Honorable Rayford A. Ratliff Opinion No. JM-795 

Moore County Attorney 

P. 0. Box 634 Re: Whether a person who is licensed 

Dumas, Texas 79029 under the plumbing license law, 

article 6243-101, V.T.C.S., is exempt 

from the provisions of article 8861, 

V.T.C.S. 

Dear Mr. Ratliff: 

You ask whether a person who is licensed under the Plumbing 

License Law, article 6342-101. V.T.C.S;, is exempted from the 

provisions of the Air Conditioning Contractor License Law, article 

8861, V.T.C.S. We conclude that licensed plumbers are exempted from 

the provisions of article 8861 to the extent that plumbing services 

fall within the definitions of air conditioning contracting or air 

conditioning maintenance work. The extent to which plumbing services 

constitute air conditioning contracting or maintenance work is a fact 

question which cannot be answered in an Attorney General's Opinion. 

Article 8861. V.T.C.S., governs the licensure and regulation of 

air conditioning contractors. It establishes two classes of air 

conditioning contractor licenses, section 4(a). and empowers the 

commissioner of the Texas Department of Labor and Standards to adopt 

rules for the practice of air conditioning contracting consistent with 

the act. V.T.C.S. art. 8861, §3(a). Section 2 of the act defines the 

following relevant terms: 

Sec. 2. In this Act: 

. . . . 

(2) 'Air conditioning contractor' means a 

person licensed un'der this Act who designs, 

installs, constructs, maintains, services, 

repairs, alters, or modifies any heating, 

ventilating, or air conditioning product, system, 

or equipment. 

(3) 'Air conditioning contracting' means 

designing, installing, constructing, maintaining, 

servicing, repairing, altering, or modifying any 

heating, ventilating, or air conditioning product, 

system, or equipment. The term does not include 

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Honorable Rayford A. Ratliff - Page 2 (m-795) 

the design, installation, construction, maintenance, service, repair, alteration, or modification of a portable or self-contained ductless air 

conditioning or heating product that has a cooling 

capacity of three tons or less or a heating 

capacity of 36,000 British thermal units or less. 

The 

. . . . 

(6) 'Air conditioning maintenance work' means 

repair work and all other work required for .the 

continued normal performance of a heating, 

ventilating, or air conditioning system. The term 

does not include the installation of a total 

replacement of the system or the installation of 

boilers or pressure vessels that must be installed 

by licensed persons pursuant to rules and regulations promulgated by the Texas Department of Labor 

and Standards under the Texas boiler inspection 

law, Chapter 436, Acts of the 45th Legislature, 

Regular Session, 1937 (Article 5221c, Vernon's 

Texas Civil Statutes). 

act provides a number of exemptions for persons meeting 

_ . . stipulated criteria. The purpose Ot these exemptions 1s dlSCUSSea 

later in this opinion. The exemption relevant to your inquiry is 

section 6(a)(4) which states "[tlhis Act does not apply to a person 

who . . . performs plumbing work and is 'licensed under The Plumbing 

License Law (Article 6243-101, Vernon's Texas Civil Statutes)." A 

rule promulgated by the Department of Labor and Standards in 1986 

attempts to clarify this exemption: 

575.8 Exemptions. 

(a) The Act and its rules and regulations do 

not apply to a person who: 

. . . . 

(4) performs plumbing work and is licensed 

under the Plumbing License Law, Texas Civil 

Statutes, 'Article 6243-101. A person licensed 

under Texas Civil Statutes, Article 8861, may not 

perform or offer or attempt to perform any act, 

service, or function that is defined as plumbing 

work under the Plumbing License Law, unless 

licensed under that law. A person who is licensed 

in this state as a plumber, and is engaged in 

business as a plumber, may not perform or offer or 

attempt to perform air conditioning contracting, 

unless licensed under this Act. . . . (Emphasis 

added.) 

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Honorable Rayford A. Ratliff - Page 3 (JM-795) 

11 Tex. Reg. 593 (1986) (amending 16 T.A.C. 575.8(a)(4)). You believe 

this rule is in conflict with the exemption provided in section 

6(a)(4) of article 8861, as it imposes additional requirements and 

places a greater burden on licensed plumbers than the statute does. 

Your request presents questions of statutory construction and 

administrative rulemaking authority. The cardinal rule of statutory 

interpretation is to ascertain legislative intent. Minton v. Frank, 

554 S.W.2d 442 (Tex. 1976). If possible, legislative intent is 

determined from the language of the statute. Crimmins v. Lowry, 691 

S.W.2d 582 (Tex. 1985). The entire statute, and not merely isolated 

portions of it, must be examined. State v. Terrell. 588 S.W.2d 784 

(Tex. 1979). 

If the meaning of a statutory provision is doubtful or ambiguous, 

the construction placed thereon by the agency charged with administration of the statute is given weight. See Calvert v. Kadane, 427 

S.W.2d 605 (Tex. 1968). An agency's consi;;ction of a statute is not 

controlling, however. Bullock v. Ramada Texas, Inc., 609 S.W.2d 537 

(Tex. 1980). It is valid only insofar as it is consistent with 

statutory language and will not be allowed the effect of expanding or 

contracting the language of the statute. See Firestone Tire and 

Rubber Co. v. Bullock, 573 S.W.2d 489, 500 n. (Tex. 1978). Also, 

rules and regulations adopted by an administrative agency may not 

impose additional burdens, restrictions, or conditions in excess of or 

inconsistent with statutory provisions. Bexar County Bail Bond Board 

v. Deckard, 604 S.W.2d 214. 216 (Tex. Civ. App. - San Antonio 1980, no 

writ). 

The language of section 6(a)(4) has inspired two conflicting 

interpretations. The first, offered.on behalf of the Department of 

Labor and Standards, is premised on the belief that the practice of 

plumbing and the practice of air conditioning contracting are separate 

and distinct crafts,. each requiring different training, qualifications, and testing for licensure. The legislature, in apparent 

recognition of this belief, chose not to include "plumbing work" 

within the definition of air conditioning contracting; therefore, 

plumbing work should not be considered a part of the practice of air 

conditioning contracting. The act exempts licensed plumbers who 

perform "plumbing work" from its coverage. It does not exempt 

licensed plumbers who perform "air conditioning contracting." Thus, 

it is argued that it is reasonable for the department to require a 

licensed plumber to obtain a license to practice air conditioning 

contracting. In doing so, the department contends that it is acting 

consistently with the legislature's decision to treat plumbing and air 

conditioning contracting as mutually exclusive crafts. 

You read section 6(a)(4) differently. You contend that the 

effect of this provision is to completely remove licensed plumbers 

from the reach of article 8861. The State Board of Plumbing Examiners 

informs us that many of its licensees agree with your interpretation 

of section 6(a)(4). The board notes that plumbers have traditionally 

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Honorable Rayford A. Ratliff - Page 4 (JM-795) 

installed heating equipment such as floor furnaces, wall heaters, 

radiant heaters, and suspended heaters with self-contained blowers. 

The suggestion is that the skills required to install heating equipment are comparable to the skills required to install air conditioning 

systems. Thus, it is argued, a licensed plumber need not obtain an 

air conditioner contractor's license prior to contracting for the 

installation or maintenance of air conditioning equipment. 

In our opinion, neither interpretation adequately represents 

legislative intent. We believe the real meaning of section 6(a)(4) 

lies somewhere between the narrow reading offered by the department 

and the broad interpretation you advocate. 

The department's interpretation of section 6(a)(4) is too 

restrictive because it fails to acknowledge the legislature's 

conclusion that aspects of the practice of plumbing might also be 

considered acts of air conditioning contracting as that term is 

defined in article 8861. Clearly, the legislature did not share the 

belief that plumbing and air conditioning contracting are mutually 

exclusive trades, for if it had, no exception for licensed plumbers 

would be necessary. No real purpose would be served by exempting 

persons who provide services which are not among the services 

regulated by article 8861. In effect, the department's construction 

of section 6(a)(4) renders the provision superfluous. 

Your reading of section 6(a)(4), however, overestimates the 

breadth of the exemption provided for licensed plumbers. If the 

legislature had intended to authorize licensed plumbers to perform all 

aspects of air conditioning contracting, it could have done so in 

express terms. Notably, the other provisions of section 6(e) provide 

exemptions for persons who perform "air conditioning work," "air 

conditioning maintenance work," or 'air conditioning contracting." 

Section 6(a)(4) is the only exception not phrased in these terms. In 

order to es'tablish the proper scope of section 6(a)(4), we must first 

determine the meaning of the term "plumbing work." We believe the 

source of the phrase is article 6342-101. See L 6 M-Surco Mfg., Inc. 

v. Winn Tile Co., 580 S.W.2d 920 (Tex. Civ. App. - Tyler 1979, writ 

dism'd) (in construing statutory word or phrase, court may take into 

consideration meaning of same or similar language used in another.act 

of similar nature); see also Gov't Code 9312.002(b) (word connected 

with or used with reference to a particular trade as a word of art 

shall have meaning given by experts in the trade). 

Neither article 8861 nor article 6342-101 defines 'plumbing 

work." The Plumbing License Law does, however, supply the relevant 

definition: 

Sec. 2. (a) The word or term 'plumbing' as 

used in this Act means and shall include: (1) 

All piping, fixtures, appurtenances and appliances 

for supply or recirculation of water, gas, 

liquids, and drainage or elimination of sewage, 

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Honorable Rayford A. Ratliff - Page 5 (JM-795) 

including disposal systems or any combination 

thereof, for all personal or domestic purposes in 

and about buildings where a person or persons 

live, work or assemble; all piping, fixtures, 

appurtenances and appliances outside a building 

connecting the building with the source of water, 

gas, or other liquid supply, or combinations 

thereof, on the premises, or the main in the 

street, alley or at the curb; all piping' 

fixtures, appurtenances, appliances, drain or 

waste pipes carrying waste water or sewage from or 

within a building to the sewer service lateral at 

the curb or in the street or alley or other 

disposal or septic terminal holding private or 

domestic sewage; (2) the installation, repair, 

service, and maintenance of all piping, fixtures, 

appurtenances and appliances in and about 

buildings where a person or persons live, work or 

assemble, for a supply of gas, water, liquids, or 

any combination thereof, or disposal of waste 

water or sewage. 

V.T.C.S. art. 6342-101, 52(a). We believe that when the legislature 

used the term "plumbing work" in article 8861, it had in mind those 

services which comprise the practice of plumbing as it is defined in 

article 6342-101. Therefore, we conclude that licensed plumbers are 

exempted from the provisions of article 8861 to the extent that they 

provide plumbing services which1 may also be classified as air 

conditioning contracting services. 

When the legislature has provided exemptions from the licensing 

or registration requirements of regulatory statutes, this office has 

consistently construed these exemptions narrowly. As a general rule, 

such exemptions are construed to permit only acts which may be 

performed within the terms of the particular exemption or within the 

1. This conclusion only affects licensed plumbers who are not 

regulated by municipalities. Article 8861 does not require all 

persons engaged in the business of air conditioning contracting to 

obtain a license from the department. Section 8 of the act provides 

that the penalty for persons who engage in air conditioning 

contracting without a license issued under the act is not applicable 

to persons who hold licenses issued by municipalities. Section 9 

states that a license issued by a municipality is valid under the 

terms of the license within that municipality. Therefore, any person 

(including a licensed plumber) providing air conditioning contracting 

or maintenance services may avoid the licensing and penalty provisions 

of article 8861 by obtaining a license from a municipality and 

providing such services only within that municipality. 

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Honorable Rayford A. Latliff - Page 6 (X-795) 

scope of the act under which the exempted individuals are already 

regulated. For example, in Attorney General Opinion R-814 (1976) this 

office concluded that members of the professions exempted from article 

249c, V.T.C.S. (regulating landscape architects), need not comply with 

the provisions of the act while engaged within the ordinary and proper 

scope of their respective professions, even though their activities 

might Include some aspect of landscape architecture. The attorney 

general reasoned that the primary purpose of article 249~ was to 

protect the public and determined that it would be inconsistent with 

that purpose to permit a person whose familiarity with the subject of 

landscape architecture might only be peripheral to hold himself out to 

the public as competent in all aspects of that profession. In 

Attorney General Opinion W-384 (1981) it was said that although 

persons employed in industry as engineers are exempted from the 

licensing requirements of the Engineering Practice Act, article 3271a, 

V.T.C.S., they are not entirely exempted from the scope of the act. 

The exemption under consideration was provided for persons who do not 

have "final authority for the approval of, and the ultimate 

responsibility for, engineering designs, plans or specifications." 

V.T.C.S. art. 3271a. $20(g). Thus, it could not be viewed as 

authorizing such persons to practice engineering. Attorney General 

Opinion MW-555 (1982) observed that persons holding a master's degree 

or doctorate in audiology are exempted from the examination and 

licensing provisions of article 4566, V.T.C.S., to the extent that 

they perform the functions enumerated in the exemption, article 

4566-1.19(3), V.T.C.S. The functions described in article 

4566-1.19(3) comprised part of the services defined in article 

4566-1.01(f) as "[flitting and [dlispensing hearing aids." The 

opinion concluded that persons with such credentials were not exempt 

from the provisions of article 4566 if they performed any of the other 

services set forth in article 4566-1.01(f). In Attorney General 

Opinion MU-410 (1981). an exception provided in the Texas Pharmacy 

Act, article 4542a-1, V.T.C.S., for medical or veterinary 

practitioners who dispense prescription drugs to their own patients 

was narrowly interpreted. It was determined that practitioners who 

exceeded the terms of the exception would be required to obtain a 

pharmacist's license. 

In view of these authorities, it is reasonable to conclude that 

section 6(a)(4) of article 8861 authorizes licensed plumbers to 

provide only those services described in article 6342-101 which may 

incidentally be characterized as services coming within the definitions20f air conditioning contracting or air conditioning maintenance 

work. The extent to which plumbing services constitute air conditioning contracting or maintenance work is a question of fact that 

cannot be resolved in the opinion process. See Attorney General 

Opinion NOS. m-217 (1984); R-495 (1975). To the-tent that plumbing 

2. - See note 1, supra. 

p. 3761 
Honorable Rayford A. Ratliff - Page 7 (JM-795) 

services constitute air conditioning contracting or maintenance work, 

:he Department of Labor and Standards is without authority to 

promulsate . I a rule nrohibitinn licensed slumbers from serformins such 

services. See Bexar County Bail Bond Board v. Deckard, supray cf. 

Attorney General Opinion H-495 (1975). 

SUMMARY 

Article 8861, section 6(a)(4), V.T.C.S.. 

exempts licensed plumbers from the provisions of 

article 8861 only to the extent that plumbing 

services constitute services comprising the 

definitions of air conditioning contracting or air 

conditioning maintenance work. The extent to 

which plumbing services constitute air conditioning contracting or maintenance work is a 

question of fact that cannot be resolved in the 

opinion process. To the extent that plumbing 

services constitute air conditioning contracting 

or ~maintenance work, the Department of Labor and 

Standards is without authority to promulgate a 

rule which prohibits licensed plumbers from 

performing such services. 

JIM MATTOX 

Attorney General of Texas 

UARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLRY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 3762