule requiring bills to be read on three several
13-60 days in each house be suspended, and this rule is hereby suspended.
13-61 * * * * *