Does an FAA designated engineering representative need a Texas professional engineer license?

Plain-English summary

The Federal Aviation Administration leans on outside engineers to help certify that aircraft are airworthy. It appoints some of them as "designated engineering representatives," or DERs, to do limited consultation, data analysis, reports, and approvals on aircraft design and certification. The Executive Director of the Texas Board of Professional Engineers asked the Attorney General whether a consultant DER (one who works for multiple clients, not a single manufacturer or airline) must hold a Texas professional engineer license while doing that federal work. The Board noted that of about 130 DERs with Texas addresses, only nineteen appeared to hold an active Texas license.

The opinion assumed, as the Board suggested, that a DER's work is the practice of engineering. Even so, it concluded that federal supremacy likely keeps Texas from requiring a license for that federal role. The Texas Engineering Act itself exempts federal employees, and an earlier opinion (JC-0390) had extended that reasoning to people practicing engineering under federal-procurement contracts. The deeper principle came from two United States Supreme Court decisions. In Miller v. Arkansas, the Court held that a state could not impose its contractor-licensing requirements on a federal contractor, because doing so would give the state's licensing board a virtual power of review over the federal government's own determination of who is "responsible" and qualified. In Sperry v. Florida, the Court held that Florida could not stop a non-lawyer, federally registered to practice before the U.S. Patent Office, from preparing patent applications there, even though that was the practice of law in Florida; a state may not add licensing conditions on top of a federal license or give its board a veto over the federal qualification decision. The opinion also quoted Johnson v. Maryland on the immunity of federal instruments from state control in performing their duties.

Applying those principles, the opinion reasoned that because the FAA prescribes the qualifications for a DER (an accredited engineering degree plus experience, references, and demonstrated knowledge of FAA regulations) and a Texas license is not among them, Texas may not add its licensing requirement and thereby second-guess the federal determination that the person is fit to perform the federal function. So a court would likely conclude that a federally appointed DER is not required to hold a Texas professional engineer license while serving in that capacity.

The opinion drew one clear boundary. The exemption tracks the federal role. To the extent a person practices engineering in Texas outside the scope of the federal DER appointment, the ordinary rule applies and that person must be licensed by the Board of Professional Engineers.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Texas Board of Professional Engineers (as the opinion described it): The opinion concluded the Board likely cannot require a Texas professional engineer license of someone performing the federal DER function, because that would let the Board override the FAA's qualification decision. Outside that federal role, the license requirement still applies.

Designated engineering representatives (as the opinion described it): The opinion treated a DER's federally defined work as exempt from the Texas licensing requirement while serving in that capacity, but not for engineering work done outside the DER appointment.

The aviation industry and federal agencies (as the opinion described it): The opinion read United States Supreme Court precedent to bar a state from adding licensing conditions on top of the federal qualifications for performing a federal function.

Common questions

Does an FAA designated engineering representative need a Texas PE license?
Likely not while serving in that federal role, the opinion said. The FAA sets the qualifications for a DER, a Texas license is not among them, and a state generally may not add requirements on top of the federal ones.

Why can't Texas require a license for this work?
Because under United States Supreme Court decisions like Miller v. Arkansas and Sperry v. Florida, a state may not give its licensing board a veto over the federal government's determination that a person is qualified to perform a federal function.

Is there any situation where a DER still needs a Texas license?
Yes. The opinion said if the person practices engineering in Texas outside the scope of the federal DER appointment, the normal rule applies and a Texas professional engineer license is required.

Did the opinion decide a DER is or is not practicing engineering?
No. It assumed, as the Board suggested, that the DER work is the practice of engineering, and decided the licensing question on federal-supremacy grounds.

Background and statutory framework

The Texas Engineering Act, chapter 1001 of the Occupations Code, governs the licensing of professional engineers. Section 1001.054 exempts federal employees from the Act. Section 1001.302(a) sets out the requirements for a Texas license, including passing a Board examination. Section 1001.301(a) is the general requirement that a person engaged in the practice of engineering in Texas be licensed. The FAA's qualifications for a DER appear in the federal Designee Management Handbook (Order 8100.8D) and include an accredited engineering degree plus experience, references, and demonstrated knowledge of FAA regulations, but not a state license.

The opinion built on its prior opinion JC-0390 (2001) (engineers working under federal-procurement contracts are exempt) and on three United States Supreme Court decisions: Miller v. Arkansas and Johnson v. Maryland on the immunity of federal functions from added state requirements, and Sperry v. Florida on a state's inability to impose extra licensing conditions over a federal qualification.

Citations

Cases:

• Miller v. Arkansas, 352 U.S. 187, 188 (1956)
• Johnson v. State of Maryland, 254 U.S. 51, 57 (1920)
• Sperry v. Florida, 373 U.S. 379 (1963)

Statutes:

• Tex. Occ. Code Ann. § 1001.054 (West 2012)
• Tex. Occ. Code Ann. § 1001.301(a) (West 2012)
• Tex. Occ. Code Ann. § 1001.302(a) (West 2012)

Prior Attorney General opinion referenced:

• Tex. Att'y Gen. Op. No. JC-0390 (2001)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0955
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0955.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

July 25, 2012

Mr. Lance Kinney, P.E. Opinion No. GA-0955
Executive Director
Texas Board of Professional Engineers Re: Whether a federally appointed designated
1917 South Interstate 35 engineering representative must be licensed by the
Austin, Texas 78741-3702 Board of Professional Engineers under the Texas
Engineering Act, chapter 1001, Occupations Code
(RQ-1047-GA)

Dear Mr. Kinney:

You ask whether a person who is appointed by the Federal Aviation Administration (the "FAA") as a "designated engineering representative" (a "DER") must, while serving in such appointment, be licensed as a professional engineer by the Board of Professional Engineers (the "Board") under the Texas Engineering Act, chapter 1001, Occupations Code.[1]

You furnish the following information regarding the functions of a DER:

The [FAA] employs engineers directly and uses non-agency engineers, DERs, for limited consultation, data analysis and reports and approvals regarding aircraft design and certification. We believe there is no question that DERs are assisting the FAA in the performance of the federal function of ensuring the airworthiness of aircraft and thus the public health, safety and welfare.

Request Letter at 3 (emphasis added). According to your request letter, DERs are "appointed by the FAA through one of the 10 Aircraft Certification Offices ('ACO')." Id. You note that there are two types of DERs: a company DER and a consultant DER. "A consultant DER works for multiple clients and is not a direct employee of a manufacturer or airline." Id. Your question is limited to the licensing of consultant DERs. Id. Federal law imposes three requirements governing DER appointments: "(1) an accredited engineering degree in the appropriate field plus 4 years directly related experience or eight years' experience in the appropriate field; (2) three references confirming the work experience; [and] (3) mandatory orientation and demonstrated knowledge of FAA regulations." Id. See also U.S. DEP'T OF TRANSP., FED. AVIATION ADMIN., Designee Mgmt. Handbook, Order 8100.8D, at 4-2, & app. A, at A4 (Oct. 28, 2011) ["DER Requirements"]. By contrast, an applicant for a Texas professional engineering license is subject to numerous additional requirements, including, most significantly, passage of an examination prescribed by the Board. See TEX. OCC. CODE ANN. § 1001.302(a) (West 2012). We note that holding a Texas professional engineering license is not among the federal requirements governing a DER designation. See supra DER Requirements. You indicate that, at present, only nineteen of 130 DERs with Texas addresses "appear to have an active Texas [professional engineering] license." Request Letter at 3.

We assume for purposes of this opinion that you are correct in concluding that a DER, under the circumstances you describe, is engaged in the practice of engineering. See Request Letter at 4. Even so, we note that the Texas Legislature exempted federal employees from the Texas Engineering Act, which governs the licensing of professional engineers in this state. TEX. OCC. CODE ANN. § 1001.054 (West 2012). In Attorney General Opinion JC-0390, this office concluded that persons who practice engineering under contracts procured by the federal government are also exempted from the requirements of chapter 1001. Tex. Att'y Gen. Op. No. JC-0390 (2001) at 9 (relating to "contracts procured by the federal government pursuant to federal procurement laws and regulations under which the federal government assesses engineers' qualifications"). Although we have found no information that would lead us to believe that a DER functions as a federal contractor, Opinion JC-0390 relied on two United States Supreme Court cases that are relevant to the question you pose.

In Miller v. Arkansas, the Court considered an Arkansas statute that required contractors performing construction work of a certain value to obtain a license from the state. Miller v. Arkansas, 352 U.S. 187, 188 (1956). The Court contrasted the requirements for obtaining a federal contract with the requirements for securing an Arkansas license. Id. at 188-89. The Supreme Court declared that

[m]ere enumeration of the similar grounds for licensing under the state statute and for finding "responsibility" under the federal statute and regulations is sufficient to indicate conflict between this license requirement which Arkansas places on a federal contractor and the action which Congress and the Department of Defense have taken to insure the reliability of persons and companies contracting with the Federal Government. Subjecting a federal contractor to the Arkansas contractor license requirements would give the State's licensing board a virtual power of review over the federal determination of "responsibility" and would thus frustrate the expressed federal policy of selecting the lowest responsible bidder.

Id. at 189-90 (emphasis added). The Court quoted from an earlier case, Johnson v. State of Maryland, 254 U.S. 51, 57 (1920), that described "the immunity of the instruments of the United States from state control in the performance of their duties." In that case, the Supreme Court struck down the state's attempts to require "qualifications in addition to those that the [Federal] Government has pronounced sufficient."

Likewise, in Sperry v. Florida, 373 U.S. 379 (1963), the Supreme Court held that Florida was prohibited from enjoining a nonlawyer registered to practice before the United States Patent Office from preparing and prosecuting patent applications in Florida, notwithstanding that such activity constituted the practice of law in Florida. The Court reasoned thus:

A State may not enforce licensing requirements which, though valid in the absence of federal regulation, give "the State's licensing board a virtual power of review over the federal determination" that a person or agency is qualified and entitled to perform certain functions, or which impose upon the performance of activity sanctioned by federal license additional conditions not contemplated by Congress.

Id. at 385 (emphasis added). These Supreme Court decisions make it likely that a court would conclude that, when a federal statute or regulation sets forth requirements by which to assess qualifications of appointees, a state may not add to those requirements and thereby interfere with the federal determination of a person's suitability to perform certain federal functions. Under the facts presented in your request letter, the FAA, through one of its ACOs, prescribes the qualifications for appointment as a DER. None of those qualifications include possessing a Texas-issued license to practice engineering. As a result, United States Supreme Court precedent would likely require a court to conclude that a federally appointed DER is not required to be licensed as a Texas professional engineer. We note, however, that to the extent that an individual engages in the practice of engineering in Texas outside the scope of his capacity as a federally appointed DER, he must be licensed by the Board of Professional Engineers. See TEX. OCC. CODE ANN. § 1001.301(a) (West 2012).

SUMMARY

United States Supreme Court precedent would likely lead a court to conclude that a person appointed as a "designated engineering representative" by the Federal Aviation Administration is not, while serving in that capacity, required to be licensed as a professional engineer by the Texas Board of Professional Engineers. To the extent, however, that a person engages in the practice of engineering in Texas outside the scope of his capacity as a federally appointed "designated engineering representative," he must be licensed by the Board.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter from Lance Kinney, P.E., Exec. Dir., Tex. Bd. of Prof'l Eng'rs, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Mar. 20, 2012), http://texasattorneygeneral.gov/opin ("Request Letter").