ATTORNEY GENERAL REJECTS REQUEST CHALLENGING STATE AGENCY AUTHORITY OVER CITIES

For the past several years, the Texas Board of Professional Engineers (TBPE) has sought to enforce state engineering laws against cities and city officials. In the most recent episode, the City of Brownwood entered into an agreed order with the TBPE to avoid further entanglements.

According to the TBPE, City of Brownwood employees in the city’s development services and public works departments and the office of the city manager were responsible for the acceptance of design plan sheets for a medical office building. The plans were signed and sealed by a design professional (an architect), and the city subsequently issued a building permit. Based on the size of the building, the plans should have been prepared by a Texas licensed professional engineer. However, the site grading plan did not bear a seal or signature of a Texas licensed professional engineer. The TBPE alleged that the acceptance of the plan by the city violated the state’s Engineering Practices Act.

According to letters and other information obtained by TML, the TBPE threatened to impose an administrative penalty against the City of Brownwood in 2006, and that action was dealt with pursuant to an agreed order. Apparently, the building in the plans developed defects that were attributable to poor engineering. Subsequent to the appearance of the defects, the TBPE once again – in 2009 – informed the city that it violated the Engineering Practices Act by accepting the plans and issuing the permit. Again, to avoid further costs of contesting the enforcement, the city entered into a second agreed-upon order with the TBPE in 2009.

In response, State Representative Bill Keffer (R- Eastland) asked the attorney general whether the TBPE has the authority to take enforcement action against a city. TML, the Texas City Attorneys Association (TCAA), and the Building Officials Association of Texas (BOAT) filed comments on the request, taking the position that neither a city’s building official nor any other city official is “responsible for enforcing laws that affect the practice of engineering.” Rather, a building official is generally charged to ensure that buildings are constructed according to the city’s building code.

The TBPE’s action signals a disturbing trend of state agencies seeking enforcement against cities. These agencies are created to regulate professions, not political subdivisions. An opinion request that is remarkably similar to the present request is RQ-00775-GA. That request deals with the authority of the Department of State Health Services (DSHS) to enforce state asbestos regulations against cities. The TML position is that a city is not the responsible party when it comes to asbestos abatement, nor should it be the entity that regulates engineers.

On March 4, the attorney general declined to issue an opinion on Representative Keffer’s request “because the opinion process cannot be used to appeal an agreed board order between a municipality and the [TBPE]…” The League’s position remains that the TBPE was created to monitor and police engineers and should not “regulate” cities.

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Texas Municipal League.

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