Parrish v. Phillips

• Decision Date: 03 February 1966
• Docket Number: No. 14505,14505
• Citation: 401 S.W.2d 347
• Parties: J. M. PARRISH et al., Appellants, v. J. O. PHILLIPS et al., Appellees. . Houston
• Court: Texas Court of Appeals

Page 347

401 S.W.2d 347

J. M. PARRISH et al., Appellants, v. J. O. PHILLIPS et al., Appellees.

No. 14505.

Court of Civil Appeals of Texas Houston.

Feb. 3, 1966.

Rehearing Denied April 14, 1966.

Fulbright, Crooker, Freeman, Bates & Jaworski, Austin C. Wilson and Richard L. McGraw, Houston; Niemann & Babb, Charles Babb, Austin, of counsel, for appellants.

Fountain, Cox & Gaines, Joyce Cox and James A. Pakenham, Houston, for appellees.

COLEMAN, Justice.

This is a class action brought by the Texas Surveyors Association, and certain named Registered Public Surveyors as representing a class, naming as defendants the Texas Society of Professional Engineers, and certain named Registered Professional Engineers as representatives of a class, for a declaratory judgment interpreting Article 5282a, Vernon's Ann.R.C.S., providing for the licensing of public surveyors, and Article 3271a, providing for the licensing of professional engineers, to determine whether or not Registered Professional Engineers are authorized to (1) establish boundary lines, (2) make plats of record, and (3) qualify as expert witnesses on land survey problems, without having first been licensed as a Registered Public Surveyor, and, further, to determine the validity of certain regulations adopted by Texas State Board of Registration for Public Surveyors.

The defendants filed an answer and cross-action for declaratory judgment asking that the court declare that (1) Art. 5282a, R.C.S., has no application to Registered Professional Engineers in the practice of their profession, including land surveying; (2) that the State Board of Registration for Public Surveyors has no power or authority to adopt any rule or regulation, the purpose or effect of which would be to require a registered professional engineer to register as a public land surveyor in order to practice public land surveying; and (3) that the oath of the registered professional engineer and the power of the Texas State Board of Registration for Professional Engineers provided by Section 22 of Article 3271a to revoke the registration of any engineer guilty of incompetency in the practice of professional engineering as a registered professional engineer constitute the regulation and discipline to which a registered professional engineer engaged in public land surveying is subject.

The judgment of the trial court provided:

'* * * ORDERED, ADJUDGED and DECREED that the practice of professional engineering within the meaning and intent of Article 3271a, Section 2, of the Revised Civil Statutes of Texas is the practice of the art and science by which the properties of matter are made useful to man in structures and machines, and that the practice of Engineering as authorized by law within the meaning of Article 5282a, Section 3(c), of the Revised Civil Statutes of Texas and Section 11 of said Article as it refers to the Engineering profession does not extend beyond those techniques shared with the surveying profession, namely those which are necessary to the Engineering profession in measuring areas and locating, marking and mapping the same for the purposes of construction, and do not extend to the practice of such techniques for the purposes set forth in Article 5282a, Section 2(b), aforesaid; * * *.'

The judgment further decreed that the rules and regulations adopted by the State Board of Registration for Public Surveyors (at issue in the case) correctly interpreted the laws referred to therein and properly defined 'the functions of the surveying and engineering fields to the extent the same are exclusive one of the other, and to the extent that techniques and procedures are and may be used in common by the aforesaid two professions for the purposes respectively served by each to the exclusion of the other.' The judgment further ordered that the rules and regulations be sustained as lawful and correctly definitive of the matter to which they relate as between the aforesaid two professions.

The judgment then ordered that the decree shall be binding upon all persons licensed now or hereafter as either public surveyors or as professional engineers under existing laws of the State of Texas.

It will be noted that the State Board of Registration for Public Surveyors was not made a party to this suit. Art. 5282a established this Board of six members, all of whom are required to be surveyors actively engaged in the public practice of surveying for at least ten years immediately prior to their appointment to the Board. The Board is authorized by the Act to adopt all rules and regulations it deems necessary in administering the Act, and is charged with the duty of aiding in the enforcement of the provisions of the Act. The Act prohibits practicing, or offering to practice, the profession of public surveying in this State without being registered or exempted in accordance with the provisions of the Act, and provides criminal penalties for its violation. Any member of the Board is authorized to present to a prosecuting officer complaints relating to violations of the Act, and the Board is authorized to assist in the trial of any cases involving alleged violations subject to the control of the prosecuting officers. The attorney general is designated as the legal advisor of the Board and required to render such assistance as may be necessary in enforcing the Act. The Act provides that local prosecuting officers are not relieved by this provision of any of their duties as provided by law .

The Board is authorized to adopt such rules and regulations it deems necessary to administer the Act or for the orderly conduct of its affairs. It appears that pursuant to this authority, and bearing in mind its duty to aid in the enforcement of the Act, the Board adopted rules and regulations defining in detail the services which could be performed for the public only by a licensed public surveyor. The rules then provided certain exceptions including one pertaining to registered professional engineers, reading as follows:

'c. Registered professional engineer when practicing his profession as authorized by law. The prohibitions of the Registered Public Surveyors Act of 1955 do not extend to engineers practicing the science of professional engineering as defined by the Act of 1937, Article 3271a, Vernon's Civil Statutes of Texas, when such activities involve measurement and land subdivision for the purpose of construction, when such activities do not involve the determination of boundary problems or other activities exclusively to be performed by Registered Public Surveyors, as such other activities are herein defined, though such activities involve techniques and instruments employed by surveyors in the practice of their science and art. The licensed activities of professional engineers are solely such as are necessary to and directed toward the prerogative of construction.'

Section 3 of the Rules adopted by the Board reads as follows:

In the event of the failure or refusal of any person to comply with the requirements of the Registered Public Surveyors Act of 1955, as interpreted by these rules, it shall be the duty of the Board to present a complaint to an appropriate prosecuting officer in accordance with Section 8 of said Act. This duty shall not, however, prevent in a proper case the institution and prosecution, by either the Board or any other interested organization or person, of an action in a Court of competent jurisdiction to restrain and enjoin the violation of any of the preceding rules.'

Neither the Board, the Attorney General, nor any of the prosecuting officers of the State of Texas have been made parties to this suit. The office of the Attorney General issued an opinion August 9, 1960, addressed to the State Board for Registered Professional Engineers that registered professional engineers are not required to register as public surveyors under the provisions of Art. 5282a, R.C.S. Both appellants and appellees placed in issue the question of whether or not the law was properly interpreted by the Board, and appellants further requested adjudication of the power or authority of the Board to adopt rules, the effect of which would be to require a registered professional engineer to register as a public land surveyor in order to practice public surveying of land.

An adjudication of the power or authority of the Board to adopt the rules in question, and of the validity of the rules adopted, cannot properly be made in an action to which the Board is not a party. Town of Santa Rosa v. Johnson, Tex.Civ.App., 184 S.W.2d 340; Burnett v. Masonic Grand Chapter of Order of Eastern Star, Tex.Civ.App., 340 S.W.2d 81.

Insofar as determining the validity of the rules adopted by the State Board of Registration for Public Surveyors interpreting Art. 5282a in its application to registered professional engineers questions arise as to the justiciable interest of registered public surveyors and their professional...