   OPPlCE   OF THE   ATTORNEY   GENERllL     STATE   OF TEFXS

   JOHN      CORNYN




                                                       March 8, 1999


Ms. Doretta Conrad                                              Opinion No. JC-0012
Administrator
Texas State Board of Plumbing              Examiners            Re:       Whether section 5B(a) of the Texas
P.O. Box 4200                                                   Plumbing License Law, TEX. REV. CIV. STAT.
Austin, Texas 78765                                             ANN. art. 6243-101 (Vernon           Supp. 1999),
                                                                authorizes the StateBoard ofPlumbing Examiners
                                                                to adopt       plumbing    codes     of statewide
                                                                applicability, and related questions   (RQ-1034)


Dear Ms. Conrad:

         Section 5B(a) ofthe Texas Plumbing License Law (the “Act”), TEX. REV. CIV. STAT.ANN.
art. 6243-101 (VemonSupp.     1999), see id. art. 6243-101,s 1 (entitling act), requires the State Board
ofPlumbing Examiners (the “Board”) to adopt “the Southern Standard Plumbing Code, the Uniform
Plumbing Code, and the National Standard Plumbing Code,” all of which are adopted by private
entities. You ask about the Board’s authority under section 5B to adopt plumbing codes of statewide
applicability and about a municipality’s authority to adopt a code that varies from the codes the
Board has adopted.      We construe section 5B(a) under the presumption of constitutionality           to
incorporate by reference the three listed codes as they existed in 1993, when section 5B was adopted.
Given this construction, we conclude that Attorney General Opinion MW-545 (1982) has been
superseded by the adoption of section 5B and that the Board has authority to adopt statewide
plumbing codes. A municipality need not adopt any of the statewide codes, but it may not adopt a
plumbing code that varies in any material sense from the state standards. Finally, consistent with
our presumption that section 5B(a) is constitutional, we conclude that the Board may not adopt a
code that has been approved by one ofthe three listed entities since section 5B was enacted in 1993.

        We look first at the statute about which you ask. Section 5B of the Act provides                  for the
adoption of plumbing standards:

                  (a) To protect the health and safety of the citizens of this state, the Board
              shall adopt the Southern Standard Plumbing Code, the Uniform Plumbing
              Code, and the National Standard Plumbing Code.

                  (b) In adopting plumbing standards for the proper design, installation, and
              maintenance of a plumbing system, a municipality or an owner of a public
              water system may adopt standards that do not substantially vary with rules
              or laws of this state.
Ms. Doretta Conrad    - Page 3                    (JC-0012)




no pet.). “Statutes are given a construction consistent with constitutional requirements, when
possible, because the legislature is presumed to have intended compliance with [the constitution].”
Proctor, 972 S.W.2d at 735 (quoting Brady v. Fourteenth Court ofAppeals, 795 S.W.2d 712,715
(Tex. 1990)); see also TEX. GOV’T CODE ANN. 5 311.021(l) (Vernon 1998) (stipulating that
legislature intends to comply with state and federal constitutions).

         To render the statute constitutional, we construe section 5B(a) to adopt the Southern Standard
Plumbing Code, the Uniform Plumbing Code, and the National Plumbing Code as they existed at
the time section 5B was adopted.               This construction   avoids an interpretation    that may
unconstitutionally   delegate law-making authority to private entities. Accordingly, revisions to the
three codes made since 1993 are not incorporated into state law. Cf: Exparte Elliott, 973 S.W.2d
at 741 (“The general rule is that when a statute is adopted by a specific descriptive reference, the
adoption takes the statute as it exists at that time       .“).

         With this construction ofsection 5B(a), we consider the questions you ask. You ask whether
the 1993 adoption of section 5B of the Act effectively supersedes Attorney General Opinion MW-
545, which was issued prior to section 5B’s adoption. We conclude that it does. Attorney General
Opinion MW-545 concludes that the Act fails to provide the Board with either express or implied
authority to adopt a plumbing code that governs plumbing work done throughout the state. Tex.
Att’y Gen. Op. No. MW-545 (1982) at 3. Section 5B(a) now provides the Board with express
authority to adopt a plumbing code of statewide applicability.         Given the specific legislative
enactment and our construction of section 5B(a) so as to render it constitutional, however, the
Board’s authority to adopt statewide codes is limited to the 1993 editions of the codes.
Concomitantly, the Board has no discretion to adopt subsequent or other editions of the codes.

         You also suggest alternative constructions of section 5B(b) and ask which is correct: “Does
Section 5B taken as a whole mean that a city must adopt one ofthe three state approved codes in (a)
but then may modify the standards within one of the three approved codes it has adopted so long as
the modifications do not substantially vary with the standard contained in the code, or does Section
5B mean that a city can adopt any plumbing code it chooses so long as the code does not
substantially vary with the rules or laws ofthis state.7” Letter from Gilbert Kissling, Administrator,
Texas State Board of Plumbing Examiners, to Sarah Shirley, Chair, Opinions Division, Office ofthe
Attorney General (Nov. 18, 1997) (on tile with Opinion Committee).

         We conclude that a municipality need not adopt any of the three codes named in section
5B(a). Subsection (b) permits a municipality to “adopt standards that do not substantially vary with
rules or laws of this state.” TEX. REV. CIV. STAT.ANN. art. 6243-lOl, § 5B(b) (Vernon Supp. 1999).
Subsection (b) plainly does not require a municipality to adopt one of the three codes named in
subsection (a).

         On the other hand, municipal standards may not vary “substantially” from the state standards
that are incorporated by reference in section 5B(a). Thus, a municipality has no authority to adopt
plumbing standards that materially differ from the state standards. The ordinary and plain meaning
Ms. Doretta Conrad    - Page 4                    (JC-0012)




of the word “substantial” “encompasses the idea that the thing in question is ‘ample,’ ‘material,’ or
‘considerable’ in degree value, or amount.        .” Burrow v. State, 973 S.W.2d 764, 768 (Tex.
App.-Amarillo    1998, no pet.) (~~~~~~~AME~CANHE~TAGEDICTIONARY 1284). The termdoesnot
permit material variations.      See BLACK’S LAW DICTIONARY 1280 (5th ed. 1979) (defining
“substantial”); see also City of Temple v. Mitchell, 180 S.W.2d 959,962 (Tex. Civ. App.-Austin
1944, no writ) (suggesting that term “substantial” denotes more than a trifle). We are directed
generally to construe statutory terms consistently with their ordinary meaning. See TEX. GOV’T
CODE ANN. 5 312.002(a) (Vernon 1998).

        Whether a particular municipal standard that is not identical to state plumbing standards
varies substantially from that state standard is a question of fact. See Burrow, 973 S.W.2d at 768
(stating that whether     something      is substantial   will “depend upon the circumstances
involved”). Questions of fact cannot be determined in the opinion process. See, e.g., Tex. Att’y
Gen. Op. Nos. DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-2911 (1940) at 2.

         Our construction of section SB(a) obviates the need to answer your final question. You ask
whether, if a private entity that promulgates one of the codes “quits issuing [that] code and binds a
different [unlisted] code under its name,” the Board must adopt the new code. The Board may not
adopt the new code. As we have stated, to preserve section SB(a)‘s constitutionality, we presume
that the section incorporates into state law the codes listed only as they existed in 1993, when section
5B was adopted. Any revisions to the codes that have occurred since 1993, including the one you
particularly describe, consequently are not part of state law.
Ms. Doretta Conrad   - Page 5                     (JC-0012)




                                        SUMMARY

                Section SB(a) of the Texas Plumbing Law, TEX. REV. CIV. STAT. ANN.
           art. 6243-101 (Vernon Supp. 1999), incorporates by reference “the Southern
           Standard Plumbing Code, the Uniform Plumbing Code, and the National
           Standard Plumbing Code” as each existed in 1993, when section 5B was
           adopted. The 1993 adoption of section 5B effectively overrules Attorney
           General Opinion MW-545, which was issued prior to the enactment of
           section 5B.     See Tex. Att’y Gen. Op. No. MW-545 (1982) at 3.
           Consequently, the Texas State Board of Plumbing Examiners has express
           authority under section 5B(a) to adopt a plumbing code of statewide
           applicability.

               A municipality need not adopt any of the three codes named in section
           SB(a). On the other hand, municipal standards may not vary “substantially”
           from the state standards that are incorporated by reference in section 5B(a).
           Whether aparticularmunicipal    standard that is not identical to state plumbing
           standards varies substantially from that state standard is a question of fact.

               Any revisions to the three codes listed in section 5B(a) that have occurred
           since 1993 are not incorporated into state law. Accordingly, the Texas State
           Board of Plumbing Examiners may not adopt post-1993 revisions to the
           codes.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General
