HonorableRayfordA. Ratliff OpinionNo. JM-795 Moore CountyAttorney 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.

DearMr. 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 conditioningmaintenancework. The extent to which plumbing services constitute air conditioningcontractingor maintenancework is a fact questionwhich cannotbe answered in an AttorneyGeneral'sOpinion.

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 commissionerof the Texas Department of Labor and Standards to adopt rules for thepracticeof air conditioningcontractingconsistentwith the act. V.T.C.S.art. 8861, §3(a). Section 2 of the act defines the followingrelevant terms:

Sec. 2. In thisAct:

. . . .
(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 conditioningproduct, system,
or equipment.

(3) 'Air conditioning contracting' means designing, installing, constructing,maintaining, servicing, repairing, altering, or modifying any heating,ventilating,or air conditioningproduct, system, or equipment. The term does not include

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the design, installation, construction, maintenance,service, repair,alteration,or modification of a portable or self-containedductless air conditioningorheatingproduct thathas a cooling capacity of three tons or less or a heating capacityof 36,000British thermalunits or less.

The . . . .

(6) 'Air conditioningmaintenancework' means repair work and all other work required for .the continued normal performance of a heating, ventilating,or air conditioningsystem. The term does not include the installation of a total replacement of the system or the installation of boilers or pressurevessels thatmust be installed by licensedpersons pursuant to rules and regulationspromulgatedby theTexas Departmentof 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 'licensedunder 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:

575.8Exemptions.

(a) The Act and its rules and regulations do not apply to a personwho:

. . . . (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 licensedunder that law. A personwho is licensed in this state as a plumber, and is engaged in businessas 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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11Tex. Reg. 593 (1986) (amending16T.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 greaterburden on licensedplumbers than the statutedoes.

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 themeaning of a statutoryprovision is doubtfulor ambiguous, the constructionplaced thereonby the agency chargedwith administration of the statute is given weight. See Calvert v. Kadane, 427 S.W.2d 605 (Tex. 1968). An agency's consi;;ctionof 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 languageand 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 imposeadditionalburdens, restrictions,or conditions in excess of or inconsistentwith statutoryprovisions. Bexar County Bail Bond Board

v. Deckard, 604 S.W.2d 214. 216 (Tex.Civ.App. - SanAntonio 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 plumbingand thepractice of air conditioningcontractingare 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, plumbingwork shouldnot 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 consistentlywith the legislature'sdecision to treatplumbing and air conditioningcontractingasmutually exclusivecrafts.

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 StateBoard of Plumbing Examiners informs us that many of its licensees agree with your interpretation of section 6(a)(4). The board notes that plumbershave traditionally

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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 installheating equipment are comparable to the skills required to installair conditioning systems. Thus, it is argued, a licensed plumber need not obtain an air conditioner contractor's license prior to contracting for the installationormaintenance of air conditioningequipment.

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 thebroad interpretationyou 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 theprovision superfluous.

Your reading of section 6(a)(4), however, overestimates the breadth of the exemption provided for licensed plumbers. If the legislaturehad intendedto authorize licensedplumbers toperform 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 exceptionnot phrased in these terms. In order to es'tablishthe 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-SurcoMfg., Inc.

v. Winn Tile Co., 580 S.W.2d 920 (Tex. Civ. App. - Tyler 1979, writ dism'd) (in construing statutoryword or phrase, court may take into considerationmeaning of same or similar languageused 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 shallhavemeaning 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,appurtenancesand appliances for supply or recirculation of water, gas, liquids, and drainage or elimination of sewage,

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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 buildingwith 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 carryingwastewater 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,andmaintenance of all piping, fixtures, appurtenances and appliances in and about buildingswhere 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 "plumbingwork" in article 8861, it had in mind those serviceswhich 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 which1may also be classified as air conditioningcontractingservices.

When the legislaturehas provided exemptions from the licensing

or registrationrequirements of regulatory statutes, this office has consistently construed these exemptionsnarrowly. As a general rule, such exemptions are construed to permit only acts which may be performedwithin 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 contractingwithout 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 licensewithin thatmunicipality. Therefore, any person (includinga licensed plumber)providing air conditioningcontracting

ormaintenance servicesmay avoid the licensingand penaltyprovisions of article 8861 by obtaining a license from a municipality and providing such servicesonlywithin thatmunicipality.

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scope of the act under which the exempted individuals are already regulated. For example, inAttorneyGeneral OpinionR-814 (1976)this office concluded thatmembers of theprofessionsexempted fromarticle 249c,V.T.C.S. (regulatinglandscapearchitects),need not complywith theprovisions of the actwhile engagedwithin the ordinaryand 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 inconsistentwith that purpose to permit a person whose familiaritywith the subjectof landscapearchitecturemight onlybe peripheral to holdhimself 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 licensingrequirementsof the EngineeringPracticeAct, article 3271a, V.T.C.S., they are not entirely exempted from the scope of the act. The exemptionunder considerationwas provided for personswho 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 credentialswere not exempt from theprovisionsof article 4566 if theyperformedany 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 incidentallybe characterized as services coming within the definitions20f air conditioningcontracting or air conditioningmaintenance 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. SeeAttorney General Opinion NOS. m-217 (1984);R-495 (1975). To the-tent thatplumbing

2. Seenote 1,supra. -

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services constitute air conditioningcontracting or maintenancework, :he Department of Labor and Standards is without authority to promulsate a rule nrohibitinn licensed slumbers from serformins such

. I services. See Bexar CountyBail Bond Board v. Deckard, supray cf. AttorneyGeneralOpinionH-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 definitionsof air conditioningcontractingor 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 ~maintenancework, the Department of Labor and Standards is without authority to promulgate a rule which prohibits licensed plumbers from performing such services.

JIM MATTOX AttorneyGeneral of Texas

UARY KELLER ExecutiveAssistantAttorney General

JUDGE ZOLLIE STEAKLRY SpecialAssistantAttorney General

RICK GILPIN Chairman,OpinionCommittee

Preparedby Rick Gilpin AssistantAttorneyGeneral

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