                   July 24, 1951

Hon. C. E. Belk, Administrator
Texas State Board of Plumbing
  Examiners
Austin, Texas           opinion   NO.   v-1217

                       Re: Authority of the Board of
                           Plumbing Examiners to adopt
                           a rule that failure of plumb-
                           ers to comply with city or-
                           dinances requiring Indemnity
                           bonds will not subject such
                           plumbers to State license
Dear Sir:                  revocation.
          Your recent letter asks our opinion on the val-
idlty of certain municipal requirements that plumbers
post indemnity bonds before,engagingin specified plumb-
ing uork. You ask further whether a rule by the Texas
State Board of Plumbing Examiners declaring that plumb-
ers’ licenses will not be revoked by it for violation
of these municipal requirementsand that plumbers need
not comply with these requirementsis within the Board's
authority and would have the legal effect of nullifying
the municipal requirements.
          The requirementsare of two types as set out
In your letter. One type requires plumbers to post a
bond before engaging In the business of plumbing, pay-
able to the city for damage to Its streets, sewers,
water works, etc., caused by the work, and to any prop-
erty owner for whom the plumber might do plumbing work
for damage to the owners' property caused by Improper
work. The second type requires a similar bond before
dolng a particular plumbing job. Some cities allow,
but do not require, the filing of a blanket bond, cover-
ing all jobs executed by the plumber in lieu of separate
bonds for each job.
          Article 6243-101, V.C.S., is officially desig-
nated as "The Plumbing License Law of 1947." It is a
comprehensivelaw providing for the regulation of plumb-
ing. It establishesa State plumbers' licensing system
to be administeredgenerallyby the Texas State Board of
                                                        ".,
Hon. C. E. Belk, page 2   (V-1217)


Plumbing Examiners and provides for certain municipal
,regulationof plumbing activities. Its provisions
apply to "plumbing"and various classes of plumbers
and plumbing inspectorsas defined In the law. A
State license Is required of all plumbers who engage
in "plumbing,"as defined, as a business. It pro-
vides generally for the regulation of plumbing ac-
tivities and its provisions togetherwith other State
statutes as were not reDealed on its enactment are.
therefore,exclusive on-the subject. Massachusetts
Bonding & Icaurance Company v. McKs 'im
'(Tex.Cl,v.App. 1928 error ref.). ipeclfic provl-
slons of Article 6241-101, pertinent to your inquiry,
are:
          “Sec. 5.   . . . The Board shall form-
     ally elect a chairman and a secretary-
     treasurer from Its members and may adopt
     such rules as It deems necessaryfor the,
     orderly conduct of Its affairs. . . .
     The Board i&hereby authorized,empowered
     and dlrected~toprescribe,amend and en-
     force rules, and regulations consistent
     with this Act for the examinationand ll-
     censlng of master and journeymenplumbers
     and plumbing inspectors, . . ."
          "sec. 8.. The Board shall Issue ll-
     tenses to such persons of good moral
     character,as have by a uniform, reason-
     able examination shown themselvesfit,
     competentand qualified to engage in the
     business, trade or calling of a master
     plumber or journeymanplumber, or plumb-
     lng Inspector, as the case may ,be.
          “Sec. 9.  The Board shall have power
     to revoke any license Issued hereunder If
     the same was obtained through error or
     fraud, or if the recipient thereof is
     shown to be Incompetentor shall have      .
     ullfully, negligentlyor arbitrarilyvlo-
     lated municipal rules or ordinancesregu-
     lating sanitation,drainage and plumbing;
     . . .
          "Sec. 12. Liceos'esissued by the
     Board shall be valid throughout the
     state, but shall not be assignable or
    ,’
J

         Hon. C. E. Belk, page 3   (V-1217)


             transferable. The Board shall forward to
             the local Board of Health, if there be one,
             of each town, or to the other authority
             having control of the enforcementof regu-
             lations relative to plumbing In each town,
             the names and addresses of all persons In
             such town to whom such licenses have been
             granted. . . ."
                   "Sec. 15. Every city In this state
              of more than five thousand (5,000) lnhab-
              itants shall, and any city or town of this
              state may, by ordinance or by-law, prescribe
              rules and regulationsfor the materials,
              construction,alteration and Inspection of
              all pipes, faucets, tanks, valves and other
              fixtures by and through which a supply of
              water, gas or sewage is used or carried;
              and provided that they shall not be placed
              in any building therein except In accordance
              with such rules and regulations;and shall
              further provide that no plumbing shall be
              done except in case of repairing of leaks,
              without a permit being first issued there-
              for upon such terms anU conditionsas such
              city or town shall prescribe; provided that
              no such ordinance,by-law, rule or regula-
              tion prescribed by any such city or town
              shall be inconsistentwith this-Act, or any
              rule or regulation adopted or prescribed by
              the State Board of Plumbing Examiners."
                   Since the Board Is, by the whole tenor of the
         law, charged with the exclusive jurisdictionover the
         'licensing"of plumbers, any municipal regulationswhich
         conflict with the Board's responslbllltlesand its regu-
         lations pertinent thereto are Invalid under the terms
         of Section 15.
                   It is our opinion, however, that a city may
         require a bond under Its authority to prescribe the
         terms and conditionsfor the granting of a "permit"
         under the terms of Section 15, and that the Board has
         no jurisdictionover that subject matter.
                   The Board's responslbilitlesdeal primarily
         with the personal fitness and skill of Individual
         plumbers. The "license"which It grants and Its au-
         thority to promulgate rules respecting the licensing
 Hon. C. E. Belk, page 4   (V-1217)


 of plumbers are Intended to cover the subject of skill
 and 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. Section 15 of the Plumbing License Law re-
 serves to municipalitiesthe power to prescribe the
 manner in which plumbing is to be Installed,the type
 and quality of material to be used,.and generally the
 manner in which the work is to be done. The law is
 not Intended to limit the power of a city to exact
 "terms and ~conditlons"for the Issuance of a permit
 whFch s.redesigned to guarantee compliancewith its
 rules and regulationsIn the field reserved to it.
             The posting of a reasonable bond to indem-
  nify the municipalityor those engaging the plumber
  for damages caused by Improper Installationwork Is
  .arequirementgenerally conceded to be within the au-
  thority of a city In the absence of statutoryrestrlc-
  tion. 9 McQulllln on Municipal Corporatlons (3rd Ed.
  1950) 155.   It is reasonable to conclude that Section
  15 of the Plumbing License Law authorizes cities to
  require bonds for the observance of its regulations
  In the field over which it has supervision. These
  regulationshave no direct relation to the personal
  fitness and skill of the Individual plumber. It thus
  appears that a proper bond requirement is beyond the
  authorlty of the Board to prohibit and that such a re-
  quirement by a city Is valid. However, we are of the
  opinion that the conditions of the bond required by a
  city must be confined to the field over which It has
. supervlsion. If a city undertakes to exact conditions
  In the bond which pertain to the plumber's skill and
  fitness, to that extent the requirementswould be ln-
  consistentwith the Plumbing License Law.
           Since cities may require a bond as a condl-
 tlon to the granting of a permit, ve see no reason why
 they may not allow the filing of a blanket bond cover-
 ing all jobs done under permits. This Is merely per-
 missive and cannot, therefore,~be considered as an
 extension of its powers.
            However, since the authority to require a
  bond can be based only on the provisions of Sectlon
  15, the requirementmay be made only as a condition
  to the granting of a specific "permit." Munlclpalltles
  are not granted authority to regulate plumbing generally
  but only in the manner Set out in Section 15 as to spe-
  cific work done in the city. A city,may not, therefore,
  require a bond as a condition to doing a plumbing business.
Hon. C. E. Belk, page 5   (V-1217)


                      SUMMARY


          "The Plumbing License Law of 1947"
      (Article6243-101, V.C.S.) authorizes  a
     municipal requirement that plumbers post
     a reasonable indemnity bond as a condi-
     tion to the granting of a permit to do
     particular plumbing jobs within the cor-
     porate limits of a city or town. The
     munlci.;jalltymay allow the filing of a
     blanket bond covering all permits granted.
     However, It may not require a bond as a
     condition to doing a general plumbing
     business. The Texas State Board of Plumb-
     ing Examiners has no jurisdictionto adopt
     rules and regulations dealing with the re-
     quirements of municipalitiesfor Indemnity
     bonds of plumbers required by cities under
     Section 15 of the Act.

APPROVED:                       Yours very truly,
                                  PRICE DANIFL
                                Attorney General
Jesse P. Luton, Jr.
Reviewing Assistant
                                ,%4S%&2&
Charles D. Mathews                  Ned McDa<lel
First Assistant                        Assistant

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