July 24, 1951

Hon. C. E. Belk, Administrator Texas State Board of Plumbing Examiners Austin, Texas opinion NO. v-1217

Re: Authority of the Board of Plumbing Examiners to adopt
a rule that failure of plumbers to comply with city ordinances requiring Indemnity bonds will not subject such plumbers to State license Dear Sir: revocation.

Your recent letter asks our opinion on the validlty of certain municipalrequirementsthat plumbers post indemnitybonds before ,engaging in specifiedplumbing uork. You ask further whether a rule by the Texas State Board of PlumbingExaminersdeclaring that plumbers’ licenseswill not be revokedby it for violation of these municipal requirements and that plumbers need not comply with these requirementsis within the Board's authority and would have the legal effect of nullifying the municipal requirements.

The requirements

are of two types as set out In your letter. One type requiresplumbers to post a bond before engaging In the businessof plumbing,payable to the city for damage to Its streets, sewers, water works, etc., causedby the work, and to any property owner for whom the plumbermight do plumbing work for damage to the owners'property caused by Improper work. The second type requiresa similarbond before dolng a particularplumbing job. Some cities allow, but do not require, the filing of a blanket bond, covering all jobs executed by the plumber in lieu of separate bonds for each job.

Article 6243-101,V.C.S., is officiallydesignated as "The Plumbing License Law of 1947." It is a comprehensivelaw providing for the regulation of plumbing. It establishesa State plumbers' licensing system to be administeredgenerallyby the Texas State Board ofHon. C. E. Belk, page 2 (V-1217) ".,'

Plumbing Examinersand provides for certainmunicipal ,regulation

of plumbing activities. apply to "plumbing" Its provisions and various classes of plumbers and plumbing inspectorsas defined In the law. A State license Is required of all plumbers who engage in "plumbing,"

as defined,as a business. It provides generallyfor the regulationof plumbing activitiesand its provisionstogetherwith other State statutesas were not reDealed on its enactmentare. therefore,exclusiveon-the subject. Massachusetts Bonding & IcauranceCompany v. McKs '(Tex. Cl,v. App. 1928 error ref.). 'im ipeclficprovlslons of Article 6241-101,pertinent to your inquiry, are:

“Sec. 5.

. . . The Board shall formally elect a chairmanand a secretarytreasurerfrom Its members and may adopt such rules as It deems necessaryfor the, orderly conduct of Its affairs.

. . . The Board i&hereby authorized,empowered and dlrected~to

prescribe,amend and enforce rules, and regulationsconsistent with this Act for the examination and llcenslng of master and journeymen plumbers and plumbing inspectors,

. . ."

"sec. 8.. The Board shall Issue lltenses to such persons of good moral character,as have by a uniform,reasonable examinationshown themselvesfit, competentand qualified to engage in the business, trade or calling of a master plumber or journeyman plumber, or plumblng Inspector,as the case may ,be.

“Sec. 9. The Board shall have power to revoke any license Issuedhereunder If the same was obtained through error or fraud, or if the recipient thereof is shown to be Incompetentor shall have

. ullfully,negligentlyor arbitrarilyvlolated municipal rules or ordinancesregulating sanitation, drainageand plumbing;

. . ."Sec. 12. Liceos'es issued by the Board shall be valid throughoutthe state, but shall not be assignableor,’ J

Hon. C. E. Belk, page 3 (V-1217)

transferable. The Board shall forward to the local Board of Health, if there be one, of each town, or to the other authority having control of the enforcementof regulations relative to plumbing In each town, the names and addresses of all persons In such town to whom such licenseshave been granted.

. . ."

"Sec. 15. Every city In this state of more than five thousand (5,000) lnhabitants shall, and any city or town of this state may, by ordinanceor by-law, prescribe rules and regulationsfor the materials, construction,

alterationand Inspectionof all pipes, faucets, tanks, valves and other fixtures by and through which a supply of water, gas or sewage is used or carried; and provided that they shall not be placed in any building therein except In accordance with such rules and regulations; and shall further provide that no plumbing shall be done except in case of repairingof leaks, without a permit being first issued therefor upon such terms anU conditionsas such city or town shall prescribe;provided that
no such ordinance,by-law, rule or regulation prescribedby any such city or town shall be inconsistent with this-Act,or any rule or regulationadopted or prescribedby the State Board of Plumbing Examiners."

Since the Board Is, by the whole tenor of the law, chargedwith the exclusive jurisdiction over the 'licensing"of plumbers, any municipal regulationswhich conflictwith the Board's responslbllltles and its regulationspertinent thereto are Invalid under the terms of Section 15.

It is our opinion,however, that a city may require a bond under Its authority to prescribe the terms and conditionsfor the granting of a "permit" under the terms of Section 15, and that the Board has
no jurisdictionover that subjectmatter.

The Board's responslbilitles deal primarily with the personal fitness and skill of Individual plumbers. The "license"which It grants and Its authority to promulgaterules respectingthe licensingHon. C. E. Belk, page 4 (V-1217)

of plumbers are Intendedto cover the subject of skill and personal fitness of plumbers and matters incidental thereto. Cities may not invade that field. Neither may the Board invade the field reserved for municipal regulation. Section 15 of the Plumbing License Law reserves to municipalities the power to prescribe the
manner in which plumbing is to be Installed,the type and quality of material to be used,. and generally the
manner in which the work is to be done. The law is not Intended to limit the power of a city to exact "terms and ~conditlons" for the Issuance of a permit whFch s.re

designed to guarantee compliance with its rules and regulationsIn the field reserved to it.

The posting of a reasonablebond to indemnify the municipalityor those engaging the plumber for damages causedby Improper Installation work Is .arequirementgenerally conceded to be within the authority of a city In the absence of statutoryrestrlction. 9 McQulllln on Municipal Corporatlons (3rd Ed. 1950) 155. It is reasonableto conclude that Section 15 of the PlumbingLicense Law authorizes cities to require bonds for the observanceof its regulations In the field over which it has supervision. These regulations

have no direct relation to the personal fitness and skill of the Individualplumber. It thus appears that a proper bond requirement is beyond the authorlty of the Board to prohibit and that such a requirementby a city Is valid. However, we are of the opinion that the conditionsof the bond requiredby a city must be confined to the field over which It has

. supervlsion. If a city undertakesto exact conditions In the bond which pertain to the plumber's skill and fitness, to that extent the requirements would be lnconsistent

with the PlumbingLicense Law.
Since citiesmay require a bond as a condltlon to the granting of a permit, ve see no reason why they may not allow the filing of a blanket bond covering all jobs done under permits. This Is merely permissive and cannot, therefore,~ be consideredas an extensionof its powers.

However, since the authority to require a bond can be based only on the provisionsof Sectlon 15, the requirement may be made only as a condition to the granting of a specific "permit." Munlclpalltles
are not granted authority to regulate plumbing generally but only in the manner Set out in Section 15 as to specific work done in the city. A city,maynot, therefore, require a bond as a conditionto doing a plumbing business.Hon. C. E. Belk, page 5 (V-1217)

SUMMARY

"The Plumbing License Law of 1947" (Article 6243-101, V.C.S.) authorizes a municipalrequirementthat plumberspost
a reasonable indemnitybond as a condition to the granting of a permit to do particularplumbing jobs within the corporate limits of a city or town. The munlci.;jallty

may allow the filing of a blanket bond coveringall permits granted. However, It may not require a bond as a conditionto doing a general plumbing business. The Texas State Board of Plumbing Examinershas no jurisdictionto adopt rules and regulationsdealingwith the requirementsof municipalities for Indemnity bonds of plumbers requiredby cities under Section 15 of the Act.

APPROVED:

Jesse P. Luton, Jr. ReviewingAssistant

Charles D. Mathews First Assistant Yours very truly,

PRICE DANIFL Attorney General

,%4S%&2& Ned McDa<lel Assistant

NMc:jmc