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Texas Register Preamble


A person representing the Building Officials Association of Texas (BOAT) with approximately 285 members, provided comments opposed to the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B). BOAT commented that the requirement is more restrictive than HB 217. BOAT believes that HB 217 allows a political subdivision to pay a company and does not require that the individual plumbing inspector to be paid directly by the political subdivision.

A person representing the City of Fort Worth presented comments opposed to the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B). The City of Fort Worth recognizes that HB 217 states that a political subdivision "may contract with any plumbing inspector paid directly by the political subdivision," but believes that the use of the word "may" implies that the language is permissive regarding direct payment and allows a political subdivision to contract with a plumbing inspector who is not paid directly by the political subdivision. The City of Fort Worth believes that because the definition of "Plumbing Inspector" in Section 2(5) of the Plumbing License Law does not define how a plumbing inspector is to be paid, the Board's proposed definition goes beyond the meaning of HB 217 and the Board should not define "Paid Directly." The City of Fort Worth believes that instead, if requested by a political subdivision, the Board should approve contracts between plumbing inspectors and political subdivisions which provide for alternate payment arrangements, other than the plumbing inspector being paid directly by the political subdivision.

A person representing the Texas Municipal League (TML) and the Texas City Attorney's Association (TCAA) provided comments opposed to the requirement that the individual plumbing inspector be paid directly by the political subdivision. This requirement is stated in rule Section 365.1(4)(B). TML provides legal, legislative and education services to its 1062 member cities. TCAA, a TML affiliate, claims a membership of approximately 570 lawyers who serve as attorneys for Texas cities. TML and TCAA believe that the proposed rule will effectively prohibit a political subdivision from contracting with plumbing inspection companies. TML and TCAA believes that the Board's rules should not address direct payment of plumbing inspectors and should provide for plumbing inspections to be performed by plumbing inspection companies (firms) in the same manner that the Texas Natural Resource Conservation Commission provides for operation of wastewater treatment facilities or collection systems. TML and TCAA believe that the Board should require plumbing inspection companies to obtain a certificate of registration issued by the Board demonstrating that the company employs licensed plumbing inspectors. TML and TCAA suggest that such certificate of registration would be subject to revocation by the Board. TML and TCAA recognizes that HB 217 states that a political subdivision "may contract with any plumbing inspector paid directly by the political subdivision," but asserts that proper interpretation under Chapters 311 and 312 of the Government Code, would be that "any plumbing inspector" could mean "company." TML and TCAA further asserts that proper interpretation of the term "person" could mean "company" (Section 2(5) of the Plumbing License Law uses the term "person" to define "Plumbing Inspector"]. TML and TCAA also oppose rule Sections 365.1(4)(D) and Section 365.1(4)(E), and believe that the Board should allow plumbing inspectors to perform plumbing inspections and renew their license without providing proof to the Board that are employed by or have contracted with a political subdivision.

Upon passage of the laws, by the 77th Legislature, affecting and amending the Plumbing License Law, the Board consulted with its attorney, an Assistant Attorney General, regarding the Board's interpretation of the new legislation. In proposing the new rules and rule amendments, in response to the requirements of the new legislation, the Board was advised by its attorney regarding the necessity of the Board to abide by the new legislation and the its authority to adopt the proposed rules.

The Board disagrees with the recommendations of those that submitted comments opposed to the proposed rules relating to the proposed definition of "Paid Directly," in Section 361.1(33), for the following reasons:

HB 217 and HB 1505 define a "Plumbing Inspector" and state that a political subdivision ". . . may contract with any plumbing inspector paid directly by the political subdivision." (Emphasis added). The Board believes that this use of the word "may" is permissive only in allowing a political subdivision to choose to contract with or employ a plumbing inspector. The language is not permissive in allowing a political subdivision to choose whether or not to pay a plumbing inspector directly.

"Plumbing Inspector" is defined as " . . . any person who is employed by a political subdivision, or who contracts as an independent contractor with a political subdivision, for the purpose of inspecting plumbing work and installations in connection with health and safety laws, ordinances, and plumbing and gas codes, who has successfully fulfilled the examinations and requirements of the Board." (Emphasis added). In this context, the Board interprets the term "person" to mean "individual." Some of the arguments made against the Board's interpretation of "person" refer to the Code Construction Act passed in 1985. The Board's attorney has advised the Board that the Plumbing License Law (Article 6243-101) is not a "Code", or any part of any "Code" enacted by the "60th or subsequent Legislature as part of the state's continuing statutory revision program" [See Section 311.002(1) of the Texas Government Code known as the "Code Construction Act"]. Any amendments to the Plumbing License Law are not an "amendment, repeal, revision and reenactment of a code or code provision" [Section 311.002(2)]. The Code Construction Act is not applicable to the Plumbing License Law or any amendment thereto.

Furthermore, even if it be assumed that the Code Construction Act applies, Section 311.003 expressly provides that the "rules provided in this chapter are not exclusive." The Section of the Code Construction Act which contains the definition "Person" is Section 311.005(2), which begins with the following language: "The following definitions apply unless the statute or context in which the word or phrase is used requires a different definition." (Emphasis added.)

When interpreting the meaning and intent of the Plumbing License Law, one must consider the context in which "person" is used throughout the entire statute. The term "person," is also used in Section 2 of the Plumbing License Law to define a "Master Plumber," "Journeyman Plumber," "Tradesman Plumber-Limited Licensee," "Water Supply Protection Specialist," "Residential Utilities Installer," "Drain Cleaner," "Drain Cleaner-Restricted Registrant" and "Plumber's Apprentice." The law requires Master Plumbers, Journeyman Plumbers, Tradesman Plumber-Limited Licensees, Water Supply Protection Specialists (WSPS) and Plumbing Inspectors to meet Board requirements, pass an examination administered by the Board and hold a license (or endorsement to a license in the case of a WSPS) issued by the Board. From the time when the 50th Legislature passed the Plumbing License Law in 1947, to date, all Board requirements for examination may only be met by individuals who desire to take an examination and hold a license or endorsement. None of the examination requirements prescribed by either the Board or the statute are such that could be met by companies or corporations. Companies, corporations, etc., may not take any examination administered by the Board. Only individuals may sit for an examination. The Board has authority to issue a license or license endorsement only to individuals and has no authority to license companies, corporations, etc. If one is to conclude that the term "person," as used in the Plumbing License Law, may include a company or corporation, then one must also conclude that a Plumber's Apprentice may be a company or corporation, as well as a Drain Cleaner-Restricted Registrant, Journeyman Plumber, and so on. The term "person" is also used in Section 4(a) and Section 4(b) of the Plumbing License Law to describe Board Members appointed by the Governor. The Governor appoints only individuals as members of the Board, and not companies, corporations, etc.

To further support this interpretation, Section 14(a) of the Plumbing License Law states, " . . . It shall be unlawful for any person, firm, or corporation to engage in or work at the business of installing plumbing and doing plumbing work except as specifically herein provided unless such installation of plumbing or plumbing work be under the supervision and control of a plumber licensed under this Act." (Emphasis added). Had the Legislature intended for the word "person," as it is used throughout the Act, to also mean a company, corporation, firm, etc., it would have been unnecessary and useless to include the terms "firm or corporation" in Section 14(a).

Arguments against the Board's interpretation of "person," as it is used in the Plumbing License Law have referred to the Board's definition of "person" as the term is used in the Board's rules. The Board has defined "Person" in Section 361.1(34) as "For the purposes of these Rules only, a person means an individual, partnership, corporation, limited liability company, association, governmental subdivision or public or private organization of any character other than an agency." (Emphasis added). The Board used this definition only to clarify what the term "person" means in regards to the Board's rule defining "Plumbing Company." The Board has defined "Plumbing Company" in Section 361.1(38), to mean "A person, as defined in these Rules, who engages in the plumbing business." (Emphasis added). Within its definition, the Board has clarified that it has defined the term "person" as it is used only in the Board's rules and not as it is used in the Plumbing License Law.

The Board has been advised by its legal counsel that the Board's definition of "Paid Directly" is not more restrictive than HB 217 sets forth, but simply helps to clarify that a plumbing inspector, whether as an employee of a political subdivision or an independent contractor with a political subdivision, is an individual who must be paid directly by the political subdivision, as required by HB 217. The Board's definition of "Paid Directly" does not specify what an individual plumbing inspector must do with his or her payment, once it is received directly from the political subdivision. The definition does not prohibit an individual plumbing inspector from being employed by a company or corporation, nor does it prohibit a company or corporation from providing any benefit that it wishes to any of its employees. The definition does not prohibit a political subdivision from contracting with or employing as many plumbing inspectors as the political subdivision wishes.

The Board and the plumbing industry have, since 1947, interpreted "person," as it is used in context throughout the Plumbing License Law to only mean "individual." The Board believes that this interpretation is correct.

The Board disagrees with the recommendations of those that submitted comments opposed to the rules which require plumbing inspectors to submit proof to the Board that the individual is employed by or contracted with a political subdivision, prior to performing plumbing inspections, for the following reasons:

Section 2(5) of the Plumbing License Law defines a "Plumbing Inspector" as a person ". . . who is employed by a political subdivision, or who contracts as an independent contractor with a political subdivision, for the purpose of inspecting plumbing work and installations . . .." Clearly under Section 2(5), employment by a political subdivision or contract as an independent contractor with a political subdivision is a requirement for licensed plumbing inspectors. Historically, prior to the passage of HB 217 which allowed a plumbing inspector to contract with a political subdivision, the Board has required proof of employment by a political subdivision in order for an individual to renew a plumbing inspector license. The rules requiring such proof have simply been amended to allow for the passage of HB 217, which allows a plumbing inspector to contract with a political subdivision.

STATUTORY AUTHORITY: The amendments are adopted in accordance with HB 217 are adopted under Section 3 (Section 5B, Article 6243-101, V.T.C.S; and in accordance with HB 1505 are adopted under Section 5 (Section 5, Article 6243-101, V.T.C.S.), Section 11 (Section 8C, Article 6243-101, V.T.C.S), Section 14 (Section 12, Article 6243-101, V.T.C.S), and Section 24 which authorizes, empowers and directs the Board to prescribe, amend and enforce all rules and regulations necessary to carry out the Act.



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