Untitled Texas Attorney General Opinion ( 1987 )

Honorable Rayford A. Ratliff Opinion No. JM-795
Moore County Attorney
P. 0. Box 634 Re: Whether a person who is licensed
Dumas, Texas 79029 under the plumbing license law,
article 6243-101, V.T.C.S., is exempt
from the provisions of article 8861,
V.T.C.S.
Dear Mr. Ratliff:
You ask whether a person who is licensed under the Plumbing
License Law, article 6342-101. V.T.C.S;, is exempted from the
provisions of the Air Conditioning Contractor License Law, article
8861, V.T.C.S. We conclude that licensed plumbers are exempted from
the provisions of article 8861 to the extent that plumbing services
fall within the definitions of air conditioning contracting or air
conditioning maintenance work. The extent to which plumbing services
constitute air conditioning contracting or maintenance work is a fact
question which cannot be answered in an Attorney General's Opinion.
Article 8861. V.T.C.S., governs the licensure and regulation of
air conditioning contractors. It establishes two classes of air
conditioning contractor licenses, section 4(a). and empowers the
commissioner of the Texas Department of Labor and Standards to adopt
rules for the practice of air conditioning contracting consistent with
the act. V.T.C.S. art. 8861, §3(a). Section 2 of the act defines the
following relevant terms:
Sec. 2. In this Act:
. . . .
(2) 'Air conditioning contractor' means a
person licensed un'der this Act who designs,
installs, constructs, maintains, services,
repairs, alters, or modifies any heating,
ventilating, or air conditioning product, system,
or equipment.
(3) 'Air conditioning contracting' means
designing, installing, constructing, maintaining,
servicing, repairing, altering, or modifying any
heating, ventilating, or air conditioning product,
system, or equipment. The term does not include
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Honorable Rayford A. Ratliff - Page 2 (m-795)
the design, installation, construction, main-
tenance, service, repair, alteration, or modifica-
tion of a portable or self-contained ductless air
conditioning or heating product that has a cooling
capacity of three tons or less or a heating
capacity of 36,000 British thermal units or less.
. . . .
(6) 'Air conditioning maintenance work' means
repair work and all other work required for .the
continued normal performance of a heating,
ventilating, or air conditioning system. The term
does not include the installation of a total
replacement of the system or the installation of
boilers or pressure vessels that must be installed
by licensed persons pursuant to rules and regula-
tions promulgated by the Texas Department of Labor
and Standards under the Texas boiler inspection
law, Chapter 436, Acts of the 45th Legislature,
Regular Session, 1937 (Article 5221c, Vernon's
Texas Civil Statutes).
The act provides a number of exemptions for persons meeting
_ ..
stipulated criteria. The purpose Ot these exemptions 1s dlSCUSSea
later in this opinion. The exemption relevant to your inquiry is
section 6(a)(4) which states "[tlhis Act does not apply to a person
who . . . performs plumbing work and is 'licensed under The Plumbing
License Law (Article 6243-101, Vernon's Texas Civil Statutes)." A
rule promulgated by the Department of Labor and Standards in 1986
attempts to clarify this exemption:
575.8 Exemptions.
(a) The Act and its rules and regulations do
not apply to a person who:
. . . .
(4) performs plumbing work and is licensed
under the Plumbing License Law, Texas Civil
Statutes, 'Article 6243-101. A person licensed
under Texas Civil Statutes, Article 8861, may not
perform or offer or attempt to perform any act,
service, or function that is defined as plumbing
work under the Plumbing License Law, unless
licensed under that law. A person who is licensed
in this state as a plumber, and is engaged in
business as a plumber, may not perform or offer or
attempt to perform air conditioning contracting,
unless licensed under this Act. . . . (Emphasis
added.)
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Honorable Rayford A. Ratliff - Page 3 (JM-795)
11 Tex. Reg. 593 (1986) (amending 16 T.A.C. 575.8(a)(4)). You believe
this rule is in conflict with the exemption provided in section
6(a)(4) of article 8861, as it imposes additional requirements and
places a greater burden on licensed plumbers than the statute does.
Your request presents questions of statutory construction and
administrative rulemaking authority. The cardinal rule of statutory
interpretation is to ascertain legislative intent. Minton v. Frank,
554 S.W.2d 442 (Tex. 1976). If possible, legislative intent is
determined from the language of the statute. Crimmins v. Lowry, 691
S.W.2d 582 (Tex. 1985). The entire statute, and not merely isolated
portions of it, must be examined. State v. Terrell. 588 S.W.2d 784
(Tex. 1979).
If the meaning of a statutory provision is doubtful or ambiguous,
the construction placed thereon by the agency charged with administra-
tion of the statute is given weight. See Calvert v. Kadane, 427
S.W.2d 605 (Tex. 1968). An agency's consi;;ction of a statute is not
controlling, however. Bullock v. Ramada Texas, Inc., 609 S.W.2d 537
(Tex. 1980). It is valid only insofar as it is consistent with
statutory language and will not be allowed the effect of expanding or
contracting the language of the statute. See Firestone Tire and
Rubber Co. v. Bullock, 573 S.W.2d 489, 500 n. (Tex. 1978). Also,
rules and regulations adopted by an administrative agency may not
impose additional burdens, restrictions, or conditions in excess of or
inconsistent with statutory provisions. Bexar County Bail Bond Board
v. Deckard, 604 S.W.2d 214. 216 (Tex. Civ. App. - San Antonio 1980, no
writ).
The language of section 6(a)(4) has inspired two conflicting
interpretations. The first, offered.on behalf of the Department of
Labor and Standards, is premised on the belief that the practice of
plumbing and the practice of air conditioning contracting are separate
and distinct crafts,. each requiring different training, qualifica-
tions, and testing for licensure. The legislature, in apparent
recognition of this belief, chose not to include "plumbing work"
within the definition of air conditioning contracting; therefore,
plumbing work should not be considered a part of the practice of air
conditioning contracting. The act exempts licensed plumbers who
perform "plumbing work" from its coverage. It does not exempt
licensed plumbers who perform "air conditioning contracting." Thus,
it is argued that it is reasonable for the department to require a
licensed plumber to obtain a license to practice air conditioning
contracting. In doing so, the department contends that it is acting
consistently with the legislature's decision to treat plumbing and air
conditioning contracting as mutually exclusive crafts.
You read section 6(a)(4) differently. You contend that the
effect of this provision is to completely remove licensed plumbers
from the reach of article 8861. The State Board of Plumbing Examiners
informs us that many of its licensees agree with your interpretation
of section 6(a)(4). The board notes that plumbers have traditionally
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Honorable Rayford A. Ratliff - Page 4 (JM-795)
installed heating equipment such as floor furnaces, wall heaters,
radiant heaters, and suspended heaters with self-contained blowers.
The suggestion is that the skills required to install heating equip-
ment are comparable to the skills required to install air conditioning
systems. Thus, it is argued, a licensed plumber need not obtain an
air conditioner contractor's license prior to contracting for the
installation or maintenance of air conditioning equipment.
In our opinion, neither interpretation adequately represents
legislative intent. We believe the real meaning of section 6(a)(4)
lies somewhere between the narrow reading offered by the department
and the broad interpretation you advocate.
The department's interpretation of section 6(a)(4) is too
restrictive because it fails to acknowledge the legislature's
conclusion that aspects of the practice of plumbing might also be
considered acts of air conditioning contracting as that term is
defined in article 8861. Clearly, the legislature did not share the
belief that plumbing and air conditioning contracting are mutually
exclusive trades, for if it had, no exception for licensed plumbers
would be necessary. No real purpose would be served by exempting
persons who provide services which are not among the services
regulated by article 8861. In effect, the department's construction
of section 6(a)(4) renders the provision superfluous.
Your reading of section 6(a)(4), however, overestimates the
breadth of the exemption provided for licensed plumbers. If the
legislature had intended to authorize licensed plumbers to perform all
aspects of air conditioning contracting, it could have done so in
express terms. Notably, the other provisions of section 6(e) provide
exemptions for persons who perform "air conditioning work," "air
conditioning maintenance work," or 'air conditioning contracting."
Section 6(a)(4) is the only exception not phrased in these terms. In
order to es'tablishthe proper scope of section 6(a)(4), we must first
determine the meaning of the term "plumbing work." We believe the
source of the phrase is article 6342-101. See L 6 M-Surco Mfg., Inc.
v. Winn Tile Co., 580 S.W.2d 920 (Tex. Civ. App. - Tyler 1979, writ
dism'd) (in construing statutory word or phrase, court may take into
consideration meaning of same or similar language used in another.act
of similar nature); see also Gov't Code 9312.002(b) (word connected
with or used with reference to a particular trade as a word of art
shall have meaning given by experts in the trade).
Neither article 8861 nor article 6342-101 defines 'plumbing
work." The Plumbing License Law does, however, supply the relevant
definition:
Sec. 2. (a) The word or term 'plumbing' as
used in this Act means and shall include: (1)
All piping, fixtures, appurtenances and appliances
for supply or recirculation of water, gas,
liquids, and drainage or elimination of sewage,
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Honorable Rayford A. Ratliff - Page 5 (JM-795)
including disposal systems or any combination
thereof, for all personal or domestic purposes in
and about buildings where a person or persons
live, work or assemble; all piping, fixtures,
appurtenances and appliances outside a building
connecting the building with the source of water,
gas, or other liquid supply, or combinations
thereof, on the premises, or the main in the
street, alley or at the curb; all piping'
fixtures, appurtenances, appliances, drain or
waste pipes carrying waste water or sewage from or
within a building to the sewer service lateral at
the curb or in the street or alley or other
disposal or septic terminal holding private or
domestic sewage; (2) the installation, repair,
service, and maintenance of all piping, fixtures,
appurtenances and appliances in and about
buildings where a person or persons live, work or
assemble, for a supply of gas, water, liquids, or
any combination thereof, or disposal of waste
water or sewage.
V.T.C.S. art. 6342-101, 52(a). We believe that when the legislature
used the term "plumbing work" in article 8861, it had in mind those
services which comprise the practice of plumbing as it is defined in
article 6342-101. Therefore, we conclude that licensed plumbers are
exempted from the provisions of article 8861 to the extent that they
provide plumbing services which1 may also be classified as air
conditioning contracting services.
When the legislature has provided exemptions from the licensing
or registration requirements of regulatory statutes, this office has
consistently construed these exemptions narrowly. As a general rule,
such exemptions are construed to permit only acts which may be
performed within the terms of the particular exemption or within the
1. This conclusion only affects licensed plumbers who are not
regulated by municipalities. Article 8861 does not require all
persons engaged in the business of air conditioning contracting to
obtain a license from the department. Section 8 of the act provides
that the penalty for persons who engage in air conditioning
contracting without a license issued under the act is not applicable
to persons who hold licenses issued by municipalities. Section 9
states that a license issued by a municipality is valid under the
terms of the license within that municipality. Therefore, any person
(including a licensed plumber) providing air conditioning contracting
or maintenance services may avoid the licensing and penalty provisions
of article 8861 by obtaining a license from a municipality and
providing such services only within that municipality.
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Honorable Rayford A. Latliff - Page 6 (X-795)
scope of the act under which the exempted individuals are already
regulated. For example, in Attorney General Opinion R-814 (1976) this
office concluded that members of the professions exempted from article
249c, V.T.C.S. (regulating landscape architects), need not comply with
the provisions of the act while engaged within the ordinary and proper
scope of their respective professions, even though their activities
might Include some aspect of landscape architecture. The attorney
general reasoned that the primary purpose of article 249~ was to
protect the public and determined that it would be inconsistent with
that purpose to permit a person whose familiarity with the subject of
landscape architecture might only be peripheral to hold himself out to
the public as competent in all aspects of that profession. In
Attorney General Opinion W-384 (1981) it was said that although
persons employed in industry as engineers are exempted from the
licensing requirements of the Engineering Practice Act, article 3271a,
V.T.C.S., they are not entirely exempted from the scope of the act.
The exemption under consideration was provided for persons who do not
have "final authority for the approval of, and the ultimate
responsibility for, engineering designs, plans or specifications."
V.T.C.S. art. 3271a. $20(g). Thus, it could not be viewed as
authorizing such persons to practice engineering. Attorney General
Opinion MW-555 (1982) observed that persons holding a master's degree
or doctorate in audiology are exempted from the examination and
licensing provisions of article 4566, V.T.C.S., to the extent that
they perform the functions enumerated in the exemption, article
4566-1.19(3), V.T.C.S. The functions described in article
4566-1.19(3) comprised part of the services defined in article
4566-1.01(f) as "[flitting and [dlispensing hearing aids." The
opinion concluded that persons with such credentials were not exempt
from the provisions of article 4566 if they performed any of the other
services set forth in article 4566-1.01(f). In Attorney General
Opinion MU-410 (1981). an exception provided in the Texas Pharmacy
Act, article 4542a-1, V.T.C.S., for medical or veterinary
practitioners who dispense prescription drugs to their own patients
was narrowly interpreted. It was determined that practitioners who
exceeded the terms of the exception would be required to obtain a
pharmacist's license.
In view of these authorities, it is reasonable to conclude that
section 6(a)(4) of article 8861 authorizes licensed plumbers to
provide only those services described in article 6342-101 which may
incidentally be characterized as services coming within the defini-
tions20f air conditioning contracting or air conditioning maintenance
work. The extent to which plumbing services constitute air condi-
tioning contracting or maintenance work is a question of fact that
cannot be resolved in the opinion process. See Attorney General
Opinion NOS. m-217 (1984); R-495 (1975). To the-tent that plumbing
2. -See note 1, supra.
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Honorable Rayford A. Ratliff - Page 7 (JM-795)
services constitute air conditioning contracting or maintenance work,
:he Department of Labor and Standards is without authority to
promulsate a rule nrohibitinn licensed slumbers from serformins such
. I
services. See Bexar County Bail Bond Board v. Deckard, supray cf.
Attorney General Opinion H-495 (1975).
SUMMARY
Article 8861, section 6(a)(4), V.T.C.S..
exempts licensed plumbers from the provisions of
article 8861 only to the extent that plumbing
services constitute services comprising the
definitions of air conditioning contracting or air
conditioning maintenance work. The extent to
which plumbing services constitute air condi-
tioning contracting or maintenance work is a
question of fact that cannot be resolved in the
opinion process. To the extent that plumbing
services constitute air conditioning contracting
or ~maintenance work, the Department of Labor and
Standards is without authority to promulgate a
rule which prohibits licensed plumbers from
performing such services.
JIM MATTOX
Attorney General of Texas
UARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
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