Raghunath Dass, P.E. v. Texas Board of Professional Engineers

Opinion

ACCEPTED 03-14-00552-CV 5174167 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/6/2015 1:02:39 PM JEFFREY D. KYLE CLERK No. 03-14-00552-CV

IN THE COURT OF APPEALS FILED IN FOR THE THIRD DISTRICT 3rd COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 5/6/2015 1:02:39 PM JEFFREY D. KYLE RAGHUNATH DASS, P.E., Clerk Appellant,

v.

TEXAS BOARD OF PROFESSIONAL ENGINEERS, Appellee. On Appeal from the 201st Judicial District Court, Travis County, Texas; Cause No. D-1-GN-14-000568, before the Honorable Stephen Yelenosky.

APPELLEE’S BRIEF

KEN PAXTON JENNIFER L. HOPGOOD Attorney General of Texas State Bar No. 24073010 Assistant Attorney General CHARLES E. ROY Administrative Law Division First Assistant Attorney General Office of the Texas Attorney General P.O. Box 12548, Capitol Station JAMES E. DAVIS Austin, Texas 78711-2548 Deputy Attorney General for Telephone: (512) 475-4200 Civil Litigation Facsimile: (512) 320-0167

DAVID A. TALBOT, JR. Attorneys for Appellee, Chief, Administrative Law Texas Board of Division Professional Engineers

ORAL ARGUMENT NOT REQUESTED

May 6, 2015 IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties, as well as the names and addresses of all counsel.

Plaintiff/Appellant Appellate Counsel

Raghunath Dass, P.E. Jimmy Alan Hall, P.L.L.C. 4600 Mueller Boulevard, Suite 2121 Austin, TX 78723-3372 Facsimile: (512) 857-9195 jahall@fbjah.com

J. Woodfin Jones Alexander Dubose Jefferson & Townsend LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701-3562 Facsimile: (512) 482-9303 wjones@adjtlaw.com

Defendant/Appellee Appellee Counsel

Texas Board of Office of the Attorney General Professional Engineers Jennifer L. Hopgood Administrative Law Division P.O. Box 12548 Austin, TX 78711-2548

ii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ................................................................................. ii TABLE OF CONTENTS ............................................................................................................... iii INDEX OF AUTHORITIES........................................................................................................... v STATEMENT OF THE CASE...................................................................................................... xi ISSUES CORRECTED ................................................................................................................ xii STATEMENT REGARDING ORAL ARGUMENT................................................................... xii APPELLEE’S BRIEF ..................................................................................................................... 1 STATEMENT OF FACTS CORRECTED .................................................................................... 2 SUMMARY OF THE ARGUMENT ........................................................................................... 16 STANDARD OF REVIEW .......................................................................................................... 16 ARGUMENT ................................................................................................................................ 18 I. The only issue before this Court is whether the district court properly granted the Board’s motion for summary judgment, dismissing Mr. Dass’s lawsuit; however, because Mr. Dass has failed to raise this issue in his Appellant’s Brief, he has waived error..................................................................................................................... 18 A. Mr. Dass has waived error, and the Court should affirm the district court’s granting of the Board’s motion for summary judgment. ............................................. 18 B. Even on the merits, the district court properly granted the Board’s motion for summary judgment. ..................................................................................................... 19 1. Mr. Dass’s second motion for rehearing failed to preserve error. ........................... 20 2. When Mr. Dass dismissed his first appeal, the doctrines of res judicata and collateral estoppel precluded Mr. Dass from relitigating those same claims. ......... 24 3. The Board's Amended Final Order complied with the Final Judgment in the first suit. ................................................................................................................... 27 II. Mr. Dass fails to preserve error for his Issues Nos. 1-6 and his bill of exception issue. ................................................................................................................................ 27 A. Mr. Dass also waived his Issues Nos. 1, 2, and 3 because he failed to raise these issues in either his motion for rehearing or district court, and these three issues do not implicate subject-matter jurisdiction. ............................................................... 29 1. Mr. Dass’s Issue No. 1 is waived because even if the Board’s issuance of the Amended Final Order was erroneous, Mr. Dass failed to raise this issue in his motion for rehearing. ............................................................................................... 32 2. Although Mr. Dass’s Issue No. 2 is waived, even on the merits Mr. Dass’s argument would fail to show how the Board may not fix responsibility for services performed in the practice of engineering. ................................................. 34 a. Broad definition of “practice of engineering.” ........................................................ 35

iii b. CME and the reports. .............................................................................................. 36 3. Although Mr. Dass’s Issue No. 3 is waived, even on the merits the ALJ correctly ruled that Mr. Dass failed to follow the legally required bidding process for a public works project. .......................................................................... 38 B. Mr. Dass has waived his right to complain of the CME Advisory Opinion (Mr. Dass’s fourth issue). .................................................................................................... 39 C. Mr. Dass has also waived his fifth and sixth issues because his complaint that the substantial evidence standard was not met must have been brought in his first appeal, which he withdrew. ................................................................................. 41 D. Because Mr. Dass failed to brief his issue regarding the exclusion of evidence and has thus waived this point of error, the Court should not consider documents not properly before the Court. ............................................................................................... 43 CONCLUSION AND PRAYER .................................................................................................. 44 CERTIFICATE OF COMPLIANCE ............................................................................................ 46 CERTIFICATE OF SERVICE ..................................................................................................... 46

iv INDEX OF AUTHORITIES

Cases

Amstadt v. U.S. Brass Corp., 919 S.W.2d 644 (Tex. 1996)..................................................................................................... 25

Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992)..................................................................................................... 24

Burke v. Cent. Educ. Agency, 725 S.W.2d 393 (Tex. App.—Austin 1987, writ ref’d n.r.e.) ................................. 21, 22, 23, 39

Carpenter v. First Tex. Bancorp, No. 03-12-00004-CV, 2014 WL 2568494 (Tex. App.—Austin June 5, 2014, pet. filed) ............................................ 18

Carrizales v. Tex. Dep't Prot. & Reg. Servs., 5 S.W.3d 922 (Tex. App.—Austin 1999, pet. denied).............................................................. 31

Centeq Realty Inc. v. Siegler, 899 S.W.2d 195 (Tex. 1995)..................................................................................................... 20

Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res. Conservation Comm’n, 124 S.W.3d 844 (Tex. App.—Austin 2003, pet. denied).......................................................... 33

Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430 (Tex. 2007)..................................................................................................... 24

City of Celina v. Dynavest Joint Venture, 253 S.W.3d 399 (Tex. App.—Austin 2008, no pet.) ................................................................ 33

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979)..................................................................................................... 28

Concho Residential Servs., Inc. v. MHMR Servs. for the Concho Valley, No. 03-98-00022-CV, 1999 WL 644727 (Tex. App.—Austin Aug. 26, 1999, pet. denied) .... 19

Crider v. Crider, No. 01-10-00268-CV, 2011 WL 2651794 (Tex. App.—Houston [1st Dist.] July 7, 2011, pet. denied) (mem. op.) ... 19

Dreyer v. Greene, 871 S.W.2d 697 (Tex. 1993)..................................................................................................... 31

El Paso Hosp. Dist. v. Tex. Health & Human Servs. Comm’n, 247 S.W.3d 709 (Tex. 2008)..................................................................................................... 41

Hamamcy v. Tex. State Bd. of Med. Exam’rs, 900 S.W.2d 423 (Tex. App.—Austin 1995, writ denied) ................................................... 21, 22 v Hamilton v. Wilson, 249 S.W.3d 425 (Tex. 2008) (per curium)................................................................................ 17

Hill v. Bd. of Trs., 40 S.W.3d 676 (Tex. App.—Austin 2001, no pet.) .................................................................. 22

Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203 (Tex. 1999)..................................................................................................... 24

John Gannon, Inc. v. Gunnarson Outdoor Adver., Inc., No. 03-08-00404-CV, 2010 WL 3192536 (Tex. App.—Austin Aug. 11, 2010, pet. denied) ...................................... 19

Krot v. Fid. Nat’l Title Co., No. 03-14-00250-CV, 2014 WL 7464084 (Tex. App.—Austin Dec. 31, 2014, no pet. hist.) (mem. op.) ................... 28

Lear Sieglar, Inc. v. Perez, 819 S.W.2d 470 (Tex. 1991)..................................................................................................... 17

Loftin v. Lee, 341 S.W.3d 352 (Tex. 2011)..................................................................................................... 31

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006)..................................................................................................... 43

Mansfield State Bank v. Cohn, 573 S.W.2d 181 (Tex. 1978)..................................................................................................... 28

Mapco, Inc. v. Carter, 817 S.W. 686 (Tex. 1991)......................................................................................................... 30

Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139 (Tex. 1997)..................................................................................................... 24

Pub. Util. Comm’n v. Allcomm Long Distance, Inc., 902 S.W.2d 662 (Tex. App.—Austin 1995, writ denied) ......................................................... 31

Pub. Util. Comm’n v. City Pub. Serv. Bd. of San Antonio, 109 S.W.3d 130 (Tex. App.—Austin 2003, no pet.) ................................................................ 30

Schanzle v. JPMC Specialty Mortg., No. 03-09-00639-CV, 2011 WL 832170, (Tex. App.—Austin Mar. 11, 2011, no pet.) (mem. op.) ............................ 28

Suburban Util. Corp. v. Pub. Util. Comm’n, 652 S.W.2d 358 (Tex. 1983)............................................................................................... 21, 24

SWEPI LP v. R.R. Comm’n, 314 S.W.3d 253 (Tex. App.—Austin 2010, pet. denied).......................................................... 30

vi Sysco Food Servs. Inc. v. Trapnell, 890 S.W.2d 796 (Tex. 1994)..................................................................................................... 25

Tex. Emp’t Comm’n v. Int’l Union of Elec., Radio & Mach. Workers, Local Union No. 782, 352 S.W.2d 252 (Tex. 1961)..................................................................................................... 30

Tex. Gen. Land Office v. Crystal Clear Water Supply Corp., 449 S.W.3d 130 (Tex. App.—Austin 2014, pet. filed) ............................................................. 30

Tex. Highway Comm’n v. Tex. Ass’n of Steel Importers, 372 S.W.2d 525 (Tex. 1963)..................................................................................................... 33

Tex. State Bd. of Pharm. v. Witcher, 447 S.W.3d 520 (Tex. App.—Austin 2014, pet. filed) ............................................................. 41

United States v. Utah Constr. & Mining Co., 384 U.S. 394, (1966) ................................................................................................................. 25

Williams v. Geeslin, No. 03-05-00450-CV, 2006 WL 2032570 (Tex. App.—Austin July 21, 2006, no pet.) (mem. op.) ............................ 23

Statutes

Tex. Gov’t Code § 2001.145......................................................................................................... 20

Tex. Gov’t Code § 2001.146......................................................................................................... 20

Tex. Gov’t Code § 2001.174............................................................................................. 30, 31, 41

Tex. Gov’t Code § 2001.174(2)(B)............................................................................................... 29

Tex. Gov't Code § 2001.1775 ..................................................................................... 29, 32, 33, 34

Tex. Gov’t Code § 2254.002(1)(B)........................................................................................... 6, 38

Tex. Gov’t Code § 2254.002(2)(A)(vii) ................................................................................... 6, 38

Tex. Gov’t Code § 2254.002(2)(B)(vii) .................................................................................... 6, 38

Tex. Gov’t Code § 2254.004(a)(1) ........................................................................................... 7, 39

Tex. Gov’t Code § 2254.004(a)(2) ........................................................................................... 7, 39

Tex. Occ. Code ch. 1001 ................................................................................................................. 3

Tex. Occ. Code § 1001.003 .......................................................................................................... 36

Tex. Occ. Code § 1001.003(b) .................................................................................................. 3, 35

vii Tex. Occ. Code § 1001.003(c)(1) ............................................................................................. 4, 35

Tex. Occ. Code § 1001.003(c)(12) ........................................................................................... 4, 36

Tex. Occ. Code § 1001.004(a) ........................................................................................................ 4

Tex. Occ. Code § 1001.004(b)(1) ............................................................................................. 3, 35

Tex. Occ. Code § 1001.004(b)(3) ............................................................................................. 3, 35

Tex. Occ. Code § 1001.004(d) .................................................................................................. 4, 36

Tex. Occ. Code § 1001.021(a) ........................................................................................................ 5

Tex. Occ. Code § 1001.053 ............................................................................................................ 6

Tex. Occ. Code § 1001.202 ............................................................................................................ 4

Tex. Occ. Code § 1001.252(a) ........................................................................................................ 5

Tex. Occ. Code § 1001.252(f) ........................................................................................................ 5

Tex. Occ. Code § 1001.407(1) .................................................................................................. 6, 38

Tex. Occ. Code § 1001.451(2) ........................................................................................................ 5

Tex. Occ. Code § 1001.451(3) ........................................................................................................ 5

Tex. Occ. Code § 1001.451(4) ........................................................................................................ 5

Tex. Occ. Code § 1001.452(1) ........................................................................................................ 5

Tex. Occ. Code § 1001.454 ............................................................................................................ 5

Tex. Occ. Code § 1001.501 ............................................................................................................ 6

Tex. Occ. Code § 1001.502 ............................................................................................................ 6

Tex. Occ. Code § 1001.601(a) .................................................................................................. 7, 40

Tex. Occ. Code § 1001.601(b) ........................................................................................................ 7

Tex. Occ. Code § 1001.602(1) .................................................................................................. 8, 40

Tex. Occ. Code § 1001.602(2) .................................................................................................. 8, 40

Rules

Tex. R. App. P. 38(f)..................................................................................................................... 18 viii Tex. R. App. P. 38(i) ..................................................................................................................... 18

Tex. R. App. P. 38.1(g) ................................................................................................................... 2

Tex. R. App. P. 38.2(a)(1)(B) ................................................................................................... xii, 2

Tex. R. Civ. P. 166a(c) ................................................................................................................. 27

Texas Administrative Code

22 Tex. Admin. Code § 131.101 ............................................................................................... 7, 40

22 Tex. Admin. Code § 131.103 ............................................................................................... 7, 40

22 Tex. Admin. Code § 131.105 ............................................................................................... 8, 40

22 Tex. Admin. Code § 131.109 ............................................................................................... 8, 40

22 Tex. Admin. Code § 137.33(b) .......................................................................................... 10, 11

22 Tex. Admin. Code § 137.33(f) ................................................................................................. 11

22 Tex. Admin. Code § 137.53(a) ............................................................................................ 6, 38

22 Tex. Admin. Code § 137.53(b) ............................................................................................ 6, 38

22 Tex. Admin. Code § 137.63(b)(2) ................................................................................. 6, 11, 39

22 Tex. Admin. Code § 139.11 ....................................................................................................... 5

22 Tex. Admin. Code § 139.17 ....................................................................................................... 5

22 Tex. Admin. Code § 139.31 ....................................................................................................... 5

22 Tex. Admin. Code § 139.35 ....................................................................................................... 5

22 Tex. Admin. Code § 139.47 ....................................................................................................... 5

22 Tex. Admin. Code § 139.49 ....................................................................................................... 5

Legislative Analysis

Bill Summ., Tex. S.B. 277, 78th Leg., R.S. (2003) ........................................................................ 7

Senate Comm. on Licensing & Admin. Procedures, Comm. Report (Unamended), Bill Analysis, Tex. S.B. 277, 78th Leg., R.S. (2003)......................................................................................... 3

Senate Research Ctr., Bill Analysis, Tex. S.B. 277, 78th Leg., R.S. (2003) .................................. 3

ix Tex. S.B. 277, 78th Leg., R.S. (2003)............................................................................................. 7

Other Authorities

Black’s Law Dictionary 870 (8th ed. 2004).................................................................................. 30

x STATEMENT OF THE CASE

Nature of the case: This is an appeal from a final judgment by the Travis County District Court granting the Texas Board of Professional Engineer’s (“Board”) motion for summary judgment and dismissing Raghunath Dass, P.E.’s (“Mr. Dass”) suit for judicial review. Order Granting Def.’s Mot. for Summ. J., C.R. at 465, copy attached at Appendix 1.

Trial Court: 201st Judicial District Court of Travis County, in Cause No. D-1-GN-14-000568, The Honorable Stephen Yelenosky, Presiding.

Trial Court Proceeding: Appellant Mr. Dass filed his suit in district court, C.R. at 4-20, seeking judicial review of the Board’s Amended Final Order. Id.1 The Board filed a motion for summary judgment, seeking to dispose of all claims. C.R. at 334- 406. After considering the pleadings of the parties, the district court granted the Board’s summary judgment motion and dismissed Mr. Dass’s lawsuit. C.R. at 465.

Trial Court Disposition: The district court rendered a final order granting the Board’s motion for summary judgment and dismissing Mr. Dass’s lawsuit. See Order Granting Def.’s Mot. for Summ. J., C.R. at 465. Mr. Dass appeals this final order. Notice of Appeal, C.R. at 472.

1 Mr. Dass previously filed a suit for judicial review, seeking review of the Board’s original Final Order, in Dass v. Tex. Bd. of Prof’l Eng’rs, Cause No. D-1-GN-12-003397 (419th Dist. Ct., Travis County, Tex.). Mr. Dass appealed the Final Judgment in that suit but then dismissed his appeal. See Appellant’s Mot. to Withdraw Appeal, C.R. at 370-71. xi ISSUES CORRECTED 2

I. Whether the trial court properly granted the Board’s motion for summary judgment, dismissing Mr. Dass’s suit.

II. Whether Mr. Dass fails to preserve error for both his Issues Nos. 1-6 and his bill of exception.

STATEMENT REGARDING ORAL ARGUMENT

Although the Board does not believe any issues on the merits are before the

Court and oral argument is not needed, if the Court grants oral argument the

Board’s counsel respectfully asks to participate in the oral argument.

2 See Tex. R. App. P. 38.2(a)(1)(B). xii No. 03-14-00552-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT AUSTIN, TEXAS

RAGHUNATH DASS, P.E., Appellant,

v.

TEXAS BOARD OF PROFESSIONAL ENGINEERS, Appellee. On Appeal from the 201st Judicial District Court, Travis County, Texas; Cause No. D-1-GN-14-000568, before the Honorable Stephen Yelenosky.

APPELLEE’S BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

The trial court properly granted the Board’s motion for summary judgment,

dismissing Mr. Dass’s suit. Because Mr. Dass fails to brief this issue in his

Appellant’s Brief (“Dass Brief”), he has waived any complaint about the district

court’s granting of the Board’s summary judgment motion. Thus, the district

court’s granting of the Board’s motion, dismissing Mr. Dass’s suit, should be

affirmed by the Court.

None of Mr. Dass’s other issues (his Issues Nos. 1-6) are properly before

this Court because Mr. Dass failed to raise the issues in his response to the Board’s

summary judgment motion or, alternatively, either in his trial court brief or his motion for rehearing. And because Mr. Dass also fails to brief his bill of exception,

and because there is no fundamental error in the district court excluding the

documents referenced in Mr. Dass’s bill of exception, the district court’s ruling, to

exclude the administrative record (“A.R.”) from the first suit for judicial review,

should be affirmed.

STATEMENT OF FACTS CORRECTED

Mr. Dass’s statement of facts contains reference to documents not properly

before the Court and contains argument and incorrect assertions not supported by

the record. 3 Therefore, the Board submits this corrected Statement of Facts. See

Tex. R. App. P. 38.2(a)(1)(B); Tex. R. App. P. 38.1(g).

The Parties.

Appellee the Texas Board of Professional Engineers (“Board”) “was

established to license professional engineers, enforce the Texas Engineering

3 Because the “facts” in paragraphs 4, 7, 9, and 11 in Dass’s Brief are not properly before the Court, the Court would first have to review the district court’s ruling in which the court excluded certain documents, including the administrative record from the first appeal; however, Mr. Dass has failed to brief this issue. See infra at section II.D for discussion on Mr. Dass’s failure to brief his bill of exception in his appellant brief. Thus, any of Mr. Dass’s references in his brief to “A.R.” and any assertions relying on “A.R.” are not properly before the Court. See also Dass Brief at p. 1 n. 1 (explaining that his references to “A.R.” refer to the administrative record in the first suit for judicial review). The Board intends to file a separate motion to strike Mr. Dass’s Exhibits 6 and 7, attached to his appellant’s brief, because these documents are not properly before the Court. Also, the argument and incorrect assertions contained in these paragraphs would be improper even if the additional documents had been admitted and were properly before the Court.

2 Practice Act [Tex. Occ. Code ch. 1001], [and] resolve complaints.” Senate

Research Ctr., Bill Analysis, Tex. S.B. 277, 78th Leg., R.S. (2003). Copy attached

as Appendix 2.

Appellant Raghunath Dass, P.E., is a licensed professional engineer who

holds a professional license issued by the Board. Am. Final Order, Finding of Fact

(“FoF”) 1, C.R. at 224. He was the sole licensed professional engineer employed

by Trinity Soils Investigation Laboratories, Inc. (“Trinity Soils Lab”). Id.

The Legislature has tasked the Board to protect the public health, safety and welfare of the citizens of Texas.

“The [Board] was created in 1937, after an explosion at the New London

School killed nearly 300 students and teachers.” Senate Comm. on Licensing &

Admin. Procedures, Comm. Report (Unamended), Bill Analysis, Tex. S.B. 277,

78th Leg., R.S. (2003), copy attached at Appendix 3. The purpose of the Texas

Engineering Practice Act is to “protect the public health, safety, and welfare” and

“fix responsibility for work done or services or acts performed in the practice of

engineering.” Tex. Occ. Code Ann. §§ 1001.004(b)(1), (3) (West 2012).

The term “practice of engineering” is broad. See Tex. Occ. Code

§ 1001.003(b) (“‘practice of engineering’ means the performance of or an offer or

attempt to perform any public or private service or creative work, the adequate

performance of which requires engineering education, training, and experience in

3 applying special knowledge or judgment of the mathematical, physical, or

engineering sciences to that service or creative work.”). The practice of

engineering also “includes . . . consultation, investigation, evaluation, analysis,

planning, . . . engineering for testing or evaluating materials for construction or

other engineering use”). Tex. Occ. Code § 1001.003(c)(1). The list of activities that

the Legislature considers engineering services includes a catchall provision: the

practice of engineering “includes . . . any other professional service necessary for

the planning, progress, or completion of an engineering service.” Tex. Occ. Code

§ 1001.003(c)(12).

To assist the Board in meeting these serious responsibilities, the Legislature

has delegated to the Board the authority to “adopt and enforce any rule or bylaw

necessary to perform its duties, govern its proceedings, and regulate the practice of

engineering.” Tex. Occ. Code § 1001.202. The Legislature also “recognizes the

vital impact that the rapid advance of knowledge of the mathematical, physical,

and engineering sciences as applied in the practice of engineering has on the lives,

property, economy, and security of state residents and the national defense.” Tex.

Occ. Code § 1001.004(a).

Also, the Act “shall be liberally construed to carry out the intent of the

legislature.” Tex. Occ. Code § 1001.004(d).

4 The Board investigates complaints, enforces the Act, and may assess sanctions and penalties for any violations.

The Board “shall administer and enforce” the Texas Engineering Practice

Act (“Act”). Tex. Occ. Code § 1001.021(a); see also 22 Tex. Admin. Code

§ 139.31 (2015) (Tex. Bd. of Prof’l Eng’rs, Enforcement Actions for Violations of

the Act). The Board must receive and investigate complaints against licensed

engineers. Tex. Occ. Code § 1001.252(a); 22 Tex. Admin. Code § 139.11

(Complaints—General). After receiving a complaint, the Board “shall determine

whether the board has the authority to resolve the complaint.” Tex. Occ. Code

§ 1001.252(f); see also 22 Tex. Admin. Code § 139.17 (Investigating a

Complaint).

After the Board determines that a licensed engineer has violated the Act or a

board rule, the engineer is subject to disciplinary action by the Board. Tex. Occ.

Code § 1001.452(1). The Board may suspend an engineer’s license, probate the

suspension of the license, or formally reprimand a license holder. Tex. Occ. Code

§§ 1001.451(2), (3), (4). See also 22 Tex. Admin. Code §§ 139.35 (Sanctions &

Penalties), .47 (Probation), .49 (License Suspension/Revocation Based on License

Holder’s Status Review). If the Board recommends suspension of an engineer’s

license, that person is entitled to a hearing. Tex. Occ. Code § 1001.454. The Board

5 may also impose administrative penalties against an engineer who has violated the

Act or Board rules. Tex. Occ. Code §§ 1001.501, .502.

Public works projects have special requirements.

The Act prohibits a political subdivision of the state from “construct[ing] a

public work involving engineering in which the public health, welfare, or safety is

involved, unless . . . the engineering plans, specifications, and estimates have been

prepared by an engineer.” Tex. Occ. Code § 1001.407(1). 4 Additionally, a licensed

engineer may not “submit or request” a “competitive bid to perform professional

engineering service” unless specifically authorized. 22 Tex. Admin. Code

§ 137.53(a) (Engineer Standards of Compliance with Professional Services

Procurement Act). Competitive bidding includes “submission of any monetary cost

information in the initial step of selecting engineers.” Id. at (b). A professional

engineer is responsible for ensuring that his associates do not violate the Act. 22

Tex. Admin. Code § 137.63(b)(2) (Engineers' Responsibility to the Profession)

The Professional Services Procurement Act (“PSPA”) is found at Texas

Government Code chapter 2254. The PSPA applies to counties and professional

engineering services provided by a professional engineer. Tex. Gov’t Code Ann.

§§ 2254.002(1)(B), (2)(A)(vii), (2)(B)(vii) (West 2008). A county may only select

4 There are exemptions to this public works provision, but none of the exemptions applied in the project in which Mr. Dass was involved. See Tex. Occ. Code § 1001.053 (listing exemptions from the public works requirements). 6 a provider based on qualifications and then must attempt to negotiate a contract

with that provider at a “fair and reasonable price.” Tex. Gov’t Code

§§ 2254.004(a)(1), (2).

The Board shall prepare and publish advisory opinions.

In 2003, the Legislature required the Board to issue advisory opinions. Bill

Summ., Tex. S.B. 277, 78th Leg., R.S. (2003) (“The bill requires the board, on its

own initiative or at the request of any interested person, to prepare and maintain

advisory opinions about the interpretation or application of the Texas Engineering

Practice Act and to make that information available on the board’s Internet

website.”), copy attached as Appendix 4. Senate Bill 277 created subchapter M,

entitled “Advisory Opinions” and added four related sections. See excerpt of Tex.

S.B. 277, 78th Leg., R.S. (2003), at pp. 34-35 (showing the addition of subchapter

M), attached as Appendix 5.

The Legislature tasked the Board with the following duty: “On its own

initiative or at the request of any interested person, the board shall prepare a

written advisory opinion about (1) an interpretation of this chapter; or (2) the

application of this chapter to a person in regard to a specified existing or

hypothetical factual situation.” Tex. Occ. Code § 1001.601(a). See also id. at (b)

(requiring the Board to issue advisory opinions upon request); 22 Tex. Admin.

Code §§ 131.101 (Subject of an Advisory Opinion), .103 (Request for an Advisory

7 Opinion), .105 (Board Initiated Opinion) (“When a majority of the board

determines that an opinion would be in the public interest or in the interest of any

person or persons within the jurisdiction of the board, the board may on its own

motion issue an advisory opinion.”).

The Board also must “number and classify each advisory opinion” and

“annually compile a summary of the opinions in a single reference document that

is available on the Internet.” Tex. Occ. Code § 1001.602(1), (2); see also 22 Tex.

Admin. Code § 131.109 (Compilation of Advisory Opinions).

The Board investigated a complaint against Mr. Dass and then brought a contested case against him for violations of the Act.

In 2009 Mr. Dass’s employer, Trinity Soils Lab, submitted a proposal “to

perform construction material testing” for a public works project for San Patricio

County (“County”), specifically regarding the construction of a horse barn

(“Project”) at the County’s fairgrounds. FoF nos. 5, 6, C.R. at 225. The County

hired Trinity Soils Lab to perform the testing. Trinity Soils Lab submitted sixteen

construction materials testing reports to the County, but all of the reports lacked a

signature or seal of a licensed professional engineer. FoF nos. 7, 8, C.R. at 225.

Mr. Dass “did not perform or directly supervise” any of the testing reflected in the

sixteen construction materials testing reports Trinity Soils Lab submitted to the

engineering firm of record during the period of February 17, 2009 to April 7, 2009.

8 FoF no. 9, C.R. at 225. Nor, prior to April 17, 2009, did Mr. Dass have any

knowledge of either the County’s Project or the sixteen reports submitted to the

County. FoF no. 10, C.R. at 225.5

Mr. Dass, however, on April 20, 2009, after the reports had already been

submitted to the County without his review or analysis, “added his undated

signature and seal to copies” of the sixteen reports and “resubmitted” the reports to

the County. See FoF no. 11, C.R. at 225. Subsequently, the County terminated its

contract with Trinity Soils Lab. Proposal for Decision (“PFD”) at p. 2, C.R. at 344.

The engineer subsequently hired by the County to complete the testing work filed a

complaint with the Board against Mr. Dass. Id.

After notice and hearing, a contested case hearing was held at the State

Office of Administrative Hearings (“SOAH”). Mr. Dass represented himself pro

se. PFD, C.R. at 343. The Board presented evidence regarding the bidding process

and the manner in which both the testing and the submitting of the reports was

done. Regarding the bidding, the Board’s Director of Compliance and

Enforcement, C.W. Clark, testified that a professional engineer “must use

reasonable care and diligent effort to ensure that persons or firms associated with

5 The engineering firm of record for the Project subcontracted with Trinity Soils Lab for the construction materials testing. C.R. at 349. The senior engineer of the engineering firm of record, Lewis Shrier, testified at the contested case hearing that he became concerned that the submitted reports needed to have an engineering seal and shared this concern with the non- engineer at Trinity Soils Lab who had created the sixteen reports. C.R. at 349. 9 the engineer do not engage in conduct which, if done by the engineer, would

violate the [Act] or any Board rule, including the PSPA.” C.R. at 348. Mr. Clark

also testified that “by not demonstrating reasonable care or diligence to prevent his

employer from submitting a competitive bid for the public works project, Mr. Dass

committed a violation.” C.R. at 348.

Mr. Clark further testified that “when engineering work is released, it must

either be signed, sealed, and dated, or be marked as preliminary.” C.R. at 348.

Here, Mr. Dass failed to sign and seal the reports before the reports were submitted

to the engineering firm of record, and this failure to sign and seal was a violation of

Board rule 137.33(b). And lastly, Mr. Clark testified “anytime a professional

engineer creates or signs a document reflecting engineering work, the licensed

engineer must affix his seal before the document is released from [his] control.”

C.R. at 348. Thus, “a licensed engineer is not allowed to release engineering work

without it being signed and sealed and then later, go back and add his signature and

seal to the document.” C.R. at 348.

The SOAH Administrative Law Judge (“ALJ”) then issued the PFD. C.R. at

343-59, dated June 13, 2012. The ALJ found that Mr. Dass committed the

following violations:

• Conclusion of Law No. 5: Mr. Dass violated 22 Tex. Admin. Code § 137.33(b) (Sealing Procedures) “when he failed to supervise the

10 performance of the CMT testing.”6 This conclusion was supported by FoF No. 14 (Mr. Dass “failed to exercise reasonable care and diligence to prevent [Trinity Soils Lab] from performing construction material testing for the Project without having the tests performed or directly supervised by a licensed professional engineer.”).

• Conclusion of Law No. 6: Mr. Dass violated 22 Tex. Admin. Code § 137.33(f) (Sealing Procedures) “when he allowed [Trinity Soils Lab] to release the CMT reports without having signed, dated, and sealed the CMT reports before they were released.”7 This conclusion was supported by FoF No. 15 (Mr. Dass “failed to exercise reasonable care and diligence to prevent [Trinity Soils Lab] from submitting [construction material testing] reports for the Project without the signature and seal of a licensed professional engineer.”).

• Conclusion of Law No. 7: Mr. Dass violated 22 Tex. Admin. Code § 137.63(b)(2) (Engineers' Responsibility to the Profession) “when he failed to exercise reasonable care and diligence to prevent TSI from submitting a competitive bid for professional engineering services in violation of the PSPA.” 8 This conclusion was supported by FoF No. 13 (Mr. Dass “failed to exercise reasonable care and diligence to prevent [Trinity Soils Lab] from submitting a proposal for construction material testing for the Project which included a price bid.”).

6 “License holders shall only seal work done by them, performed under their direct supervision as defined in § 131.81 of this title, relating to Definitions, or shall be standards or general guideline specifications that they have reviewed and selected. Upon sealing, engineers take full professional responsibility for that work.” 22 Tex. Admin. Code § 137.33(b). 7 “License holders shall affix their seal and original signature or electronic seal and signature with the date on the final version of their engineering work before such work is released from their control.” 22 Tex. Admin. Code § 137.33(f). 8 The engineer shall . . . exercise reasonable care or diligence to prevent the engineer's partners, associates, and employees from engaging in conduct which, if done by the engineer, would violate any provision of the Texas Engineering Practice Act, general board rule, or any of the professional practice requirements of federal, state and local statutes, codes, regulations, rules or ordinances in the performance of engineering services. 22 Tex. Admin. Code § 137.63(b)(2). 11 PFD, C.R. at 357-59. The ALJ recommended the following sanctions and penalty:

fully probated suspension of Mr. Dass’s engineering license for two years, a formal

reprimand, and an administrative penalty of $4,000.00.

The Board adopted the PFD in its entirety. See Final Order, dated Aug. 16,

2012, a copy is attached at Appendix 6.

First suit for judicial review.

Mr. Dass filed a suit for judicial review in Travis County District Court,

seeking review of the Board’s Final Order. Dass v. Tex. Bd. of Prof’l Eng’rs, No.

D-1-GN-12-003397 (419th Dist. Ct., Travis County, Tex.), The Honorable Gisela

Triana presiding. Mr. Dass appeared pro se during the briefing and hearing on the

merits. See, e.g., cover letter for Initial Brief, with Mr. Dass acting pro se, copy

attached at Appendix 7. The court issued the Final Judgment, ruling that “Findings

of Fact No. 16 and 17 and Conclusion of Law No. 8 in the Board’s Final Order

[we]re not supported by substantial evidence.” Final J., dated Sept. 27, 2013, C.R.

at 365. The court also ruled that the “remaining findings of facts and conclusions

of law in the Board’s Final Order [we]re supported by substantial evidence.” The

court noted, “In light of the Court’s decision to strike limited portions of the Final

Order, the Court remands this matter to the Board for any further action it deems

appropriate given the ruling.” The Final Judgment “dispose[d] of all claims and all

parties” and was “final and appealable.” C.R. at 365.

12 Appeal of Final Judgment and Amended Final Order.

After the district court issued its Final Judgment, Mr. Dass filed an appeal of

the Final Judgment. Notice of Appeal, dated Oct. 23, 2013, copy attached at

Appendix 8.

The Board subsequently adopted the Amended Final Order. Am. Final

Order, dated Nov. 21, 2013, C.R. at 223-27. The Amended Final Order conformed

the Final Order to the district court’s Final Judgment by dropping the two findings

of fact and one conclusion of law that the court ruled were not supported by

substantial evidence. And while the district court found substantial evidence to

support the administrative penalty from the Final Order, in the Amended Final

Order the Board reduced the administrative penalty to be assessed against Mr.

Dass. See Am. Final Order, C.R. at 227 (reducing the penalty from $4,000 to

$1,500.00).

On December 3, 2013, again acting pro se, Mr. Dass filed his Motion to

Withdraw Appeal, seeking to dismiss his appeal to the Third Court of Appeals,

stating that he “believe[d]” his appeal “ha[d] become moot due to the Amended

Final Order from Appellee.” C.R. at 370-78. This Court issued an order dismissing

Mr. Dass’s appeal. C.R. at 379.

On December 10, 2013, Dass filed his Motion for Rehearing. C.R. at 380-

406. His motion was overruled by operation of law.

13 On December 18, 2013, this Court dismissed Mr. Dass’s appeal. C.R. at 379.

Second Suit for Judicial Review.

On February 27, 2014, Mr. Dass filed a second suit for judicial review,

seeking review of the Board’s Amended Final Order. Dass v. Tex. Bd. of Prof’l

Eng’rs, No. D-1-GN-14-000568 (201st Dist. Ct., Travis County, Tex.), The

Honorable Stephen Yelenosky presiding. The Board then filed a motion for

summary judgment on May 29, 2014. C.R. at 334-406. The court granted the

Board’s summary judgment motion. Order Granting Def.’s Mot. for Summ. J.,

C.R. at 465, copy attached at App. 1. The Order disposed of all other claims and

was final and appealable. Id. Dass subsequently filed the instant direct appeal of

the District Court’s order. See Notice of Appeal (“appeal[ing] from the Order

Granting Defendant’s Motion for Summary Judgment), C.R. at 472.

Bill of Exception.

The administrative record for the suit for judicial review underlying the

instant case contains only the following four documents: (1) Board's Amended

Final Order; (2) Respondent's Motion for Rehearing; (3) Staff Memorandum to

Board Members on Motion for Rehearing; and (4) Notice to Respondent

Overruling Motion for Rehearing.

Mr. Dass filed a motion seeking to have the Board file with the district court

the transcript from the contested case hearing underlying the first suit for judicial

14 review. See Mot. for Def. to File SOAH Tr. with Dist. Clerk, dated Apr. 21, 2014,

C.R. at 59-61. The Board opposed this motion. C.R. at 99-202. Then, on April 22,

2014, Mr. Dass filed an assortment of documents including offers made by Board

staff to settle the case that was the subject of his first suit for judicial review. 9

None of these documents were part of the administrative record, and the district

court properly granted the Board’s motion to strike these documents.

The district court denied both Mr. Dass’s motion to supplement the record

with the SOAH transcript and PFD and his supplemental motion seeking the same

supplementation. C.R. at 316, 318. The court also granted the Board’s Amended

Motion to Strike. C.R. at 317.

Mr. Dass then filed a bill of exception, seeking to have this Court determine

whether the administrative record in the first suit could be considered by the Court.

Supp. C.R. II at 12-13.

9 The District Clerk sua sponte included these documents in the Clerk’s Record. The documents are labelled C.R. 62-84. Because these documents are not properly before the Court, the Board respectfully requests that the Court disregard these documents. 15 SUMMARY OF THE ARGUMENT

Mr. Dass failed to raise as an issue in the instant appeal whether the district

court properly granted the Board’s summary judgment motion, dismissing Mr.

Dass’s suit. Mr. Dass has, therefore, waived this point of error, and the Court

should affirm the district court’s order dismissing Mr. Dass’s suit. But even on the

merits, the trial court properly granted the Board’s motion for summary judgment.

No other issue is properly before this Court. Mr. Dass’s Issues Nos. 1-6 were

not raised in his response to the Board’s motion for summary judgment and are

waived. Moreover, Mr. Dass failed to raise his purported Issue Nos. 1, 2, and 3 in

the district court, and these issues are thus further waived. As for his Issue No. 4,

while Mr. Dass claims to have raised issue 4 in his motion for rehearing, if he did

raise this issue, he failed to provide a legal basis for doing so and thus waived the

issue on appeal. Also, his Issues Nos. 5 and 6, in which he claims lack of

substantial evidence to support findings of fact and conclusions of law, were

already ruled on by the district court in the first suit for judicial review, and by

dismissing his first appeal Mr. Dass is thus precluded from raising these issues in

the instant appeal. And he failed to raise as an issue the exclusion of evidence.

STANDARD OF REVIEW

A district court properly grants a traditional motion for summary judgment

when a movant establishes that there are “no genuine issue[s] of material fact” and

16 that the movant is entitled to judgment as a matter of law. Lear Sieglar, Inc. v.

Perez, 819 S.W.2d 470, 471 (Tex. 1991)). Summary judgment in response to a

“no-evidence” motion is proper when the nonmovant fails to produce evidence

“raising a genuine issue of material fact.” Hamilton v. Wilson, 249 S.W.3d 425,

426 (Tex. 2008) (per curium).

17 ARGUMENT

I. The only issue before this Court is whether the district court properly granted the Board’s motion for summary judgment, dismissing Mr. Dass’s lawsuit; however, because Mr. Dass has failed to raise this issue in his Appellant’s Brief, he has waived error.

A. Mr. Dass has waived error, and the Court should affirm the district court’s granting of the Board’s motion for summary judgment.

When a party’s brief “wholly fail[s] to raise any issues, arguments, or

citations to the record with respect to the trial court’s summary judgment in favor

of [the appellee], he has waived error as to the judgment in favor of that

defendant.” Carpenter v. First Tex. Bancorp, No. 03-12-00004-CV, 2014 WL

2568494, at *1 (Tex. App.—Austin June 5, 2014, pet. filed) (holding that appeal of

granting of summary judgment waived where nonmovant-appellant failed to raise

on appeal issue of summary judgment regarding one of two defendants) (citing

Tex. R. App. P. 38(f), (i)).

The appeal before this Court concerns only the district court’s summary

judgment. Order Granting Def.’s Mot. for Summ. J. (having considered Board’s

motion and Mr. Dass’s response), C.R. at 465. The court rendered judgment,

granting the motion in all respects and denying all other relief, and the judgment

was final and appealable. Id. Mr. Dass filed appeal of the summary judgment.

Notice of Appeal, C.R. at 471. In his brief on appeal, however, Mr. Dass has failed

to assert that the district court erred by granting the Board’s motion for summary 18 judgment, and he has thus waived error. The Court should, therefore, affirm the

district court’s order granting summary judgment.

Even when a party does raise on appeal the granting of summary judgment,

the appellant must provide adequate briefing. See, e.g., Concho Residential Servs.,

Inc. v. MHMR Servs. for the Concho Valley, No. 03-98-00022-CV, 1999 WL

644727, at *19-20 (Tex. App.—Austin Aug. 26, 1999, pet. denied) (affirming

district court’s granting of summary judgment when appellant-nonmovant failed to

address grounds asserted for summary judgment by appellee-movant); Crider v.

Crider, No. 01-10-00268-CV, 2011 WL 2651794, at *[4] (Tex. App.—Houston

[1st Dist.] July 7, 2011, pet. denied) (mem. op.) (“A party who fails to support his

or her contentions with authority or citations to the record when appropriate waives

the issue due to inadequate briefing.”). Here, Mr. Dass fails to challenge any of the

possible bases for the district court’s granting of the summary judgment, and, so,

he has waived error.

B. Even on the merits, the district court properly granted the Board’s motion for summary judgment.

The reviewing court will “take as true evidence favorable to the nonmovant,

making every reasonable inference and resolving all doubts in the nonmovant’s

favor.” John Gannon, Inc. v. Gunnarson Outdoor Adver., Inc., No. 03-08-00404-

CV, 2010 WL 3192536, at *2 (Tex. App.—Austin Aug. 11, 2010, pet. denied)

19 (citing Centeq Realty Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). Because

the court did not specify the exact ground for granting the Board’s summary

judgment, Mr. Dass has the burden to “negate all grounds on appeal.” Id. (noting

that “if summary judgment may have been granted, properly or improperly, on a

ground that an appellant does not challenge, we must affirm it”). Here, the Board

raised three possible reasons the court should grant summary judgment: (1) failure

to preserve error by filing an inadequate motion for rehearing; (2) res judicata or

collateral estoppel; or (3) that the Board’s Amended Final Order conformed to the

Final Order in the first suit for judicial review.

1. Mr. Dass’s second motion for rehearing failed to preserve error.

The Board issued an Amended Final Order, and Mr. Dass timely filed a

motion for rehearing, which was overruled by operation of law. See Am. Final

Order, C.R. at 223-27; Mot. for Reh’g, C.R. at 380-406. Mr. Dass then filed his

second suit for judicial review asking the district court to review the Board's

Amended Final Order.

Under the Administrative Procedure Act, as a prerequisite to judicial review,

a litigant must file a motion for rehearing with the agency. Tex. Gov’t Code

§§ 2001.145, .146. The rationale behind this requirement is to give the agency an

opportunity to correct or defend any errors claimed by the litigant. Suburban Util.

20 Corp. v. Pub. Util. Comm’n, 652 S.W.2d 358, 365 (Tex. 1983). But a motion for

rehearing is not a mere legal formality prior to judicial review. Because the motion

is designed to give the agency notice, it must carry certain substance. Specifically,

the motion must identify the erroneous action taken by the agency, and analyze the

legal basis for the claim of error. Hamamcy v. Tex. State Bd. of Med. Exam’rs, 900

S.W.2d 423, 425 (Tex. App.—Austin 1995, writ denied).

A motion for hearing must “set forth succinctly at least two elements

pertaining to each contention of error: (1) the particular finding of fact, conclusion

of law, ruling, or other action by the agency that the complaining party asserts was

error; and (2) the legal basis upon which the claim of error rests.” Burke v. Cent.

Educ. Agency, 725 S.W.2d 393, 397 (Tex. App.—Austin 1987, writ ref’d n.r.e.)

(“Without these irreducible elements, we do not conceive that any assignment of

error will apprise the agency of the error claimed so that it may correct the error or

prepare against the contention that it is error.”).

Mr. Dass’s motion for rehearing, however, failed to satisfy either element.

See Mot. for Reh’g, C.R. at 380-406. For example, the first three pages consisted

only of a recitation of facts and his interpretation of those facts; Mr. Dass also

failed to state any legal or statutory basis for his general assertion that the Board

came to the wrong conclusion. Id. His points of error did not refer to any

conclusions of law or legal principles and were so broad that they provided no

21 notice to the Board to allow it to correct or defend against the contention of error.

Moreover, the motion failed to provide any legal basis on which the unspecified

errors rested. See Burke, 725 S.W.2d at 397; see also Hamamcy, 900 S.W.2d at

425 (holding that “a motion for rehearing can be so indefinite, vague, and general

so as to constitute no motion for rehearing at all”); Hill v. Bd. of Trs., 40 S.W.3d

676, 678 (Tex. App.—Austin 2001, no pet.) (adequacy of motion for rehearing

goes to question of whether plaintiff had preserved error).

Such was Mr. Dass’s “motion.” In his seven points of error, he only cited to

one finding of fact, no. 17, and only quoted it, never stating why it might support

his motion or amount to an error by the Board. (Point 2) He complained that the

Board members interrupted him (Point 7); he asserted he was not responsible

(Point 6) and that Board members ignored his “strong exceptions” (Point 4); and,

he made some general complaints about Board policy (Point 1), Board

interpretation of engineering concepts (Point 3), and made a general complaint that

the Board failed to understand why his seal was on the reports (Point 5).

His motion was nothing more than a general attack, among other matters, on

the Board's 2005 Policy Advisory Opinion on Construction Materials Testing

(“CME Advisory Opinion”), copy attached at Appendix 9. Rather than stating the

specific errors in the Board's Amended Final Order and explaining the legal basis

for the alleged errors, as required in a motion for rehearing, Mr. Dass focused

22 much of his motion for rehearing on identifying alleged deficiencies in the CME

Advisory Opinion. See C.R. at 380-406. The Findings of Fact and Conclusions of

Law in the Board's Amended Final Order did not rely on or address this 2005

Advisory Opinion. See C.R. at 223-27. Moreover, Mr. Dass had previously raised

this issue at the contested case hearing, and the ALJ dismissed this argument as

erroneous. See PFD at page 12, C.R. at 343-59.10

Mr. Dass’s points of error alleging bias and unfairness by the Board

members were entirely baseless. At all stages of the proceeding, Mr. Dass was

afforded due process and opportunities to address the Board when appropriate. Mr.

Dass’s claim that the Board acted in a biased and unfair manner, simply because it

disagreed with Mr. Dass' arguments, lacked a valid legal basis for a rehearing.

Not only did Mr. Dass’s motion fail to provide notice to the Board, it failed

as a substantive motion altogether. The motion for rehearing elements “may not be

supplied solely in the form of generalities.” Burke, 725 S.W.2d at 397. See also

Williams v. Geeslin, No. 03-05-00450-CV, 2006 WL 2032570 (Tex. App.—Austin

July 21, 2006, no pet.) (mem. op.) (holding that trial court properly granted

summary judgment for agency in suit for judicial review because motion for

rehearing was insufficient to preserve any error). 10 “Based on the plain reading of the CME Advisory Opinion, the ALJ finds it sufficiently informative to put a professional engineer on notice that material testing for a public works project requires the involvement of a licensed engineer and compliance with the [Professional Services Procurement Act] and corresponding Board rules.” 23 Mr. Dass had a statutory obligation to apprise the Board of the alleged errors

of which he intended to complain in his suit for judicial review and the legal basis

for his challenge. Because he failed to provide the Board with the opportunity to

correct or defend any error, he failed to preserve error through his purported

motion for rehearing. See Suburban, 652 S.W.2d at 365. He did not establish the

statutory prerequisites to go forward with his lawsuit; the district court correctly

granted summary judgment because Mr. Dass had no viable cause of action. See

Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Merchs. Fast Motor Lines, Inc., 939

S.W.2d 139, 141 (Tex. 1997).

2. When Mr. Dass dismissed his first appeal, the doctrines of res judicata and collateral estoppel precluded Mr. Dass from relitigating those same claims.

“Res judicata generally bars claims or defenses that, through diligence,

could have been litigated in the earlier suit but were not.” Ingersoll-Rand Co. v.

Valero Energy Corp., 997 S.W.2d 203, 206 (Tex. 1999); see also Citizens Ins. Co.

of Am. v. Daccach, 217 S.W.3d 430, 448 (Tex. 2007) (conversely res judicata will

not bar “claims that cannot be litigated through diligence”). The doctrines of res

judicata and collateral estoppel maintain the integrity of court decisions, prevent

vexatious litigation, and maximize judicial economy. Barr v. Resolution Trust

Corp., 837 S.W.2d 627, 629 (Tex. 1992).

24 Res judicata requires: (1) “a prior final judgment on the merits by a court of

competent jurisdiction”; (2) “identity of parties or those in privity with them”; and

(3) “a second action based on the same claims as were raised or could have been

raised in the first action.” Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.

1996). To invoke collateral estoppel, a party must establish (1) “the facts sought to

be litigated in the second action were fully and fairly litigated in the first action”;

(2) “those facts were essential to the judgment in the first action”; and (3) “the

parties were adversaries in the first action.” Sysco Food Servs. Inc. v. Trapnell, 890

S.W.2d 796, 801 (Tex. 1994). See also United States v. Utah Constr. & Mining

Co., 384 U.S. 394, 421-22 (1966) (holding that res judicata may be applied in the

administrative context when an administrative agency is acting in a judicial

capacity; res judicata bars subsequent litigation following the agency's decision).

The elements for res judicata and collateral estoppel were met in this case.

The parties in the case were identical to the parties in the first suit for judicial

review. The first suit for judicial review was properly filed in Travis County

District Court, which rendered a Final Judgment. See Final J., C.R. at 365-66. In

the Final Judgment, the court ruled that Findings of Fact numbers 16 and 17 and

Conclusion of Law number 8 in the Board's Final Order were not supported by

substantial evidence. See C.R. at 365-66. The district court also ruled that “the

25 remaining findings of fact and conclusions of law in the Board’s Final Order are

supported by substantial evidence.” See C.R. at 365-66.

The Board did not appeal the Final Judgment. Rather, at its next quarterly

board meeting, the Board adopted an Amended Final Order that conformed with

the Final Judgment by striking Findings of Fact numbers 16 and 17 and Conclusion

of Law number 8. C.R. at 223-27 The Board also reduced the administrative

penalty assessed against Mr. Dass from $4,000 to $1,500. See C.R. at 223-27. The

Board made no other changes to the original Final Order.

Mr. Dass, again acting pro se, appealed this final judgment but then

withdrew that appeal. See Notice of Appeal, dated Oct. 23, 2013, copy at App. 8.

A mere twelve days after the Board approved the Amended Final Order, Mr. Dass

withdrew his appeal because he “believe[d]” the appeal “ha[d] become moot due to

the amended Final Order from Appellee.” See Mr. Dass’s Mot. to Withdraw

Appeal, dated Dec. 3, 2013, C.R. at 370-78. The Third Court of Appeals granted

Mr. Dass’s motion to dismiss his appeal. C.R. at 379.

When Mr. Dass abandoned his appeal, he lost his opportunity to challenge

both the findings of fact and conclusions of law made by the Board and the district

court’s ruling that the remaining findings of facts were supported by substantial

evidence became final.

26 In the second suit for judicial review of the same agency decision, Mr. Dass

failed to state that he raised any additional or new issues in his second suit. Mot.

for Reh’g, C.R. at 380-406.

3. The Board's Amended Final Order complied with the Final Judgment in the first suit.

Because Mr. Dass dismissed his first appeal, and raised no new issues in his

second suit for judicial review, the only live issue in the second suit was whether

the Board's Amended Final Order conformed with the Final Judgment in the first

suit for judicial review. A side-by-side comparison of the original Final Order and

the Amended Final Order shows that in the Amended Final Order the Board only

deleted Findings of Fact 16 and 17 and Conclusion of Law No. 8 and reduced the

penalty. Compare Am. Final Order, C.R. at 223-27, with Final Order, copy at App.

6. Therefore, the district court could properly grant the Board’s motion for

summary judgment under this third reason.

Because Mr. Dass fails to challenge these three possible bases for the court’s

granting summary judgment, the judgment should be affirmed.

II. Mr. Dass fails to preserve error for his Issues Nos. 1-6 and his bill of exception issue.

Mr. Dass has waived his Issues Nos. 1-6 for three reasons. First, Mr. Dass’s

Issues Nos. 1 to 6 are waived because these issues were not raised in his response

to the Board’s motion for summary judgment. See Tex. R. Civ. P. 166a(c) (“Issues

27 not expressly presented to the trial court by written motion, answer or other

response shall not be considered on appeal as grounds for reversal.”); see City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (noting that

when challenging a summary judgment appellant may only raise for first time on

appeal issue of legal sufficiency). See also Krot v. Fid. Nat’l Title Co., No. 03-14-

00250-CV, 2014 WL 7464084, at *2 n.2 (Tex. App.—Austin Dec. 31, 2014, no

pet. hist.) (mem. op.) (argument made for first time on appeal waived because

nonmovant “failed to assert” the argument “as a bar to summary judgment” in its

trial court briefing in responding to appellee’s motion for summary judgment);

Schanzle v. JPMC Specialty Mortg., No. 03-09-00639-CV, 2011 WL 832170, *3

(Tex. App.—Austin Mar. 11, 2011, no pet.) (mem. op.) (issue waived “because it

was not properly presented to the trial court as . . . ground for denying summary

judgment”). See Resp. to Def.’s Mot. for Summ. J., C.R. at 407-15.

Second, Mr. Dass failed to raise these issues in his suit for judicial review.

See Mot. for Reh’g, C.R. at 380-406. And third, Mr. Dass’s Issues Nos. 1-6 all

relate to issues in the original Final Order. When Mr. Dass withdrew his first

appeal of the first suit for judicial review that judgment became final and he was

precluded from raising these issues in a later suit. 11

11 See generally Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978) (“Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel.”). 28 A. Mr. Dass also waived his Issues Nos. 1, 2, and 3 because he failed to raise these issues in either his motion for rehearing or district court, and these three issues do not implicate subject-matter jurisdiction.

None of Mr. Dass’s issues implicate subject-matter jurisdiction; and,

therefore, because he failed to raise these issues in the district court, or in his

motion for rehearing, he has waived his ability to raise these issues on appeal. As

to his first issue, Mr. Dass fails to show that the Board violated Texas Government

Code section 2001.1775, or, alternatively, how an erroneous order is somehow

automatically void and not just subject to reversal upon challenge—the latter

which potential issue he waived by failing to raise this issue in the district court.

In his Issues Nos. 2 and 3, Mr. Dass erroneously conflates subject-matter

jurisdiction with a suit for judicial review regarding the scope of an agency’s

regulatory powers. See Tex. Gov’t Code § 2001.174(2)(B) (in a suit for judicial

review a court “shall reverse or remand the case for further proceedings if

substantial rights of the appellant have been prejudiced because the administrative

findings, inferences, conclusions, or decisions are . . . in excess of the agency’s

statutory authority”). He asserts, without citing any authority, that his

2001.174(2)(B) claims implicate subject-matter jurisdiction; they do not. See Dass

Br. 11, 16. Rather, subject-matter jurisdiction is “[j]urisdiction over the nature of

the case and the type of relief sought; the extent to which a court can rule on the

29 conduct of persons or the status of things.” Black’s Law Dictionary 870 (8th ed.

2004). 12

If, in a suit for judicial review, a party contends that the agency exceeded its

statutory authority, the only available remedy is for the district court to either

“reverse or remand the case.” Tex. Gov’t Code § 2001.174 (emphasis added). See

also, e.g., SWEPI LP v. R.R. Comm’n, 314 S.W.3d 253, 259 (Tex. App.—Austin

2010, pet. denied) (reversal by district court is proper remedy); Tex. Gen. Land

Office v. Crystal Clear Water Supply Corp., 449 S.W.3d 130 (Tex. App.—Austin

2014, pet. filed) (same).

Mr. Dass also fails to cite any authority for his request that the Court find the

Amended Final Order void. Indeed, the remedy the Court could grant Mr. Dass

would be to remand to the Board for further proceedings. See Tex. Gov’t Code

§ 2001.174; see also, e.g., Pub. Util. Comm’n v. City Pub. Serv. Bd. of San

Antonio, 109 S.W.3d 130, 137-38 (Tex. App.—Austin 2003, no pet.) (holding that

12 The two cases Mr. Dass cites in support of this argument are inapposite. In TEC, the issue was whether the district court was without jurisdiction where the amount in controversy exceeded the maximum allowed for the court to have jurisdiction. Tex. Emp’t Comm’n v. Int’l Union of Elec., Radio & Mach. Workers, Local Union No. 782, 352 S.W.2d 252, 253 (Tex. 1961). And in Mapco, the court held that a party may raise for the first time on appeal the jurisdictional issue of whether the “owelty award entered against it was erroneous because it was not a party in the trial court”). Mapco, Inc. v. Carter, 817 S.W. 686, 687 (Tex. 1991). Neither case discusses, or relies on, section 2001.174.

30 trial court not authorized to vacate order when agency exceeded its authority,

where section 2001.174 authorizes only reversal or remand).

A party waives error on appeal when it fails to raise the issue in the trial

court. Loftin v. Lee, 341 S.W.3d 352, 356 n.11 (Tex. 2011); Dreyer v. Greene, 871

S.W.2d 697, 698 (Tex. 1993) (“As a rule, a claim . . . must have been asserted in

the trial court in order to be raised on appeal.”); see also Carrizales v. Tex. Dep't

Prot. & Reg. Servs., 5 S.W.3d 922, 925 (Tex. App.—Austin 1999, pet. denied)

(quoting Dreyer, 871 S.W.2d at 698). Because Mr. Dass failed to raise these two

issues in either his motion for rehearing or in the district court—by adding, for

example, a cause of action for either declaratory or injunctive relief, the Court

should overrule his Issue Nos. 2 and 3. See, e.g., Pub. Util. Comm’n v. Allcomm

Long Distance, Inc., 902 S.W.2d 662, 666 (Tex. App.—Austin 1995, writ denied)

(where party alleges that agency acted beyond the scope of its statutorily conferred

powers, suit for declaratory or injunctive relief [filed in the trial court] will lie).

Here, Mr. Dass suggests he failed to brief his Issue Nos. 2 and 3 in the district

court; and these issues, therefore, are waived. See Dass Br. 11, 16 n.3. Because of

this failure to raise these issues in his suit for judicial review, the Court should

overrule Mr. Dass Issues Nos. 1, 2, and 3. See Carrizales, 5 S.W.3d at 925.

31 1. Mr. Dass’s Issue No. 1 is waived because even if the Board’s issuance of the Amended Final Order was erroneous, Mr. Dass failed to raise this issue in his motion for rehearing.

For the first time, Mr. Dass, in his Appellant Brief to this Court, asserts that

Texas Government Code section 2001.1775 has been violated. Dass Br., C.R. at 7-

10. Even if the Amended Final Order was issued in violation of Texas Government

Code section 2001.1775, this error does not make the Amended Final Order void.

An order is void if it is rendered by a body that lacked jurisdiction to render it.

Here, the Board had jurisdiction to render the Amended Final Order. If the

Amended Final Order was issued erroneously, Mr. Dass had a duty to raise that

error in both his motion for rehearing and his second suit for judicial review. Mr.

Dass provides only conclusory arguments for his assertion that the Amended Final

Order is somehow void and also fails to provide any explanation or substantiation

as to why an order issued in violation of section 2001.1775 is void.

Section 2001.1775 states that “an agency may not modify its findings or

decision in a contested case after proceedings for judicial review of the case have

been instituted under section 2001.176 and during the time that the case in under

judicial review.” Tex. Gov’t Code § 2001.1775. Mr. Dass does not cite any

32 authority for the proposition that an order issued in violation of section 2001.1775

is void. 13

After a hearing on the merits in the first suit for judicial review, the court

issued the Final Judgment, in which the court concluded that “Findings of Fact

Nos. 16 and 17 and Conclusion of Law No. 8 in the Board’s Final Order [we]re not

supported by substantial evidence.” C.R. at 365. The court also ruled that the

“remaining findings of facts and conclusions of law in the Board’s Final Order are

supported by substantial evidence” and remanded the matter to the Board “for any

further action it deem[ed] appropriate given the ruling.” Id. The Final Judgment

“finally dispose[d] of all claims and all parties, and is final and appealable.” Id.

The Board then issued the Amended Final Order. C.R. at 223-27. This order,

in following the court’s ruling contained in the Final Judgment, deleted Findings of

Fact Nos. 16 and 17 and Conclusion of Law No. 8. And while the court found that

the sanction and administrative penalty were supported by substantial evidence, the

Board, on its own volition, reduced the penalty from $4,000 to $1,500. The Board

made no other modifications.

13 The three cases Mr. Dass cites are inapplicable because none rely on or relate to Texas Government Code section 2001.1775. See Tex. Highway Comm’n v. Tex. Ass’n of Steel Importers, 372 S.W.2d 525, 530 (Tex. 1963) (holding that minute orders made contract void); Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res. Conservation Comm’n, 124 S.W.3d 844, 853 (Tex. App.—Austin 2003, pet. denied) (addressing statutory permitting requirements of the Texas Natural Resources Commission); City of Celina v. Dynavest Joint Venture, 253 S.W.3d 399, 403 (Tex. App.—Austin 2008, no pet.) (relying on water code).

33 The only point of error that Mr. Dass might raise is whether the Board’s

reduction of the penalty in the Amended Final Order was in violation of section

2001.1775. The district court, however, found that the penalty of $4,000.00 was

supported by substantial evidence; the Board merely reduced the penalty by

$2,500—from $4,000 in the original Final Order to $1,500. An error regarding this

reduction is either waived or is harmless. When Mr. Dass dismissed his appeal of

the Final Judgment, he waived any appeal from the Final Order. Moreover, he

failed to raise as an issue in his motion for rehearing in the second suit the Board’s

change in the penalty amount in the Amended Final Order. Therefore, even if he

could have raised the penalty amount in the second suit, he did not preserve this

issue for review. Alternatively, this reduction in penalty, even if it were a violation

of section 2001.1775 is harmless because the Board reduced the penalty assessed

against Mr. Dass.

At most, the Amended Final Order was erroneous; Mr. Dass, however,

waived this issue, and the Court should, therefore, overrule Mr. Dass’s Issue No. 1.

2. Although Mr. Dass’s Issue No. 2 is waived, even on the merits Mr. Dass’s argument would fail to show how the Board may not fix responsibility for services performed in the practice of engineering.

The purpose of the Texas Engineering Practice Act is to “protect the public

health, safety, and welfare” and “fix responsibility for work done or services or

34 acts performed in the practice of engineering.” Tex. Occ. Code §§ 1001.004(b)(1),

(3). The Board found that Mr. Dass violated a provision regarding bidding on a

public works project, failing to oversee tests conducted to create reports, and

failing to prevent Trinity Soils Lab from submitting the reports without the

signature and seal of its licensed engineer Mr. Dass. See PFD, C.R. at 225.

Mr. Dass makes several erroneous assertions in his argument regarding his

second issue. See Dass Br.10-15. First, the Board’s Amended Final Order was not

wholly dependent on or limited to construction material testing. One of the

violations was Mr. Dass’s failure to prevent competitive bidding by his

engineering firm, Trinity Soils Testing. Conclusion of Law No. 7, C.R. at 226.

a. Broad definition of “practice of engineering.”

The term “practice of engineering” is broad. See Tex. Occ. Code

§ 1001.003(b) (“‘practice of engineering’ means the performance of or an offer or

attempt to perform any public or private service or creative work, the adequate

performance of which requires engineering education, training, and experience in

applying special knowledge or judgment of the mathematical, physical, or

engineering sciences to that service or creative work.”). The practice of

engineering also “includes . . . consultation, investigation, evaluation, analysis,

planning, . . . engineering for testing or evaluating materials for construction or

other engineering use”). Tex. Occ. Code § 1001.003(c)(1). The list activities that

35 the Legislature considers engineering services includes a catchall provision: the

practice of engineering “includes . . . any other professional service necessary for

the planning, progress, or completion of an engineering service.” Tex. Occ. Code

§ 1001.003(c)(12). Also, the Act “shall be liberally construed to carry out the

intent of the legislature.” Tex. Occ. Code § 1001.004(d).

Mr. Dass’s narrow interpretation of section 1001.003, or his assertion the

Board has no authority to determine the scope of construction materials

engineering testing (“CME”), is not supported by the plain language of the statute

or the intention of the Legislature for the Board to liberally construe the Act in

enforcing policy. See Dass Br. 12-14.

b. CME and the reports.

CME “includes collecting samples, performing well-defined test procedures,

and reporting of data.” CME Advisory Opinion, Aug. 20, 2009, at p. 1, copy

attached at App. 9. “On construction projects, engineers are called upon to assess

the quality, appropriateness and acceptability of the materials that are used.” Id.

Construction materials testing (“CMT”), “within the context of CME includes

collecting samples, performing well-defined test procedures, and reporting of

data.” While CMT typically falls within the scope of CME activities, sometimes

CMT is not considered a CME activity. CME Advisory Opinion, at p. 1, at App. 9

(“In certain situations, performing tests and sampling by using well-defined

36 engineering specifications may not be considered engineering activities.”).

Nevertheless, “if analysis of test data [i.e., CMT] is done or a determination is

made that a material is acceptable, these activities would be considered to be

CME.” Id. The last sentence of the fourth paragraph is of particular importance:

“Because the engineer is responsible for accepting the public works project,

acceptance or rejection of materials or work, the direct supervision by an engineer

of CMT for those acceptance decisions is needed.” Id. This sentence means that the

engineer, in the instant case Mr. Dass, should have directly supervised the testing

because he had responsibility as the sole engineer for Trinity Soils Lab to analyze

the test data performed and gathered by the non-engineer Mr. Tater, and thus

ensuring that the engineering aspect of the work was properly done by an engineer

(and not by Mr. Tater a non-engineer). In sum, the non-engineer could run or

perform the tests, but the licensed engineer had to analyze the data.

Under the broad definition of “engineering service,” the Board’s

clarification of the relationship between CME and CMT, as articulated in its CME

Advisory Opinion, is well within the Board’s authority. Moreover, the Board’s

determination that the reports conducted by Trinity Soils Lab was CME was well

within the Board’s discretion to determine. The ALJ ruled that the Board’s

37 determination was correct, and the district court found substantial evidence for the

ALJ’s findings and conclusions. See PFD, C.R. at 343-59; Final J., C.R. at 365. 14

The Court should, if it reaches the merits of Mr. Dass’s second issue,

overrule the issue.

3. Although Mr. Dass’s Issue No. 3 is waived, even on the merits the ALJ correctly ruled that Mr. Dass failed to follow the legally required bidding process for a public works project.

The Act states that a political subdivision of the state “may not construct a

public work involving engineering in which the public health, welfare, or safety is

involved, unless . . . the engineering plans, specifications, and estimates have been

prepared by an engineer. Tex. Occ. Code § 1001.407(1). Additionally, a licensed

engineer may not “submit or request” a “competitive bid to perform professional

engineering service” unless specifically authorized. 22 Tex. Admin. Code

§ 137.53(a) (Engineer Standards of Compliance with Professional Services

Procurement Act). Competitive bidding includes “submission of any monetary cost

information in the initial step of selecting engineers. Id. at (b). The PSPA applies to

counties and professional engineering services provided by a professional

engineer. Tex. Gov’t Code §§ 2254.002(1)(B), (2)(A)(vii), (2)(B)(vii). A county

14 Mr. Dass’s mischaracterizes Findings of Fact Nos. 5 and 7 when he asserts that only CMT was performed. Dass Br. at 15 n.2 & 3. Rather, the ALJ found that Mr. Dass violated the Act when he failed to oversee the testing done to create the reports. Conclusion of Law No. 5, C.R. at 226. 38 may only select a provider based on qualifications, and then attempt to negotiate a

“fair and reasonable price.” Tex. Gov’t Code §§ 2254.004(a)(1), (2).

Here, the ALJ found that Mr. Dass had violated the Board’s rules when he

failed to “exercise reasonable care and diligence to prevent [Trinity Soils Lab]

from submitting a competitive bid for professional engineering services in

violation of the PSPA.” Conclusion of Law No. 5, C.R. at 226 (citing Board rule

137.63(b)(2)).15 And the district court ruled that substantial evidence supported this

conclusion of law. Final J., C.R. at 365. The Board did not act outside the

authority, indeed responsibility, the Legislature granted the Board. If the Court

should reach the merits of Mr. Dass’s third issue, the issue ought to be overruled.

B. Mr. Dass has waived his right to complain of the CME Advisory Opinion (Mr. Dass’s fourth issue).

For the same reasons cited above for Mr. Dass’s second and third issues, his

fourth issue is not properly before the Court. Mr. Dass claims he raised his issue

regarding the CME Advisory Opinion in his motion for rehearing; however, as the

Board noted in section I, supra, his motion for rehearing was so vague and

indefinite so as to not preserve error. Burke, 725 S.W.2d at 397. For the first time,

Mr. Dass states a legal basis for his issue, section 2001.174.

15 The paragraph on pages 17-18 of Mr. Dass’s brief lacks citation, and the assertions seem to be based on documents and evidence not properly before the Court. 39 Also, Mr. Dass ought to have brought this point of error in his first appeal;

but because he dismissed his first appeal, he has waived his right to bring this point

of error in the instant appeal.

However, even if Mr. Dass had not waived his point of error, it fails on the

merits. The Legislature tasked the Board with the duty of issuing advisory

opinions. Tex. Occ. Code § 1001.601(a) (“On its own initiative or at the request of

any interested person, the board shall prepare a written advisory opinion about (1)

an interpretation of this chapter; or (2) the application of this chapter to a person in

regard to a specified existing or hypothetical factual situation.”). See also 22 Tex.

Admin. Code §§ 131.101 (Subject of an Advisory Opinion), .103 (Request for an

Advisory Opinion), .105 (Board Initiated Opinion) (“When a majority of the board

determines that an opinion would be in the public interest or in the interest of any

person or persons within the jurisdiction of the board, the board may on its own

motion issue an advisory opinion.”).

The Board also must “number and classify each advisory opinion” and

“annually compile a summary of the opinions in a single reference document that

is available on the Internet.” Tex. Occ. Code § 1001.602(1), (2); see also 22 Tex.

Admin. Code § 131.109 (Compilation of Advisory Opinions).

40 Mr. Dass cites to no particular sentence or section of the CME Advisory

Opinion that supports his assertion that it is a rule.16 Indeed, the majority of his

complaint is that the CME Advisory Opinion is too vague. The Board issued the

CME Advisory Opinion as a clarification of the Act and Board rules. Thus, the

Board did not act in violation of section 2001.174 when it prepared the CME

Advisory Opinion.

C. Mr. Dass has also waived his fifth and sixth issues because his complaint that the substantial evidence standard was not met must have been brought in his first appeal, which he withdrew.

Mr. Dass complains that there was not substantial evidence to support the

ALJ’s finding that testing that Mr. Dass failed to oversee was CMT and not CME.

(Mr. Dass’s fifth issue). Dass Br. 21-23. Mr. Dass then complains that the Board

ought to have sought sanctions and penalties against the engineer who worked for

the principal engineering firm overseeing the Project. Dass Br. 23-26.

Regarding Mr. Dass’s fifth issue, he seems to be making the same argument

as in his second issue—that the reports he failed to oversee and to which he added

his signature and seal after the reports had already been submitted to the principal

engineering firm, only involved CMT and not CME. For the reasons stated above

16 And he fails to explain how the cases he cites relate to the facts in this case. See Tex. State Bd. of Pharm. v. Witcher, 447 S.W.3d 520, 527 (Tex. App.—Austin 2014, pet. filed) (regarding policy specific to that particularly agency regarding indefinite suspension of license); El Paso Hosp. Dist. v. Tex. Health & Human Servs. Comm’n, 247 S.W.3d 709, 714 (Tex. 2008) (HHSC violated rule regarding review of individual claims data). 41 in section II.A.1, the ALJ ruled that the Board had shown by a preponderance of

the evidence that Mr. Dass had committed at least three violations of the Board’s

rules. The ALJ heard all the evidence and the testimony of live witnesses,

including Board witnesses and others from the San Patricio area, such as the

engineer in charge of the project Mr. Shrier, and held that the Board had proven its

case by a preponderance of the evidence. The Board adopted the ALJ’s findings of

fact and conclusions of law in its original Final Board Order. See Final Order, copy

at App. 6.

Moreover, regarding his sixth issue, Mr. Dass fails to provide any citation to

the record before this Court. And, his argument disregards this essential fact: Mr.

Dass, and not the Project Engineer in charge (who was a totally different person

not employed by Mr. Dass’s firm), is the person who, after the reports were

prepared by a non-engineer employee of Trinity Soils Lab, signed his name to the

reports, the same reports he also admitted he did not directly supervise. In fact, Mr.

Dass testified he did not even know his company was engaged in preparing reports

for the San Patricio project, but he signed and sealed the reports anyway. See FoF

Nos. 9, 11, 12, 13, 14, 15, and 16, C.R. at 223-27. The district court in the first suit

for judicial review found that substantial evidence existed to support three of the

violations the ALJ found Mr. Dass committed. See Final J., at C.R. at 365. When

42 Mr. Dass dismissed his first appeal, he waived the right to attack the Final

Judgment and the Board’s Amended Final Order.

D. Because Mr. Dass failed to brief his issue regarding the exclusion of evidence and has thus waived this point of error, the Court should not consider documents not properly before the Court.

When a party complains of the exclusion of evidence, an appellate court

reviews the decision for an abuse of discretion. Mack Trucks, Inc. v. Tamez, 206

S.W.3d 572, 576 (Tex. 2006) (holding that the trial court did not abuse its

discretion in denying bill of exception and excluding evidence). Mr. Dass’s bill of

exception sought to include in the record before this Court the administrative

record from the first suit for judicial review. Bill of Exception, Supp. C.R. II at 12-

13. Mr. Dass, however, failed to brief the issue to this Court and explain why the

district court erred in excluding the administrative record from the first suit for

judicial review. There was no fundamental error in the district court’s exclusion of

the first administrative record because Mr. Dass merely sought to relitigate the

same issues in his second suit. And even if the issue of the evidentiary ruling were

before this Court, there was no abuse of discretion in excluding the evidence. See

generally section I, supra, regarding arguments in support of summary judgment.

The Court should, therefore, hold that the administrative record from the first suit

for judicial review is not properly before the Court and may not be considered.

43 CONCLUSION AND PRAYER

Mr. Dass failed to raise on appeal the issue of whether the district court

properly granted the Board’s motion for summary judgment. Nevertheless, even on

the merits, the district court’s ruling was correct. Also, Mr. Dass waived his six

issues on appeal and his bill of exception issue, and these issues should be

overruled.

Appellee prays the Court will affirm the trial court’s final order granting the

Board’s summary judgment motion, dismissing Mr. Dass’s suit.

Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

JAMES E. DAVIS Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR. Chief, Administrative Law Division

/s/ Jennifer L. Hopgood JENNIFER L. HOPGOOD State Bar No. 24073010 Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL OF TEXAS Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4300 Facsimile: (512) 320-0167 44 jennifer.hopgood@texasattorneygeneral.gov

Attorneys for the Texas Board of Professional Engineers

45 CERTIFICATE OF COMPLIANCE

I certify that the brief submitted complies with Texas Rules of Appellate Procedure 9 and the word count of this document is 9,628.

Date: May 6, 2015. /s/ Jennifer L. Hopgood JENNIFER L. HOPGOOD

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been served on May 6, 2015, on the following by electronic service and by email:

Jimmy Alan Hall Jimmy Alan Hall, P.L.L.C. 4600 Mueller Boulevard, Suite 2121 Austin, TX 78723-3372 Facsimile: (512) 857-9195 jahall@fbjah.com

J. Woodfin Jones Alexander Dubose Jefferson & Townsend LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701-3562 Facsimile: (512) 482-9303 wjones@adjtlaw.com

Counsel for Appellant

/s/ Jennifer L. Hopgood JENNIFER L. HOPGOOD

1. Order Granting Defendant’s Motion for Summary Judgment, dated June 25, 2014.

2. Senate Research Center, Bill Analysis, Tex. S.B. 277, 78th Leg., R.S. (2003).

3. Senate Committee on Licensing & Administrative Procedures, Committee Report (Unamended), Bill Analysis, Tex. S.B. 277, 78th Leg., R.S. (2003).

4. Bill Summary, Tex. S.B. 277, 78th Leg. R.S., (2003).

5. Tex. S.B. 277, 78th Leg. R.S., (2003).

6. Final Order, dated Aug. 16, 2012.

7. Cover Letter for (Dass’s) Initial Brief, dated Mar. 26, 2013.

8. Notice of Appeal, dated Oct. 23, 2013.

9. Texas Board of Professional Engineer’s 2005 Policy Advisory Opinion on Construction Materials Testing, dated Aug. 20, 2009. Tab 1 Order Granting Defendant’s Motion for Summary Judgment, dated June 25, 2014 Fax Server 6/10/2014 9:39:16 AM PAGE 2/002 Fax Server DC BK14182 PG1746 Notice sent: Parties: ______ Final __.

code: CVD I CLS ------+-'""'-'4~

CAUSE NO. D-1-GN-14-000568

RAGHUNATH DASS, P.E., § IN THE DISTRICT COURT Plai11ti.Jf, § § v. § § TRi\.VIS COUNTY, TE:Xi\.S § TEXAS BOARD OF § PROFESSIONAL ENGINEERS, § Defendant. § 201': JUDICIAL DISTRICT

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

TI1e Court considered on submission the Motion of Defendant Texas Board of

P::cfessional Engineers for Su'.Tlmary Judgcnent and the response filed by the Plaintiff.

,'\f~er considering the motions, the admissible summary judgment evidence, as1d the

rr:a:ters and aut1iorit1es presented, the Court finds that the Defendant's Motion should be

anc is hereby grantee.

It is L'1e::efore ORDERED, ADJUDGED, AND DECREED that Defendant's

Motion for Summary Judgment 1s GRANTED in all respects.

Al relief not expressly granted 1s herein DENIED. This Order constitutes a.-rid is

intended to be a fITTal and appealable judgment, disposing of all parties and claims.

465 Tab 2 Senate Research Center, Bill Analysis, Tex. S.B. 277, 78th Leg., R.S. (2003) BILL ANALYSIS

Senate Research Center S.B. 277 78R902 SMH-D By: Ellis, Rodney Government Organization 3/31/2003 As Filed

DIGEST AND PURPOSE

The Texas Board of Professional Engineers (TBPE) was established to license professional engineers, enforce the Texas Engineering Practice Act, resolve complaints and register engineering firms. As proposed, S.B. 277 continues TBPE for the standard 12-year period and strengthens the enforcement process to enhance public protection.

RULEMAKING AUTHORITY

Rulemaking authority previously granted to the Texas Board of Professional Engineers is modified in SECTION 11 (Section 1001.203, Occupations Code), and granted in SECTION 12 (Section 1001.2035, Occupations Code), SECTION 17 (Section 1001.252, Occupations Code), SECTION 21 (Section 1001.304, Occupations Code), SECTION 26 (Section 1001.405, Occupations Code), and SECTION 27 (Section 1001.4525, Occupations Code) of this bill.

SECTION BY SECTION ANALYSIS

SECTION I. Amends Sections 1001.005 and 1001.051, Occupations Code, as follows:

Sec. I 001.005. Continues the Texas Board of Professional Engineers (TBPE) for the standard 12-year period until September 1, 2015.

Sec. 1001.051. Provides that an exemption under this subchapter applies only to a person who does not offer, rather than one who is not directly or indirectly represented, to the public to perform, rather than being legally qualified to engage in the practice of, engineering services.

SECTION 2. Amends Section 1001.057(c), Occupations Code, to provide that a person who claims an exemption under this section and who is determined to have offered to the public to perform engineering services may not claim an exemption until the I 0th anniversary of the date the person made that offer.

SECTION 3. Amends Section 1001.058(c), Occupations Code, to make conforming changes.

SECTION 4. Amends Section 1001.lOl(b), Occupations Code, to update standard Sunset language requiring appointments to TBPE to be nondiscriminatory.

SECTION 5. Amends Section 1001.102(a), Occupations Code, to update standard Sunset language prohibiting certain persons from membership on TBPE.

SECTION 6. Amends Section I 00 I. I 03, Occupations Code, to update standard Sunset language relating to membership and employee restrictions.

SECTION 7. Amends Section 1001.106, Occupations Code, by amending Subsection (a) and adding Subsection (c ), to update standard Sunset language relating to grounds for removal of a TBPE member.

SECTION 8. Amends Section I 00 I. I 08, Occupations Code, to require the governor to designate a member ofTBPE as the presiding officer of TB PE to serve in that capacity at the will of the

SRC-VRA S.B. 277 78(R) Page 1 of6 governor. Deletes a reference to "presiding officer" from text.

SECTION 9. Amends Chapter 1001C, Occupations Code, by adding Section 1001.112, as follows:

Sec. 1001.112. TRAINING. Applies standard Sunset language relating to training of TBPE members.

SECTION 10. Amends Chapter 1001D, Occupations Code, by adding Sections 1001.153- 1001.156, as follows:

Sec. 1001.153. DIVISION OF RESPONSIBILITIES. Applies standard Sunset language to require TBPE to develop policies that clearly separate the policy-making responsibilities ofTBPE members and management responsibilities ofTBPE staff.

Sec. 1001.154. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. Updates standard Sunset language requiring information on standards of conduct to be provided to members ofTBPE and TBPE staff.

Sec. 1001.155. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. Applies standard Sunset language requiring the executive director to develop an equal employment opportunity program.

Sec. 1001.156. INFORMATION ON STATE EMPLOYEE INCENTIVE PROGRAM. Applies standard Sunset language requiring training on participation in the state employee incentive program.

SECTION 11. Amends Section 1001.203, Occupations Code, as follows :

(a) Requires TBPE by rule to prescribe standards for compliance with Chapter 2254A, Government Code.

(b) Provides that except as provided by Subsection (a), TBPE may not adopt rules restricting advertising or competitive bidding by a license holder except to prohibit false, misleading, or deceptive practices.

(c) Provides that in its rules to prohibit false, misleading, or deceptive practices, TBPE may not include certain rules.

SECTION 12. Amends Chapter lOOIE, Occupations Code, by adding Section 1001.2035, as follows:

Sec. 1001.2035. RULES ON CONSEQUENCES OF CRIMINAL CONVICTION. Requires TBPE to adopt rules and guidelines as necessary to comply with Chapter 53.

SECTION 13. Amends Section 1001.204(a), Occupations Code, to require TBPE to establish certain fees in amounts reasonable and necessary to cover the costs of administering this chapter.

SECTION 14. Amends Section 1001.210, Occupations Code, to require TBPE, rather than to authorize it, to recognize, prepare, or administer continuing education programs for its license holders. Requires a license holder to participate in the programs to the extent required by TBPE to keep the person's license.

SECTION 15. Amends Chapter IOOlE, Occupations Code, by adding Sections 1001.214- 1001.216, as follows:

Sec. 1001.214. TECHNOLOGY POLICY. Applies standard Sunset language requiring TBPE to develop and implement a technology policy.

SRC-VRA S.B. 277 78(R) Page 2 of6 Sec. 1001.215. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION POLICY. Applies standard Sunset language requiring TBPE to develop and implement a policy to encourage the use of negotiated rulemaking and alternative dispute resolution procedures.

Sec. 1001.216. JOINT ADVISORY COMMITTEE ON THE PRACTICE OF ENGINEERING AND ARCHITECTURE. (a) Provides that the Joint Advisory Committee on the Practice of Engineering and Architecture is an advisory committee to TBPE and to the Texas Board of Architectural Examiners (TBAE). Provides that the advisory committee consists of certain individuals.

(b) Provides that members of the advisory committee serve staggered six-year terms with the terms of one member appointed by TBPE and one member appointed by TBAE expiring each odd-numbered year.

(c) Requires the advisory committee to meet at least twice a year.

(d) Requires the advisory committee to work to resolve issues that result from the overlap between activities that constitute the practice of engineering and those that constitute the practice of architecture. Requires the advisory committee to assist each agency in protecting the public rather than advancing the interests of either agency or the profession it regulates.

(e) Requires the advisory committee to issue advisory opinions to TBPE and to TBAA on matters relating to the practice of engineering and the practice of architecture, including certain factors.

(f) Requires an agency, ifthe advisory committee issues an advisory opinion to TBPE or TBAE on a matter, to notify the committee of the final action taken with regard to the matter. Requires the advisory committee to consider the action taken by the agency on the matter in any advisory opinion subsequently issued by the committee on a related matter.

(g) Requires TBPE and TBAE to enter into a memorandum of understanding regarding the advisory committee that includes the composition and purpose of the committee.

SECTION 16. Amends Section 1001.251, Occupations Code, by adding Subsection (c), to require TBPE to maintain on TBPE's Internet website certain information.

SECTION 17. Amends Sections 1001.252 and 1001.253, Occupations Code, as follows:

Sec. I001.252. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. Updates standard Sunset language regarding complaints and disposition.

Sec. 1001. 253. COMPLAINT INFORMATION. Updates standard Sunset language requiring information to be maintained on complaints.

SECTION 18. Amends Chapter IOOIF, Occupations Code, by adding Sections 1001.254 and 1001.255, as follows:

Sec. 1001.254. STATISTICAL ANALYSIS OF COMPLAINTS. (a) Requires TBPE to develop and maintain a complaint tracking system to monitor the processing of complaints filed with TBPE.

(b) Requires TBPE to include with TBPE' s annual financial report under Section 2101.011, Government Code, a statistical analysis of the compl aints filed with

SRC-VRA S.B . 277 78(R) Page 3 of6 TBPE during the preceding year, including certain information.

Sec. 1001.255. PUBLIC PARTICIPATION. Applies standard Sunset language providing for public testimony meetings of the policymaking body.

SECTION 19. Amends Section 1001.301, Occupations Code, by amending Subsections (b) and (c) and adding Subsection (f), as follows:

(b) Makes a conforming change.

(c) Makes a conforming change.

(f) Provides that notwithstanding the other provisions of this chapter, a person who is exempt from the licensing requirements of this chapter is not prohibited from using the term "engineer" or a variation or abbreviation of that term as a professional, business, or commercial identification, title, name, representation, claim, asset, or means of advantage or benefit, including on a business card, cover letter, or other form of correspondence that is made available to the public, if the person does not offer to the public to perform engineering services. Provides that this subsection does not authorize a person to use a term listed in Subsections (b)(2)-(6) or a variation or abbreviation ofone of those terms.

SECTION 20. Amends Section JOOl.303, Occupations Code, to update standard Sunset language relating to an application for licensure.

SECTION 21. Amends Section JOO I .3 04, Occupations Code, by adding Subsection ( d), as follows:

(d) Requires TBPE by rule to ensure that the examination is administered to applicants with disabilities in compliance with the Americans with Disabilities Act of I 990 (42 U.S.C. Section 12101 et seq.), and its subsequent amendments.

SECTION 22. Amends Sections JOO 1.306, 1001.310, and 1001.3 I I, Occupations Code, to update standard Sunset language requiring notice regarding examination results to persons seeking TBPE licensure.

Sec. JOO I .3 I 0. Updates standard Sunset language regarding temporary or provisional Ii censure.

Sec. I 00 I .311. Updates standard Sunset language regarding the application of a nonresident for Iicensure.

SECTION 23 . Amends Section 1001.35 l(b), Occupations Code, to require TBPE, for the year in which the license or registration expiration date is changed, to prorate license or registration fees on a monthly basis so that each license or registration holder pays only that portion of the license or registration fee that is allocable to the number of months during which the license or registration is valid. Provides that on renewal of the license or registration on the new expiration date, the total license or registration renewal fee is payable.

SECTION 24. Amends Sections 1001.352 and 1001.353, Occupations Code, to update standard Sunset language regarding the notice of license expiration and the procedure for renewal.

SECTION 25. Amends Chapter JOOIH, Occupations Code, by adding Section 1001.354, as follows:

Sec. 1001.354. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) Authorizes a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date of application to obtain a new license without reexamination.

SRC-VRA S.B. 277 78(R) Page 4 of6 (b) Requires the person to pay to TBPE a fee that is equal to two times the normally required renewal fee for the license.

SECTION 26. Amends Section 1001.405, Occupations Code, by adding Subsection (g), to authorize TBPE by rule, notwithstanding the other provisions of this section, to provide that a business entity that has not previously registered with TBPE and that is engaged in the practice of engineering in violation of Subsection (b) is not subject to disciplinary action for the violation if the business entity registers with TBPE not later than the 30th day after the date TBPE gives written notice to the business entity of the registration requirement. Provides that this subsection does not apply to a business entity whose registration has expired.

SECTION 27 . Amends Chapter lOOIJ, Occupations Code, by adding Sections 1001.4525- 1001.4527, as follows:

Sec. 1001.4525. PROBATION. (a) Authorizes TBPE, if a person's license suspension is probated, to require the person to perform certain tasks.

(b) Requires TBPE by rule to adopt written guidelines to ensure that probation is administered consistently.

Sec. 1001.4526. RESTITUTION. (a) Authorizes TBPE, subject to Subsection (b), to order a person licensed or registered under this chapter to pay restitution to a consumer as provided in an agreement resulting from an informal settlement conference instead of or in addition to imposing an administrative penalty under this chapter.

(b) Provides that the amount ofrestitution ordered as provided in an agreement resulting from an informal settlement conference may not exceed the amount the consumer paid to the person for a service regulated by this chapter. Provides that the board may not require payment of other damages or estimate harm in a restitution order.

Sec. 1001.4527. RECUSAL OF BOARD MEMBER. (a) Provides that a TBPE member who participated in the investigation of a complaint or in informal settlement negotiations regarding the complaint:

(I) may not participate in the discussion of or vote on the matter at a board meeting related to the complaint; and

(2) must state at the meeting why the member is prohibited from participating in the discussion of or voting on the matter.

(b) Requires a statement under Subsection (a)(2) to be entered into the minutes of the meeting.

SECTION 28 . (a) Requires TBPE, not later than January 1, 2004, to adopt the rules required by Section 1001.2035, Occupations Code, as added by this Act.

(b) Requires TBPE, not later than September 1, 2005, to adopt the written guidelines required by Section 1001.4525, Occupations Code, as added by this Act.

SECTION 29. (a) Effective date: September I, 2003 .

(b) Provides that the changes in law made by Sections I 001.102 and I 00 I. I 03, Occupations Code, as amended by this Act and Section I 001.112, Occupations Code, as added by this Act, in the prohibitions on or qualifications of members of the Texas Board of Professional Engineers do not affect the entitlement of a member serving on the Texas Board of Professional Engineers immediately before September I, 2003, to continue to

SRC-VRA S.B. 277 78(R) Page 5 of6 serve and function as a member of the Texas Board of Professional Engineers for the remainder of the member's term. Provides that those changes in law apply only to a member appointed on or after September I, 2003.

(c) Provides that the change in law made by Section 1001.108, Occupations Code, as amended by this Act, does not affect the entitlement of a person who was serving as presiding officer of the Texas Board of Professional Engineers immediately before September I, 2003, to continue to serve and function in that capacity for the remainder of the person's term as presiding officer. Provides that that change in law applies only to the designation of a presiding officer of the board after that person's term as presiding officer expires.

( d) Makes application to the changes in law made by this Act to Chapter I 00 I, Occupations Code, prospective.

SRC-VRA S.B. 277 78(R) Page 6 of6 Tab 3 Senate Committee on Licensing & Administrative Procedures, Committee Report (Unamended), Bill Analysis, Tex. S.B. 277, 78th Leg., R.S. (2003) BJLL ANALYSIS

S.B. 277 By: Ellis, Rodney Licensing & Administrative Procedures Committee Report (Unamended)

BACKGROUND AND PURPOSE

The Texas Board of Professional Engineers was created in 1937, after an explosion at the New London School killed nearly 300 students and teachers. The Board's main functions include: licensing Professional Engineers; enforcing the Texas Engineering Practice Act, including investigating and resolving complaints; and registering engineering firrns. As part of the Self-Directed, Semi-Independent Licensing Agency Pilot Project, the Board raises revenue from licensing fees to support agency functions and operates outside the appropriations process. In fiscal year 2002, the Board operated with a budget of $1.5 million, and a staff of 25 FTEs. The Board is subject to the Sunset Act and will be abolished on September 1, 2003, unless continued by the Legislature. The Sunset review found that while regulation of engineers who offer their services to the public is needed, the Board should make improvements to its enforcement process to strengthen this regulation and enhance public protection. S.B. 277 continues TBPE for the standard 12-year period and strengthens the enforcement process to enhance public protection.

RULEMAKING AUTHORITY

Rulemaking authority previously granted to the Texas Board of Professional Engineers is modified in SECTION I 1 (Section 1001.203, Occupations Code), and granted in SECTION 2 (Section 1001.057, Occupations Code), SECTION 12 (Section 1001.2035, Occupations Code), SECTION 17 (Section 1001.252, Occupations Code), SECTION 21 (Section 1001.304, Occupations Code), SECTION 26 (Section 1001.405, Occupations Code), and SECTION 28 (Section 1001.4525, Occupations Code) of this bill.

ANALYSIS

Amends Sections JOOl.005 and 1001.051, Occupations Code, as follows: Sec. 1001.005. Continues the Texas Board of Professional Engineers (TBPE) for the standard 12-year period until September 1, 2015. Sec. JOO 1.051. Provides that an exemption under this subchapter applies only to a person who does not offer, rather than one who is not directly or indirectly represented, to the public to perform, rather than being legally qualified to engage in the practice of, engineering services. Amends Section 1001.057, Occupations Code, as follows: Sec. 1001.057. EMPLOYEE OF PRIVATE CORPORATION OR BUSINESS ENTITY. (a) Requires the Act to not be construed to apply to the activities of a private corporation or other business entity, or the activities of the full-time employees or other personnel under the direct supervision and control of the business entity, on or in connection with certain conditions. (b) Prohibits a person who claims an exemption under this section and who is determined to have directly or indirectly represented the person as legally qualified to engage in the practice of engineering or who is determined to have violated Section JOO 1.30 I from claiming an exemption until the I 0th anniversary of the date the person made that representation. (c)

S.B. 277 78(R) Page 1 of 5 Provides that this exemption does not prohibit certain actions from occurring by either a licensed professional engineer or TBPE. The measure also adds "specifications" to clarify that a licensed engineer working with manufactured products on public or other's property would not be prohibited from requiring the manufacturer to have plans or specifications signed and sealed by a professional engineer. (d) Redefines "products manufactured by the entity" for the purposes of this section. Amends Sections 1001.058 (b) and (c), to make a conforming change. Amends Section I 00 I. I 0 I (b), Occupations Code, to update standard Sunset language requiring appointments to TBPE to be nondiscriminatoty. Amends Section 1001. 102(a), Occupations Code, to update standard Sunset language prohibiting certain persons from membership on TBPE. SECTION 6. Amends Section I 00 I. I03, Occupations Code, to update standard Sunset language relating to membership and employee restrictions. Amends Section 1001.106, Occupations Code, by amending Subsection (a) and adding Subsection (c), to update standard Sunset language relating to grounds for removal ofa TBPE member. Amends Section I00 I. I 08, Occupations Code, to require the governor to designate a member of TBPE as the presiding officer ofTBPE to seive in that capacity at the will of the governor. Deletes a reference to "presiding officer" from text. Amends Chapter JOOIC, Occupations Code, by adding Section 1001.112, as follows: Sec. 1001.112. TRAINING. Applies standard Sunset language relating to training ofTBPE members. Amends Chapter IOOID, Occupations Code, by adding Sections 1001.1531001.156, as follows: Sec. 1001.153. DIVISION OF RESPONSIBILITIES. Applies standard Sunset language to require TBPE to develop policies that clearly separate the policy-making responsibilities ofTBPE members and management responsibilities ofTBPE staff Sec. 1001.154. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. Updates standard Sunset language requiring information on standards of conduct to be provided to members ofTBPE and TBPE staff. Sec. 1001.155. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. Applies standard Sunset language requiring the executive director to develop an equal employment opportunity program. Sec. 1001.156. INFORMATION ON STATE EMPLOYEE INCENTIVE PROGRAM. Applies standard Sunset language requiring training on participation in the state employee incentive program. Amends Section I 001.203, Occupations Code, as follows: (a) Requires TBPE by rule to prescribe standards for compliance with Chapter 2254A, Government Code. (b) Provides that except as provided by Subsection {a), TBPE may not adopt rules restricting advertising or competitive bidding by a license holder except to prohibit false, misleading, or deceptive practices. (c) Provides that in its rules to prohibit false, misleading, or deceptive practices, TBPE may not include certain rules. Amends Chapter JODIE, Occupations Code, by adding Section 1001.2035, as follows: Sec. 1001.2035. RULES ON CONSEQUENCES OF CRIMINAL CONVICTION. Requires TBPE to adopt rules and guidelines as necessaty to comply with Chapter 53. Amends Section JOOl.204(a), Occupations Code, to require TBPE to establish certain fees in amounts reasonable and necessaty to cover the costs of administering this chapter. Amends Section I 001 .210, Occupations Code, to update standard Sunset language requiring the Board to develop continuing education programs for licensees. Prohibits the Board from requiring a licensee to complete more than 15 hours of CE annually. Requires the Board to allow a license holder to certify that the license holder has complied with continuing education requirements at the time the license holder renews the license. Specifies the types of continuing education activities that the Board must accept. Limits the number of credit hours a license holder may receive for self-directed study to five credit hours annually. Amends Chapter IOOlE, Occupations Code, by adding Sections 1001.2141001.216, as follows: Sec. 1001.214. TECHNOLOGY POLICY. Applies standard Sunset language requiring TBPE to develop and implement a technology policy. Sec. 1001.215. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION POLICY. Applies standard Sunset language requiring TBPE to develop and implement a policy to encourage the use of negotiated rulemaking and alternative dispute resolution procedures. Sec. 1001.216. JOINT ADVISORY COMMITTEE ON THE

S.B. 277 78(R) Page 2 of 5 PRACTICE OF ENGINEERING AND ARCHITECTURE. (a) Provides that the Joint Advisory Committee on the Practice of Engineering and Architecture is an advisory committee to TBPE and to the Texas Board of Architectural Examiners (TBAE). Provides that the advisory committee consists of certain individuals. (b) Provides that members of the advisory committee serve staggered six-year terms with the terms of one member appointed by TBPE and one member appointed by TBAE expiring each odd-numbered year. (c) Requires the advisory committee to meet at least twice a year. (d) Requires the advisory committee to work to resolve issues that result from the overlap between activities that constitute the practice of engineering and those that constitute the practice of architecture. Requires the advisory committee to assist each agency in protecting the public rather than advancing the interests of either agency or the profession it regulates. (e) Requires the advisory committee to issue advisory opinions to TBPE and to TBAA on matters relating to the practice of engineering and the practice of architecture, including certain factors. (f) Requires an agency, ifthe advisory committee issues an advisory opinion to TBPE or TBAE on a matter, to notify the committee of the fmal action taken with regard to the matter. Requires the advisory committee to consider the action taken by the agency on the matter in any advisory opinion subsequently issued by the committee on a related matter. (g) Requires TBPE and TBAE to enter into a memorandum of understanding regarding the advisory committee that includes the composition and purpose of the committee. Amends Section !001.251, Occupations Code, by adding Subsection (c), to require TBPE to maintain on TBPE's Internet website certain information. Amends Sections !001.252 and 1001.253, Occupations Code, as follows: Sec. 1001.252. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. Updates standard Sunset language regarding complaints and disposition. Sec. 1001. 253. COMPLAINT INFORMATION. Updates standard Sunset language requiring information to be maintained on complaints. Amends Chapter IOOIF, Occupations Code, by adding Sections 1001.254 and 1001.255, as follows: Sec. 1001.254. STATISTICAL ANALYSIS OF COMPLAINTS. (a) Requires TBPE to develop and maintain a complaint tracking system to monitor the processing of complaints filed with TBPE. (b) Requires TBPE to include with TBPE's armual financial report under Section 2IO1.011, Government Code, a statistical analysis of the complaints filed with TBPE during the preceding year, including certain information. Sec. 1001.255. PUBLIC PARTICIPATION. Applies standard Sunset language providing for public testimony meetings of the policymaking body. Amends Section 1001.301, Occupations Code, by amending Subsections (b) and (c) and adding Subsection (f), as follows: (b) Makes a conforming change. (c) Makes a conforming change. (f) Provides that notwithstanding the other provisions of this chapter, a regular employee of a business entity who is engaged in engineering activities but is exempt from the licensing requirements of this chapter under Sections 1001.057 or 1001.058 is not prohibited from using the term "engineer" on a business card, cover letter, or other form of correspondence that is made available to the public ifthe person does not perform certain actions. Provides that this subsection does not authorize a person to use a term listed in Subsections (b)(2)-(6) or a variation or abbreviation ofone of those terms. Amends Section 1001.303, Occupations Code, to update standard Sunset language relating to an application for licensure. Amends Section 1001.304, Occupations Code, by adding Subsection (d), as follows: (d) Requires TBPE by rule to ensure that the examination is administered to applicants with disabilities in compliance with the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.), and its subsequent amendments. Amends Sections 1001.306, 1001.310, and 1001.311, Occupations Code, to update standard Sunset language requiring notice regarding examination results to persons seeking TBPE licensure. Sec. 1001.310. Updates standard Sunset language regarding temporary or provisional licensure. Sec. 1001.311. Updates standard Sunset language regarding the application of a nonresident for licensure. Amends Section 1001.35 l(b), Occupations Code, to require TBPE, for the year in which the license or registration expiration date is changed, to prorate license or registration fees on a monthly basis so that each license or registration holder pays only that portion of the license or registration fee that is allocable to the number of months during which the license or registration is valid. Provides that on

S.B. 277 78(R) Page 3 of 5 renewal of the license or registration on the new expiration date, the total license or registration renewal fee is payable. Amends Sections 1001.352 and 1001.353, Occupations Code, to update standard Sunset language regarding the notice oflicense expiration and the procedure for renewal. Amends Chapter lOOIH, Occupations Code, by adding Section 1001.354, as follows: Sec. 1001.354. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STA TE PRACTITIONER. (a) Authorizes a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date of application to obtain a new license without reexamination. (b) Requires the person to pay to TBPE a fee that is equal to two times the normally required renewal fee for the license. Amends Section 1001.405, Occupations Code, by adding Subsection (g), to authorize TBPE by rule, notwithstanding the other provisions of this section, to provide that a business entity that has not previously registered with TBPE and that is engaged in the practice of engineering in violation of Subsection (b) is not subject to disciplinary action for the violation ifthe business entity registers with TBPE not later than the 30th day after the date TBPE gives written notice to the business entity of the registration requirement. Provides that this subsection does not apply to a business entity whose registration has expired. Amends Section 1001.406, Occupations Code, as follows: Sec. 1001.406. GRADUATE ENGINEERS. (a) Provides certain rights for a graduate of a university with certain credentials and qualifications. (b) Authorizes a graduate engineer who is employed in a firm registered under this Act and who is working under the direct supervision of a licensed professional engineer to use the term "engineer" on the person's stationery or business cards or in personal communications of any character. Amends Chapter 10011, Occupations Code, by adding Sections 1001.45251001.4527, as follows: Sec. 1001.4525. PROBATION. (a) Authorizes TBPE, ifa person's license suspension is probated, to require the person to perform certain tasks. (b) Requires TBPE by rule to adopt written guidelines to ensure that probation is administered consistently. Sec. 1001.4526. RESTITUTION. (a) Authorizes TBPE, subject to Subsection (b), to order a person licensed or registered under this chapter to pay restitution to a consumer as provided in an agreement resulting from an informal settlement conference instead of or in addition to imposing an administrative penalty under this chapter. (b) Provides that the amount of restitution ordered as provided in an agreement resulting from an informal settlement conference may not exceed the amount the consumer paid to the person for a service regulated by this chapter. Provides that the board may not require payment of other damages or estimate harm in a restitution order. Sec. 1001.4527. RECUSAL OF BOARD MEMBER. (a) Provides that a TBPE member who participated in the investigation of a complaint or in informal settlement negotiations regarding the complaint: (I) may not participate in the discussion of or vote on the matter at a board meeting related to the complaint; and (2) must state at the meeting why the member is prohibited from participating in the discussion of or voting on the matter. (b) Requires a statement under Subsection (a)(2) to be entered into the minutes of the meeting. Requires TBPE, not later than January I, 2004, to adopt the rules required by Section 1001.2035, Occupations Code, as added by this Act. Requires TBPE, not later than September 1, 2005, to adopt the written guidelines required by Section 1001.4525, Occupations Code, as added by this Act.

EFFECTIVE DATE

September 1, 2003. Provides that the changes in law made by Sections 1001.102 and 1001.103, Occupations Code, as amended by this Act, and Section I001.112, Occupations Code, as added by this Act, in the prohibitions on or qualifications of members of the Texas Board of Professional Engineers do not affect the entitlement ofa member serving on the Texas Board of Professional Engineers immediately before September 1, 2003, to continue to serve and function as a memberofthe Texas Board of Professional Engineers for the remainder of the member's term. Provides that those changes in law apply only to a member appointed on or after September l, 2003.

S.B. 277 78(R) Page 4 of 5 S.B. 277 78(R) Page 5 of 5 Tab 4 Bill Summary, Tex. S.B. 277, 78th Leg. R.S., (2003) Page 1 of 1

Legislative Session : 78(R)

SENATE BILL 277 SENATE AUTHOR: R. Ellis EFFECTIVE: 9-1-03 HOUSE SPONSOR: Chisum et al.

Senate Bill 277 amends the Occupations Code to continue the Texas Board of Professional Engineers until September 1, 2015, and to include and update standard sunset provisions. The bill authorizes full-time employees of certain corporations or graduate engineers to use the title "engineer" on business cards and in correspondence if certain conditions are met, but restricts the use of the title "professional engineer" or "licensed professional engineer" to an individual who holds a license from the board. The bill exempts a business that provides products or services to the National Aeronautics and Space Administration from the requirements of the Texas Engineering Practice Act, and it authorizes employees of that business to use "engineer" or "engineering" in job titles or personnel classifications.

The bill establishes the Joint Advisory Committee on the Practice of Engineering and Architecture as an advisory committee to the board and the Texas Board of Architectural Examiners. The bill requires the board and the Texas Board of Architectural Examiners to enter into a memorandum of understanding to address any overlap of their respective professions, issue advisory opinions to the board, and specify the composition and duties of the committee.

Senate Bill 277 authorizes the board to amend certain rules and guidelines relating to licensing requirements, fees, continuing education, and disciplinary actions. The bill authorizes the board to establish an inactive license, prohibits the holder of such a license from certain practices, and sets out conditions for reinstatement to active status.

The board must maintain on its Internet website information relating to the filing of a complaint with the board, and it must develop and maintain a complaint tracking system to monitor the processing of complaints. The bill authorizes the board to order a person who violates these provisions to pay restitution under a settlement agreement and provides for the recusal of a board member from a complaint investigation if certain conditions exist. The bill requires the board, on its own initiative or at the request of any interested person, to prepare and maintain advisory opinions about the interpretation or application of the Texas Engineering Practice Act and to make that information available on the board's Internet website. The bill establishes that reliance on the board's advisory opinions may serve as a defense to prosecution or the imposition of a civil penalty.

http ://www.capitol.state.tx.us/BillLookup/BillSummary .aspx?LegSess=78R&Bill=SB277 4/28/2015 Tab 5 Tex. S.B. 277, 78th Leg. R.S., (2003) S.B. No. 277

2 relating to the continuation and functions of the Texas Board of 3 Professional Engineers and to the regulation of the practice of 4 engineering. 5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

6 SECTION 1. Subsection ( e), Section 1001. 004, Occupations

7 Code, is amended to read as follows: 8 ( e) This chapter does not:

9 (1) prevent a person from identifying the person in

10 the name and trade of any engineers' labor organization with which 11 the person is affiliated; 12 (2) prohibit or otherwise restrict a person from 13 giving testimony or preparing an exhibit or document for the sole 14 purpose of being placed in evidence before an administrative or 15 judicial tribunal, subject to the board's disciplinary powers under 16 Subchapter J regarding negligence, incompetency, or misconduct in 17 the pr act ice of engineer inq; 18 ( 3) repeal or amend a law affecting or regulating a 19 licensed state land surveyor; or 20 (4) affect or prevent the practice of any other 21 legally recognized profession by a member of the profession who is 22 licensed by the state or under the state's authority. 23 SECTION 2. Sections 1001.005 and 1001.051, Occupations 24 Code, are amended to read as follows:

1 S.B. No. 277

1 Sec. 1001.005. APPLICATION OF SUNSET ACT. The Texas Board

2 of Professional Engineers is subject to Chapter 325, Government

3 Code (Texas Sunset Act). Unless continued in existence as provided

4 by that chapter, the board is abolished and this chapter expires

5 September 1, 2015 [~).

6 Sec. 1001. 051. LIMITATION ON EXEMPTION. An exemption under

7 this subchapter applies only to a person who does not offer [is not

8 direetly or indireetly represented) to the public to perform [-9-e-

9 legally ,ualified to engage in the praetiee of) engineering

10 services.

11 SECTION 3. Section 1001.057, Occupations Code, is amended

12 to read as follows:

13 Sec. 1001.057. EMPLOYEE OF PRIVATE CORPORATION OR BUSINESS

14 ENTITY [OR ,",FFILL",TE). (a) This chapter shall not be construed to

15 apply to the activities of a private corporation or other business

16 entity , or the activities of the full-time employees or other

17 personnel under the direct supervision and control of the bus i n ess

18 entity, on or in connection with [A regular full time employee of a

19 private lausiness entity is enempt from the lieensing re,uirements

20 of this eh apt er if) :

21 ( 1) reasonable modifications to existing buildings,

22 facilities, or other fixtures to real property not accessible to

23 the general public and which are owned, leased, or otherwise

24 occupied by the entity [the employee performs services eicelusively

25 for the lausiness entity or an affiliate of that entity); or

26 (2) activities related only to the research ,

27 development, design, fabrication, production, assembly,

2 S.B. No. 277 1 integration, or service of products manufactured by the entity [~

2 OHlflloyee' s serviees 1

3 ((A') a r e o n a r i n e ol'ln e e t i en •,.• ith p r ope rt y1

4 [ ( i) e\1ned er leased hy the husiness entity

5 or affiliate 1 or

6 [(ii) iR Hhioh the htisiReoo eRtity or

7 affiliate has aR iRterest, estate, er possessory riEJht1 or

8 [(B) affeot elleltioively the property, produeto,

9 er iRtereots sf the husiRess eRtity er affiliate 1 aRd

10 [ (3) the eHlflleyee dees net have the fiRal autherity to

11 approve 1 or the ultiH1ate reopoRsihility for / eREJiReeriREJ deoi'JRS /

12 plaRo, er speoifioatioRo relatiR'J to the property er prodtiots that

13 are ts he 1

14 (( Al iJrnerporated into a fix ee 'do r k, syste H1 1 er

15 faeility OR the property of aRether 1 er

16 [ (B) H1ade availahle to the puhlie].

17 (b) [This eJreHlptieR iRoltideo the tise of a jel3 title er

18 persenRel elassifieatioR hy the eH1pleyee if the eHlflleyee does not

19 -tl-S€+

20 [ (1) the title er elassifieatioR iR eoRneotion dith an 1

21 offer te the puhlie to perform eREJineerin'j servioes1 aRd

22 [ (2) a naH1e 1 title, er wore that tends to eew.rey the

23 iHlfl ressien th.at a 1:1erse R net liee no e a un d er this ehapter is

24 efferin'j to the puh lie te perferHI eR'JiReer in'J oervioeo ,

25 [-f.€+) A perso n who claims an exemption under this section

26 and who is determined to have directly or indirectly represented

27 the person as lega ll y qualified to engage in the practice of

3 S.B. No. 277 1 engineering or who is determined to ha v e violated Section 1001 . 301 2 may not claim an exemption until the 10th anniversary of the date 3 the person made that representation. 4 (c) This exemption does not proh i bit : 5 (1) a licensed professional engineer who intends to 6 incorporate manufactured products into a fixed work, system, or 7 fa c ility that is being designed by th e l icensee o n public property 8 or the property of others from requiring the manufacturer to have 9 plans or specifications signed and sealed by a licensed 10 professional engineer; or 11 (2) the board from requiring, by rule, that certain 12 manufactured products delivered to or used by the public must be 13 designed and sealed by a licensed professional engineer, if 14 necessary to protect the public health, safety, and welfare. 15 (d) For purposes of this section, "products manufactured by 16 th e e ntity" also includes computer software , f i rmware , hardware , 17 semiconductor devices, and th e production, exploration, and 18 transportation of oil and gas and related products. 19 SECTION 4. Subsections (b) and (c), Section 1001.058, 20 Occupations Code 1 are amended to read as follows: 21 (b) [This eiremption inoh1des the use of a joa title or

22 personnel olassifioation ay the employee if the employee does not

23 u-s€-+

24 [ ( 1) the title or alassifiaation in oonneation ·1ith an

25 offer to the pualio to perform eFHjiHeer inEj servioes 1 and

26 [ (2) a name, title, or 11ord that tends to oonvey the

27 i mpression t l:at a p e r so n n ot l i aens e d una e r this chapter is

4 S.B. No. 277

1 offerifl~ to the p1:1alio to perform efl~ifleerifl~ servioes,

2 (~] A person who claims an exemption under this section

3 and who is determined to have directly or indirectly represented

4 the person as legally qualified to engage in the practice of

5 engineering or who is determined to have violated Section 1001.301

6 may not claim an exemption until the 10th anniversary of the date

7 the person made that representation.

8 SECTION 5. Subchapter B, Chapter 1001, Occupations Code, is

9 amended by adding Section 1001. 066 to read as follows:

10 Sec. 1001.066. CERTAIN NASA-RELATED ACTIVITIES. This

11 chapter does not:

12 (1) apply to a business entity or the business entity's

13 employees to the extent that the entity's products or services

14 consist of space vehicles or space services provided to, or space

15 technology transfer programs required .by, the National Aeronautic s

16 and Space Administration; or

17 (2) prohibit the use of the term "engineer" or

18 "engineering" in a job title or personnel classification by an

19 employee described by Subdivision (1) to the extent that the use of

20 the title or classification is related to activities described by

21 that subdivision.

22 SECTION 6. Subsection (b), Section 1001.101, Occupations

23 Code, is amended to read as follows:

24 (b) Appointments to the board shall be made without regard

25 to the race, color, disability [-e-r-e-e4], sex, religion, ~ or

26 national origin of the appointee.

27 SECTION 7. Subsection (a), Section 1001.102, Occupations

5 S.B. No. 277

1 Code, is amended to read as follows:

2 (a) A person may not be [is Rot eligible for appoiRtmeRt as]

3 a public member of the board if the person or the person's spouse:

4 (1) is registered, certified, or licensed by~ [-aR-

5 ooelilpatioRal] regulatory agency in the field of engineering;

6 (2) is employed by or participates in the management

7 of ~ [aR ageRey or] business entity or other organization regulated

8 by or receiving money from the board [relatea to the fiela of

9 eRgiReeriRg]; [-e+]

10 ( 3) owns or controls, directly or indirectly, more

11 than a 10 percent [has a fiRafioial] interest [ether thaR as a

12 00F1s\il111er] in a business entity or other organization regulated by

13 or receiving money from the board; or

14 (4) uses or receives a substantial amount of tangible

15 goods, services, or money from the board other than compensation or

16 reimbursement authorized by law for board membership, attendance,

17 or expenses [re lat ea to the fie la of eF1giF1eeriF1g].

18 SECTION 8. Section 1001.10 3 , Occupations Code, is amended

19 to read as follows:

20 Sec . 1001.103. MEMBERSHIP AND EMPLOYEE RESTRICTIONS.

21 (a) In this section, "Texas trade asso c iation" means a cooperative

22 and voluntarily joined statewid e association of bu s iness or

23 professional competitors in th is sta te de s ign ed to assis t its

24 members and its industry or profession in dealing with mutual

25 business or professional problems and in promoting their common

26 interest.

27 (a-1) A person may not be a [A] member [or employee] of the

6 S.B. No. 277 1 board and may not be a board employee employed in a "bona fide

2 executive, administrative, or professional capacity," as that

3 phrase is used for purposes of establishing an exemption to the

4 overtime provisions of the federal Fair Labor Standards Act of 1938

5 (29 U.S.C. Section 201 et seq.), and its subsequent amendments, if: 6 (1) the person is an officer, employee, or paid

7 consultant of a Texas trade association in the field of engineering

8 [ inat1stry] ; or

9 (2) the person's spouse [relatea within the seoeBe1

10 ae~ree BY affinity er G9f\San~t1inity, as aeterminea t1naer Chapter

11 §7a 1 GevernmeBt Ceae, t e a perseB uhe] is an officer, manager

12 [empleyee], or paid consultant of a Texas trade association in the

13 field of engineering [iBe1t1stry].

14 (b) A person may not be [serve as] a member of the board or

15 act as the general counsel to the board if the person is required to

16 register as a lobbyist under Chapter 305, Government Code, because

17 of the person's activities for compensation on behalf of a

18 profession related to the operation of the board.

19 SECTION 9. Section 1001.106, Occupations Code, is amended

20 by amending Subsection (a) and adding Subsection (c) to read as

21 follows:

22 (a) It is a ground for removal from the board that a member:

23 (1) does not have at the time of taking office

24 [appeiBtment] the qualifications required by Sections 1001.101 and

25 [ Seetien] 1001.102;

26 (2) does not maintain during service on the board the

27 qualifications required by Sections 1001.101 and [Sectien]

7 S.B. No. 277

1 1001.102;

2 ( 3) is ineligible for membership under Section

3 1001.102 or [violates a prohibition established by £eetion)

4 1001.103 i [~]

5 (4) cannot, because of illness or disability,

6 discharge the member's duties for a substantial part of the member's

7 term; or

8 J.2l is absent from more than half of the regularly

9 scheduled board meetings that the member is eligible to attend

10 during [held in) a calendar year without an excuse approved by a

11 majority vote of the board [ 1 eicelttdin~ meetifl~S held Hhile the

12 person '.ms not a meml3er) .

13 ( c) If the executive director has knowledge that a potential

14 ground for removal exists, the executive director shall notify the

15 presiding officer of the board of the potential ground. The

16 presiding officer shall then notify the governor and the attorney

17 general that a potential ground for removal exists. If the

18 potential ground for removal involves the presiding officer, the

19 executive director shall notify the next highest ranking officer of

20 the board, who shall then notify the governor and the attorney

21 general that a potential ground for removal exists.

22 SECTION 10. Section 1001.108, Occupations Code, is amended

23 to read as follows:

24 Sec. 1001.108. OFFICERS. The governor shall designate a

25 member of the board as the presiding officer of the board to serve

26 in that capacity at the will of the governor. The board shall elect

27 annually from its members [a presidifl~ offieer 1 ) an assistant

8 S.B. No. 277

1 presiding officer ( 7 ) and a secretary.

2 SECTION 11. Subchapter c, Chapter 1001, Occupations Code,

3 is amended by adding Section 1001.112 to read as follows:

4 Sec. 1001.112. TRAINING. (a) A person who is appointed to

5 and qualifies for office as a member of the board may not vote,

6 deliberate, or be counted as a member in attendance at a meeting of

7 the board until the person c o mpl etes a training program that

8 complies with this sect ion.

9 (b) The tr aining program must provide the person with

10 information regarding:

11 (1) this chapter;

12 (2) the programs operated by the board;

13 (3) the role and functions of the board;

14 (4) the rules of the board, with an emphasis on the

15 rules that relate to disciplinary and investigatory authority;

16 (5) the current budget for the board;

17 (6) the results of the most recent formal audit of the

18 l;>oard;

19 (7) the requirements of:

20 (A) the open meetings law, Chapter 551, 21 Government Code;

22 (B) the public information law, Chapte r 552,

23 Government Code;

24 (C) the administrative procedure law , Chapter

25 2001, Government Code; and

26 (D) other laws relating to public officials ,

27 including conflict-of-interest laws; and

9 S.B. No. 277 1 (8) any applicable ethics policies adopted by the 2 board or the Texas Ethics Commission. 3 (c) A person appointed to the board is entitled to 4 reimbursement, as provided by the General Appropriations Act, for 5 the travel expenses incurred in attending the training program 6 regardless of whether the attendance at the program occurs before 7 or after the person qualifies for office. 8 SECTION 12. Subchapter D, Chapter 1001, Occupations Code, 9 is amended by adding Sections 1001.153 through 1001.156 to read as 10 follows: 11 Sec. 1001.153. DIVISION OF RESPONSIBILITIES. The board 12 shall develop and implement policies that clearly separate the 13 policy-making responsibilities of the board and the management 14 responsibilities of the executive director and the staff of the 15 board. 16 Sec. 1001.154. QUALIFICATIONS AND STANDARDS OF CONDUCT 17 INFORMATION. The executive director or the executive director's 18 designee shall provide to members of the board and to board 19 employees, as often as necessary, information regarding the 20 requirements for office or employment under this chapter, including 21 information regarding a person's responsibilities under applicable 22 laws relating to standards of conduct for state officers or 23 employees. 24 Sec. 1001.155. EQUAL EMPLOYMENT OPPORTUNITY POLICY; 25 REPORT. (a) The executive director or the executive director's 26 designee shall prepare and maintain a written policy statement that 27 implements a program of equal employment opportunity to ensure that

10 S.B. No. 277

1 all personnel decisions are made without regard to race, color,

2 disability, sex, religion, age, or national origin.

3 (b) The policy statement must include: 4 ( 1) personnel policies, including policies re lat fog 5 to recruitment, evaluation, selection, training, and promotion of

6 personnel, that show the intent of the board to avoid the unlawful

7 employment practices described by Chapter 21, Labor Code; and 8 (2) an analysis of the extent to which the composition

9 of the board's personnel is in accordance with state and federal law

10 and a description of reasonable methods to achieve compliance with

11 state and federal law.

12 ( c) The policy statement must:

13 (1) be updated annually; 14 (2) be reviewed by the Commission on Human Rights for

15 compliance with Subsection (b) (1); and 16 (3) be filed with the governor's office.

17 Sec. 1001.156. INFORMATION ON STATE EMPLOYEE INCENTIVE

18 PROGRAM. The executive director or the executive director's 19 designee shall provide to board employees information and training 20 on the benefits and methods of participation in the state employee 21 incentive program under Sub chapter B, Chapter 2108, Government

22 Code.

23 SECTION 13. Section 1001.203, Occupations Code, is amended

24 to read as follows:

25 Sec. 1001.203. RULES RESTRICTING ADVERTISING OR

26 COMPETITIVE BIDDING. (a) The board by rule shall prescribe

27 standards for compliance with Subchapter A, Chapter 2254,

11 S.B. No. 277

1 Government Code [may restrict cempetitive aieleiREJ].

2 (b) Except as provided by Subsection (a), the (~] board

3 may not adopt rules [a rule] restricting advertising or competitive

4 bidding by a license holder [perseR liceRseel uReler tfiis cfiapter]

5 except to prohibit false, misleading, or deceptive practices [~

6 tfie perseA).

7 (c) In its rules to prohibit false , misleading, or deceptive

8 practices, the [~] board may not include [ iR its n1les te prefiiait

9 false, misleae1iREJ 1 er eleceptive praetiees] a rule that:

10 (1) restricts the [perseR's] use of any medium for

11 advertising;

12 (2) restricts the use of a license holder's [13erseR's]

13 personal appearance or [use ef tfie perseR's) voice in an

14 advertisement;

15 ( 3) relates to the size or duration of an

16 advertisement by the license holder [13erseR); or

17 (4) restricts the license holder's [13erseR's)

18 advertisement under a trade name.

19 SECTION 14. Subchapter E, Chapter 1001, Occupations Code,

20 is amended by adding Section 1001. 2035 to read as follows:

21 Sec. 1001.2035. RULES ON CONSEQUENCES OF CRIMINAL

22 CONVICTION. The board shall adopt rules and guidelines as

23 necessary to comply with Chapter 53.

24 SECTION 15. Subsection (a), Section 1001.204, Occupations

25 Code, is amended to read as follows:

26 (a) The board shall establish the following [reaseRable aRel

27 Recessary) fees in amounts reasonable and necessary to cover the

12 S.B. No. 277

1 costs of administering [fer the aaministratien sf] this chapter [~

2 ameunts net ts e1rneea]:

3 (1) license feeL [~•.--..~.--.-.-.--.--.--.--..--.--.~--.--.--.--.---.-,..-~$~5~0]

4 (2) ann ua 1 r en ew a 1 f e e L [--.--.--.--.--.--.-..--,........,.--,~-..---.--.--$-t7-9-5 ]

5 ( 3) reciprocal 1 i c ens e fee L [-...--,..-.--.~-..---.--.--.--.-...........$..,§""O ... ]

6 (4) du pl i c at e license fee ; [-...-...-.--.--.-....--.--.-..--...-,--,.---$-=o-5 ]

7 ( 5) engineer-in-training certificate fee; $15]

8 (6) roster of engineers fee; $10]

9 ( 7) ex am in at ion f e e L [ -..--,........,.--.~-..--...-.---.--.--.--.--.-...----.;o.$-rl2-b0>Y-0 ]

10 (8) registration fee for engineering firm; and

11 (9) inactive status fee. $100]

12 SECTION 16. Subsection (c), Section 1001.206, Occupations

13 Code, is amended to read as follows:

14 ( c) The fee increase imposed by Subsection (a) does not

15 apply to an engineer who:

16 (1) meets the qualifications for an exemption under

17 Section 1001.057 or 1001.058 but does not claim that exemption;

18 [~]

19 ( 2) is disabled as described by Section 1001. 2051.....£.E.

20 ( 3) is on inactive status as provided by Section

21 1001. 355.

22 SECTION 17. Section 1001.210, Occupations Code, is amended

23 to read as follows:

24 Sec. 1001. 210. CONTINUING EDUCATION PROGRAMS. ~ The

25 board shall [may] recognize, prepare, or administer continuing

26 education programs for its license holders. A license holder must

27 participate in the programs to the extent required by the board to

13 S.B. No. 277

1 keep the person's license. 2 (b) The board may not require a license holder to obtain

3 more than 15 hours of continuing education annua lly . The board

4 shall permit a license holder to certify at the time the license is 5 renewed that the license holder has complied with the board's

6 continuing education requirements . 7 (cl The board shall permit a license holder to receive

8 continuing education credit for educational, technical, ethical,

9 or professional management activities related to the practice of

10 engineering, including: 11 (1) successfully completing or auditing a course

12 sponsored by an institution of higher education;

13 (2) successfully completing a course certified by a 14 professional or trade organization;

15 (3) attending a seminar, tutorial, short course,

16 correspondence course, videotaped course, or televised course;

17 (4) participating in an in-house course sponsored by a 18 corporation or other business entity; 19 (5) teaching a course described by Subdivisions 20 (1)-(4);

21 (6) publishing an article, paper, or book on th e 22 practice of engineering;

23 (7) makinq or attending a presentation at a meeting of

24 a technical or engineering management society or organization or

25 writing a paper presented at such a meeting; 26 (8) participating in the activities of a pr ofessional

27 society or association, including serving on a committee of the

14 S.B. No. 277 1 organization; and 2 (9) engaging in self-directed study .

3 (d) A license holder may not receive more than five

4 continuing education credit hours annually for engaging in 5 self-directed study [perseHS re~ulateG ay the aeare UHGer this

6 ehapter, PartisipatieH iH the pre~ra111s is veluHtary].

7 SECTION 18. Subchapter E, Chapter 1001, Occupations Code, 8 is amended by adding Sections 1001.214, 1001.215, and 1001.216 to

9 read as follows:

10 Sec. 1001.214. TECHNOLOGY POLICY. The board shall develop

11 and implement a policy requiring the executive director and board 12 employees to research and propose appropriate technological

13 solutions to improve the board's ability to perform its functions.

14 The technological solutions must: 15 ( 1) ensure that the public is able to find information

16 about the board on the Internet;

17 (2) ensure that persons who want to use the board' s 18 services are able to:

19 (A) interact with the board through the Internet; 20 and

21 (B) access any service that can be provided

22 effectively through the Internet; and 23 (3) be cost-effective and developed through the

24 board's planning processes.

25 Sec. 1001.215. NEGOTIATED RULEMAKING AND ALTERNATIVE

26 DISPUTE RESOLUTION POLICY. (a) The board shall develop and

27 implement a policy to encourage the use of:

15 S.B . No. 277

1 ( 1) negotiated rulemaking procedures under Chapter

2 2008, Government Code, for the adoption of board rules; and

3 (2) appropriate alternative dispute resolution

4 procedures under Chapter 2009, Government Code, to assist in the

5 resolution of internal and external disputes under the board's

6 jurisdiction.

7 (b) The board's procedures relating to alternative dispute

8 resolution must conform, to the extent possible, to any model

9 guidelines issued by the State Office of Administrative Hearings

10 for the use of alternative dispute resolution by state agencies.

11 (c) The board shall designate a trained person to:

12 ( 1) coordinate the implementation of the policy

13 adopted under Subsection (a);

14 ( 2) serve as a resource for any training needed to

15 implement the procedures for negotiated rulemaking or alternative

16 dispute resolution; and

17 ( 3) collect data concerning the effectiveness of those

18 procedures, as implemented by the board.

19 Sec. 1001.216. JOINT ADVISORY COMMITTEE ON THE PRACTICE OF

20 ENGINEERING AND ARCHITECTURE. (a) The Joint Advisory Committee on

21 the Practice of Engineering and Architecture is an advisory

22 committee to the board and to the Texas Board of Architectural

23 Examiners. The advisory committee consists of:

24 ( 1) three members of the board and one practicing

25 architectural engineer appointed by the board; and

26 (2) three members of the Texas Board of Architectural

27 Examiners and one practicing architect appointed by that board.

16 S.B. No. 277

1 (b) Members of the advisory committee serve staggered

2 six-year terms with the terms of one or two members appointed by the

3 board and one or two members appointed by the Texas Board of

4 Architectural Examiners expiring each odd-numbered year.

5 ( c) The advisory committee shall meet at least twice a year.

6 ( d) The advisory committee shall work to resolve issues that

7 result from the overlap between activities that constitute the

8 practice of engineering and those that constitute the practice of

9 architecture. The advisory committee shall assist each agency in

10 protecting the public rather than advancing the interests of either

11 agency or the profession it regulates.

12 ( e) The advisory committee shall issue advisory opinions to

13 the board and to the Texas Board of Architectural Examiners on

14 matters relating to the practice of engineering and the practice of

15 architecture, including:

16 (1) opinions on whether certain activities constitute

17 the practice of engineering or the practice of architecture;

18 (2) specific disciplinary proceedings initiated by

19 either agency; and

20 (3) the need for persons working on particular

21 projects to be licensed by the board or registered by the Texas

22 Board of Architectural Examiners.

23 (f) If the advisory committee issues an advisory opinion to

24 the board or the Texas Board of Architectural Examiners on a matter,

25 that agency shall notify the committee of the final action taken

26 with regard to the matter. The advisory committee shall consider

27 the action taken by the agency on the matter in any advisory opinion

17 S.B. No. 277

1 subsequently issued by the committee on a related matter.

2 (g) The board and the Texas Board of Architectural Examiners

3 shall enter into a memorandum of understanding regarding the

4 a d 11i sor y 'co mmi tt ee that i.rt c ludes t h e c9mp os i t i on an d pu rpose of t he

5 committee.

6 SECTION 19. Section 1001.251, Occupations Code, is amended

7 by adding Subsection ( c) to read as follows:

8 ( c) The board shall maintain on the board's Internet

9 website :

10 (1) information regarding the procedure for filing a

11 complaint with the board; and

12 (2) a form that a person may use to file a complaint

13 with the board.

14 SECTION 20. Sections 1001. 252 and 1001. 253, Occupations

15 Code, are amended to read as follows:

16 Sec. 1001.252. GENERAL RULES REGARDING COMPLAINT

17 INVESTIGATION AND DISPOSITION [COMPLAINT£]. ~ The board shall

18 adopt rules that permit the board to receive and investigate a

19 confidential complaint against a license holder or other person who

20 may have violated this chapter. The board shall maintain the

21 confidentiality of the complaint during the investigation.

22 (b) The board by rule shall specify:

23 (1) the manner by which a person may contact the board

24 for assistance in filin g a comp laint;

25 (2) the place at which a complaint must be filed;

26 ( 3) the pro p er form of a complaint; and

27 (4) the information that must be included in a

18 S.B. No. 277 1 complaint . 2 (c) The board's procedures must permit a member of the 3 public who desires to file a complaint to: 4 (1) speak to an investigator on the staff of the board 5 if the person desires to do so; or 6 ( 2) easily and conveniently access the board's

7 complaint process without being required to speak to an 8 investigator on the staff of the board if the person does not desire 9 to speak to an investigator . 10 (d) The board shall consider any written grievance aqainst a 11 license holder or other person filed with the board as a complaint. 12 (e) A complaint must include information sufficient for the 13 board to determine whether it has the authority to resolve the 14 complaint. A complaint that contains sufficient information for 15 the board to commence an investigation is not required to include 16 all of the information necessary for the board to determine the 17 validity of the complaint. 18 (f) On receipt of a complaint, the board shall determine 19 whether the board has the authority to resolve the complaint. If 20 the board does not have the authority to resolve the complaint, the 21 board shall dismiss the complaint. If the board has the authority 22 to resolve the complaint, the board shall initiate a disciplinary 23 proceeding against the person who is the subject of the complaint. 24 (g) The board by rule shall prescribe a method for 25 prioritizing complaints for purposes of complaint investigation. 26 In establishing priorities: 27 ( 1) a complaint that alleges an act ion that could

19 S.B. No. 277

1 potentially h a rm the public takes precedence over a complaint that

2 does not allege an action that could potentially harm the public;

3 and

4 (2) with regard to complaints that do not allege an 5 action that could potentially harm the public, a complaint filed by 6 a member of the public takes precedence over a complaint filed by

7 the staff of the board.

8 (h) The board's staff is responsible for conducting all

9 phases of complaint investigation , including gathering evidence

10 necessary to determine the validity of the complaint . 11 (i) The board may employ or contract with advisors,

12 consultants, engineers, or other persons to provide technical

13 assistance in investigations and disciplinary proceedings. Except 14 for an action involving fraud, conspiracy, or malice, a person

15 whose services are obtained by the board under this subsection is

16 immune from civil liability and may not be subjected to a suit for 17 damages for any investigation, report, recommendation, statement,

18 evaluation, finding made, or other action taken in the course of

19 performing the person's offic i a l du t ies . 20 ( j) The board's staff shall regularly report to the board on

21 eac h c o mplaint d ismiss e d by board staff , including : 22 ( 1) the name of th e c omplainant; 23 (2 ) the name of the p e rs on who is th e subj ect of the

24 c omp la int;

25 (3 ) t he basi s of the c omp l ai nt; a n d

26 ( 4) t h e re a s o n fo r the dismi s sal of th e c ompl a i nt .

27 (k ) Exc e pt as provid e d by Sub sec tion (1), a complai n t f iled

20 S.B. No. 277

1 with the board is public information.

2 (1) For any frivolous complaint, the license ho lder's name

3 and other personal information on the complaint is not public

4 information and must be redacted.

5 (m) In this section, "frivolous complaint" means a

6 complaint that the executive director and investigator, with board

7 approval, determined:

8 ( 1) was made for the purpose of harassment; and

9 (2) does not demonstrate harm to any person.

10 Sec. 1001.253. COMPLAINT INFORMATION. (a) The board

11 shall:

12 (1) assign a number to each complaint filed with the

13 board; and

14 (2) ensure that each phase of the processing of a

15 complaint is appropriately documented.

16 (b) The board shall maintain a [keep an infer111atien] file on

( 1) the name of the per son who filed the complaint; (2) the date the complaint is received by the board; ( 3) the subject matter of the complaint; (4) the name of each person contacted in relation to the complaint; ( 5) a summary of the results of the review or

26 (6 ) an explanation of the reason the file was clo sed ,

27 if the board closed the file without taking action other than to

21 S.B. No. 277 1 investigate the complaint. 2 ( c) The board shall provide to the person filing the 3 complaint and to each person who is a subject of the complaint a 4 copy of the board's policies and procedures xelating to complaint 5 investigation and resolution. 6 (d) The [ (0) If a written esmFJlaint :relatin';J ts a lieense 7 hslde:r is filed uith the bsa:rd, the] board, at least quarterly and 8 until final disposition of the complaint, shall notify the parties 9 to the complaint of the status of the complaint unless the notice 10 would jeopardize an undercover investigation. 11 SECTION 21. Subchapter F, Chapter 1001, Occupations Code, 12 is amended by adding Sections 1001.254 and 1001.255 to read as 13 follows: 14 Sec. 1001.254. STATISTICAL ANALYSIS OF COMPLAINTS. 15 (a) The board shall develop and maintain a complaint tracking 16 system to monitor the processing of complaints filed wit h t h e 17 board.

18 (b) The board shall include with the board's annual 19 financial report under Section 2101.011, Government Cod e , a 20 statistical analysis of the complaints filed with the board during 21 the preceding year, including:

22 ( ll the number of complaints filed; 23 (2) a categorization of complaints filed according to 24 the basis of the complaint and the number of complaints in each 25 category; 26 ( 3) the number of complaints filed by board staff; 27 (4) the number of complaints filed by persons other

22 S.B. No. 277

1 than board staff; 2 (5) the average length of time required to resolve a

3 complaint;

4 (6) the number of complaints resolved and the manner 5 in which they were resolved, including:

6 (A) the number of complaints dismissed and the

7 reasons for dismissal; and 8 (B) the number of complaints resulting in

9 disciplinary action, the disciplinary action taken, and whether the

10 disciplinary action taken was imposed by stipulation, agreed

11 settlement, consent order, default, or order following a contested

12 case hearing; and

13 ( 7) the number of complaints filed that are

14 unresolved, the number of those complaints filed by board staff,

15 the number of those complaints filed by persons other than board

16 staff, and the average length of time that the unresolved

17 complaints have been on file.

18 Sec. 1001.255. PUBLIC PARTICIPATION. The board shall

19 develop and implement policies that provide the public with a

20 reasonable opportunity to appear before the board and to speak on

21 any issue under the jurisdiction of the board.

22 SECTION 22. Section 1001.301, Occupations Code, is amended

23 by amending Subsections (b) and (c) and adding Subsections (f) and

24 ( g) to read as follows:

25 (b) Except as provided by Subsection (f), a [A] person may 26 not, unless the person holds a license issued under this chapter,

27 directly or indirectly use or cause to be used as a professional,

23 S.B. No. 277 1 business, or commercial identification, title, name, 2 representation, claim, asset, or means of advantage or benefit any 3 of, or a variation or abbreviation of, the following terms: 4 (1) "engineer";

5 ( 2) "professional engineer";

6 (3) "licensed engineer";

7 (4) "registered engineer"; 8 (5) "registered professional engineer";

9 (6) "licensed professional engineer"; or

10 (7) "engineered."

11 (c) Except as provided by Subsection (f), a [A) person may 12 not directly or indirectly use or cause to be used an abbreviation, 13 word, symbol, slogan, or sign that tends or is likely to create an 14 impression with the public that the person is qualified or 15 authorized to engage in the practice of engineering unless the 16 person holds a license and is practicing under this chapter. 17 (f) Notwithstanding the other provisions of this chapter, a 18 regular employee of a b u siness entity who is engaged in engineering 19 activities but is exempt from the licensing requirements of this 20 chapter under Sections 1001.057 or 1001.058 is not prohibited from 21 using the term "engineer" on a business card, cover letter, or other 22 form of correspondence that is made available to the public if the 23 person does not: 24 (1) offer to the public to perform engineering 25 services; or 26 (2) use the title in any context outside the scope of 27 the exemption in a manner that represents an ability or willingness

24 S.B. No. 277

1 to perform engineering services or make an engineering judgment

2 requiring a licensed professional engineer.

3 (g) Subsection (f) does not authorize a person to use a term

4 listed in Subsections (b) (2)-(6) or a variation or abbreviation of

5 one of those terms.

6 SECTION 23. Section 1001.303, Occupations Code, is amended

7 to read as follows:

8 Sec. 1001.303. APPLICATION FOR LICENSE. (a) An applicant

9 for a license under this chapter must submit an [a sHen1)

10 application on a form prescribed and provided by the board.

11 (b) The application must contain:

12 (1) personal information about the applicant, as

13 required by board rule;

14 (2) a description of the applicant's education;

15 (3) a detailed summary of the applicant's actual

16 engineering work;

17 (4) a description of any engineering license or

18 registration previously issued to the applicant and any denial,

19 revocation, or suspension of an engineering license or registration

20 held by the applicant;

21 (5) a description of any criminal offense of which the

22 applicant has been convicted; and

23 (6) at least three [~) references from engineers

24 [ indivieh1als] having personal knowledge of the applicant's

25 character, reputation, [-aft&] general suitability for a license, and

26 [ef whem at least three must be enEJineers havinEJ persenal knewledEJe

27 ef the applicant's] engineering experience.

25 S.B. No. 277

1 SECTION 24. Section 1001.304, Occupations Code, is amended

2 by adding Subsection (d) to read as follows:

3 (d) The board by rule shall ensure that the examination is

4 administered to applicants with disabilities in compliance with the

5 Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et

6 seq.), and its subsequent amendments.

7 SECTION 25. Sections 1001.306, 1001.310, and 1001.311,

8 Occupations Code, are amended to read as follows:

9 Sec. 1001.306. EXAMINATION RESULTS. (a) Not later than

10 the 30th day after the date a person takes a licensing examination

11 under this chapter, the [~] board shall notify the person [~

12 eicaminee] of the results of the [~] examination [net later than the

13 30th eay after the eate the ei1a111inatien is aeministeree].

14 (a-1) If the [-aR] examination is graded or reviewed by a

15 [natienal] testing service~

16 l1.l [Tl the board shall notify the person [~

17 examinee] of the results of the examination not later than the 14th

18 day after the date the board receives the results from the testing

19 service; and

20 (2) if[ ....

21 [ (b) If the] notice of the examination results [ ef an

22 eJEaminatian] will be delayed for longer than 90 days after the

23 examination date, the board shall notify the person [ eaGh ei1a111inee]

24 of the reason for the delay before the 90th day .

25 (b) The board may reguire a testing service to notify a

26 person of the results of the person's examination .

27 (c) If requested in writing by a person who fails ~

26 S.B. No. 277 1 licensing [-t-he-) examination administered under this chapter, the 2 board shall furnish [prsvide ts] the person with an analysis of the

3 person's performance on the examination.

4 Sec. 1001.310. TEMPORARY OR PROVISIONAL LICENSE. ~ The 5 board by rule may adopt standards and procedures for issuing a

6 temporary or provisional license under this chapter.

7 (b) The board may issue a provisional license to an

8 applicant cuxrently licensed in another jurisdiction who seeks a 9 license in this state and who:

10 (1) has been licensed in good standing as an engineer 11 for at least two years in another jurisdiction, including a foreign 12 country, that has licensing requirements substantially equivalent

13 to the requirements of this chapter;

14 (2) has passed a national or other examination

15 recognized by the board relating to the practice of engineering; 16 and 17 (3) is sponsored by a person licensed by the board

18 under this chapter with whom the provisional license holder will 19 practice during the time the person holds a provisional license.

20 (cl The board may waive the requirement of Subsection (b) ( 3) 21 for an applicant if the board determines that compliance with that

22 subsection would be a hardship to the applicant. 23 (d) A provisional li ce nse is valid until the date the board

24 approves or denies the provisional license holder's application for 25 a license. The board shall issue a license under this chapter to

26 the provisional license holder if:

27 (1) the provisional lic ense holder is eligible to be

27 S.B. No. 277 1 licensed under Section 1001.3ll(b); or 2 (2) the provisional license holder meets the following 3 requirements: 4 (A) the provisional license holder passes an 5 examination that tests the provisional license holder's knowledge 6 and understanding of the laws and rules relating to the practice of 7 engineering in this state; 8 (B) the board verifies that the provisional

9 license holder meets the academic and experience requirements for a 10 license under this chapter; and 11 (Cl the provisional license holder satisfies any 12 other licensing requirements under this chapter. 13 (e) The board must approve or deny a provisional license 14 holder's application for a license not later than the 180th day 15 after the date the provisional license is issued. The board may 16 extend the 180-day period if the results of an examination have not 17 been received by the board before the end of that period.

18 (f) The board may establish a fee for provisional li c enses 19 in an amount reasonable and necessary to cover the cost of issuing 20 the license. 21 Sec. 1001.311. APPLICATION BY NONRESIDENT. ~ A person 22 who holds a license or certificate of registration issued by 23 another state or a foreign country may apply for a license in this 24 state.

25 (b) The board may waive any prerequisite to obtaining a 26 license for an applicant after reviewing the applicant's 27 credentials and determining that the applicant holds a license

28 S.B. No. 277

1 issued by another jurisdiction that has licensing requirements

2 substantially equivalent to those of this state.

3 SECTION 26. Subsection (b), Section 1001.351, Occupations

4 Code, is amended to read as follows:

5 (b) The board by rule may adopt a system under which

6 licenses and registrations expire on various dates during the year..:..

7 For the year in which the license or registration expiration date is

8 changed, the board shall prorate license or registration fees on a

9 monthly basis so that each license or registration holder pays only

10 that portion of the license or registration fee that is allocable to

11 the number of months during which the license or registration is

12 valid. On renewal of the license or registration on the new

13 expiration date, the total license or registration renewal fee is

14 payable [ane shall aejust renewal Elates aeeorein(jly).

15 SECTION 27. Sections 1001. 352 and 1001. 353, Occupations

16 Code, are amended to read as follows:

17 Sec. 1001. 352. NOTICE OF LICENSE EXPIRATION. Not later

18 than the 30th day [one month) before the [enpiration) date [~) a

19 person's license is scheduled to expire, the board shall send [ffla-i..±.

20 to the person at the last aEIElress the person provieee to the hoarEI)

21 written notice of the jmpending [lieense) expiration to the person

22 at the person's last known address according to the records of the

23 board [Elate ane the amount of the annual rene .:al fee 1 for the

24 lieense).

25 Sec. 1001. 353. PROCEDURE FOR RENEWAL. (a) A per son who is

26 otherwise eligible to renew a license may renew an unexpired

27 license by paying the required renewal fee to the board before the

29 S.B. No. 277 1 expiration date of the license. A person whose license has expired 2 may not engage in activities that require a license until the 3 license has been renewed. 4 (b) A person whose license has been expired for 90 days or 5 less may renew the license by paying to the board a renewal fee that 6 is equal to 1-1/2 times the normally [~] required renewal fee and 7 any applicable increase in fees as required by Section 1001.206 [a 8 peRalty fee set lly U1e lloard].

9 ( c) A person whose license has been expired for more than 90 10 days but less than two years may renew the license by paying to the 11 board a renewal fee that is equal to two times the normally required 12 renewal fee and any applicable increase in fees as required by 13 Section 1001.206 for each delinquent year or part of a year [a±± 14 1:rnpaid reRe\1al fees aRd a peRalty fee set lly the lloard].

15 (d) A person whose license has been expired for two years or 16 more may not renew the license. The person may obtain a new license 17 by complying with the requirements and procedures, including the 18 examination requirements, for obtaining an original license [~

19 are iR effeet at the time the persoR applies].

20 SECTION 28. Subchapter H, Chapter 1001, Occupations Code, 21 is amended by adding Sections 1001. 354 and 1001. 355 to read as 22 follows: 23 Sec. 1001.354. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE 24 PRACTITIONER. (a) A person who was licensed in this state, moved 25 to another state, and is currently licensed and has been in practice 26 in the other state for the two ye ars preceding the date of 27 application may obtain a new license without reexamination .

30 S.B. No. 277 1 (bl The p erson must pay to the board a fee that is egual to 2 two times the normally required renewal fee for the license.

3 Sec. 1001.355. INACTIVE STATUS. (a) An engineer may

4 request inactive status at any time before the expiration date of 5 the person's license. A license holder on inactive status may not 6 practice engineering.

7 (bl A license holder on inactive status must pay an annual 8 fee set by the board.

9 ( c) A license holder on inactive status is not required to:

10 (1) comply with the continuing education requirements 11 adopted by the board; or

12 (2) take an examination for reinstatement to active

13 status. 14 (d) To return to active status , a license holder on inactive

15 status must:

16 (1) file with the board a written notice requesting 17 reinstatement to active status; 18 (2) pay the fee for the annual renewal of the license

19 and the fee increase required by Section 1001.206; and

20 (3) provide evidence satisfactory to the board that 21 the person has complied with the continuing education requirements

22 adopted by the board. 23 SECTION 29. Section 1001.405, Occupations Code, is amended

24 by adding Subsection ( g) to read as follows:

25 lgl Notwithstanding the other provisions of this section ,

26 the board by rule may provide that a business entity that has not 27 previously registered with the board and that is engaged in the

31 S.B. No. 277 1 practice of engineering in violation of Subsection (b) is not 2 subject to disciplinary action for the violation if the business 3 entity registers with the board not later than the 30th day after 4 the date the board gives written notice to the business entity of 5 the registration requirement. This subsection does not apply to a 6 business entity whose registration has expired. 7 SECTION 30. Section 1001.406, Occupations Code, is amended 8 to read as follows:

9 Sec. 1001.406. GRADUATE ENGINEERS. ~ A graduate of a

10 [pualie] university recognized by the American Association of 11 Colleges and Universities who has a degree from an engineering 12 program accredited by the Accreditation Board for Engineering and 13 Technology (ABET) has the right to: 14 (1) disclose any college degree received by the

15 person; and 16 (2) use the term "graduate engineer" on the person's 17 stationery or business cards or in personal communications of any 18 character. 19 (b) A graduate engineer who is employed in a firm registered 20 under this chapter and who is working under the direct supervision 21 of a licensed professional engineer may use the term "engineer" on 22 the person's stationery or business cards or in personal 23 communications of any character. 24 SECTION 31. Subchapter J, Chapter 1001, Occupations Code, 25 is amended by adding Sections 1001.4525, 1001.4526, and 1001.4527 26 to read as follows: 27 Sec. 1001.4525. PROBATION. (a) If a person's license

32 S.B. No. 277

1 suspension is probated, the board may require the person to:

2 (1) report regularly to the board on matters that are

3 the basis of the probation;

4 (2) limit practice to the areas prescribed by the

5 board; or

6 ( 3) continue or review professional educati-on until

7 the person attains a degree of skill satisfactory to the board in

8 those areas that are the basis of the probation .

9 (b) The board by rule shall adopt writ ten guidelines t o

10 ensure that probation is administered consistent ly.

11 Sec. 1001. 4526. RESTITUTION. (a) Subject to Subsection

12 (b), the board may order a person licensed or registered under this

13 chapter to pay restitution to a consumer as provided in an agreement

14 resulting from an informal settlement conference instead of or in

15 addition to imposing an administrative penalty under this chapter.

16 (b) The amount of restitution ordered as provided in an

17 agreement resulting from an informal settlement conference may not

18 exceed the amount the consumer paid to the person for a service

19 regulated by this chapter. The board may not require payment of

20 other damages or estimate harm in a restitution order.

21 Sec. 1001. 4527. RECUSAL OF BOARD MEMBER. (a) A board

22 member who participated in the investigation of a complaint or in

23 informal settl e ment negotiations regarding the complaint:

24 ( 1) may not participate in the discussion of o r vote on

25 the matter at a board meeting related to the complaint; and

26 ( 2) shall state at the meeting why the member is

27 prohibited from participating in the discussion of or voting on the

33 S.B. No. 277

1 matter.

2 (b) A statement under Subsection (a) (2) shall be entered

3 into the minutes of the meeting.

4 SECTION 32. Chapter 1001, Occupations Code, is amended by

5 adding Sub chapter M to read as follows:

7 Sec. 1001. 601. BOARD ADVISORY OPINIONS. (a) On its own

8 initiative or at the request of any interested person, the board

9 shall prepare a written advisory opinion about an interpretation of

10 this chapter or the application of this chapter to a person in

11 regard to a specified existing or hypothetical factual situation.

12 The board shall respond to requests for opinions within 180 days or

13 affirmatively state its reason for not responding to the request.

14 Sec. 1001.602. MAINTENANCE OF OPINIONS; SUMMARY. The board

15 shall:

16 (1) number and classify each advisory opinion issued

17 under this subchapter; and

18 (2) annually compile a summary of the opinions in a

19 single reference document that is available on the Internet.

20 Sec. 1001.603. ATTORNEY GENERAL'S OPINIONS. The authority

21 of the board to issue an advisory opinion under this subchapter does

22 not affect the authority of the attorney general to issue an opinion

23 as authorized by law.

24 Sec. 1001. 604. RELIANCE ON ADVISORY OPINION. It is a

25 defense to prosecution or to imposition of a civil penalty that a

26 person reasonab l y relied on a written advisory opinion of the board

27 relating to:

34 S.B. No. 277 1 (1) the provision of the law the person is alleged to

2 have violated; or 3 (2) a fact situation that is substantially similar to

4 the fact situation in which the person is involved . 5 SECTION 33. (a) Not later than January 1, 2004, the Texas 6 Board of Professional Engineers shall adopt the rules required by 7 Section 1001. 2035, Occupations Code, as added by this Act.

8 (b) Not later than September 1, 2005, the Texas Board of 9 Professional Engineers shall adopt the written guidelines required 10 by Section 1001. 4525, Occupations Code, as added by this Act. 11 (c) The Texas Board of Professional Engineers is not 12 required to issue an advisory opinion under Subchapter M, Chapter 13 1001, Occupations Code, as added by this Act, before January 1, 14 2004. 15 SECTION 34. (a) This Act takes effect September 1, 2003.

16 (b) The changes in law made by Sections 1001.102 and 17 1001.103, Occupations Code, as amended by this Act, and Section

18 1001.112, Occupations Code, as added by this Act, in the 19 prohibitions on or qualifications of members of the Texas Board of 20 Professional Engineers do not affect the entitlement of a member 21 serving on the Texas Board of Professional Engineers immediately 22 before September 1, 2003, to continue to serve and function as a 23 member of the Texas Board of Professional Engineers for the 24 remainder of the member's term. Those changes in law apply only to 25 a member appointed on or after September 1, 2003. 26 (c) The change in law made by Section 1001.108, Occupations 27 Code, as amended by this Act, does not affect the entitlement of a

35 S.B. No. 277 1 person who was serving as presiding officer of the Texas Board of 2 Professional Engineers immediately before September 1, 2003, to 3 continue to serve and function in that capacity for the remainder of 4 the person's term as presiding officer. That change in law applies 5 only to the designation of a presiding officer of the board after 6 that person's term as presiding officer expires. 7 (d) The changes in law made by this Act to Chapter 1001, 8 Occupations Code, relating to the investigation of a complaint 9 apply only to a complaint filed with the Texas Board of Professional 10 Engineers on or after the effective date of this Act. A complaint 11 filed with the board before the effective date of this Act is 12 governed by the law as it existed immediately before that date, and 13 the former law is continued in effect for that purpose.

36 S.B. No. 277

President of the Senate Speaker of the House I hereby certify that S . B. No. 277 passed the Senate on April 22, 2003, by a viva-voce vote; May 21, 2003, Senate refused

to concur in House amendments and requested appointment of

Conference Committee; May 24, 2003, House granted request of the

Senate; May 31, 2003, Senate adopted Conference Committee Report by a viva-voce vote.

Secretary of the Senate I hereby certify that S.B. No. 277 passed the House, with

amendments, on May 8, 2003, by a non-record vote; May 24, 2003,

House granted request of the Senate for appointment of Conference

Committee; May 31, 2003, House adopted Conference Committee Report by a non-record vote.

Chief Clerk of the House

Approv e d :

Date

Governor

37 Tab 6 Final Order, dated Aug. 16, 2012 SOAH DOCKET NO. XXX-XX-XXXX

TBPE CASE NOS. D-31480

TEXAS BOARD OF PROFESSIONAL BEFORE THE STATE OFFICE ENGINEERS

v. OF

RAGHNUATH DASS P.E.

LICENSE NO. 90119 ADMINISTRATIVE HEARINGS

TEXAS BOARD OF PROFESSIONAL ENGINEERS FINAL ORDER

Be it known that on this date the matter ofthe Texas Board of Professional Engineers Board

vs. Raghnuath Dass P.E. License No. 90119 Respondent was heard by the Board in an open

The Board finds that and timely notice was given to meeting on August 16 2012. after proper

Respondent the above styled case was heard by an Administrative Law Judge assigned to the State

Office of Administrative in Austin Texas on April 18 2012. Respondent appeared and Hearings

represented himself. The Board was represented by Staff Attorney Dewey E. Helmcamp III.

of evidence the Administrative Law Judge ALJ closed the record. On Following the presentation

June 13 2012 the ALJ prepared a Proposal for Decision PFD which found that Respondent

violated 22 TAC sections 137.33b 133.37f and 137.63b 2 and recommended a sanction of a

Formal Reprimand a suspension of Respondents Texas engineers license for two years with the

entire period probated and a $4000.00 administrative penalty.

The Board reviewed the PFD of Fact and Conclusions of Law the Respondents including Findings

and the of the hearing and Exceptions to the PFD the Boards Response to the Exceptions transcript

members of the Board present and voting at vote of the gave due consideration thereto. By majority

the meeting the Board adopts the ALJs PFD including the ALJs Findings of Fact and Conclusions

TBPE000012 of law set forth as follows

1. FINDINGS OF FACT

1. Raghunath Dass Respondent is a licensed professional engineer holding professional

license number 90119 issued by the Texas Board of Professional Engineers Board. At the

times applicable to this matter he was the sole licensed professional engineer employed by

Trinity Soils Investigation Laboratories Inc. TSI.

2. On December 8 2011 staff of the Board Staff sent a notice of hearing and a Complaint to

Respondent proposing a two-year probated suspension of Respondents license a formal

reprimand and an administrative penalty of $7000.

3. The notice of hearing contained a statement of the time place and nature of the hearing a statement of the legal authority and jurisdiction under which the hearing was to be held a

reference to the particular sections of the statutes and rules involved and a short plain statement of the matters asserted.

4. The hearing on the merits was held on April 18 2012 before Administrative Law Judge

ALJ Richard R. Wilfong in the William P. Clements Building 300 West 15th Street Fourth

Floor Austin Texas. All parties appeared and participated in the hearing. The Board was

represented by Dewey E. Helmcamp III attorney. Respondent represented himself. The record closed the same day.

5. On February 18 2009 TSI submitted a proposal to perform construction material testing

CMT for the San Patricio County fairgrounds horse barn project the Project. The

proposal included a price quote.

6. The Project is a public works project.

7. From February 17 2009 through April 7 2009 TSI submitted 16 CMT reports to San

Patricio County for the Project.

8. None of the 16 CMT reports released to San Patricio County were signe4 and sealed by a licensed professional engineer.

9. Respondent did not perform or directly supervise any of the testing reflected in the 16 CMT reports submitted byTSI to San Patricio County for the Project.

10. Respondent had no knowledge of the project or the actions of TSI with respect to the

Project before April 17 2009.

11. On April 20 2009 Respondent added his undated signature and seal to copies of the

16 CMT reports and resubmitted them to San Patricio County.

TBPE000013 12. Respondent provided copies of the 16 CMT reports bearing his undated signature and seal

when he attended an informal conference with the Board on June 28 2010.

13. Respondent failed to exercise reasonable care and diligence to prevent TSI from submitting a

proposal for construction material testing for the Project which included a price bid.

14. Respondent failed to exercise reasonable care and diligence to prevent TSI from performing

construction material testing for-the Project without having the tests performed or directly

supervised by a licensed professional engineer.

15. Respondent failed to exercise reasonable care and diligence to prevent TSI from submitting

CMT reports for the Project without the signature and seal of a licensed professional

engineer.

16. Respondent was dishonest and unethical in the conduct of his business affairs when he added his undated signature and seal to the CMT reports after they were released to San Patricio

County.

17. Respondents addition of his undated signature and seal to the CMT reports when he had not performed or directly supervised the tests reflected in the CMT reports was dishonest and unethical.

18. Respondent added his signature and seal to the CMT reports after he reviewed the testing data to appease Mr. Shriers concern that the CMT reports needed to be signed and sealed by a licensed engineer.

19. Staff failed to prove a common understanding and interpretation among professional

engineers concerning the requirements relating to material testing in conformance with the

Professional Services Procurement Act PSPA.

20. Respondent has no history of prior violations of Board rules.

21. Respondents conduct did not result in any economic damage.

22. Respondent did not profit from his actions.

II. CONCLUSIONS OF LAW

1. The Texas Board of Professional Engineers Board is the agency charged with administering

and enforcing the provisions of the Texas Professional Engineers Act and the Board Rules

to Tex Occ. Code Ann. 1001.207 1001.451 1001.452 and 1001.454. pursuant

2. The State Office of Administrative has over the hearing in this Hearings jurisdiction

TBPE000014 proceeding including the authority to issue a proposal for decision with proposed findings of fact and conclusions of law pursuant to Tex. Govt Code Ann. ch. 2003.

3. Notice of the complaint and of the hearing on the merits was provided as required by Tex Ore. Code Ann. 1305.253 and by the Administrative Procedure Act Tex. Govt Code Ann. 2001.051 and 2001.052.

4. The Board had the burden of proving the case by a preponderance of the evidence pursuant to 1 Tex. Admin. Code TAC 155.41.

5. Based on the above Findings of Fact Respondent violated 22 TAC 137.33b when he failed to supervise the performance of the CMT testing.

6. Based on the above Findings of Fact Respondent violated 22 TAC 137.33f when he allowed TSI to release the CMT reports without having signed dated and sealed the CMT reports before they were released.

7. Based on the above Findings of Fact Respondent violated 22 TAC 137.63b2 when he failed to exercise reasonable care and diligence to prevent TSI from submitting a competitive

bid for professional engineering services in violation of the PSPA.

8. Respondent failed to engage in professional and business activities in an honest and ethical

manner when he added his undated signature and seal to CMT reports after they had been

released in an effort to appease the concern of San Patricios engineer that the CMT reports needed to be signed and sealed by a licensed professional engineer.

9. The Board is authorized to assess an administrative penalty of no more than $3000 per

violation of Board rules and may include in the penalty the actual costs of investigating the

action. Tex. Occ. Code Ann. 1001.502 a and c. 10.. The sanctions suggested by 22 TAC 139.35b for each of Respondents violations are a

two-year probated suspension of Respondents license a reprimand formal or informal and

a fine of $500 to $2500.

11. Taking into consideration the factors set forth in 22 TAC 139.35a the above Findings of

Fact support a less severe sanction to deter future misconduct.

12. Respondents license should be suspended for a period of two years and the period of

should be In addition Respondent should receive a formal suspension fully probated.

reprimand and be assessed an administrative penalty of $4000.00 inclusive of any cost

incurred by the Board in its investigation of this matter.

TBPE000015 ORDER

WHEREFORE PREMISES CONSIDERED the Texas Board of Professional Engineers does

hereby issue a Formal Reprimand and a two-year suspension of the Texas engineer license

held by Mr. Raghunath Dass P.E. License Number 90119 for conduct alleged in the foregoing

Final Board Order to be fully probated for the entire period contingent upon Respondents

payment of a $4000 administrative penalty to the Board within thirty days of the date this

Order is final and appealable. Respondents failure to pay the administrative penalty within

thirty days of the date this Final Order is final and appealable shall constitute a separate

violation of the Act and may result in further disciplinary action against Respondent

including but not limited to Respondents probation being vacated by operation of law

without any further action other than notice from the Boards Executive Director. The

probation will be further contingent upon Respondent not being found in violation of a separate

offense of the Act or Board rules during said period of probation by the Board.

DATE ISSUED August 16 2012 by the

MEMBERS OF THE TEXAS BOARD OF PROFESSIONAL ENGINEERS

G ICemb ennett Ph.D. P.E.

Chair

Lance I ey P.E.

Executive Director

TBPE000017 APPROVED A TO FORM

Dewey E. Helmcam Staff Attorney

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Final Order has been served on

the of 0- 2012 Federal Express Tracking No. 79 9 7 7f 4 2 D 0 Y 9 to the Respondent

Mr. Raghnuath Dass

8719 Copperbrook Drive

Houston TX 77095

Lance Kinney P.E. Executive Director

TBPE000018 Tab 7 Cover Letter for (Dass’s) Initial Brief, dated Mar. 26, 2013 March 26, 2013

Ms. Amalia Rodriguez-Mendoza Travis County District Clerk (Civil) Travis County Courthouse 1000 Guadalupe, Suite 302 Austin, Texas 78701

RE: Cause No. D-1-GN-12-003397; Raghunath Dass, P.E. v. Texas Board of Professional Engineers; In The 419th Judicial Court of Travis County, Texas

Dear Ms. Rodriguez-Mendoza,

Enclosed for filing, please find the Plaintiffs Initial Brief in the above-referenced matter.

By copy of this letter, I am forwarding the copies to all interested parties.

Thank you,

Sincerely,

~~ Raghunath Dass, PE Rec1:1veo APJ( u I 2013 OFF/CEOt ·•· . Encl. Plaintiffs Brief ADM/N/srW: ~~:us;; '?t_GENERAL Li.~ •!i//SfON cc: Honorable Judge Gisela Triana, 200th Court cc: Veena MQhan A. sistant Attom<;J Gen~ aI Tab 8 Notice of Appeal, dated Oct. 23, 2013 IN THE 419TH JUDICIAL DIS TRAVIS COUNTY, TE CAUSE NO: D-l-GN-12

RAGHUNATB DASS, P. E., § THIRD COURT OF § ALS Appellant, § l

§ v. § AUSLT, TEXAS • (J

NOTICE OF § APPEAL*~ ~ At Ik -z i...- g M. Amalia Rodriguez-Mende~!erk

Appeals the Final Judgment of this Court, entered~~ep mber 27, 2013. The Final ~ Judgment resulted from a Judicial Review of~ Order from Texas Board of <) Professional Engineers. Appellee. 0• c; •~ Respectfully s bmitted, ~.... ~ ~,,,,, , Raghunath D 1 s, PE Appellant Pro~e ~ CJo 8719 Copperb ook Drive Houston, Tex 77095 Phone: (281) 8 3983 ~ ·~ Email: rdass4 7@yahoo.com ~(j The State of ~

~y of Ckla~)r r to which2 Sworn to an)>subscribed before me on this the

g~ ~:seal of office. fA ..3 j

Notary Public ignature , 2013 I CERTIFICATE OF SER~CE I hereby certify that a true and correct copy ofthe!Notice of Appeal bas been mailed on the 23rd day of October 2013, to: I ! VeenaMohan Assistant Attorney General Office of the Attorney General Administrative Law Division P.O. Box 12548 Austin, Texas 78711-2548 Email: veena.mohan@texasattorneygeoeral.gov Telephone: (512) 936 - 0535 Facsimile: (512) 457- 4676

AITORNEY FOR APPELLEE

Ragbunath Dass October 23, 2013

Ms. Amalia Rodriguez-Mendoza ; Travis County District Clerk (Civil) l Travis County Courthouse 1000 Guadalupe, Suite 302 I .,CJ0 Austin, Texas 78701

RE: Notice of Appeal I I V ~' Cause No. D-l-GN-12-003397; Raghunath Dass, ~ v. Texas Board of Professional Engineers; In The 419th Judicial Court <;i§°avis County, Texas

Dear Ms. Rodriguez-Mendoza, ~ ~0,

Enclosed for tiling, please find the Appellant's l'j~C~)- ppeal in the above-referenced matter. ~~ ~ By copy of this letter, I am forwarding the '4)~s to all intrested parties. o· Thank you, CJ ~~ Respectfully, ~'-..fl>

tJ~~, Raghunath Dass, PE OQ ~CJ ·~ • (J Encl. Notice ~ppeal 0 cc: V ~Mohan, Assistant Attorney General Tab 9 Texas Board of Professional Engineer’s 2005 Policy Advisory Opinion on Construction Materials Testing, dated Aug. 20, 2009 Texas Board of Professional Engineers Policy Advisory Opinion Regarding Construction Materials Engineering August 20, 2009

Executive Summary: The assessment of a construction material for quality, appropriateness and acceptability is considered by the Board to be an engineering activity. These Construction Materials Engineering (CME) activities must be performed by licensed professional engineers. Construction materials testing (CMT), within the context of CME includes collecting samples, performing well-defined test procedures, and reporting of data. In certain situations, performing tests and construction materials sampling using well-defined engineering specifications may not be considered engineering activities.

Discussion: On construction projects, engineers are called upon to assess the quality, appropriateness and acceptability of the materials that are used. These assessments are known collectively as CME. The CME includes the determination of the scope and procedures of testing for the project, the supervision of testing, and the analysis of test results for construction material acceptance purposes or for use in engineering recommendations. Although we most commonly associate CME with the analysis of concrete and soil, CME is conducted on any material used in construction including but not limited to timber, asphaltic concrete, steel, selected fill materials, recycled materials, aggregates, epoxies, and polymers.

Because it is engineering, CME must be personally performed by a licensed engineer or be directly supervised by a licensed engineer, and can only be offered to the public in full conformance with the Texas Engineering Practice Act (Act). Any CME activities that are contracted by a political subdivision of the State of Texas or an agency of the state, or on the political subdivision or agency’s behalf, must be acquired in conformance with the Professional Services Procurement Act, Article 2254.004 of the Texas Government Code.

The CMT, within the context of CME includes collecting samples, performing well- defined test procedures, and reporting of data. In certain situations, performing tests and sampling by using well-defined engineering specifications may not be considered engineering activities. However, if analysis of test data is done or a determination is made that a material is acceptable, these activities would be considered to be CME and require a licensed professional engineer. Because the engineer is responsible for accepting the public works project, acceptance or rejection of materials or work, the direct supervision by an engineer of CMT for those acceptance decisions is needed.

Public Works: When constructing public works, the state or political subdivision of the state must ensure that the engineering construction is performed under the direct supervision of a licensed engineer (Sec. 1001.407, Occupations Code). This supervision must include the direct supervision of materials testing and engineering necessary and appropriate for verification of compliance with construction plans and acceptance of the project by the public owner.

Adopted by the Texas Board of Professional Engineers 5/18/2005 Page 1 Edited August 20, 2009 to remove FAQ Section A licensed professional engineer must directly supervise any element of acceptance testing, from data collection to final determination. When engineers are hired for these services, they must be retained under the Professional Services Procurement Act (PSPA). The CMT services unrelated to acceptance testing might be acquired using other purchasing procedures provided the CMT services do not include any CME function. For public entities with staff engineers who make acceptance decisions, the engineers must be in a position to determine if the testing and inspection services are properly performed at a frequency that provides confidence that the materials and work meet (or reasonably conform in some cases) the contract requirements or standards of practice. This requires reviewing qualifications, monitoring inspection and testing services and review of test and inspection data.

The validity of an engineering judgment in the construction materials area is integrally tied to the validity of test data, which is in turn directly related to training of technical staff, performance of testing equipment, and other elements associated with an accredited engineering laboratory. Therefore, by the standard established by Sec. 1001.407, Occupations Code, CMT conducted for the purpose of verification and acceptance of a facility is considered a CME function.

The Board recognizes as a specific exception for CMT conducted under a federally approved quality assurance program (QA) specifically governing the Texas Department of Transportation, provided that alternate methods of ensuring appropriate engineering direct supervision are in place. In addition, CMT services used for a contractor’s internal quality control purposes only and are not used by the owner for verification and/or acceptance purposes may not be considered engineering.

Adopted by the Texas Board of Professional Engineers 5/18/2005 Page 2 Edited August 20, 2009 to remove FAQ Section