                                The Attome!!, General of Texas
                                                 Octsber   12, 1984
JIM MATTOX
Attorney General


Supreme CarI Bullding
                               Mr. Lynn Brown, Adwnistrator                 Opinion No.    JR-210
P. 0. Box 1254a                Teraa State Board ofi Plumbing
A”,!,“. TX. 78711.254Q            Examiners                                 Re: Authority of a municipality
512l47525m                     P. 0. Box 4200                               to impose a registration  fee on
Telex 9101874.13S7
                               Austin, Texas   78:‘tiS                      plumbers
Telecopier 5121475-0268

                               Dear Mr. Brown:
714 Jackson. suite 700
Dallas. TX. 75202.4505                You have informed this office      that several cities  in Texas have
2141742.8944
                               passed city ordinances requiring persons licensed as plumbers to pay a
                               “registration     fee”    as a condition     precedent   to engaging  in the
4824 A,bwta Ave.. BUite 180    practice    of plumbi>; in that city.      In connection vith this, you have
El Paso. TX. 79QC62793         asked this office     zlie following questions:
915/53534S4
                                              1. DC,such registration       fees   constitute   a form
    1 Texas. Suite 700                    of, licen sure?
 “couston, 7X. 77002-3111
 71~2235886                                  2. Are these     registration fees ‘occupation
                                          taxes, ’ as aet forth in Attorney General Opinion
                                          V-428 (1 &i7)?
 806 Broadway. Suite 312
 Lubbock. 7X. 7Q401.3479.
 QOSi747-5235                                3. Acs the registration   fees a valid require-
                                          ment in Light of the Plumbing License Law, article
                                          6243-101, V.T.C.S.?
 43oQ N. Tenth. Suite 8
 McAlm. TX. 78501.1685
 5121882.4547                        In order for such a fee to constitute       a &censure,   it must confer
                               a right to a deserving individual       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   for the
                               purpose of raising; revenue.       See City of Fort Worth v. Gulf Refining
                               5.   supra; Attorney      General O-ion    V-428 (1947).

                                     Therefore,    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
                               vith tvo ordinanccz       from cities   in Texas:    one provides for a regis-
                               tration    fee for plumbing contractors;          the other provides    that an
                               organization     consisting   of licensed   plumbers who vish to do business
                               must first    registl!:: vith the city.      Although both ordinances     charge



                                                                 p.   947
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Nr. Lynn grovn - Page 2           (JM-210)




small fees       for registratiorl,      ve are of the opinion    that            this   is
i~terial       to our findings.        See City of Fort Worth v. Gulf             Refining
co.,    D.         We conclude,     t,txfore,   that  these ordinances            are,   in
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
  from cities.        See Attorney General Opinion V-549 (1948).                 The Texas
  State Board of-&mbing               Rxa~sIiners is the sole licensing         agency for
  plumbers,     thereby excluding         this authority     from all municipalities.
  Attorney     General      Opinion      V-428    (1947).     Because   the board        has
  exclusive     jurisdiction      over t:he licensing      of plumbers, any municipal
  regulations      vhich     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,     for
 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    individual
              plumbers.    The ’11 c.ense’ vhlch it grants and its
              authority    to prc,sulgate        rules   respecting     the
              licensing   of plumblrrs are Intended to cover the
              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 to 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 these
 tvo    statements      is    clear:      the Board may regulate           the plumbing
 occupation      in 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).       However,    cities     e
 require      plumbing organisat 1 ,ns to register             vith    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:.        of 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).


                                           p.   948
Mr. Lynn Brown - Page 3       (JW:!lO)




       Therefore,   it  la our opinion that ordinances vhich regulate      the
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 vhich
 require   the registration     of plumbing buainesacs        as a condition
~precedent to engaging in the profession       are valid.

                                   SUMMARY

               A municipal    ortitnance vhich purports to 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        to the
           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      the
           registration    of a plumbing business as a condition
           precedent to enga:g:lng in the profession        is valid.




                                             -JIM       M A- T T 0 X
                                                Attoruey General of Texas

 TOMGREEN
 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
