Untitled Texas Attorney General Opinion ( 2012 )

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ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 18,2012
Mr. Douglas E. Oldmixon Opinion No. GA-0932
Administrator
Texas Real Estate Commission Re: Whether section 1102.114 of the Texas Occupations
Post Office Box 12188 Code, which requires licensed real estate inspectors to
Austin, Texas 78711-2188 carry liability insurance, would be effective if no such
coverage were available (RQ-lO 15-GA)
Dear Mr. Oldmixon:
You ask two questions about sections 1102.114(3) and 11 02.203(a) of the Texas Occupations
Code. l Section 1102.114(3) requires the Texas Real Estate Commission to issue a real estate
inspector's license to an applicant who, among other things, "offers proof that the applicant carries
liability insurance ... to protect the public." TEX. OCC. CODE ANN. § 1102.114(3) (West 2012).
Section 1102.203(a) provides that a "person may renew an unexpired license by ... providing proof
of liability insurance as required by Section 1102.114(3)." [d. § 1102.203(a). You explain that
"there appear to be sufficient providers of [such coverage] in Texas today," but "a concern exists that
there may not be access to such coverage in the future." Request Letter at 1.
Your first question is, "Would the insurance described above still be required if every
insurance provider left the Texas market and no policy was available to satisfy the requirements of
Sections 1102.114 and 1102.203(a) ... ?" [d. at 2. We begin our answer by reviewing the plain and
common meaning of the statute's text. State v. K.E.W., 315 S.W.3d 16,21 (Tex. 2010). Section
1102.203(a) states that an applicant is "required" to carry the insurance that section "1102.114(3)"
describes. TEX. Occ. CODE ANN. § 1102.203(a) (West 2012). We neither found nor received
briefing purporting to find any statutory language or Texas court decisions that would exempt an
applicant from carrying such insurance if it were unavailable. Therefore, sections 1102.114(3) and
1102.203(a) require an applicant for a real estate inspector's license to carry the insurance that
section 1102.114(3) describes even if such insurance were unavailable. See Brown v. Mem'/ Vilis.
Water Auth., 361 S.W.2d 453, 455 (Tex. Civ. App.-Houston 1962, writ ref'd n.r.e.) ("In
[Letter from Douglas E. Oldmixon, Adm'r, Tex. Real Estate Comm'n, to the Honorable Greg Abbott, Tex. Att'y
Gen . at 2 (Oct. 11,2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").
Mr. Douglas E. Oldmixon - Page 2 (GA-0932)
determining the legislative intent it is to be presumed the Legislature was acquainted with the
conditions affecting the area to be affected by the legislation.,,).2
Your second question is, "Does the Commission have the discretion to waive this
requirement if no such insurance coverage is available in Texas?" Request Letter at 2. We begin
our answer by noting that a state agency like the Commission has only those powers that the
Legislature expressly grants it, along with implied powers that are reasonably necessary to exercise
the expressly granted powers. Pub. Util. Comm 'n of Tex. v. City Pub. Servo Rd. of San Antonio,
53 S.W.3d 310,315 (Tex. 2001). We neither found nor received briefing purporting to find a statute
expressly granting the Commission discretion to waive the section 1102.114(3) insurance
requirement. Instead, we found a statute granting the Commission discretion to "waive any license
requirement for an applicant who holds a license from another state having license requirements
substantially equivalent to those ofthis state." TEX. Gee. CODE ANN. § 1102.112 (West 2012). This
specific grant of authority to waive certain license requirements indicates that the Legislature has not
impliedly granted the Commission discretion to waive other license requirements, such as the section
1102.114(3) insurance requirement. See Jones V. Liberty Mut. Ins. Co., 745 S.W.2d 901,902 (Tex.
1988) (explaining that the Legislature's naming of one thing generally excludes things not named
and that a court may not add words to a statute that are not implied in the statute's language).
Because the Legislature neither expressly nor impliedly granted the Commission the power to waive
the section 1102.114(3) liability insurance requirement, the Commission lacks discretion to waive
that requirement.
20f course, the Legislature may amend section 1102.114(3) to make the insurance requirement contingent on
the availability of the required insurance. TEX. CONST. art. III, § 1. An opinion of this office, however, cannot. Jd. art.
II, § 1. See also Tex. Att'y Gen. Op. No. GA-0781 (2010) at 3 (explaining that "we will not add words that are not
implicitly contained in the language of a statute") (citing Lee V. City of Houston, 807 S.W.2d 290, 294-95 (Tex. 1991)).
Mr. Douglas E. Oldmixon - Page 3 (GA-0932)
SUMMARY
Sections 1102.114(3) and 1102.203(a) require an applicant for
a real estate inspector's license to carry liability insurance. The Texas
Real Estate Commission lacks authority to waive that requirement.
Very truly yours,
~
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Jason Boatright
Assistant Attorney General, Opinion Committee