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TBPE Draft Policy Advisory Opinion on Comprehensive Building Design

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After a lengthy and somewhat contentious deliberation, the Texas Board of Professional Engineers (TBPE) has issued a draft Policy Advisory Opinion on Comprehensive Building Design (included below).  This opinion is sure to attract the wrath of architects throughout Texas and ignite yet another episode of the already 15-year-old "turf battle".  This draft opinion has not yet been ratified by TBPE, and comments from engineers, architects, and other stakeholders are welcome.
 
Respectfully submitted,
 
Stan R. Caldwell, P.E., F.ASCE, F.AEI
Chair, SEAoT PALL Committee
Member, TBPE/TBAE Joint Advisory Committee on the Practice of Engineering and Architecture       
 
 

Texas Board of Professional Engineers
Policy Advisory Opinion Regarding Building Design
May 18, 2005

The Texas Board of Professional Engineers (Board) is given authority to issue advisory opinions under Subchapter M, Chapter 1001 of the Occupations Code (Texas Engineering Practice Act). The Board is required to issue an advisory opinion about interpretations of the Texas Engineering Practice Act in regard to a specific existing or hypothetical factual situation if requested by a person and to respond to that request within 180 days.

Pursuant to that requirement, the Board hereby presents the following Draft Policy Advisory Opinion regarding Building Design. The Board, upon a written request to issue a policy advisory regarding the engineering aspects of building design, has developed a stakeholder process to gather information from professional engineers, and consultants and other interested parties. The following policy advisory, "Policy Advisory Opinion Regarding Building Design," was written using stakeholder comments and is being posted here for public comment. The Board has not ratified the policy advisory opinion as yet. Comments received during the posting period will be considered for inclusion in the final version of the policy advisory that will be presented to the Board for ratification during a regularly scheduled meeting of the Board. Comments should be directed to:

Texas Board of Professional Engineers
1917 IH 35 South
Austin, Texas 78741

Attention: Policy Advisory Staff

Or by e-mail to: peboard(--nospam--at)tbpe.state.tx.us

Executive Summary: The Texas Board of Professional Engineers (Board) has been asked to determine if the practice of engineering includes comprehensive and complete design of buildings by a competent engineer without the services of an architect. The Board has determined pursuant to the Advisory Opinion process outlined in Texas Administrative Code, Title 22, Part 6, Chapter 131, Subchapter M, based on present statute and rules, in addition to Attorney General opinion DM-161, that the design of buildings is an element of engineering. The Board believes that the statute allows an engineer to perform building design with or without the involvement of an architect. The Board does, however, recognize that architects have broad authority to manage and oversee building projects, which may include building design. Nothing in this opinion is intended to limit architects ability under their statutory authorization. However, building design is also considered engineering and therefore may be performed exclusively by a licensed professional engineer competent in this field.

Discussion: The statute under Texas Occupations Code - Title 6, Subtitle A, Chapter 1001 (§1001.003) also known as the Texas Engineering Practice Act (Act) specifies that design is the practice of engineering and that a building is listed in conjunction with design under this section of the law. This opinion is based on the information contained in the Act as it relates to engineers, while not prohibiting building design by architects who are bound by the laws and rules of the Texas Board of Architectural Examiners (TBAE). First, the statute identifies what is engineering and an excerpt from the beginning of the law, in section §1001.003 explains, in part: (bold added for emphasis)

§1001.003 Practice of Engineering
(c) The practice of engineering includes:
(10) a service, design, analysis, or other work performed for a public or private entity in connection with a utility, structure, building, machine, equipment, process, system, work, project, or industrial or consumer product or equipment of a mechanical, electrical, electronic, chemical, hydraulic, pneumatic, geotechnical, or thermal nature;

Since the design of buildings has been identified as engineering, the buildings can be grouped into public works and private works, which are mentioned in various sections of the Act. This separation allows for further clarification of applicable law as it relates to these two categories. Engineering aspects of a public works project must be designed and constructed under the supervision of a licensed professional engineer, unless exempted under the Act.


When is building design exempted under the Act?

Under the Act there are several sections that provide exemptions from the license requirements when working on building projects. Specifically, §1001.053 contains some specific exemptions from the Act for public works projects, depending on the type of project and monetary value. There is also a section of the Act in §1001.056 that describes building projects for the private sector and defines when an engineer is not required to be involved with the building project.

Legislative Intent
Under §1001.004(b) of the Act, there is a description of the legislative purpose and intent as follows:
(b) The purpose of this chapter is to:
(1) protect the public health, safety, and welfare;
(2) enable the state and the public to identify persons authorized to practice engineering in this state; and
(3) fix responsibility for work done or services or acts performed in the practice of engineering.

In addition to specifying the purpose and intent of the statute, there are sections that also allow other individuals to perform their jobs without being in violation of the Act. In other words, architects may design buildings without creating a situation where there would necessarily be a violation of the Act, however they would still be bound by the laws and rules of the TBAE, unless exempted. §1001.004(e) of the Act addresses this issue:
(e) This chapter does not:
(4) affect or prevent the practice of any other legally recognized profession by a member of the profession who is licensed by the state or under the state's authority.

Legal Interpretation
The Board has the authority to issue an advisory opinion as stated in §1001.601 but, under §1001.603, it does not affect the authority of the attorney general to issue an opinion as authorized by law. There exists an Attorney General opinion relating to architecture that was requested by the Executive Director of TBAE. In Opinion DM-161 dated August 27, 1992, Attorney General Dan Morales indicated that the professions of architects and engineers overlap. In that opinion, there is reference to the fact that the Board of Architectural Examiners prepared a report to assist in sunset review and recognized that "licensed engineers were authorized to prepare building designs under the engineer's licensing statute." In summary, General Morales denotes that the statute regulating the practice of architecture, does not bar a licensed professional engineer from preparing plans and specifications for a building. In other words, the professional engineer is not prohibited from being the design professional in construction or modification of buildings, as long as the engineer has achieved competence in the field in which he pra
ctices.