In Texas, can an engineer certify a county subdivision plat, or must a registered land surveyor do it?

Plain-English summary

When land in certain Texas counties is subdivided into lots mainly for residential use, the law requires a formal plat. Local Government Code section 232.023(b)(1) says that plat must "be certified by a surveyor or engineer registered to practice in this state." That short phrase created a worry for the Texas Board of Professional Engineers and Land Surveyors. The Professional Land Surveying Practices Act (Occupations Code chapter 1071) reserves the practice of land surveying to registered land surveyors only. If the platting statute lets an engineer alone certify the plat, the engineer might be doing land surveying he is not licensed to do, which would put the two statutes in conflict. The Board's executive director asked the AG to sort it out.

The AG concluded there is no conflict, because the platting statute, read as a whole, calls for both professionals. The word "certify" means to attest or confirm something in a formal statement. Looking across section 232.023(b), the Legislature used "certify" in several subparts and was careful about who certifies what: subsection (b)(7) requires a document "prepared by an engineer" certifying that the water and sewer facilities comply with the Water Code's model rules; subsection (b)(11) requires a surveyor or engineer to certify the floodplain status; subsection (b)(12) provides for a certification that the subdivider met state standards. Other subparts, like (b)(2) (defining the subdivision by metes and bounds) and (b)(3) (locating it against an original survey corner), are classic land surveying tasks that the Occupations Code says only a land surveyor may perform.

So reading subsection (b)(1) to let either a surveyor or an engineer attest to the land surveying tasks would clash with the Legislature's decision to restrict surveying to surveyors. Courts construe statutes together and harmonize them where possible (El Paso Educ. Initiative; State v. Wood). And while "and" and "or" usually are not interchangeable, courts may read them as synonymous when needed to carry out legislative intent and avoid an absurd result (State v. Gammill). The AG noted that section 232.023 sits in a subchapter the Legislature added in 1995 to deal with economically distressed subdivisions that lacked adequate water and sewer service, calling the conditions a "clear and substantial threat to the environment." Given that purpose, the Legislature is unlikely to have meant to let a regulated profession's work be certified by someone outside that profession. The bottom line: a court would likely construe section 232.023(b)(1) to require both a registered land surveyor and a registered engineer to formally attest to the parts of the platting process within their respective expertise, so the two statutes do not conflict.

What this means for you

If you are a land surveyor or professional engineer

Based on this opinion, certifying a county subdivision plat under section 232.023(b) is a shared job. The surveyor attests to the land surveying portions (metes and bounds, locating the tract against an original survey corner), and the engineer attests to the engineering portions the statute assigns, such as the water and sewer facility certification under subsection (b)(7). An engineer certifying the plat is not engaging in the unauthorized practice of land surveying, because the AG reads the statute to keep the surveying tasks with the surveyor.

If you develop or subdivide land in an affected county

The opinion means you should expect to involve both a registered land surveyor and a registered engineer in preparing a plat under section 232.023, not one or the other. Each professional formally attests to the part of the plat within their area of expertise.

If you work for the county reviewing plats

The AG's reading supports requiring both professionals' certifications on a section 232.023(b) plat, allocated to their respective tasks, rather than accepting a single certifier for all of it.

Common questions

Q: Can an engineer alone certify a subdivision plat in Texas?
A: Not for the surveying parts. The AG concluded the statute requires both a land surveyor and an engineer, each attesting to the portions of the plat within their own professional expertise.

Q: Doesn't the statute say "surveyor or engineer"?
A: It does, but the AG read "or" as effectively "and" here, because some required plat tasks are land surveying (which only a surveyor may do) and at least one, the water and sewer certification in subsection (b)(7), is expressly assigned to an engineer. Reading it to require both harmonizes the platting statute with the Professional Land Surveying Practices Act.

Q: Is an engineer who certifies a plat practicing land surveying illegally?
A: No. Because the surveying tasks stay with the land surveyor, the engineer certifying the engineering portions is not doing land surveying. The AG found no conflict between the two statutes.

Q: Why does the law care so much about who certifies these plats?
A: Section 232.023 is part of a 1995 subchapter the Legislature added to address economically distressed subdivisions that lacked adequate water and sewer service, conditions it called a serious threat to the environment. That context made the AG read the statute to keep each professional's certification within that profession.

Background and statutory framework

Local Government Code subchapter B (sections 232.021 and following) governs subdivision platting in certain counties, requiring a plat when land is subdivided into two or more lots primarily for residential use (sections 232.022(a)-(b), 232.023(a)). A "plat" is a map, chart, survey, plan, or replat describing the subdivided land with ties to permanent landmarks (section 232.021(8)). Section 232.023(b) lists twelve plat requirements. Subsection (b)(1) requires the plat to "be certified by a surveyor or engineer registered to practice in this state"; subsection (b)(7) requires an attached document "prepared by an engineer" certifying water and sewer facility compliance with Water Code section 16.343 model rules; subsections (b)(11) and (b)(12) call for further certifications about floodplain status and the subdivider's compliance with state standards under section 232.032.

The Professional Land Surveying Practices Act (Occupations Code chapter 1071) defines professional surveying to include applying specialized knowledge to platting and laying out land and subdivisions (section 1071.002(6)(A)(ii)) and restricts that practice to registered land surveyors (section 1071.251(b)), who must use an authorized seal (section 1071.351(b)). The Texas Engineering Practice Act confirms that an engineering survey does not include the surveying of real property regulated under the Professional Land Surveying Practices Act (section 1001.003(a)(2), (c)(6)).

When the Legislature does not define a term, courts give it its plain and ordinary meaning in context (Hogan v. Zoanni). "Certify" means to attest or confirm in a formal statement. Because subparts (b)(2) and (b)(3) are land surveying that only a surveyor may perform, reading (b)(1) to let an engineer attest to those tasks would conflict with the Professional Land Surveying Practices Act. Courts interpret statutes together and harmonize them to give effect to all provisions (El Paso Educ. Initiative; State v. Wood), and may treat "or" as "and" when needed to effectuate legislative intent or avoid absurdity (State v. Gammill). Reading section 232.023(b) against the 1995 economically-distressed-subdivision findings that prompted it (Act of May 23, 1995, 74th Leg., R.S., ch. 979), the AG concluded a court would likely require both a land surveyor and an engineer to certify the portions matching their expertise, so no conflict exists.

Citations and references

Statutes:

• Tex. Loc. Gov't Code § 232.023 (county subdivision plat requirements; certification by surveyor or engineer)
• Tex. Occ. Code § 1071.251 (practice of land surveying restricted to registrants) and § 1071.002 (definition of professional surveying)
• Tex. Occ. Code § 1001.003 (engineering survey excludes land surveying regulated under the Professional Land Surveying Practices Act)

Key cases:

• Hogan v. Zoanni, 627 S.W.3d 163 (Tex. 2021) (undefined terms get their plain, ordinary meaning in context)
• El Paso Educ. Initiative, Inc. v. Amex Props., LLC, 602 S.W.3d 521 (Tex. 2020) (goal is the Legislature's intent; harmonize statutes)
• State v. Gammill, 442 S.W.3d 538 (Tex. App.—Dallas 2014, pet. ref'd) ("and" and "or" may be read as synonymous to effectuate intent)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0409
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0409.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

June 6, 2022

Lance Kinney, Ph.D., P.E.
Executive Director
Texas Board of Professional Engineers and Land Surveyors
1917 South Interstate 35
Austin, Texas 78741-3702

Opinion No. KP-0409

Re: Whether a licensed professional engineer is authorized to certify a subdivision plat in specific circumstances (RQ-0440-KP)

Dear Dr. Kinney:

On behalf of the Texas Board of Professional Engineers and Land Surveyors, you ask about a potential conflict between the Professional Land Surveying Practices Act (the "Act") and a statutory provision relating to county subdivision platting.¹ As background, subsection 232.023 of the Local Government Code provides that in certain counties, subdividing land into two or more lots primarily for residential use requires the preparation of a plat under certain circumstances. See TEX. LOC. GOV'T CODE §§ 232.022(a)-(b), .023(a). Subsection 232.023(b)(1) requires the plat to "be certified by a surveyor or engineer," but you explain that the Act "reserves the platting of subdivision . . . land to only registered professional land surveyors." Id. § 232.023(b)(1) (emphasis added); Request Letter at 3; see also TEX. OCC. CODE § 1071.251(b). Thus, you suggest that if an engineer certifies a plat in accordance with subsection 232.023(b)(1), the engineer might be engaged in the unauthorized practice of land surveying in violation of the Act. See Request Letter at 1. You ask four questions in relation to this quandary, but the underlying issue is how to reconcile the apparent conflict between the two statutes. Id. at 3-4. We direct our analysis accordingly, focusing first on what it means for a plat to "be certified" for purposes of subsection 232.023(b)(1).

¹ See Letter from Lance Kinney, Ph.D., P.E., Exec. Dir., Tex. Bd. of Prof'l Eng'rs & Land Surveyors, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-4 (Nov. 16, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0440KP.pdf ("Request Letter").

We begin with the text of subsection 232.023(b), which sets forth the requirements for a plat under section 232.023:²

(b) A plat required under this section must:

(1) be certified by a surveyor or engineer registered to practice in this state;

(2) define the subdivision by metes and bounds;

(3) locate the subdivision with respect to an original corner of the original survey of which it is a part;

(4) describe each lot, number each lot in progression, and give the dimensions of each lot;

(5) state the dimensions of and accurately describe each lot, street, alley, square, park, or other part of the tract intended to be dedicated to public use or for the use of purchasers or owners of lots fronting on or adjacent to the street, alley, square, park, or other part;

(6) include or have attached a document containing a description in English and Spanish of the water and sewer facilities and roadways and easements dedicated for the provision of water and sewer facilities that will be constructed or installed to service the subdivision and a statement specifying the date by which the facilities will be fully operable;

(7) have attached a document prepared by an engineer registered to practice in this state certifying that the water and sewer service facilities proposed under Subdivision (6) are in compliance with the model rules adopted under Section 16.343, Water Code, and a certified estimate of the cost to install water and sewer service facilities;

(8) provide for drainage in the subdivision to:

(A) avoid concentration of storm drainage water from each lot to adjacent lots;

(B) provide positive drainage away from all buildings; and

² For purposes of county subdivision regulations, a "plat" is "a map, chart, survey, plan, or replat containing a description of the subdivided land with ties to permanent landmarks or monuments." TEX. LOC. GOV'T CODE § 232.021(8).

(C) coordinate individual lot drainage with the general storm drainage pattern for the area;

(9) include a description of the drainage requirements as provided in Subdivision (8);

(10) identify the topography of the area;

(11) include a certification by a surveyor or engineer registered to practice in this state describing any area of the subdivision that is in a floodplain or stating that no area is in a floodplain; and

(12) include certification that the subdivider has complied with the requirements of Section 232.032 and that:

(A) the water quality and connections to the lots meet, or will meet, the minimum state standards;

(B) sewer connections to the lots or septic tanks meet, or will meet, the minimum requirements of state standards;

(C) electrical connections provided to the lot meet, or will meet, the minimum state standards; and

(D) gas connections, if available, provided to the lot meet, or will meet, the minimum state standards.

TEX. LOC. GOV'T CODE § 232.023(b). Subsection 232.023(b) uses the word "certify" or "certification" in several subparts which specify the person doing the certifying and the information being certified. See id. §§ 232.023(b)(7) (requiring an attached document prepared by an engineer "certifying that the water and sewer service facilities proposed under Subdivision (6) are in compliance with" certain model rules adopted under the Water Code), .023(b)(11) (requiring "a certification by" a registered surveyor or engineer regarding whether any area of the subdivision is in a floodplain), .023(b)(12) (providing for a "certification that the subdivider has complied with" the overall requirements of section 232.032 and that minimum state standards for water, sewer, electric and gas connections are, or will be, met). But subsection 232.023(b)(1), the subpart you ask about, states generally that the plat must "be certified," including no further information or context and no definition by the Legislature that would explain the scope of term's meaning. Id. § 232.023(b)(1).

When the Legislature does not define a term, a court uses the plain and ordinary meaning of the term and interprets it within the context of the statute. Hogan v. Zoanni, 627 S.W.3d 163, 169 (Tex. 2021). To "certify" means to "attest or confirm in a formal statement" or to "officially recognize (someone or something) as possessing certain qualifications or meeting certain standards." NEW OXFORD AMERICAN DICTIONARY 284 (3rd. ed. 2010); see also BLACK'S LAW DICTIONARY 275 (10th ed. 2014) (defining the term to mean "authenticate or verify in writing; to attest as being true or as meeting certain criteria"). This meaning is consistent with the portions of subsection 232.023(b) mentioned above, in which the Legislature identified the specific information to be attested to or confirmed and the person who must provide the attestation or confirmation.

But other subparts of subsection 232.023(b), such as subpart (b)(2) (defining the subdivision by metes and bounds) and subpart (b)(3) (locating the subdivision with respect to an original corner of the original survey), constitute professional land surveying. See TEX. OCC. CODE § 1071.002(6)(A)(ii) (defining professional surveying to include applying specialized knowledge to the measurement or location of various elements to determine areas and volumes for "platting and laying out land and subdivisions of land"). And the Legislature provided that professional surveying tasks may be performed only by a professional land surveyor and not by an engineer. See id. §§ 1071.251(b) (restricting the practice of land surveying to persons registered, licensed, or certified under the Act), 1071.351(b) (requiring land surveyors to obtain an authorized seal for their professional work), 1001.003(a)(2), (c)(6) (providing that an engineering survey otherwise permitted under the Texas Engineering Practice Act "does not include the surveying of real property or other activity regulated under [the Professional Land Surveying Practices Act]"). Thus, reading subsection 232.023(b)(1) to allow a land surveyor or an engineer to attest that the land surveying tasks meet the professional standards for the practice of land surveying would be inconsistent with the legislative intent restricting such tasks to land surveyors only.

In construing a statute, a court's goal is to ascertain the Legislature's intent and give it effect. El Paso Educ. Initiative, Inc. v. Amex Props., LLC, 602 S.W.3d 521, 531 (Tex. 2020). A court interprets statutes together and harmonizes them, if possible, to give effect to all the statutory provisions. See State v. Wood, 575 S.W.3d 929, 935 (Tex. App.—Austin 2019, pet. ref'd). Apparent from the face of the statute, the subdivision platting process in subsection 232.023(b) requires the participation of a land surveyor—because of the specific land surveying tasks required—and an engineer, because subsection 232.023(b)(7) expressly requires an engineer. Furthermore, subsection 232.023 is part of subchapter B, a subchapter which the Legislature added to the Local Government Code to address the proliferation of certain economically distressed subdivisions. See Act of May 23, 1995, 74th Leg., R.S., ch. 979, § 4, 1995 Tex. Gen. Laws 4895, 4896-4906. The Legislature made a number of findings in the bill that added subchapter B, noting the lack of adequate water and sewer services in these areas and declaring that the location, proliferation, and conditions in the unregulated subdivisions posed "a clear and substantial threat to the environment" that required "adequate remedial steps" in order to address the "compelling crisis." Id. § 1 at 4895-96. Given this context, it is unlikely the Legislature intended to permit a regulated profession such as land surveying to be performed or certified by someone other than a member of that profession. While "the terms 'and' and 'or' are not interchangeable in general, they may be interpreted as synonymous when necessary to effectuate the legislature's intent or to prevent an ambiguity, absurdity, or mistake." State v. Gammill, 442 S.W.3d 538, 541 (Tex. App.—Dallas 2014, pet. ref'd). A court would likely construe subsection 232.023(b)(1) to require both a land surveyor and an engineer to formally attest to the requirements of the subdivision platting process corresponding to their respective areas of professional expertise or as otherwise provided in other subparts of subsection 232.023(b). Accordingly, no conflict exists between subsection 232.023(b)(1) and the Act.

S U M M A R Y

Subsection 232.023(b) of the Local Government Code establishes county subdivision platting requirements under certain circumstances and provides in subsection 232.023(b)(1) that the plat must be certified by a land surveyor or an engineer. Given the context of subsection 232.023(b) as a whole, a court would likely construe subsection 232.023(b)(1) to require both a land surveyor and an engineer to formally attest to the portions of the subdivision platting requirements corresponding to their respective areas of professional expertise or as otherwise provided in other subparts of subsection 232.023(b). Accordingly, no conflict exists between subsection 232.023(b)(1) and the Professional Land Surveying Practices Act.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee