 -' OFFICE   OF THE ATTORNEY   GENERAL.   STATE OF TEXAS
   JOHN CORNYN




                                                  May 23,200l



Mr. Robert L. Maxwell                                      Opinion No. JC-0382
Administrator
Texas State Board of Plumbing         Examiners            Re: Licensed plumbing inspectors and plumbing
929 East 41 st Street                                      inspections performed on behalf of cities (RQ-
Austin, Texas 78765                                        0333-JC)


Dear Mr. Maxwell:

         On behalf of the Texas State Board of Plumbing Examiners (the “Board”), you ask whether
the Plumbing License Law (the “Act”) requires a plumbing inspector for a political subdivision to
be an employee of the political subdivision, or whether a plumbing inspector may be an independent
contractor or a licensed plumbing inspector merely approved by the political subdivision. See TEX.
REV. CIV. STAT. ANN. art. 6243-101 (Vernon Supp. 2001). A plumbing inspector within article
6243- 10 1 must be an employee of the political subdivision and may not be an independent contractor
or a licensed plumbing inspector approved by a political subdivision.

         The Act provides that no one shall engage in the business of plumbing in this state “or serve
as a plumbing inspector as herein defined, except as herein specifically exempted from the
provisions of this Act, unless such person is the holder of a valid license as provided for by this Act.”
Id. 9 14(a). Section S(a) of the Act authorizes the Board to issue licenses to engage in the occupation
of “plumbing inspector,” defined as follows:

                            “Plumbing Inspector” means any person employed by a
                  political subdivision for the purpose of inspecting plumbing work and
                  installations   in connection    with health and safety laws and
                  ordinances, who has no financial or advisory interests in any
                  plumbing      company,   and who has successfully         fulfilled the
                  examinations and requirements of the Board.

Id. 9 2(5) (emphasis     added).

         The Board first asks whether a licensed plumbing inspector would be “employed by a
political subdivision” if there were a contractual relationship between the city or other political
subdivision and the inspector and the contract provides that:
Mr. Robert L. Maxwell          - Page 2                    (JC-0382)




                           a. the Licensed Plumbing Inspector is paid only by the city
                   or other political subdivision and;

                           b. the Licensed Plumbing Inspector is an independent
                  contractor or agent secured by the city or other political subdivision
                  to perform plumbing inspections and enforce the city’s or other
                  political subdivision’s adopted plumbing code.’

         An independent contractor contracts to do a specific job according to his own methods and
without being subject to the control of his employer except as to the result of the work. See Indus.
Indem. Exch. v. Southard, 160 S.W.2d 905,907 (Tex. 1942). He or she conducts an independent
business and furnishes the tools, supplies, and material to perform the job. See id. ; see also
Thompson v. Travelers Indem. Co. of R&789 S.W.2d 277,278-79 (Tex. 1990). The independent
contractor has the right to control the details and progress of the work, except as to the final result.
An employee, in contrast, is subject to the employer’s control as to the progress, details, and methods
of operations of the work. See Thompson, 789 S.W.2d at 278-79. Examples of control normally
exercised by an employer include when and where to begin and stop work, the regularity of hours,
the amount of time spent on particular aspects of the work, the tools and appliances used to perform
the work, and the physical method or manner of accomplishing the end result. See id.

          As your question indicates, article 6243- 101 authorizes local plumbing inspectors to enforce
its provisions.   Section 8B states that “[i]n addition to enforcement by the Board, each plumbing
inspector may enforce this Act.” TEX. REV. CIV. STAT. ANN. art. 6243-101, 8 8B (Vernon Supp.
200 1).2 A “field representative,” who is a Board employee designated by the Board to assist in
enforcing the Act and rules adopted thereunder, may “assist municipal plumbing inspectors in
cooperative enforcement ofthis Act.” Id. 5 8B(b).3 “A field representative or, within the jurisdiction
of that municipality, a municipal plumbing inspector or water district plumbing inspector, may issue
a citation to a person who engages in conduct described by Subsection (e) of Section 9 of this Act.”
Id. 6 14(e). Section 9(e) provides that:

                          A person commits an offense if the person knowingly violates
                  this Act or a rule adopted under this Act, engages in activities for
                  which a license is required without a license issued under this Act, or
                  employs an unlicensed person to engage in activities for which a



         ‘Letter from Robert L. Maxwell, Administrator, Texas State Board of Plumbing Examiners, to Ms. Susan D.
Gusky, Chair, Opinion Committee, Office of the Attorney General, at 2 (Dec. 29, 2000) (on file with Opinion
Committee) [hereinafter Request Letter].

         *Adopted by Act of May 23,1987,7Oth       Leg., R.S., ch. 857, ?J 1,1987 Tex. Gen. Laws 2923.

        3This provision, also codified as subsection   8B, was adopted by Act of May 22,1987,7Oth   Leg., R.S., ch. 620,
3 1,1987 Tex. Gen. Laws 249 1,2492.
Mr. Robert L. Maxwell     - Page 3                (JC-0382)




                license is required by this Act. An offense under this subsection is a
                Class C misdemeanor.

Id. 0 9(e).

         In effect, you ask whether a political subdivision may designate a private contractor to enforce
article 6243- 10 1 and rules promulgated thereunder or whether it may entrust this responsibility only
to a person it employs. Article 6243-101 delegates to a local plumbing inspector appointed by the
governing body of the political subdivision the authority to enforce the Act within the boundaries of
that political subdivision. See also TEX.HEALTH& SAFETYCODEANN. 8 372.0035(h) (Vernon Supp.
2001) (municipal plumbing inspector may issue citation within municipality to person who violates
prohibition on lead in plumbing fixtures or pipes). Thus, the local plumbing inspector assists in
implementing the provisions of a state licensing and regulatory law, enforcing plumbing standards
within the inspector’s jurisdiction and exercising authority to issue citations to persons who engage
in the violations described in section 9(e) of the Act. A plumbing inspector makes decisions that
affect the health and safety of the public and the interests of persons cited for violations of the Act.
See TEX. REV. CIV. STAT. ANN. art. 6243-101, 4 9(e) (Vernon Supp. 2001). We would expect the
person who exercises this essential function to be highly accountable to the political subdivision that
employs him or her, and we accordingly conclude that the “person employed by a political
subdivision for the purpose of inspecting plumbing work and installations” must be an employee of
the political subdivision and not an independent contractor. Id. 8 2(5). The Act requires a “field
representative,” who assists in enforcing the Act, to be an employee of the Board, and it is certainly
consistent with this requirement to conclude that a plumbing inspector who enforces the Act must
also be a public employee.

         Our conclusion that the plumbing inspector must be an employee of the political subdivision
is consistent with the language stating that a “plumbing inspector” is “any person employed by a
political subdivision for the purpose of inspecting plumbing work and installations.”         Id. 4 2(5)
(emphasis added). “Employed” has been defined as: “That is in (another’s) employ.” V OXFORD
ENGLISHDICTIONARY19 l(2d ed. 1989). Other provisions in the Act using the phrase “employed by”
show that it refers to an employee of an entity and not an independent contractor. For example,
“[nlothing in this Act shall require a person employed by apolitical subdivision who, in theperson ‘s
capacity as a public employee, acts as a backflow prevention device specialist” to have a license
endorsement.     TEX. REV. CIV. STAT. ANN. art. 6243-101, 8 11B (Vernon Supp. 2001) (emphasis
added); see id. 8 11A (license endorsement for a water supply protection specialist). Another section
states that “[nlothing in this Act shall require a person employed by a public utility . . . who, in the
course of theperson ‘s employment, acts as a backflow prevention device specialist” to have a license
endorsement. Id. 0 11 C. We conclude that a “plumbing inspector” as defined by the Act must be an
employee of the political subdivision, and may not be an independent contractor or non-employee
agent. See id. 8 2(5).

       You inquire whether certain other non-employees aside from independent contractors may
perform plumbing inspections for a city or other political subdivisions. Because we have determined
Mr. Robert L. Maxwell     - Page 4                (JC-0382)




that a local plumbing inspector must be an employee of the political subdivision, we need not address
these questions about non-employees. You also ask whether a city or other political subdivision may
“delegate its governmental function (authority) to inspect construction work and building components
(plumbing, electrical, air conditioning, etc.) within the jurisdictional limits of the city or political
subdivision, to individuals, companies or corporations which are not employees or agents of the city
or political subdivision,” but are employees of the contractors whose work is being inspected who
are merely “approved” to make plumbing inspections by the city or political subdivision. Request
Letter, supra note 1, at 2. In addition, the fees for the inspections are negotiated with and paid by the
contractors to the individuals, companies, or corporations performing the inspections. See id.

         To the extent that the Act requires the inspections you mention to be made by plumbing
inspectors, our answer to your first question establishes that the inspectors must be employees of the
political subdivision and accordingly, may not be employees of other entities that are merely
“approved” by the political subdivision. You have not referred us to any provision of law other than
the Act, and accordingly, we are unable to determine the legal requirements applicable to inspections
not subject to article 6243-101, Revised Civil Statutes.
Mr. Robert L. Maxwell   - Page 5               (JC-0382)




                                       SUMMARY

                        A plumbing inspector as defined under the Plumbing License
               Law must be an employee of the city or other political subdivision in
               which the plumbing inspector exercises authority. A city or other
               political subdivision may not contract with an independent contractor
               or enlist the services of any other non-employee to perform the duties
               of a local plumbing inspector.

                                             Yo    s very truly,



                                            4QC!-
                                              JOAN     CORNYN
                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee
