Untitled Texas Attorney General Opinion ( 1984 )

The Attome!!, General of Texas
Octsber 12, 1984
JIM MATTOX
Attorney General
Supreme CarI Bullding
Mr. Lynn Brown, Adwnistrator Opinion No. JR-210
P. 0. Box 1254a Teraa State Board ofi Plumbing
A”,!,“. TX. 78711.254Q Examiners Re: Authority of a municipality
512l47525m P. 0. Box 4200 to impose a registration fee on
Telex 9101874.13S7
Austin, Texas 78:‘tiS plumbers
Telecopier 5121475-0268
Dear Mr. Brown:
714 Jackson. suite 700
Dallas. TX. 75202.4505 You have informed this office that several cities in Texas have
2141742.8944
passed city ordinances requiring persons licensed as plumbers to pay a
“registration fee” as a condition precedent to engaging in the
4824 A,bwta Ave.. BUite 180 practice of plumbi>; in that city. In connection vith this, you have
El Paso. TX. 79QC62793 asked this office zlie following questions:
915/53534S4
1. DC,such registration fees constitute a form
1 Texas. Suite 700 of, licen sure?
“couston, 7X. 77002-3111
71~2235886 2. Are these registration fees ‘occupation
taxes, ’ as aet forth in Attorney General Opinion
V-428 (1 &i7)?
806 Broadway. Suite 312
Lubbock. 7X. 7Q401.3479.
QOSi747-5235 3. Acs the registration fees a valid require-
ment in Light of the Plumbing License Law, article
6243-101, V.T.C.S.?
43oQ N. Tenth. Suite 8
McAlm. TX. 78501.1685
5121882.4547 In order for such a fee to constitute a &censure, it must confer
a right to a deserving individual that would be denied to all others.
See Cit of Fort Worth v. Gulf Refining Co., 83 S.W.2d 610, 617 (Tex.
200 Win Plaza, Suite 4W m5*- icense will allow a parson to practice a trade which
SPY &ntonio. TX. 782Q5-2797
he could not practi:e without such a license. See Aoefling v. City of
51212254191
San Antonio, 20 S.il. 85. 87 (Tex. 1892). For such a fee to constitute
an occupation tax,, hovever. it must be levied primarily for the
purpose of raising; revenue. See City of Fort Worth v. Gulf Refining
5. supra; Attorney General O-ion V-428 (1947).
Therefore, tt,e answers to your first two questions depend upon
whether these ordinances confer an occupational right to an individual
vho wants to engage in the profession of plumbing, or whether these
ordinances are revenue raising devices. You have supplied this office
vith tvo ordinanccz from cities in Texas: one provides for a regis-
tration fee for plumbing contractors; the other provides that an
organization consisting of licensed plumbers who vish to do business
must first registl!:: vith the city. Although both ordinances charge
p. 947
. ’
I
Nr. Lynn grovn - Page 2 (JM-210)
small fees for registratiorl, ve are of the opinion that this is
i~terial to our findings. See City of Fort Worth v. Gulf Refining
co., D. We conclude, t,txfore, that these ordinances are, in
affect, licensing feea.
Article 6243-101, V.T.C.S.. (“Plumbing License Lav”) vas enacted
.in 1947. Thia act created tlw State Board of Plumbing Examiners, thus
taking avay much of the authority to regulate the plumbing occupation
from cities. See Attorney General Opinion V-549 (1948). The Texas
State Board of-&mbing Rxa~sIiners is the sole licensing agency for
plumbers, thereby excluding this authority from all municipalities.
Attorney General Opinion V-428 (1947). Because the board has
exclusive jurisdiction over t:he licensing of plumbers, any municipal
regulations vhich conflict vlth the board’s responsibilities are
invalid under section 15 of the Plumbing Licensing Lav. Attorney
General Opinions V-1217 (1951); V-720 (1948); V-333 (1947). See also
Attorney General Opinion MW-.jIi5 (1982).
This office has previowly considered a problem similar to this
question. Attorney General 0pinion V-1217 (1951) dealt with several
municipal requirements that required plumbers to post indemnity bonds
before engaging in speciflecl plumbing vork. One such ordinance, for
example, required plumbers ‘:o post a bond before that plumber could
engage in his profession. ‘Pa+ opinion made the following observation:
The Board’s respou:~ibilitles deal primarily with
the personal fitness and skill of individual
plumbers. The ’11 c.ense’ vhlch it grants and its
authority to prc,sulgate rules respecting the
licensing of plumblrrs are Intended to cover the
subject of skill z.r:d personal fitness of plumbers
and matters incidental thereto. Cities may not
invade that field, Neither may the Board invade
the field reserved for municipal regulation.
The opinion vent on to conclude that a city may require a bond under
its authority to prescribe t’le terms and conditions for the granting
of a “permit” under the terms of Section 15, and that the Board has no
jurisdiction over that subjc!ct matter. The distinction betveen these
tvo statements is clear: the Board may regulate the plumbing
occupation in its licensing procedures; a city may only regulate
certain specific acts of ploobers, as set forth in sectjon 15 of the
Plumbers License Lx See Attorney General Opinion V-549 (1948). See
also Attorney General~ir:ion V-720 (1948). However, cities e
require plumbing organisat 1 ,ns to register vith the city before
engaging in the business of plumbing. For example, home rule cities
may “license any lawful business, occupation or calling that is
susceptible to the contra:. of the police power.” V.T.C.S. art.
1175.23. This includes the business of plumbing. See Trevitt v. City
of Dallas, 242 S.W. 1073, lC177-78 (Tex. Civ. App.?Dallas 1922, no
writ).
p. 948
Mr. Lynn Brown - Page 3 (JW:!lO)
Therefore, it la our opinion that ordinances vhich regulate the
profesaion or occupation of plumbing infringe upon a function
conferred solely to the Texas State Board of Plumbing Exaninera by the
Plumbing License Lav and are invalid. Hovever , ordinances vhich
require the registration of plumbing buainesacs as a condition
~precedent to engaging in the profession are valid.
SUMMARY
A municipal ortitnance vhich purports to confer
an occupational ri.I;ht to an individual. and is not
designed for the sole purpose of raising revenue,
is a license fee. A municipal ordinance vhich
regulates the profession or occupation of plumbing
infringes upon a function conferred solely to the
Texas State Boar’i of Plumbing Examiners by the
Plumbing License Law. article 6243-101, V.T.C.S.,
and is invalid. itn ordinance vhich requires the
registration of a plumbing business as a condition
precedent to enga:g:lng in the profession is valid.
-JIM M A- T T 0 X
Attoruey General of Texas
TOMGREEN
First Assistant Attorney General
DAVID R. RICEARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION CCWITTEE
Rick Gilpln. Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton