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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 'Inthe 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 maintenanceman or maintenance engineer.

Your recent request for an opinion on the above captioned subjectreads substantiallyas follows:

An Independent schooldistrict In this State ispresently engaged in constructing a new twenty room juniorhigh schoolbuilding. The district regularly employs a man as its Superintendentof Buildings and Grounds and it also has other regular employees,all being paid fixed salariesby the schooldlstrlct.
The schooldistrict has not employed a general contractor in this constructionprogram but rather the Superintendentof Buildings and Grounds is doing the work usually done by a general contractorand other regular employee,s * of the district are also doing constructionwork.

The Superintendentof Buildings and Grounds supervisesand gives instructionsregarding the plumbingwork on the new building as he deems necessary. In particular,he sees that the plumbing installation is done in accordance with the specificationsand the applicableHonorable Lynn Brown, page 2. wi-517 1

plumbing regulations. He interprets the blueprints and mechanicalplans and actually "laysout' 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 originalplans and specifications. All of these activities are performed in his supervisory capacity over the "headplumber" and for these duties he receives no extra compensation.
The person in charge, of the actual physical plumbing,work Is a man designated as "headplumber , hired by the district for this particular construction job, and who had, previous to this job been employedby 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 accordancewith blueprints and mechanicalplans. This includes cutting, threading, caulking and/or sweating pipe to form assemblies or installations in accordancewith the blueprints and plans, and the installationof fixtures. When necessary, he works with the Superintendentin "layingout" portions of the job.

Under this so-called "head: plumber' two full time laborers of the ~school district do actual plumbingwork togetherwith the "head plumber". These laborers or "helpers"assist the "headplumber" in the actual manual installation of plumbing by supplyingmaterials such as pipe, fittings, tools, etc.; by holding or steady-

. ing pipe; by digging ditches; and by performing numerous other similar 'functionsIn connection with the installationas dlrected by the "head plumber". They receive no compensationfor thiswork other than their normal salariesas employees of the district.. -

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Honorable Lynn Brown,page 3. NW-517)

None of these employeeshas a plumber's license of any kind Issuedby the Texas State Board of PlumbingExaminersunder the Plumbing License Law of 1947. Esentially,you have asked the following specific question:
Whether any or all of thesepersons

under such circumstancesare exempt from the licensingrequirement of the Plumbing License Law of 1947.
The "PlumbingLicense 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, forbidsplumbingwork by those who do not hold State licenseswith certain exceptions:

Section 2(a) of the "PlumbingLicense Law of 1947" definesplumbing as follows:
"Theword 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 domesticpurposes in and about bulldingswhere a person or persons live,work or assemble;all piping, fixtures,appurtenances and appliances outside a building connecting the bulldlngwith 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 carryingwaste 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 holdingprivate or domestic sewage: (2) the installation,repair or maintenance of all piping, fixtures, appurtenancesand appliances in and about buildingswhere 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:- .

'Honorable

Lynn Brown, page 4. (w-517)

"Afterthe expiration of one hundred twenty days from the effectivedate of this Act, no person, whether as a master plumber, employ;n,g plumber, journeymanplumber, or otherwise, shall engage Ian,

work at, or conduct the bunjness of plumbing in this state or serve as a plumbing inspectoras herein defined, except as herein specifically exempted from the provisions of this Act, unless suchperson 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 shallbe unlawful for any person to engage in,work at, or conduct the business of plumbing In this state or serve as a plumbing inspectoras herein deflned, except as here3.n specificallyexempted from the provisions of this Act

. . .and provided for hereby; and it shallbe unlawful for any person, firm, or corporationto engage in or work at the business of installing plumbing and doing plumbing work except as specificallyherein provided unless such installationof plumbing or plumbing work be under the supervision and control of a plumber licensedunder this Act. And it is expresslyprovided that the provisions of Article 122 of the Penal Code of Texas shall apply to violations of this Act, and saidArticle 122 of the Penal Codeand the penalties thereinprovided are hereby expresslyreferred to."
The Plumbers Act of 1947 then is a prohibition against any person, firm, or corporationengaging in,working at, or r;znducting

the business of plumbing (as defined in the Act)witho;lt a licenseunless specificallyprovided'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 licensewhich might apply in the instant case. The a;ssllcable

part reads as follows:

"Plumbingwork done by anyone who is regularly employed as or acting as a maintenance man or maintenance engineer, incidental to and in connectionwith 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;

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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 CountyDrainage Dis-Honorable Lynn Brown, page 5. (w-517)

trictNo. 11909): 1 v. Davidson, 102 Tex. 539, 543, 120 S.W. FM, 851,

!I

. . . In determining the sense in which the languagewas used by the Legislature,we look to the context and to the purpose of the Legislature in enacting the law."

In Longoriav. 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 settledrules of interpretationof statutes, even when the languageused is susceptibleof 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 Superintendentof Buildings and Groundsnor the ~"head plumber", as described in your opinion request, from the licensingrequirements of the Act. For either of the persons to be exemptedunder the provisions o,fSection 3(c), they must show that they are regularly employed as maintenancemen and that the work being done is incidental to and in connectionwith 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"ordinarilymeans 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'perkinsv. 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 collectedby 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 schoolsdoes not include the cost of the constructionof schoolhouses."
The character of work being done by both the Building and Grounds Superintendentand the head plumber" cannotbe 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 installationof a completeplumbing system in a new building. This obviously is not maintenancework. The "head'plumber"was hired by the school,system specificallyfor 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 maintenancework 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 connectionwith the business inwhich they are employed or engaged is not sufficient to exempt them from the lioenslngrequirements of the Act,

The word "incidental"has reference to somethingwhich is subordinateto and dependent upon the'existence of another and principal thing. It has been said to be dependentupon something else as primary and somethin pose. Biggartv. 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.

Itwould be impossible to say that the work involved in the construction of a brand new multi-classroomunit school building, costingmany thousands of dollars, is incidental to the work of maintaining those structuresalready in existence in the schooldistrict. ,Nor can the "headplumber",who has been employed specificallyto install the new plumbing system in the building,be exemptedmerely because the schooldistrict chooses to give him the title "maintenanceman".

The courts, in writing concerningexceptions 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 shouldapply inP

Honorable Lynn Brown, page 7. tww-517)

all cases not excepted. It is not ordinarilypermissible to imply or to enlargeupon an exception to include casesnot within its terms. Nor may a Court engraft an exceptionupon a statute by implicationmerely because there seems to be a good reason for doing so. Snoddyv. 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. - 21, 52 S.W.2d

55 S.W.2d 211; Holmesv. Coalson, 154 S.W. 661; Roberts v. Yarboro & Wimberly, 41 Texm Bradley v. Gilliam, 260 S.W. 289.

The very nature of plumbingwork demands a degree of expertness and competence. The health and safety factors involved in the plumbing business are many and complexand it is reasonable to believe that the Legislaturenever intended for the exceptions provided to be enlargedupon. 242 S. W. 1073. Trewitt v. City of Dallas, Civ.App.

In that case the Court described the nature of and its importanceas follows: plumbing

"It is universally regarded as essential

that all plumbing work shouldbe planned and installedwith a degree of skillwhich will insure and safeguard lives and health of people from dangerswell known to flow from improperplumbing. This being true, the calling of a plumber bears a close relation to and does concern the public health. It is accordinglya business which is the proper subject of police regulation."

Inview of the foregoing it is the opinion of this office Superintendentof Buildingsand Groundsand the "head

. . _ that the plumber", **as tney**  are **ciescribed** in your **request,** are not exempt from the licensin 1947 by Section 37 requirements of the Plumbing License Law of c). To hold otherwisewould be to imposeupon the statutean 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. .,. - - .

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

SUMMARY

When doing plumbing work consisting of the installationof a complete plumbing system in a new building, 'theSuperintendentof Buildings and Groundsand the "headplumber are not exempt from the licensing **require** ments 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. maintenanceman or maintenance engineer.

Yours very truly,

WILL WILSON Attorney General of Texas

~~~~~ Assistant BF:bb:zt

APPROVED: OPINION COMMITTEE ,Geo.P. Blackburn, Chairman
3*Milton Richardson
.Iohn Reeves Henry G. Braswell

RFVIRWED FOR THP ATTORNEY GENERAL BY: W. V. Geppert