Case Information
*1 The Attome!!, General of Texas Octsber 12, 1984 JIM MATTOX
Attorney General Opinion No. JR-210 Mr. Lynn Brown, Adwnistrator
Supreme CarI Bullding Teraa State Board ofi Plumbing P. 0. Box 1254a Re: Authority of a municipality Examiners A”,!,“. TX. 78711.254Q 512l47525m to impose a registration fee on P. 0. Box 4200 Telex 9101874.13S7 78:‘tiS plumbers Austin, Texas Telecopier 5121475-0268 Dear Mr. Brown:
714 Jackson. suite 700 Dallas. TX. 75202.4505
You have informed this office that several in Texas have 2141742.8944 passed city ordinances requiring persons licensed as plumbers to pay a
“registration fee” to engaging practice of plumbi>; in that city. In connection vith this, you have 4824 A,bwta Ave.. BUite 180 asked this office zlie following questions: El Paso. TX. 79QC62793 915/53534S4
1. DC, such registration fees constitute a form of, licen sure? 1 Texas. Suite 700 “couston, 7X. 77002-3111 2. Are fees ‘occupation 71~2235886 taxes, ’ as aet forth in Attorney General Opinion V-428 (1 &i7)? 806 Broadway. Suite 312 Lubbock. 7X. 7Q401.3479. 3. Acs the registration fees a valid require-
QOSi747-5235 ment in Light of the Plumbing License Law, article 6243-101, V.T.C.S.? 43oQ N. Tenth. Suite 8 McAlm. TX. 78501.1685 In order for such a fee to constitute a &censure, it must confer 5121882.4547 a right to a deserving that would be denied to all others. See Cit of Fort Worth v. Gulf Refining Co., 83 S.W.2d 610, 617 (Tex.
200 Win Plaza, Suite 4W m5*- icense will allow a parson to practice a trade which SPY &ntonio. TX. 782Q5-2797 he could not practi:e without such a license. See Aoefling v. City of 51212254191 San Antonio, 20 S.il. 85. 87 (Tex. 1892). For such a fee to constitute
an occupation tax,, hovever. it must be levied primarily purpose of raising; revenue. See City of Fort Worth v. Gulf Refining 5. supra; Attorney General O-ion V-428 (1947). tt,e answers to your first two questions depend upon
whether these ordinances confer an occupational right to an individual vho wants to engage in the profession of plumbing, or whether these ordinances are revenue raising devices. You have supplied this office tvo ordinanccz from cities in Texas: one provides for a regis- tration fee for plumbing contractors; the other provides that an organization consisting licensed plumbers who vish to do business must first registl!:: vith the city. Although both ordinances charge *2 . ’ I Nr. Lynn grovn - Page 2 (JM-210)
small fees registratiorl, ve are of the that this is for See City of Fort Worth v. Gulf Refining i~terial our findings. We conclude, t,txfore, these ordinances are, in co., D. that affect, licensing feea.
Article 6243-101, V.T.C.S.. (“Plumbing License Lav”) vas enacted .in 1947. Thia act created tlw State Board of Plumbing Examiners, thus
taking avay much of the authority to regulate the plumbing occupation See Attorney General Opinion V-549 (1948). The Texas from cities.
State Board of-&mbing Rxa~sIiners is the sole licensing agency for plumbers, thereby excluding this authority from all municipalities. Because the board
Attorney General Opinion V-428 (1947). has exclusive jurisdiction over t:he licensing of plumbers, any municipal regulations conflict vlth the board’s responsibilities are invalid under section 15 of the Plumbing Licensing Lav. Attorney General Opinions V-1217 (1951); V-720 (1948); V-333 (1947). See also Attorney General Opinion MW-.jIi5 (1982).
This office has previowly considered a problem similar to this question. Attorney General 0pinion V-1217 (1951) dealt with several municipal requirements that required plumbers to post indemnity bonds before engaging in speciflecl plumbing vork. One such ordinance, example, required plumbers ‘:o post a bond before that plumber could engage in his profession. ‘Pa+ opinion made the following observation:
The Board’s respou:~ibilitles deal primarily with the personal fitness and skill of
plumbers. The ’ 11 c.ense’ vhlch it grants and its authority to prc,sulgate rules respecting
licensing of plumblrrs are Intended to cover subject of skill z.r:d personal fitness of plumbers and matters incidental thereto. Cities may not invade that field, Neither may the Board invade the field reserved for municipal regulation.
The opinion vent on conclude that a city may require a bond under its authority to prescribe t’le terms and conditions for the granting of a “permit” under the terms of Section 15, and that the Board has no jurisdiction over that subjc!ct matter. The distinction betveen tvo statements is clear: the Board may regulate the plumbing occupation its licensing procedures; a city may only regulate certain specific acts of ploobers, as set forth in sectjon 15 of the Plumbers License Lx See Attorney General Opinion V-549 (1948). See also Attorney General~ir:ion V-720 (1948). e However, plumbing organisat 1 ,ns to register the city before engaging in the business of plumbing. For example, home rule cities may “license any lawful business, occupation or calling that is susceptible to the contra:. the police power.” V.T.C.S. art.
1175.23. This includes the business of plumbing. See Trevitt v. City of Dallas, 242 S.W. 1073, lC177-78 (Tex. Civ. App.?Dallas 1922, no writ).
Mr. Lynn Brown - Page 3 (JW:!lO) la our that ordinances vhich regulate the it
profesaion or occupation of plumbing infringe upon a function conferred solely to the Texas State Board of Plumbing Exaninera by the Plumbing License Lav and are invalid. Hovever , ordinances the registration of plumbing buainesacs ~precedent to engaging in the profession are valid.
SUMMARY A municipal ortitnance vhich purports confer an occupational ri.I;ht to an individual. and is not designed for the sole purpose of raising revenue, is a license fee. A municipal ordinance vhich regulates the profession or occupation of plumbing infringes upon a function conferred solely
Texas State Boar’i of Plumbing Examiners by the Plumbing License Law. article 6243-101, V.T.C.S., and is invalid. itn ordinance vhich requires of a plumbing business as a condition to enga:g:lng in the profession is valid. -JIM M A- T T 0 X Attoruey General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICEARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION CCWITTEE
Rick Gilpln. Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton