Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 17,2005
The Honorable James M. Kuboviak Opinion No. GA-0333
Brazos County Attorney
300 East 26th Street, Suite 325 Re: Applicability of section 145.002 of the Civil
Bryan, Texas 77803-5327 Practice and Remedies Code to installers and
repairers of lawn sprinkler and landscape lighting
systems (RQ-0302-GA)
Dear Mr. Kuboviak:
You ask about the applicability of chapter 145 of the Civil Practice and Remedies Code to
installers and repairers of lawn sprinkler and landscape lighting systems.’
Chapter 145 of the Civil Practice and Remedies Code deals with liability for negligent hiring
by in-home service companies and residential delivery companies. ‘In-home service company’ is
defined as “a person who employs a person to enter another person’s residence and for a fee repair:
(A) an appliance; (B) the residence’s heating, air-conditioning, and ventilation system; (C) the
residence’s plumbing system; or (D) the residence’s electrical system.” TEX. CIV. PRAC. & F&M.
CODE ANN. 5 145.001( 1) (Vernon Supp. 2004-05). “Residential delivery company’ is defined to
mean “a person who employs a person to, for a fee: (A) deliver an item to another person’s
residence; and (B) enter the residence to place, assemble, or install the item.” Id. $ 145.001(2). An
in-home service company or a residential delivery company is required to “obtain from the
Department of Public Safety or a private vendor approved by the department and offering services
comparable to the services offered by the department all criminal history record information relating
to an officer, employee, or prospective employee of the company whose job duties require or will
require entry into another person’s residence.” Id. $ 145.002. An in-home service company or a
residential delivery company is rebuttably presumed to have not acted negligently if:
(1) the company obtained criminal history record information
regarding the officer or employee; and
(2) the criminal history record information shows that, in the
20 years preceding the date the information was obtained for a felony
‘Letter from Honorable James M. Kuboviak, Brazos County Attorney, to Honorable Greg Abbott, Texas
Attorney General (Dec. 15, 2004) (on tile with Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable James M. Kuboviak - Page 2 (GA-0333)
or in the 10 years preceding the date the information was obtained for
a misdemeanor, the officer or employee had not been convicted of:
(A) an offense in this state classified as:
(i) an offense against the person
or the family;
(ii) an offense against property; or
(iii) public indecency; or
(B) an offense in another jurisdiction that
would be classified in a category described by
Paragraph (A) if the offense had occurred in this state.
Id. $ 145.003(b). In addition, “[a] person who contracts with a residential delivery company to
deliver an item or who contracts with an in-home service company to place, assemble, repair, or
install an item referred to in Section 145.001 (l), is rebuttablypresurned to have not acted negligently
in doing so,” as long as either (1) the residential delivery company or in-home service company has
complied with section 145.003(b), or (2) the contracting person requests, in writing, that the
company obtain a criminal history background check on each covered employee and delivers the
request to the company prior to the employee’s entry into any residence. Id. $ 145.004.
Your first two questions pertain to whether an installer or repairer of lawn sprinkler and
landscape lighting systems is embraced within the definition of “in-home service company’ or
“residential delivery company.” See Request Letter, supra note 1, at 2. As we have noted, chapter
145 is applicable only to a person “who employs a person” to “enter another person’s residence” or
to “enter the residence.” We must therefore determine as a threshold matter the meaning of the term
“residence.”
The Code Construction Act requires that “[w]ords and phrases shall be read in context and
construed according to the rules of grammar and common usage,” unless they “have acquired a
technical or particular meaning, whether by legislative definition or otherwise.” TEX.G~v’T CODE
ANN. $ 3 11.Ol 1 (Vernon 2005). We have found no judicial decision, from Texas or any other
jurisdiction, that defines the word “residence” in the context suggested by chapter 145 of the Civil
Practice and Remedies Code. On the other hand, various dictionaries limit the term “residence” to
a “house,” “dwelling,” or “abode.” Blacks Law Dictionary, for example, defines “residence” as “[a]
house or other fixed abode; a dwelling.” BLACK’S LAW DICTIONARY13 10 (7th ed. 1999). Other
dictionaries echo this definition. The Oxford English Dictionary defines “residence” as “[tlhe
place where one resides; one’s dwelling-place; the abode of a person.” XIII OXFORD ENGLISH
DICTIONARY 707 (2d ed. 1989). The American Heritage Dictionary defines “residence” as “[tlhe
place in which one lives; a dwelling.” AMERICAN HERITAGEDICTIONARY OF THE ENGLISH
The Honorable James M. Kuboviak - Page 3 (GA-0333)
LANGUAGE 1483 (4th ed. 2000). The latter defines “dwelling,” in turn, as “[a] place to live in; an
abode.” Id. at 558.
Moreover, chapter 30 of the Penal Code, which criminalizes burglary and criminal trespass,
defines “habitation” as “a structure or vehicle that is adapted for the overnight accommodation of
persons, and includes: (A) each separately secured or occupied portion of the structure or vehicle;
and (B) each structure appurtenant to or connected with the structure or vehicle.” TEX.PEN.CODE
ANN. 0 30.01(l) (v emon 2003). The same statute defines “building” as “any enclosed structure
intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament,
or use.” Id. 0 30.01(2). Similarly, chapter 28 of the Penal Code, which describes “offenses against
property,” defines “habitation” and “building” in identical terms. Id. 6 28.01(l)-(2).
A number of judicial decisions have considered the meaning of the terms “habitation” and
“building” under these criminal statutes. See, e.g., Swain v. State, 583 S.W.2d 775,777 (Tex. Crim.
App. 1979) (legislature did not intend to expand concept of burglary of habitation to include entry
upon unenclosed and unsecured stairway attached to a residence); Spencer v. State, 789 S.W.2d 397,
400-01 (Tex. App.-Dallas 1990, no writ) (warehouse having walls on three sides and a chain-link
fence approximately ten to twelve feet high on the fourth side with a secured gate was “building”
within meaning of section 30.01(2) of Penal Code). And a 1989 case appears to use the words
“habitation” and “residence” interchangeably. See Wright v. State, 768 S.W.2d 391, 392 (Tex.
App.-El Paso 1989, no writ).
These definitions and authorities seem to indicate that “residence,” for purposes of chapter
145, is an enclosure in which a person lives, in contrast to the surrounding realty. This position is
supported by legislative history. First, the very phrase selected by the authors of the legislation - “in-
home service company” - suggests that the legislature contemplated that the word “residence” be
confined to the enclosed space of a home or dwelling rather than to the entirety of the real estate on
which the home is situated. In addition, in a hearing before the Senate Committee on State Affairs,
Senator Troy Fraser remarked that “House Bill 705 would require companies to get a criminal
background check on employees they send into a home to (1) repair the electrical, plumbing, or
heating/air conditioning system, or (2) to deliver, place, assemble, or install an item inside aperson ‘s
home.” Hearing on Tex. H.B. 705 Before the Senate Comm. on State Aflairs, 78th Leg., R.S. (May
22, 2003) (statement of Senator Troy Fraser) (emphasis added) (tape available from Senate Staff
Services). We conclude, as a result, that the word “residence,” for purposes of the statute under
consideration, means the enclosed space of a home or other dwelling, and does not embrace the
surrounding realty.
Your first question is whether the employee background check is applicable to installers and
repairers of lawn sprinkler and landscape lighting systems. See Request Letter, supra note 1, at 2.
We first address the statutory definition of “in-home service company.” Such an entity, as we have
noted, is defined as “a person who employs a person to enter another person’s residence and for a
fee repair: (A) an appliance; (B) the residence’s heating, air-conditioning, and ventilation system;
(C) the residence’s plumbing system; or@) the residence’s electrical system.” TEX.Crv. PRAC.&
REM. CODE ANN.0 145.001(l) (Vernon Supp. 2004-05). Because we have determined that the term
The Honorable James M. Kuboviak - Page 4 (GA-0333)
“residence” applies only to a person’s actual house or dwelling, an employee who repairs a lawn
sprinkler or landscape lighting system is not subject to the background check provision unless the
employee’s job duties require entry into a person’s house or other dwelling in order to repair an
“appliance.” The word “appliance” has been judicially defined as “a thing used as a means to an
end.” Murray v. Royal Indem. Co., 78 N.W.2d 786,787 (Iowa 1956); accord Palmer v. Great N.
Ry., 170 P.2d 768,775 (Mont. 1946); Roberts v. CityofLos Angeles, 61 P.2d 323,330 (Cal. 1936).
Pursuant to this broad definition, a lawn sprinkler or landscape lighting system component located
in a residence is an appliance. Ifthe employee’s job duties require entry into a house or dwelling for
the purpose of repairing a lawn sprinkler or landscape lighting system component, we believe it is
clear that the employee is making repairs to an “appliance.” If, on the other hand, the repairing
employee’s job duties merely require entry into the yard areas, the criminal record check provision
does not apply.
We next address the statutory definition of “residential delivery company,” which means “a
person who employs a person to, for a fee: (A) deliver an item to another person’s residence; and
(B) enter the residence to place, assemble, or install the item.” TEX.CIV. PRAC.&REM. CODE ANN.
9 145.001(2) (V emon Supp. 2004-05). An “item” is commonly defined as “an individual article or
unit, esp. one that is part of a list, collection, or set.” THE NEW OXFORDAMERICAN DICTIONARY
902 (1st ed. 2001). As such, a lawn sprinkler or landscape lighting system or a system component
may reasonably be said to constitute an “item.” Again, however, because we have concluded that
the yard area is not included within the meaning of the term “residence,” an employee who installs
a sprinkler system or landscape lighting is not subject to the background check unless the employee’s
duties require entry into a person’s residence to install a system component. If the installer’s duties
merely require entry into the yard areas, the criminal background check provision does not apply.
You also ask whether a person who enters an attached garage is subject to the background
check provision. See Request Letter, supra note 1, at 2. In this situation, we answer in the
affirmative. An attached garage is, by definition, connected to, and therefore a part of, an enclosed
house or dwelling. Entry into an attached garage would be likely to provide ready access to
individuals who might commit crimes against persons and property, and section 145.002
contemplates a criminal history background check for any in-home service company and residential
delivery company employee whose duties require such access.
Your final question is whether the Texas Electrical Safety and Licensing Act, chapter 1305
of the Occupations Code, is applicable to the kind of “activity that nurserymen and landscape
contractors engage in when installing lawn sprinklers and yard lighting.” Id. Section 1305.151
provides that, “[elxcept as provided by Section 1305.003, a person may not perform electrical work
unless the person holds an appropriate license issued or recognized under this chapter.” TEX. OCC.
CODE ANN. 0 1305.15 1 (Vernon 2004). Section 1305.003 provides a list of exemptions to chapter
1305. Among other exemptions, section 1305.003 declares that “[tlhis chapter does not apply to
. . . (13) landscape irrigation installers, as necessary to perform the installation and maintenance of
irrigation control systems, and landscapers, as necessary to perform the installation and maintenance
of low-voltage exterior lighting and holiday lighting excluding any required power source.” Id. 0
1305.003. We conclude that chapter 1305 of the Occupations Code does not apply to the kind of
activity that nurserymen and landscape contractors engage in when installing lawn sprinkler and yard
lighting systems.
The Honorable James M. Kuboviak - Page 5 (GA-0333)
SUMMARY
A “residence,” for purposes of chapter 145 of the Civil
Practice and Remedies Code, is an enclosed home or other dwelling.
If the job duties of an employee of an installer or repairer of lawn
sprinkler and landscape lighting systems require entry into an
enclosed home or other dwelling, or an attached garage, chapter 145
contemplates a criminal history background check of that employee.
If the employee’s job duties require entry into the yard or real estate
surrounding the enclosed home or attached garage, but not entry into
the residence, chapter 145 does not contemplate a background check.
Chapter 1305 of the Occupations Code exempts from its coverage the
kind of activity that nurserymen and landscape contractors engage in
when installing lawn sprinkler and yard lighting systems.
Atto
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee