Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
December 1, 2010
Mr. William H. Kuntz, Jr. Opinion No. GA-0825
Executive Director
Texas Department of Licensing and Re: Scope of licensed pool-related electrical
Regulation service under chapter 1305 of the Occupations
Post Office Box 12157 Code (RQ-0891-GA)
Austin, Texas 78711-2157
Dear Mr. Kuntz:
On behalf ofthe Texas Department of Licensing and Regulation (the "Department") you ask
about the scope of authority of a "residential appliance installer" under Occupations Code section
1305.002(12-a) of the Texas Electrical Safety and Licensing Act (the "Act").! See TEX. OCC. CODE
ANN. § 1305.001 (West 2004) (short title). The Act provides for licensing residential appliance
installers as well as several classes of electricians. See id. § 1305.l02(a) (West Supp. 2010). You
inquire about the authority of residential appliance installers to work on pools. Request Letter at 1;
see TEX. OCC. CODE ANN. § 1305.002(14) (West Supp. 2010) (defining "pool" as "an outdoor or
indoor structure intended for swimming or recreational bathing, including ... [aJ hot tub, spa,
portable spa, or non-portable wading pool").
A "residential appliance installer" is "a person, other than a licensed electrician, who is
licensed to perform residential appliance installation, including pool-related electrical maintenance."
TEX. OCe. CODE ANN. §§ 1305.002(12-e) (West Supp. 2010) (providing definition); 1305.151
(requiring residential appliance installer to hold license). A "residential appliance" is defined as
a pool-related electrical device, or equipment that:
(A) is installed as a unit in a single-family or multifamily
dwelling that does not exceed four stories;
(E) is directly connected to an electrical circuit; and
lRequest Leiter at 1 (available at http://www.texasaltorneygeneral.gov). Section 130S.002(l2-a) of the
Occupations Code and related provisions were adopted by companion bills of the 81st Legislature, House Bill 1973 and
Senate Bill 1982. See Act of May 27, 2009, 8IstLeg., R.S., ch. 416, 2009 Tex. Gen. Laws 997, 997-1000; Act of May
26,2009, 81stLeg., R.S., ch. 1392,2009 Tex. Gen. Laws 4363, 4363-66.
Mr. William H. Kuntz, Jr. - Page 2 (GA-082S)
(C) performs a specific function.
Id. § 130S.002(12-a).
You ask whether the definition of "residential appliance" and related provisions limit a
residential appliance installer's work on pools to residential 2 pools only or whether they permit the
licensee to work on both residential and commercial pools. Request Letter at 1. One interpretation
reads paragraphs (A), (B), and (C) of section 130S.002(l2-a) to modify both the terms "pool-related
electrical device" and "equipment." Id. at 2. Under this reading, the terms "a pool-related electrical
device" and "equipment" are limited to items that are "installed as a unit in a single-family or
multifamily dwelling that does not exceed four stories." TEX. OCC. CODE ANN. § 130S.002(12-a)
(West Supp. 2010).
An alternative construction emphasizes the comma following the term "pool-related
electrical device" in section 130S.002(l2-a). See Request Letter at 2; see also TEX. OCC. CODE ANN.
§ 1305.002(l2-a) (West Supp. 2010) (providing that a "residential appliance" is "a pool-related
electrical device, or equipment that" complies with paragraphs (A), (B), and (C» (emphasis
added). The alternative interpretation argues that the comma makes the term "pool-related electrical
device" a separate and distinct classification from "equipment," so that only the term "equipment"
is limited by paragraphs (A), (B), and (C). Request Letter at 2. Under this interpretation of section
130S.002(l2-a), "pool-related electrical device" would include commercial as well as residential
pools. See id.; see also TEX. OCC. CODE ANN. § 130S.002(IS) (West Supp. 2010) (defining
"pool-related electrical device" for chapter 130S in general as "equipment for a pool that: (A) is
installed as a unit; (B) is directly connected to an electrical circuit; and (C) performs a specific
function").
"In construing statutes, our primary objective is to give effect to the Legislature's intent as
expressed in the statute's language." See Galbraith Eng'g Consultants, Inc. v. Pochucha, 290
S.W.3d 863, 867 (Tex. 2009). "Words and phrases shall be read in context and construed according
to the rules of grammar and common usage." TEX. GOV'T CODE ANN. § 31 1.011 (a) (West 200S).
A court will not, however, "adhere to strict grammatical rules in construing statutes, when to do so
violates the manifest intention of the Legislature." State v. Hogg, 70 S.W.2d 699, 701 (Tex. 1934).
See also Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d
489, 50S n.18 (Tex. 1992). A court may omit a comma to give effect to the legislative intent found
in the statute as a whole. See Interstate Forwarding Co. v. Vineyard, 3 S.W.2d 947, 9S8 (Tex. Civ.
App.-Dallas 1928), rev'd on other grounds, 49 S.W.2d 403 (Tex. 1932); see also 2A NORMAN J.
SINGER & J.D. SHAMBIE SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47: IS (7th ed. 2007)
(stating that "[a] misplaced comma cannot be used to distort the meaning of the statute"). We
determine the Legislature's intent by reading the term "pool-related electrical device" in the context
of chapter 130S.
2The Department understands "residential" in Occupations Code section 1305.00202-a) to describe "a single-
family or multifamily dwelling that does not exceed four stories." Request Letter at 2. It describes other pools as
"commercial pools." !d. at 1-2.
Mr. William H. Kuntz, Ir. - Page 3 (GA-082S)
Section 130S.002(12-a) provides that a "residential appliance" is "a pool-related electrical
device, or equipment." TEX. Oee. CODE ANN. § 130S.002(12-a) (West Supp. 2010). Thus, section
130S.002(l2-a) categorizes a pool-related electrical device as a residential appliance. Moreover,
section 130S.002(l2-b) defines "residential appliance installation" to mean "electrical work that is
limited to the connection or disconnection of a residential appliance, including a pool-related
electrical device, to an existing electrical circuit other than by inserting or removing a plug from an
electrical outlet." !d. § 130S.002(12-b) (emphasis added). Thus, subsection 130S.002(l2-b) also
places a "pool-related electrical device" within the category of "residential appliance." The
Legislature's use of the term "residential" to describe a "pool-related electrical device" indicates that
a residential appliance installer may work only on residential pools as described by section
130S.002(12-a)(A), i.e., a pool "installed as a unit in a single-family or multifamily dwelling that
does not exceed four stories." Id. § 130S.002(l2-a)(A). Our reading of the statutes is consistent with
the Department's rule defining residential appliance installer:
Residential Appliance illstaller-An individual, licensed as a
residential appliance installer, who on behalf of a residential
appliance installation contractor, performs electrical work that is
limited to residential appliance installation including residential
pool-related electrical installation and maintenance as defined by
Texas Occupations Code, § 130S.002(l2-b).
16 TEX. ADMIN. CODE § 73.10(23) (2010) (Tex. Dept. Licensing & Reg., Electricians) (emphasis
added). The courts will generally give some deference to an agency's interpretation of a statute it
administers if it is reasonable and does not conflict with the statute's plain language. City of Corpus
Christi v. Pub. Util. Comm 'n, SI SW.3d 231, 2S9, 261 (Tex. 2001).
Given the provisions describing a pool-related electrical device as a residential appliance and
the agency's rule interpreting Occupations Code chapter 130S, we do not believe a court would rely
on the comma to the exclusion of other statutory language to determine the legislative intent. ill our
opinion, a court would conclude that a licensed residential appliance installer may work only on
residential pools.
Mr. William H. Kuntz, Jr. - Page 4 (GA-0825)
SUMMARY
A residential appliance installer licensed under Occupations
Code chapter 1305 may work only on pools that are installed as a unit
in a single-family or multifamily dwelling that does not exceed four
stories. The residential appliance installer's license does not
authorize an individual to work on commercial pools.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee