Can a city building official rely on an engineer's seal that a plan meets building codes?

TX AG Opinion GA-0439: Can a building official rely on an engineer's seal?

Plain-English summary

A state senator asked the Attorney General whether a city building official may rely on a professional engineer's seal and certification that a plat or plan complies with the city's building codes, specifically the International Residential Code (IRC) as adopted by the city. The question arose from a housing subdivision that was allegedly designed and built in violation of the city code and the IRC, where the building official took the position that he had no responsibility to make sure plans conform to the IRC if the plat or plan is certified and sealed by a professional engineer.

The opinion focused on Occupations Code section 1001.402, which says a public official responsible for enforcing laws that affect the practice of engineering "may accept a plan, specification, or other related document only if" it was prepared by an engineer, as shown by the engineer's seal. Reading that plain language, the opinion explained the statute does two things and no more: it permits the official to accept a sealed document, and it bars the official from accepting one that is not sealed by a professional engineer. Under the rules of the Texas Board of Professional Engineers, the seal is evidence to the official that the work was performed by a professional engineer who took full responsibility for it and endeavored to meet applicable federal, state, and local requirements.

What section 1001.402 does not do, the opinion stressed, is create rights or obligations or absolve the building official of duties imposed by other law. The duties of a building official come from other sources, including statutes, city ordinances, and the IRC. The opinion pointed to case law holding that acceptance of a sealed plan under section 1001.402 does not create rights and obligations. Whether a particular building official could be held liable for a building-code violation depends on the facts and on those other laws, and the opinion process cannot resolve fact questions. So the opinion declined to say whether the official here had any liability, while answering the narrow legal question: under section 1001.402, an engineer's seal represents only that the plat or plan was prepared by a professional engineer who endeavored to comply with all federal, state, and local regulations.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Occupations Code engineering provisions (chapter 1001), the Local Government Code building-code provisions, and the Texas Board of Professional Engineers rules cited here may have been amended since 2006, and cities adopt and amend their own building codes. Anyone dealing with a plan-review or building-official-responsibility question today should confirm the current statutes, rules, and local ordinances rather than rely on the section numbers in this opinion.

Who this opinion affected (as of 2006)

City building officials: The opinion concluded section 1001.402 let them accept only sealed plans, but did not relieve them of duties imposed by city ordinances, the IRC, or other law, and did not by itself decide their liability for code violations.

Professional engineers: The opinion described how a sealed plan represented the engineer's full professional responsibility and the engineer's endeavor to meet applicable federal, state, and local requirements.

Homeowners and builders affected by code disputes: The opinion explained that whether anyone could be held liable for a building-code violation turned on the facts and on laws other than section 1001.402, a matter for the courts rather than an AG opinion.

Common questions

Does an engineer's seal let a building official skip checking code compliance?
According to the opinion, no. Section 1001.402 governs only whether the official may accept a plan; it does not erase duties that come from city ordinances, the building code, or other law.

What does an engineer's seal actually represent?
The opinion explained the seal is evidence that the document was prepared by a professional engineer who took full responsibility for the work and endeavored to meet applicable federal, state, and local requirements.

Can a building official accept an unsealed plan?
No. The opinion read section 1001.402 to bar an official from accepting a plan, specification, or related document that was not prepared and sealed by a professional engineer.

Did the opinion decide who is liable for the alleged code violations?
No. The opinion said that question depends on the facts and on other law and must be resolved by the courts, not in the opinion process.

Background and statutory framework

The IRC, as amended by a municipality, is adopted as a municipal residential building code in Texas (Tex. Loc. Gov't Code Ann. § 214.212(a)-(c) (Vernon Supp. 2005)). Occupations Code section 1001.402 provides that a public official responsible for enforcing laws affecting the practice of engineering "may accept a plan, specification, or other related document only if" it was prepared by an engineer, as evidenced by the engineer's seal (Tex. Occ. Code Ann. § 1001.402 (Vernon 2004)). Because the statute uses "may," it creates discretionary authority or grants permission (Tex. Gov't Code Ann. § 311.016 (Vernon 2005)), and by its plain language (Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999)) it permits acceptance of a sealed document but bars acceptance of an unsealed one.

The seal itself is governed by the Occupations Code and the Texas Board of Professional Engineers rules (Tex. Occ. Code Ann. ch. 1001; an engineer must obtain a seal on licensure, § 1001.401(a), and place it on every plan, specification, plat, or report issued, § 1001.401(b)). The seal assures the user that the work was performed or directly supervised by the engineer (22 Tex. Admin. Code § 137.33(a) (2005)), and on sealing, engineers take full professional responsibility for the work (§ 137.33(b); see Tex. Att'y Gen. Op. No. GA-0274 (2004) at 4, quoting George Thomas Homes, Inc. v. S.K. Tension Sys., Inc., 763 S.W.2d 797, 800 (Tex. App.-El Paso 1988, no writ)). Board rules also require engineers to practice in conformance with applicable standards, laws, and codes and to endeavor to meet applicable federal, state, and local requirements (22 Tex. Admin. Code §§ 137.59(a), 137.63(b)(1) (2005)).

On the question of "reliance," the opinion explained that section 1001.402 does not address whether an official who relies on a seal is absolved of responsibility; the building official's duties derive from other law, and section 1001.402 does not create an obligation or duty (Smith v. Houston Chemical Services, Inc., 872 S.W.2d 252, 264 (Tex. App.-Austin 1994, writ denied)) nor absolve the official of duties imposed by other law. Because who may be liable for a building-code violation depends on the particular facts, the opinion declined to resolve it (Tex. Att'y Gen. Op. No. GA-0139 (2004) at 5), and concluded only that under section 1001.402 an engineer's seal represents that the plat or plan was prepared by a professional engineer who endeavored to comply with all federal, state, and local regulations.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 214.212(a)-(c) (Vernon Supp. 2005)
• Tex. Occ. Code Ann. ch. 1001; §§ 1001.401(a)-(b), 1001.402 (Vernon 2004 & Supp. 2005)
• Tex. Gov't Code Ann. § 311.016 (Vernon 2005)
• 22 Tex. Admin. Code §§ 137.33(a)-(b), 137.59(a), 137.63(b)(1) (2005)

Cases:

• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999)
• George Thomas Homes, Inc. v. S.K. Tension Sys., Inc., 763 S.W.2d 797, 800 (Tex. App.-El Paso 1988, no writ)
• Smith v. Houston Chemical Services, Inc., 872 S.W.2d 252, 264 (Tex. App.-Austin 1994, writ denied)

AG opinions referenced: Tex. Att'y Gen. Op. Nos. GA-0274 (2004), GA-0139 (2004).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0439
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0439.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

June 20, 2006

The Honorable Jeff Wentworth
Chair, Committee on Jurisprudence
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0439

Re: Whether a city building official may rely on a professional engineer's seal and certification that a plat or plan complies with the city's building codes (RQ-0426-GA)

Dear Senator Wentworth:

You request our opinion on "whether a city building official may rely on a professional engineer's seal and certification that all code provisions, specifically the International Residential Code ("IRC") as adopted by the city, have been met."[1] The IRC, as amended by a municipality, is "adopted as a municipal residential building code" in Texas. See TEX. LOC. GOV'T CODE ANN. § 214.212(a)-(c) (Vernon Supp. 2005). According to your letter, a housing subdivision in your senate district was "allegedly designed and constructed in violation of city code and the IRC." Request Letter, supra note 1, at 1. You inform us that though the city building official is authorized to "enforce the IRC, as well as to render interpretations of the code and adopt policies and procedures to clarify the application of its provisions," the official "contends that he has no responsibility to ensure plans conform to the IRC as adopted by the city if the plat or plan is certified and sealed by a professional engineer." Id.

In your query, you direct our attention to section 1001.402 of the Occupations Code. Section 1001.402 provides that

[a] public official of the state or of a political subdivision of the state who is responsible for enforcing laws that affect the practice of engineering, may accept a plan, specification, or other related document only if the plan, specification, or other related document was prepared by an engineer, as evidenced by the engineer's seal.

TEX. OCC. CODE ANN. § 1001.402 (Vernon 2004). Section 1001.402 uses the word "may" and thereby "creates discretionary authority or grants permission or a power." TEX. GOV'T CODE ANN. § 311.016 (Vernon 2005). Pursuant to its plain language, see Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999), section 1001.402 authorizes a building official to accept a plan, specification, or other related document but limits that authority to instances where the plan, specification, or other document has been prepared by a professional engineer. See TEX. OCC. CODE ANN. § 1001.402 (Vernon 2004) ("public official . . . may accept a plan, specification, or other related document only if . . . [it] was prepared by an engineer") (emphasis added). Conversely, where the plan, specification, or other related document has not been prepared and sealed by a professional engineer, under section 1001.402 the building official may not accept it. See id. ("may accept . . . only if . . . prepared by an engineer, as evidenced by the engineer's seal") (emphasis added).

The Occupations Code and the regulations promulgated by the Texas Board of Professional Engineers ("TBPE") establish the rules regarding a professional engineer's seal. See id. ch. 1001 ("This chapter may be cited as the Texas Engineering Practice Act."). Upon licensure, a professional engineer is required to obtain a seal. See id. § 1001.401(a) (Vernon Supp. 2005). A professional engineer must place the seal on every plan, specification, plat, or report issued by the engineer. See id. § 1001.401(b). "The purpose of the engineer's seal is to assure the user of the engineering product that the work has been performed or directly supervised by the professional engineer . . . ." 22 TEX. ADMIN. CODE § 137.33(a) (2005) (Tex. Bd. of Prof'l Engineers, Sealing Procedures). Further, "[u]pon sealing, engineers take full professional responsibility for that work." Id. § 137.33(b); see also Tex. Att'y Gen. Op. No. GA-0274 (2004) at 4 ("Seals 'carry with them the [engineer's] representation of personal accountability independent of any employment contract with [his or her] employer.'") (quoting George Thomas Homes, Inc. v. S.K. Tension Sys., Inc., 763 S.W.2d 797, 800 (Tex. App.-El Paso 1988, no writ)). Pursuant to TBPE rules of professional conduct and ethics, professional engineers are required to practice "in conformance with [applicable] standards, laws, codes, rules and regulations." 22 TEX. ADMIN. CODE § 137.59(a) (2005) (Tex. Bd. of Prof'l Engineers, Engineers' Actions Shall Be Competent). A professional engineer is also required to "endeavor to meet all of the applicable professional practice requirements of federal, state and local statutes, codes, regulations, rules or ordinances in the performance of engineering services." Id. § 137.63(b)(1) (2005) (Tex. Bd. of Prof'l Engineers, Engineers' Responsibility to the Profession).

You ask if a building official may "rely" on a professional engineer's seal. See Request Letter, supra note 1, at 1. Your reference to the building official's contention that "he has no responsibility" with respect to plans sealed by a professional engineer leads us to conclude that you are inquiring whether a building official who "relies" on a professional engineer's seal is thereby absolved of any responsibility or duty, the violation of which would serve as a basis for a civil action.

Section 1001.402 simply does not address the question. The duties of a building official derive from other sources of law, including statute, city ordinances, and the IRC. And section 1001.402 does not create any obligation or duty, see Smith v. Houston Chemical Services, Inc., 872 S.W.2d 252, 264 (Tex. App.-Austin 1994, writ denied) (acceptance of a plat or plan that bears an engineer's seal under section 1001.402 does not create rights and obligations), nor does it by its plain language absolve the building official of any duties imposed by other law. Moreover, the specific determination of who may be held liable for a building code violation is one that depends on the facts of the particular circumstances which requires resolution by the courts. We cannot resolve questions of fact in the opinion process. See Tex. Att'y Gen. Op. No. GA-0139 (2004) at 5. Thus, to the extent you inquire about a building official's potential liability for a violation of a duty based on laws other than section 1001.402, including city building codes, we cannot answer your question.

However, we can answer your legal question on the meaning of section 1001.402. Section 1001.402 authorizes a building official to accept a proffered plat or plan only if the plat or plan bears the professional engineer's seal. See id. Pursuant to the TBPE rules, the engineer's seal is merely evidence, or assurance, to the building official that the work was performed by a professional engineer, see TEX. OCC. CODE ANN. § 1001.402 (Vernon 2004) ("was prepared by an engineer, as evidenced by the engineer's seal") (emphasis added); see also 22 TEX. ADMIN. CODE § 137.33(a) (2005) (Tex. Bd. of Prof'l Engineers, Sealing Procedures), and that the professional engineer endeavored to meet all federal, state, or local requirements. See 22 TEX. ADMIN. CODE §§ 137.59(a) (2005) (Tex. Bd. of Prof'l Engineers, Engineers' Actions Shall Be Competent), 137.63(b)(1) (2005) (Tex. Bd. of Prof'l Engineers, Engineers' Responsibility to the Profession). Thus, under section 1001.402, a professional engineer's seal represents only that the plat or plan was prepared by a professional engineer who endeavored to comply with all federal, state, and local regulations.

SUMMARY

Section 1001.402, Occupations Code, does not create rights and obligations regarding a building official's duties that are imposed by other laws, including city ordinances. Under section 1001.402 a building official may accept a plat or plan only if it is sealed by a professional engineer but may "rely" on a professional engineer's seal only for the representations that the plat or plan was prepared by a professional engineer who endeavored to comply with all federal, state, and local requirements.

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

Footnotes

1. Letter from Honorable Jeff Wentworth, Chair, Committee on Jurisprudence, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Dec. 20, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].