LEGISLATIVE AND OTHER PROFESSIONAL ISSUES

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PROPOSED TBPE CHANGES TO SECTION 137.63

Proposed TDI Changes

Good Samaritan Law

Architect - Engineering Debate

PROPOSED TBPE CHANGES TO SECTION 137.63
The Texas Board of Professional Engineers has proposed a change to Board Rule §137.63, relating to the engineers' responsibility to the profession. The proposed rule clarifies the expectations of engineers as it relates to being a faithful agent to their employers and to their clients. The rule also includes examples of what constitutes being a faithful agent. You can view the proposed rule language at the following link:
http://www.tbpe.state.tx.us/proposed.htm
Below are the additions proposed by the Texas Board of Professional Engineers to section 137.6. of the Engineer's Responsibility to the Profession. SEAoT is opposed to these changes and the response from the Association is included below.

Changes/additions are shown in bold:

4. act as faithful agent for their employers or clients; through actions that include but are not limited to, the following:
(A) as faithful agents for employers by utilizing their employer's time, equipment, resources and project information only for the benefit of their employer and not for personal gain or the benefit of any outside employment purposes; and
(B) as faithful agents for clients by:
i. clearly defining expectations and responsibilities of the engineer and client for a project;
ii. completing all engineering services for projects under the scope, terms, costs and established time frames of verbal or written agreements between the engineer and the client or the client's representative;
iii. providing their client or the client's representative with written communication in a timely manner of any changes to the scope, terms, costs and established time frames for projects: and
iv. keeping lines of communication open and responding verbally, or by written communication in a timely manner to any requests for information from their client or the client's representative pertaining to a project.

SEAoT is opposed to these changes and has sent the following letter to Dale Beebe-Farrow:

SEAoT’s Reply to Dale Beebe-Farrow - February 4, 2009

Dear Ms. Beebe-Farrow:

According to Texas Engineering Practice Rules, a licensed professional engineer is bound to promote the public welfare, and maintain a high standard of integrity and practice. The State Board of the Structural Engineers Association of Texas and its 660 members believe the proposed rule change referenced above is unnecessary and attempts to legislate business practice with ambiguous, burdensome language that not only provides no tangible benefit to the public but saddles the engineer with greater legal and financial liability.

Our first concern lies in subparagraph A, which states the engineer shall act "only for the benefit of their employer." This vague language suggests that engineers cannot volunteer their services to not-for-profit entities as it would be possible to claim the employer is not benefitting from the effort. Our second concern lies in subparagraph B(i), which states the engineer shall clearly define expectations for a project. This wording is unnecessarily burdensome for the engineer as it would be difficult, if not impossible, to consider every aspect of a project. Often, the engineer receives little more than a site plan from which to provide a project scope and fee. In addition, some contracts, such as those for investigative purposes, are written with the knowledge that the scope will likely change shortly after the project begins. Furthermore, contract language is rarely disseminated to all engineers working on a particular project. Our concern is that these common business practices would become the basis of disciplinary action.

We have a similar concern with subparagraph B(ii), which states the engineer shall complete "all engineering services for projects under the scope, terms, costs and established time frames." Since our scope often cannot be clearly defined, the engineer cannot accurately establish all costs. In order to cover the unknowns of a given project and avoid potential disciplinary action, it is not unreasonable to assume that engineers would increase their fees as a result, thereby costing the general public. Finally, we also take issue with subparagraph B(iii), which states that the engineer will provide clients with "written communication in a timely manner of any changes to tile scope, terms, costs and established time frames for projects." The words "timely" an(] "any" would prove especially difficult for the engineer. For one, the definition of timely will be vastly different when comparing the plaintiffs viewpoint from that of the defendant. As a result, we believe the engineering community would be subject to more lawsuits based on the minutiae of the proposed rule changes. Ultimately, engineer's liability will increase, which will inevitably lead to higher premiums for insurance.

Ms. Farrow, we believe the proposed rule changes will be a significant burden on the engineering community. Too often, the proposed language. The proposed rule changes will not provide a tangible benefit to the public, but will burden the engineer with greater liability. Furthermore, the engineer will be subject to increased scrutiny and possible disciplinary action. In accordance with the current rules, engineers are already bound to a high standard of integrity and practice. The State of Texas does not need the proposed rule change and the Structural Engineers Association of Texas respectfully requests that it be abandoned in its entirely.
Sincerely
Eric Christiansen, P.E.
SEAOT President

Inspections - Proposed TDI Changes

TDI has prepared an informal working draft proposal to Title 28 of the Texas Administrative Code #5.406 known generally as the Engineering Appointment Rule. It applies to Windstorm Inspections.  The draft proposal makes changes relating to the TDI’s appointment of Engineers as qualified inspectors and applies to the 14 First Tier Counties along the Texas Gulf Coast. These are Aransas, Brazoria, Calhoun, Cameron, Chambers, Galveston, Jefferson, Kenedy, Kleberg, Matagorda, Nueces, Refugio, San Patricio, and Willacy and cities East State Highway 146 in Harris County – La Porte, Morgan’s Point, Pasadena, Seabrook and Shoreacres.
It appears that what TDI is proposing is that licensed inspectors operating in the area specified above will be required to pay an initial $300 fee to the TDI and meet other licensing requirements, followed by an annual fee of $150.00.  They also are proposing that:

1. Engineers carrying out inspections must be licensed by the TDI, even if they are the original building designers.
2. Engineers carrying out inspections will be held liable, even if they were not the Engineer of Record for the structure.
3. By TDI standards, engineers will also be responsible for all work performed by the contractor, and verify that all was properly installed even down to specific nailing.  SEAoT does not believe this is realistic.
4. TDI would determine if an engineers continuing education hours are acceptable, not the Engineer review board.

The new proposed ruling was discussed in some length the SEAoT Board meeting held on April 12.  SEAoT is opposed to the proposed ruling. It is SEAoT’s opinion that TDI should not be appointing and licensing engineers, since Professional Engineers and Professional Structural Engineers have already met their licensing requirements through the TBPE.

In addition, SEAoT is also of the opinion that the new proposed ruling, if adopted, will inhibit rather than promote better quality work. Insurance liability protection carried by Structural Engineers wishing to carry out inspections will most certainly increase. This, coupled with the annual licensing fee, will make inspections extremely costly – and possibly beyond the financial means of many homeowners or property owners.

SEAoT believes that any rule changes should be done only after the structural engineering community has had amble time to discuss and review.  SEAoT also believes that the TDI should consult with our engineers prior to drafting any rules so that our input can be incorporated into those changes.

SEAoT's President and the Legislative Committee is currently in contact with TDI. Please watch for updates.

April 2007 - Good Samaritan Law

The house version (HB 823) has been passed and has been sent to the Senate.  The Senate has put it in the same committee that the other two Senate bills have been sitting in (State Affairs committee) chaired by Sen Duncan.  SEAoT is working on getting a hearing scheduled in order to push these bills through Sen Duncan's committee.  If Duncan can pass HB 823 out of his committee with no amendments, then when the Senate passes that it will go straight to the Governor.07 10:33 AM

The following letter was mailed to the Texas House following successful package of HB 823 through the House.

For an actual copy of the letter, click here.

April 5, 2007 
Structural Engineers Association of Texas, Inc.
555 IH 35 South, Suite 230
New Braunfels, TX 78130 

Re: Passage of HB 823 (Good Samaritan Bill for professional engineers)

To the Honorable members of the Texas State Legislature: 

On behalf of professional structural engineers licensed in the state of Texas, I’d like to personally thank you for your focus and commitment to lay a secure foundation from which we may extend our time and expertise in time of need to our fellow Texans.   No doubt disaster will strike in Texas, be it floods, hurricanes, or tornadoes.  With the prediction of an active 2007 hurricane season, your passage of this bill is most timely.    Once the Senate passes their version of this bill, the Structural Engineering Emergency Plan can proceed to help local, state and federal authorities without the uncertainty and burden of potential legal liability, to assist those whose homes, businesses, and other structures have been damaged by disaster.   

Thank you for honoring our profession with your vote of confidence. 

Respectfully,   

John Schwab, P.E.
2007 President of SEAoT
 

April 2007 - Architect/Engineer Issue

After almost 20 years of continuous dispute and two Texas Attorney General opinions, TBPE and TBAE appear to be on the brink of reaching a solution.  The TBPE/TBAE Joint Advisory Committee (JAC, of which Stan Caldwell is a member) reached a compromise in principle on 02/27/07.  During the meeting, TSPE, TSA, CEC, and the Waco engineers all agreed that they could probably support it.  A four-person (including Stan Caldwell) JAC Taskforce was appointed to work out the details behind closed doors.  The committee met on 03/20/07 with considerable progress and will meeting again on 04/27/07.
Since the meeting are privately, specifics other than to say that the proposal includes substantive changes to both practice acts and both sets of board rules, all to go before the Texas Legislature in January 2009.  

May 16, 2006 - Dennis Paul , P.E.

Legislative Committee:
Our committee has been reorganized with new members and we are starting to get up and running.  The current committee consists of Dennis Paul (Houston) Chair, John Schwab (San Antonio), and Vic Winter (Austin).  We still need a member from Dallas, El Paso, and Corpus Christi, so if any one is interested please let us know.  I can be reached at Paul Engineering, Inc. at 281-280-9972 or by e-mail at dpaul@paulengineering.com.

Our primary focus will be keeping our members up to date with issues that the state is dealing with, but we also want to know what is going on in the local communities.  Many of our members do work across the state in several different cities and we all want to be kept up with the latest news.  If anyone finds anything changing such as a new code, a new law or ordinance we want to know about that and publish it so no one can get caught off guard and the structural engineering community as a whole looks better, and is better informed.  That is why we need to have a member from each chapter on the committee. 

Also, if any member has an issue with the state we want to know about that so we can start investigating it and see if it something we need to start working on as a state wide issue.  We eventually want to be able to lobby the state legislature from the point of a state wide organization with specific interest for structural engineers.  Examples of these issues can be the interpretations from the state boards on who can do engineering work, and what are the responsibilities of an engineer or architect.  We will also like to have input on the state minimum design codes and loading requirements.

State-Wide Business Tax:
As far as the state is concerned the latest news will be the new state wide business tax that will take into effect in 2008.  This new tax will be based on gross sales and will replace the existing franchise fee.  Under the new law all business will pay not just some types of corporations.  There will be write offs for payroll and healthcare costs but not for liability insurance.  It will have a larger effect on small to midsize firms who may be operating at or close to a loss, and they will still have to pay the tax even if the business lost money.

The good news is that a property tax reduction will be included and some districts may get a 33% cut, and the school districts can only raise it 4% without a vote from the people.  Each school district will receive more money from the state to cover there operating expenses so hopefully they will have more money to improve education and fund there capital improvements.  Only time will tell if this really is a tax swap or a tax increase.

Windstorm Laws
Another issue that will soon be starting is a possible rewrite of the state's windstorm laws.  This is still early in the process and no one knows what if any changes will be made but there are several issues that need to be investigated and we plan to have a say in this.

Education:
We may also be looking into ideas that we can do with the major universities in the state to help further structural engineering education.  If you have any ideas on this please let us know.

January 17, 2006

The Texas Attorney General has issued a long-awaited opinion on the current dispute between TBAE and TBPE on whether or not engineers can design buildings without the involvement of architects. You can access it here:

http://www.oag.state.tx.us/opinions/op50abbott/ga-0391.htm

TBAE summarizes it as follows:

On January 10, 2006, the Attorney General issued Opinion GA-0391 regarding the respective roles of architects and engineers in the design of buildings. The opinion concludes that Texas Law maintains the practice of engineering and the practice of architecture as distinct professions. The opinion holds that there is an overlap between the two professions in the area of building design. However, the opinion notes that neither the statutes nor the previous Opinion DM-161 establishes that all aspects of building design are engineering. The laws regulating the practices of architecture and engineering do not provide the basis to answer the question whether an engineer may comprehensively design a building without the services of an architect. The opinion concludes that the June 1, 2005, policy advisory opinion regarding building design adopted by the Texas Board of Professional Engineers is not correct.

TBPE summarizes it as follows:

Chapters 1001 and 1051 of the Occupations Code maintain the practice of engineering and the practice of architecture as distinct professions. These chapters recognize that the two professions overlap concerning building design, but they do not precisely define the overlap's boundaries. On one hand, the provisions in chapter 1051 are subject to an exception for engineers engaged in the practice of engineering as defined in chapter 1001. On the other hand, neither the statutes nor Attorney General Opinion DM-161 establish that engineering includes all aspects of building design.
Chapters 1001 and 1051 of the Occupations Code do not provide a basis to answer categorically whether an engineer may comprehensively design a building without the involvement of an architect, and to that extent the Board of Professional Engineers' policy advisory opinion regarding building design, dated June 1, 2005, is not correct. Rather, the answer to that question will depend on whether the adequate performance of the particular service or work requires a person with engineering education, training, and experience. Whether adequate performance of a particular service or work requires a person with engineering education, training, and experience is a question of fact that cannot be resolved in the opinion process.

May 18, 2005

The 79th Regular Session of the Texas Legislature is rapidly winding to a close. However, as I write this article, two full weeks of mischief remain. Accordingly, this is an interim report with my current observations and predictions. As usual, I will submit a final report in two or three months, after all of the dust has settled. It has been a busy session with respect to engineers and architects. I am aware of 17 House and/or Senate bills that somehow impact the practice of engineering and architecture. In addition, a number of legislative initiatives never found their way into any bills. Most of the 17 bills are about to die in committee, including two that were spawned by Texas Transportation Commission initiatives. That is a good thing! What follows is mostly a summary of those bills that are likely to become law. If you do not care to read further, be assured that the engineers in Texas have dodged many bullets and have survived largely unscathed. We should all thank the proactive efforts of ASCE, CECT, and TSPE for this.

Texas Transportation Commission Initiatives

As you might recall from my earlier alerts, the Texas Transportation Commission approached the legislative session with four anti-engineering initiatives: [1] replace qualification-based selection processes with competitive bidding, [2] repeal the statutory requirements for limited out-sourcing to the private sector, [3] expand design/build authority to county and municipal government, [4] establish standard statewide rate ceilings and compensation limits. Items 2 and 4 failed to become bills for lack of sponsorship. Item 1 became HB 2673, and Item 3 became HB 2703. Both of these bills are currently dying in House committees.

SB 962

As initially introduced, this legislation would have created 36 standard, or stock, school plans for use throughout the state. Through negotiation between TSA and Senator Shapiro's office, all reference to standard school plans was eventually omitted from this bill. Without the offensive language, the bill passed the Senate and is now under consideration in the House. It no longer is of any great interest to engineers and architects.

HB 1573

This bill has passed the House and the Senate and will likely be signed into law. Here is a summary: "The current definition of the practice of architecture fails to accurately describe the services architects routinely provide for their clients beyond design development and the production of construction documents. H.B. 1573 provides a more accurate description of today's architecture practice, including services such as code consulting, facilities programming and analysis, and teaching. H.B. 1573 also eliminates ambiguities in Chapter 150, Civil Practice and Remedies Code, regarding certificates of merit for design professionals. The major areas of clarification are to ensure that the need to file a certificate of merit exists when a suit is being filed against an architecture or engineering business, not simply in suits against individual design professionals; the design professional signing the certificate has the same professional license as the defendant; the suit is for damages arising out of the providing of any professional services, except a suit or action for the payment of fees for professional services, rather than only suits alleging professional negligence; and that failure to file an affidavit under this section shall result in dismissal of the case against the defendant."

HB 854

This bill has passed the House and the Senate and will likely be signed into law. It extends the certificate of merit protection, as described in HB 1573, to include land surveyors.

HB 2525

This bill has passed the House and is awaiting action in the Senate. It is supported by CECT and TSPE, but may not clear committee by the end of the legislative session. Here is a summary: "Currently, cities, counties, school districts, universities and other agencies have several alternatives to traditional low-bid delivery of certain construction projects. These alternatives include construction manager-agent, competitive sealed proposals for construction services (or negotiated contracting), construction manager-at risk, design build, and job order contracting. Similar procedures apply to different entities but the language scattered across multiple state codes. In addition, under current law, the authorization to use alternative project delivery is limited to vertical, or architectural, construction - e.g., buildings. H.B. 2525 consolidates alternate project delivery processes into a single chapter of the Government Code; expands the types of entities that may use these procedures to include hospital districts, transit authorities, and others; expands the use of certain delivery methods to all types of projects including water, wastewater, transportation, utilities and other improvements to real property; and makes cleanup and consistency changes.

The reader should be aware that legislative updates are much like weather reports ... subject to change at any moment. For real-time information, go to: http://www.capitol.state.tx.us/

Respectfully submitted,

Stan R. Caldwell, P.E., F.ASCE, F.AEI
Chair, SEAoT PALL Committee

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