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Honorable Lynn Brown, Administrator 

Texas State Board of Plumbing Examiners 

904 Lavaca 

Austin, Texas 

Dear Mr. Brown: 

Opinion No. WW-517 

Re: The effect to be accorded the 

exemption 'In the Plumbing 

License Law of 1947, S. B. 188, 

Acts 50th Legislature, relative 

to plumbing work done by anyone 

who is regularly employed as or 

acting as a maintenance man or 

maintenance engineer. 

Your recent request for an opinion on the above captioned subject reads substantially as follows: 

An Independent school district In 

this State is presently engaged in constructing a new twenty room junior high school building. The district regularly employs a man as 

its Superintendent of Buildings and Grounds 

and it also has other regular employees, all 

being paid fixed salaries by the school dlstrlct. 

The school district has not employed 

a general contractor in this construction program but rather the Superintendent of Buildings 

and Grounds is doing the work usually done by a 

general contractor and other regular employee,s * 

of the district are also doing construction work. 

The Superintendent of Buildings and 

Grounds supervises and gives instructions regarding the plumbing work on the new building as he 

deems necessary. In particular, he sees that 

the plumbing installation is done in accordance 

with the specifications and the applicable 
Honorable Lynn Brown, page 2. wi-517 1 

plumbing regulations. He interprets the 

blueprints and mechanical plans and actually 

"lays out' or points out the location of the 

various fixtures and the location and type of 

fittings and sizes of soil and vent pipes 

needed to complete the system. He may also 

be required to use his own judgment in resolving practical problems not foreseen In the 

original plans and specifications. All of 

these activities are performed in his supervisory capacity over the "head plumber" and 

for these duties he receives no extra compensation. 

The person in charge, of the actual 

physical plumbing,work Is a man designated 

as "head plumber , hired by the district for 

this particular construction job, and who had, 

previous to this job been employed by a master 

plumber and followed the plumbing trade as a 

means of livelihood. This so-called "head 

plumber" performs the actual manual installation of the plumbing in accordance with blueprints and mechanical plans. This includes 

cutting, threading, caulking and/or sweating 

pipe to form assemblies or installations in 

accordance with the blueprints and plans, and 

the installation of fixtures. When necessary, 

he works with the Superintendent in "laying out" 

portions of the job. 

Under this so-called "head: plumber' 

two full time laborers of the ~school district 

do actual plumbing work together with the "head 

plumber". These laborers or "helpers" assist 

the "head plumber" in the actual manual installation of plumbing by supplying materials such as 

pipe, fittings, tools, etc.; by holding or steady- 

. ing pipe; by digging ditches; and by performing 

numerous other similar 'functions In connection 

with the installation as dlrected by the "head 

plumber". They receive no compensation for 

this work other than their normal salaries as 

employees of the district. 
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Honorable Lynn Brown, page 3. NW-517) 

None of these employees has a plumber's 

license of any kind Issued by the Texas State 

Board of Plumbing Examiners under the Plumbing 

License Law of 1947. 

Esentially, you have asked the following specific 

question: 

Whether any or all of these persons 

under such circumstances are exempt from the 

licensing requirement of the Plumbing License 

Law of 1947. 

The "Plumbing License Law of 1947", which is Senate 

Bill 188, Acts of the 50th Legislature, Regular Session, 1947, 

Chapter 115, Page 192, codified as Article 6243-101 of Vernon's 

Civil Statutes, forbids plumbing work by those who do not hold 

State licenses with certain exceptions: 

Section 2(a) of the "Plumbing License Law of 1947" 

defines plumbing as follows: 

"The word or term 'plumbing' as used 

in this act means and shall include: (1) all 

piping, fixtures, appurtenances and appliances 

for a supply of water or gas, or both, for all 

personal or domestic purposes in and about bulldings where a person or persons live, work or assemble; all piping, fixtures, appurtenances and 

appliances outside a building connecting the 

bulldlng with the source of water or gas supply, 

or both on the premises, or the maln in the 

street, alley or at the curb; all piping, fixtures, 

appurtenances, appllanoes, 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 terminal holding private or domestic sewage: (2) 

the installation, repair or 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, or both, or disposal of waste water or 

sewage. " 

Section 14 of the Act provides as follows: 
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'Honorable Lynn Brown, page 4. (w-517) 

"After the expiration of one hundred 

twenty days from the effective date of this Act, 

no person, whether as a master plumber, employ;n,g 

plumber, journeyman plumber, or otherwise, shall 

engage Ian, work at, or conduct the bunjness of 

plumbing in this state or serve as a plumbing inspector as herein defined, except as herein specifically exempted from the provisions of this Act, unless such person is the holder of a valid license 

as provided for by this Act; and after the expiration of one hundred twenty days from the effective 

date of this Act It shall be unlawful for any person to engage in, work at, or conduct the business 

of plumbing In this state or serve as a plumbing 

inspector as herein deflned, except as here3.n 

specifically exempted from the provisions of this 

Act . . . and provided for hereby; and 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. 

And it is expressly provided that the provisions of 

Article 122 of the Penal Code of Texas shall apply 

to violations of this Act, and said Article 122 of 

the Penal Code and the penalties therein provided 

are hereby expressly referred to." 

The Plumbers Act of 1947 then is a prohibition against 

any person, firm, or corporation engaging in, working at, or 

r;znducting the business of plumbing (as defined in the Act) witho;lt a license unless specifically provided'for or specifically 

exempted. 

Reference is made by your request to Section 3(c) of 

i:ii<? Article. In this section is found the only exception to 

tr?;-; requirement that one engaged in the plumbing business must 

&\'e a license which might apply in the instant case. The 

a;ssllcable part reads as follows: 

"Plumbing work done by anyone who is 

regularly employed as or acting as a maintenance 

man or maintenance engineer, incidental to and 

in connection with the business in which he is 

employed or engaged, and who does not engage in 

the occupation of a plumber for the general t)ublie; . . .' 

The statute is given to two meanings and is ambiguous. 

In discussing the dissolution of ambiguities and uncertainties 

in legislation, the Court said in Hidalgo County Drainage Dis- 
Honorable Lynn Brown, page 5. (w-517) 

trict No. 

11909) : 

1 v. Davidson, 102 Tex. 539, 543, 120 S.W. FM, 851, 

!I . . . In determining the sense in 

which the language was used by the Legislature, we look to the context and to the purpose of the Legislature in enacting the law." 

In Longoria v. State, 126 Tex. Crim. 362, 363, 71 S.W. 

2d 268, 269.(1934), the following language is found: 

"We further observe that in accordance 

with settled rules of interpretation of statutes, 

even when the language used is susceptible of two 

meanings, the courts are to give It that meaning 

which will conform to the scope of the act and 

carry out the purpose of the statute. . . ." 

In passing Senate Bill 188, the Legislature, in our 

opinion, did not intend to exempt either the Superintendent of 

Buildings and Grounds nor the ~"head plumber", as described in 

your opinion request, from the licensing requirements of the 

Act. For either of the persons to be exempted under the provisions o,f Section 3(c), they must show that they are regularly 

employed as maintenance men and that the work being done is incidental to and in connection with the business in which they 

are employed and further they cannot be engaged in the occupation of plumber for the general public. 

The word 'maintain" ordinarily means to preserve something which is already in existence, and there must be something 

in existence before it can be maintained. In this sense the 

term does not include the concept of erecting or building something which is not already in existence. It has also been defined as to hold or keep in any particular state or condition; 

to support; to sustain; to uphold; to keep up; not to suffer 

to fail or decline. Pacific Tank and Pipe Co. v. Pacific Box 

** k. 64 P. 2d 773; Anderson v. United States Fidelity & GuarY 104 P. 2d 906 907, 44 N.M. 483; 129 A.L.R. 1084 

Also see'perkins v. Becker, 157 S.W.2d 550, 552; Verdin v. 'St. 

LO&S, 27 s.w. 447, 451. 

In Madley v. Trustees of Conroe Independent School 

District, 130 S.W.2d 929, 933 (,Tex.Civ.App. 1939), the Court 

astinguished "building" from 'Maintenance" as follows: 
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Honorable Lynn Brown, page 6. m-517 1 

the local tax levied and collected by the'&uetees of an independent school 

district for maintenance of the schools can be 

used only for the purposes of maintenance, to 

the extent needed for that purpose, . . . the 

term 'maintenance' of schools does not include 

the cost of the construction of school houses." 

The character of work being done by both the Building 

and Grounds Superintendent and the head plumber" cannot be said 

to come within the meaning of the word maintenance as used in 

the Act. The plumbing being done by these men consists of the 

installation of a complete plumbing system in a new building. 

This obviously is not maintenance work. The "head'plumber" was 

hired by the school,system specifically for this new construction job and had not been previously employed by the district 

in their maintenance department. Nor is there any evidence to 

show that he had ever done any maintenance work for the school 

district. 

In the opinion of this office, reliance upon the requirement that the plumbing work being done by the individuals 

in the present case Is incidental to and in connection with the 

business in which they are employed or engaged is not sufficient 

to exempt them from the lioenslng requirements of the Act, 

The word "incidental" has reference to something which 

is subordinate to and dependent upon the' existence of another 

and principal thing. It has been said to be dependent upon something else as primary and somethin 

pose. Biggart v. Lewis, 192 Pac. & 

Incidental to the main pur37, 440; The Robin Goodfellow 

et al, 20 F. 2d 924, 925; Kelly v. Hill, 230 P. 2d 864, 867, 104 

Cal. App. 2d 61. 

It would be impossible to say that the work involved 

in the construction of a brand new multi-classroom unit school 

building, costing many thousands of dollars, is incidental to 

the work of maintaining those structures already in existence 

in the school district. ,Nor can the "head plumber", who has 

been employed specifically to install the new plumbing system 

in the building, be exempted merely because the school district 

chooses to give him the title "maintenance man". 

The courts, in writing concerning exceptions and their 

application, will generally construe the exception according to 

its fair and proper meaning. If the Act contains one OP more 

exceptions that is evidence that the Legislature did not intend 

to provide any other exceptions, thus the Act should apply in 
P 

Honorable Lynn Brown, page 7. tww-517) 

all cases not excepted. It is not ordinarily permissible to imply or to enlarge upon an exception to include cases not within 

its terms. Nor may a Court engraft an exception upon a statute 

by implication merely because there seems to be a good reason 

for doing so. Snoddy v. Cage, 5 Tex. 106; Missouri, Kansas and 

Texas Railway Company of Texas v. Thomason, 260 S.W. 325; Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 

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21, 52 S.W.2d 

55 S.W.2d 211; Holmes v. Coalson, 154 S.W. 661; Roberts v. 

Yarboro & Wimberly, 41 Texm Bradley v. Gilliam, 260 S.W. 289. 

The very nature of plumbing work demands a degree of 

expertness and competence. The health and safety factors involved 

in the plumbing business are many and complex and it is reasonable 

to believe that the Legislature never intended for the exceptions 

provided to be enlarged upon. 

242 S. W. 1073. 

Trewitt v. City of Dallas, Civ.App. 

In that case the Court described the nature of 

plumbing and its importance as follows: 

"It is universally regarded as essential 

that all plumbing work should be planned and installed with a degree of skill which will insure 

and safeguard lives and health of people from 

dangers well known to flow from improper plumbing. This being true, the calling of a plumber 

bears a close relation to and does concern the 

public health. It is accordingly a business 

which is the proper subject of police regulation." 

In view of the foregoing it is the opinion of this office 

Superintendent of Buildings and Grounds and the "head . . _ 

that the 

plumber", as tney are ciescribed in your request, are not exempt 

from the licensin 

1947 by Section 3 7 

requirements of the Plumbing License Law of 

c). To hold otherwise would be to impose upon 

the statute an exemption not provided by the Legislature. The 

statute is not applicable to the laborers or "helpers" while 

performing their duties as you have set out. 

All prior opinions by this office, which are in conflict 

with this opinion, are hereby overruled to the extent of that 

conflict. ., 
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Honorable Lynn Brown, page 8. (ww-517) 

SUMMARY 

When doing plumbing work consisting 

of the installation of a complete 

plumbing system in a new building, 

'the Superintendent of Buildings and 

Grounds and the "head plumber are 

not exempt from the licensing requirements of the Plumbers License Law of 

1947 by Section 3(c) of the Act relative 

to plumbing work done by anyone who is 

regularly employed as or acting as a. 

maintenance man or maintenance engineer. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

~~~~~ 

BF:bb:zt Assistant 

APPROVED: 

OPINION COMMITTEE 

,Geo. P. Blackburn, Chairman 

3 * Milton Richardson 

.Iohn Reeves 

Henry G. Braswell 

RFVIRWED FOR THP ATTORNEY GENERAL 

BY: W. V. Geppert