                     November 2, 1976




The Honorable A. R. Schwartz        Opinion No. H- 890
Chairman
Jurisprudence Committee             Re: Validity of agreement
State Senate                        between Texas State Board
Austin, Texas  78701                of Plumbing Examiners and
                                    Texas State Board of
                                    Landscape Architects.

Dear Senator Schwartz:

     You have requested our opinion regarding the validity
of an apparent agreement between the Texas State Board of
Plumbing Examiners and the Texas State Board of Landscape
Architects, whereby the two boards agreed not to require
that landscape architects and irrigators making connections
to public water supplies be licensed as plumbers, or that
master plumbers installing sprinkler systems be licensed as
landscape irrigators. You attached to your request documents
promulgated by the Board of Plumbing Examiners and the Board
of Landscape Architects.  The Board of Plumbing Examiners'
unsigned document, dated March 17, 1975, states:

          The Board of Plumbing Examiners will not
          att&pt.to  require that landscape architects
          and irrigators making connections to public
          water supplies have a Plumber's license.
          The Board of Landscape Irrigators [sic], in
          return, will not attempt to require that
          licensed Master plumbers who, incidental to
          their regular business of plumbing, install
          a sprinkler system or irrigation system have
          an Irrigator's license.

The Board of Landscape Architects, in a February 24, 1975
letter to the Board of Plumbing Examiners, declared:


                          p. 3747
The Honorable A. R. Schwartz - page 2   (H-890)



          The Texas State Board of Landscape Architects
          has adopted the following position with
          regard to a Master Plumber installing land-
          scape irrigation systems:

               Anyone who represents himself as a
               Landscape Irrigator and is actively
               engaged in the landscape irrigation
               industry, is required to have the
               Landscape Irrigator license.  If,
               however, a Master Plumber is asked
               to install a sprinkler system, and
               he is not actively in the landscape
               irrigation business and does not
               hold himself out to be a Landscape
               Irrigator, or advertise as such,
               then he is not required to have the
               Landscape Irrigator license.

      We have previously determined that the Board of Landscape
Architects may not authorize its licensees to perform plumbing
acts without a plumbing license. Attorney General Opinion
H-495 (1975). The Board of Landscape Architects sought in
that case to extend its jurisdiction beyond that conferred
by statu~te. In the present situation, the Board of Landscape
Architects and Board of Plumbing Examiners seek to enter into
a reciprocal agreement that each Board will limit the scope
of its jurisdiction by exempting certain unlicensed persons
 (i.e. the other Board's licensees) from the statutory require-
ment of licensing. This abrogation of licensing authority is
impermissible.

             It is well settled that no governmental
          agency can, by contract or otherwise, suspend
          or surrender its functions, nor can it
          legally enter into any contract which will
          embarrass or control its legislative powers
          and duties or which amount to an abdication
          thereof. Nairn v . Bean, 48 S.W.2d 584, 586
          (Tex. Sup.m).




                          p. 3748
The Honorable A. R. Schwartz - page 3    (H-890)



     Accordingly, it is our opinion that the two agencies
were without authority to enter into the purported agreement.
Any new exemptions to the two laws must be created by statutory
amendment rather than by agency regulation. Whether particular
actions constitute "plumbing" or "landscape irrigation" within
the statutory meanings of those terms are questions of fact
which depend on the circumstances of each case. -See Attorney
General Opinion H-495 (1975).

                     SUMMARY

          The purported agreement between the Texas
          State Board of Plumbing Examiners and
          Texas State Board of Landscape Architects
          is invalid insofar as it purports to exempt
          persons performing plumbing acts from the
          statutory requirement of licensing as a
          plumber and persons engaging in landscape
          irrigation from the statutory requirement
          of licensing as a landscape irrigator.

                               Very truly yours,




                                Attorney General of Texas




c. ROBERT HEATH, Chairman
Opinion Committee

jwb



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