Could a Texas landscape architect prepare structural plans for retaining walls, shelters, decks, platforms, and elevated boardwalks?

Texas AG Opinion JM-217: Landscape Architect Plan Limits

Plain-English summary

The Texas Board of Architectural Examiners asked whether Corpus Christi's landscape architect could prepare detailed plans for retaining walls, park shelters, decks, viewing platforms, elevated boardwalks, and similar structures. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

JM-217 concluded that a landscape architect could not prepare those plans when the work required skills within "engineering, architecture, or public surveying." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

The opinion did not classify every listed structure categorically. It said whether a particular design or construction involved one of those regulated practices was "a question dependent upon the facts of each case." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

JM-217 also said the Attorney General was "not authorized to resolve" those project-specific factual matters in the opinion process. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

The landscape-architecture definition covered land-area design for aesthetic and functional purposes but expressly excluded services or functions within the statutory definitions of engineering, public surveying, or architecture. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

The opinion rejected the suggestion that a landscape architect could perform those other professions' work merely by avoiding their titles. It found no applicable exemption from their licensing statutes for landscape architects. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

Currency note

This opinion was issued in 1984. 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.

Common questions

Could a landscape architect design every retaining wall or park structure?

No categorical permission was given. JM-217 said the work was barred when preparation required regulated engineering, architectural, or surveying skills. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

Did JM-217 decide whether each listed structure required an engineer or architect?

No. The opinion called that "a factual matter" and said the Attorney General could not resolve it in the opinion process. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

What work did the landscape-architecture statute cover?

It covered plans and supervision for arranging natural forms, ground and water forms, vegetation, circulation, walks, and other landscape features for aesthetic and functional requirements. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

Could a landscape architect do engineering work without calling it engineering?

No under JM-217's analysis. The opinion said there was "no exemption upon which we may rely" from the other professions' licensing requirements. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

Why did the fact that the work was for Corpus Christi matter?

JM-217 pointed to article 3271a, section 19, which required plans and supervision by a registered professional engineer for specified public works costing more than $3,000. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

Background and statutory framework

Article 249c defined landscape architecture and expressly excluded services within the definitions of engineering, public surveying, or architecture. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

The opinion quoted engineering as work requiring engineering education, training, experience, and special knowledge; public surveying as boundary, topographic, route, space, and site work using specified methods; and architecture as building-design work requiring architectural education and experience. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

JM-217 treated the licensing laws as protecting safety, competence, and the public against confusion or deception by unlicensed practitioners. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

Citations and references

• Parrish v. Phillips, Farha v. Elam, and Mabry v. Priester appeared in the discussion of public safety, competence, and unlicensed professional practice. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf
• State v. Richards, 301 S.W.2d 597, 600 (Tex. 1957), supplied the statement that an express statutory exception showed intent for the statute to apply in cases not excepted. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf
• Attorney General Opinions H-890 (1976) and H-495 (1975) had concluded that landscape architects were not excused from licensing statutes that did not specifically exempt them. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0217
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0217.pdf

Original opinion text

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

The Attorney General of Texas

October 24, 1984

Mr. Philip D. Creer, FAIA
Executive Director
The Texas Board of Architectural Examiners
8213 Shoal Creek Blvd., Suite 107
Austin, Texas 78758

Opinion No. JM-217

Re: Authority of a landscape architect under article 249c, V.T.C.S.

Dear Mr. Creer:

You ask whether the landscape architect for the city of Corpus Christi may

develop detailed plans and specifications for retaining walls, park shelters, decks, viewing platforms, elevated boardwalks, etc. under the definition of the practice of landscape architecture as set out in article 249c, V.T.C.S.

We conclude that a landscape architect may not develop plans and specifications for such structures when their preparation requires skills which fall within the definitions of the practices of engineering, architecture, or public surveying. Whether the design or construction of a particular improvement constitutes an exercise of engineering, architecture, or public surveying is a question dependent upon the facts of each case. This office is not authorized to resolve such matters in the opinion process.

The practice of landscape architecture, defined in article 249c, section 1(b), includes the

preparation of . . . detailed design plans, studies, specifications, and responsible supervision in connection with the development of land areas where, and to the extent that, the principal purpose of such service is to arrange and modify the effects of natural scenery for aesthetic effect, considering the use to which the land is to be put. Such services concern the arrangement of natural forms, features, and plantings, including the ground and water forms, vegetation, circulation, walks, and other landscape features to fulfill aesthetic and functional requirements but shall not include any services or functions within the definition of the practice of engineering, public surveying, or architecture as defined by the laws of this state. (Emphasis added).

In light of this definition, your question is in essence whether a landscape architect may perform the aforementioned services without engaging in the practices of engineering, public surveying, or architecture.

The practice of engineering is defined as

any service or creative work . . . the performance of which requires engineering education, training and experience in the application of special knowledge of the mathematical, physical, or engineering sciences to such services or creative work.

V.T.C.S. art. 3271a, section 2(4). Public surveying is the practice of "determining the boundaries or the topography of real property or of delineating routes, spaces, or sites in real property" by the use of "relevant elements of law, research, measurement, analysis, computation, mapping, and land description writing." V.T.C.S. art. 5282c, section 2(1). The practice of architecture is defined in article 249a, section 10(a), V.T.C.S., as

any service or creative work . . . applying the art and science of developing design concepts, planning for functional relationships and intended uses, and establishing the form, appearance, aesthetics, and construction details, for any building or buildings, or environs, to be constructed, enlarged or altered, the proper application of which requires architectural education, training and experience.

The statutes regulating the practices of engineering, public surveying, and architecture each contain language expressing the objective of safeguarding life, health, property and public welfare. See V.T.C.S. arts. 249a, section 1; 3271a, section 1.1; 5282c, section 3. Article 249c contains no such language; we do not, however, infer any lesser concern for the public from this omission. The statutes regulating engineering, public surveying, and architecture reflect the state's overriding interest in promoting safety and competence in design, measurement, and construction while discouraging confusion and deception of the public by unlicensed practitioners. See Parrish v. Phillips, 401 S.W.2d 347 (Tex. Civ. App. - Houston 1966, writ ref'd n.r.e.); Farha v. Elam, 385 S.W.2d 692 (Tex. Civ. App. - Fort Worth 1964, writ ref'd n.r.e.); Mabry v. Priester, 333 S.W.2d 684 (Tex. Civ. App. - Houston 1960), rev'd on other grounds, 338 S.W.2d 704 (Tex. 1960). We believe that article 249c promotes corresponding interests. See Attorney General Opinion H-814 (1976).

The laws pertaining to the practice of the four professions discussed in this opinion each provide exemptions for certain individuals otherwise satisfying the requirements of regulation. See V.T.C.S. arts. 249a, section 10; 249c, section 6; 3271a, section 21; 5282c, section 4. Article 249c, section 2, exempts professional engineers, land surveyors, and architects from the provisions of the act. Landscape architects, on the other hand, are not exempted from compliance with articles 249a, 3271a, and 5282c. As a general matter, the creation of a statutory exception by the legislature "makes plain the intent that the statute should apply in all cases not excepted." State v. Richards, 301 S.W.2d 597, 600 (Tex. 1957).

It has been suggested that landscape architects may be permitted to perform services within the practices of engineering, architecture, and public surveying as long as they do not represent themselves to the public as members of those professions or employ the titles of the respective professions. It is true that in Attorney General Opinion H-814 (1976) this office concluded that non-licensed persons could perform services involving elements of landscape architecture as long as they did not hold themselves out as landscape architects. This conclusion though, was predicated on the applicability of the exemptions contained in article 249c. Similarly, in Attorney General Opinion M-545 (1969), this office held that certain structural designs could be prepared by persons not registered under article 3271a as long as they do not represent that they are licensed and registered. This conclusion, too, presumed the applicability of exemptions contained in article 3271a. With regard to landscape architects, there is no exemption upon which we may rely. Accordingly, it has been concluded on prior occasions that landscape architects are not excused, by agreement or otherwise, from the licensing requirements of statutes from which they are not specifically excepted. Attorney General Opinions H-890 (1976); H-495 (1975). The question you ask does not require a different answer. On the contrary, because the services in question are to be performed for the city of Corpus Christi, we answer your question in the negative. See, e.g., art. 3271a, section 19 (plans and specifications for any public work whose cost exceeds $3000 must be prepared by and construction supervised by registered professional engineer).

SUMMARY

A landscape architect may not, under the definition of landscape architecture, develop detailed plans and specifications for certain structures when their preparation requires skills which fall within the practices of engineering, public surveying, or architecture. Whether the development of such plans and specifications constitutes an exercise of engineering, public surveying, or architecture is a factual matter that this office is not authorized to resolve.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton