Untitled Texas Attorney General Opinion ( 1982 )

.
The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General
Mr. Lynn Brown, Administrator Opinion No. MW-545
Supreme Court Building
Texas State Board of Plumbing
P. 0. Box 12546
Austin, TX. 76711. 2546
Examiners Re: Authority of the Board of
512/475-2501 P. 0. Box 4200 Plumbing Examiners to adopt
Telex 9101674.1367 Austin, Texas 78765 plumbing code with statewide
Telecopier 512/475-0266 applicability
1607 Main Si., Suite 1400
Dear Mr. Brown:
Dallas, TX. 75201-4709
2141742.6944 Your questions concern the Plumbing License Law which is embodied
in article 6243-101, V.T.C.S. It empowers the Board of Plumbing
Examiners to administer licensing and examining procedures for
4624 Alberta Ave.. Suite 160
El Paso, TX. 799052793
plumbers and states exemptions from the licensing requirement. Sets.
9151533.3464 3, 5. The board may also impose penalties for violations of the
statute. sec. 9. Section 5(a) authorizes the board to:
1220 Dallas Ave.. Suite 202
prescribe, amend and enforce all Rules and
HOUS,O~, TX. 77002.6966
7131650-0666
Regulations necessary to carry out this Act.
See also 22 T.A.C. S361.12 (1981).
606 Broadway, Suite 312
Lubbock, TX. 79401.3479
You first ask:
6061747-5236
Does the board have the authority, under the
4309 N. Tenth, Suite 6 provisions of the Administrative Procedure and
McA,,e”, TX. 78501-1665 Texas Register Act and The Plumbing License Law,
5121662-4547 article 6243-101, V.T.C.S., to adopt the
provisions of the Texas Municipal League Plumbing
200 Main Plaza, Suite 400 Code as part of its Official Rules and Regulations
San Antonio. TX. 76205-2797 with statewide jurisdiction?
5121225-4191
We understand that you wish to establish a plumbing code that will
An Equal Opportunity/
apply uniformly to plumbing work done throughout the state.
Affirmative Action Employer
Section 15 of article 6243-101 provides as follows:
Sec. 15. Every city in this state of more than
five thousand (5.000) inhabitants shall, and any
city or town of this state may, by ordinance or
by-law, prescribe rules and regulations for the
materials, construction, alteration and inspection
p. 1976
Mr. Lynn Brown - Page 2 (MW-545)
of all pipes, faucets, tanks, valves and other
fixtures by and through which a supply of water,
gas or sewage is used or carried; and provided
that they shall not be placed in any building
therein except in accordance with such rules and
regulations; and shall further provide that no
plumbing shall be done except in case of repairing
of leaks, without a permit being first issued
therefor upon such terms and conditions as such
city or town shall prescribe; provided that no
such ordinance, by-law, rule or regulation
prescribed by any such city or town shall be
inconsistent with this Act, or any rule or
regulation adopted or prescribed by the State
Board of Plumbing Examiners.
Attorney General Opinion MW-42 (1979) involved a similar inquiry
as to whether the Board of Nurse Examiners had the authority to issue
rules and regulations for the practice of nursing. The opinion found
that the board lacked authority to promulgate rules which would
effectively regulate the practice of nursing. The rationale discussed
in that opinion was that:
administrative agencies have only those powers
expressly granted by statute or implied from
statutory authority and duties. Stauffer v. City
of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961);
Attorney General Opinions H-1199 (1978), H-1093
(1977); See Board of Insurance Commissioners v.
GuardianLife Insurance Company, 180 S.W.2d 906,
908 (Tex. 1944); Humble Oil and Refining Company
v. Railroad Commission, 128 S.W.2d 9, 15 (Tex.
1939); Harris, The Administrative Law of Texas, 29
Tex. L. Rev. 213 (1950).
See also Attorney General Opinion MW-482 (1982).
The Board of Plumbing Examiners clearly has no express statutory
authority to regulate the practice of plumbing by promulgatl~ng a
plumbing code with statewide applicability. Compare V.T.C.S. art.
4495b (Board of Medical Examiners may make rules regulating the
practice of medicine); V.T.C.S. art. 4512b (Board of Chiropractic
Examiners may make rules regulating the practice of chiropractic);
V.T.C.S. art. 4542 a-l (Board of Pharmacy responsible for the
regulation of the practice of pharmacy). The remaining question is
whether there is implied statutory authority. We answer in the
negative.
p. 1977
Mr. Lynn Brown - Page 3 (MW-545)
In Gerst v. Oak Cliff Savings and Loan Association, 432 S.W.2d
702 (Tex. 1968) and Kee v. Baber. 303 S.W.2d 376 (Tex. 1957), the
Texas Supreme Court examined broad grants of rule-making power to
administrative agencies. The Kee court focused upon the broad
regulatory powers which authorized the Board of Examiners in Optometry
"to make such rules and regulations not inconsistent with this law as
may be necessary for the... regulation of the practice of optometry,"
303 S.W.2d at 378, and contrasted them with the narrower delegation of
power to other administrative boards. See, e.g., 22 T.A.C. 5361.12
(1981) (promulgates narrow delegation of power regarding functions of
the Board of Plumbing Examiners). The court in Gerst reasoned
similarly that:
the Board had been clothed with the power and
authority to promulgate and enforce rules and
regulations necessary to carry out the purposes of
the Act, [and] that the Legislature, in creating
the Board and conferring upon it the power to make
rules and regulations necessary to carry out the
purposes of the Act, forecloses the thought that
the Legislature intended to spell out the details
of all operations under the Act.
432 S.W.2d at 706 (citing Texas Liquor Control Board v. Super Savings
Stamp Company, citation omitted).
The Gerst court, citing Kee, also pointed out that:
the determining factor in this and other decisions
of our courts dealing with the question of whether
or not a particular administrative agency has
exceeded its rule-making powers is that the rule's
provisions must be in harmony with the general
objectives of the Act involved. (Emphasis added).
-Id. at 706.
It is the opinion of this office that the general objectives of
the Plumbing License Law, embodied in article 6243-101, V.T.C.S., are
to enable the Board of Plumbing Examiners to administer and regulate
the licensing and examining procedures for plumbers and that without
further specific statutory authority, the board may not adopt a
plumbing code with statewide applicability which would effectively
regulate the practice of plumbing. Such a code would be inconsistent
with section 15.
You next ask:
p. 1978
Mr. Lynn Brown - Page 4 (Mw-545)
Does the State Board of Plumbing Examiners have
the authority to require its licensees to make all
plumbing installations, connections, taps.
sprinkler systems and other related plumbing and
sewer connections in accordance with the code the
Board has helped develop and which has been
recognized by the Texas Municipal League?
The answer to this question depends on whether the particular
rule is consistent with the statute. Since you have not submitted a
rule we cannot answer your question. See Attorney General Opinion
H-960 (1977). Of course, you cannot doindirectly what the statute
forbids you from doing.
SUMMARY
The Board of Plumbing Examiners may not
establish a statewide plumbing code under its
rule-making power.
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Stan Reid
Bruce Youngblood
p. 1979