JIM**MATTOX** Attorney**General**

Supreme CarI Bullding P.0. Box1254a A”,!,“. TX. 78711.254Q 512l47525m Telex 9101874.13S7 Telecopier 5121475-0268

714Jackson. suite 700 Dallas. TX. 75202.4505 2141742.8944

4824A,bwta Ave..BUite180 ElPaso.TX. 79QC62793 915/53534S4

1Texas.Suite700 “couston,7X. 77002-3111 71~2235886

806 Broadway. Suite312 Lubbock.7X. 7Q401.3479. QOSi747-5235

43oQN.Tenth.Suite8 McAlm. TX. 78501.1685 5121882.4547

200Win Plaza,Suite4W SPY&ntonio.TX. 782Q5-2797 51212254191 

# TheAttome!!, General ofTexas

Octsber 12, 1984

Mr. LynnBrown, Adwnistrator Teraa State Board ofiPlumbing Examiners P. 0. Box4200 Austin, Texas 78:‘tiS
Dear Mr. Brown: Opinion No. JR-210
Re: Authority of amunicipality to impose a registration **fee** on plumbers

You have informed this office that several cities in Texas have passed city ordinances requiring persons licensed as plumbers to pay a

“registration **fee ”**  as a condition precedent to engaging in the practice **of** plumbi>; in that city. In connection vith this, you have asked this office zlie following questions:

1. DC,such registration fees constitute a form of, licen sure?
2. **Are** these registration fees ‘occupation taxes, ’ as aet forth in Attorney General Opinion V-428 (1&i7)?
3. **Acs** the registration fees a valid requirement in Light of the Plumbing License Law, article 6243-101, V.T.C.S.?
In order for such a fee to constitute a &censure, it must confer a right to a deserving individual that would be denied to all others. See Cit of Fort Worthv. Gulf Refining Co., 83 S.W.2d 610, 617 (Tex. m5*- icense will allow a parson to practice a trade which he could not practi:e without such a license. SeeAoefling v. City of SanAntonio, 20 S.il. 85. 87 (Tex. 1892). For such a fee to constitute an occupation **tax,,** hovever. it must be levied primarily for the purpose of raising; revenue. See City of Fort Worthv. Gulf Refining 5. supra; Attorney General O-ion V-428 (1947). Therefore, tt,e answers to your first two questions depend upon whether these ordinances confer an occupational right to an individual vho wants to engage in the profession of plumbing, or whether these ordinances are revenue raising devices. Youhave supplied this office vith tvo ordinanccz from cities in Texas: one provides for a registration fee for plumbing contractors; the other provides that an organization consisting of licensed plumbers whovish to do business must first registl!:: vith the city. Although both ordinances charge

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Nr. Lynngrovn - Page 2 (JM-210)

small fees **for** registratiorl, ve are of **the** opinion that this is i~terial **to** our findings. See City of **Fort** Worth v. Gulf Refining co., D. Weconclude, t,txfore, that these ordinances are, in affect, licensing feea. Article 6243-101, V.T.C.S.. (“Plumbing License Lav”) vas enacted .in 1947. Thia **act** created tlw State Board of Plumbing Examiners, thus taking avay muchof **the** authority to regulate the plumbing occupation from cities. See Attorney General Opinion V-549 (1948). The Texas State Board of-&mbing Rxa~sIinersis the sole licensing agency for plumbers, thereby excluding this authority from all municipalities. Attorney General Opinion V-428 (1947). Because the board has exclusive jurisdiction over t:he licensing of plumbers, any municipal regulations vhich conflict vlth the board’s responsibilities are invalid under section 15 of the Plumbing Licensing Lav. Attorney General Opinions V-1217 (1951); V-720 (1948); V-333 (1947). See also Attorney General Opinion MW-.jIi5(1982). This office has previowly considered a problem similar to this question. Attorney General 0pinion V-1217 (1951) dealt with several municipal requirements that required plumbers to post indemnity bonds before engaging in speciflecl plumbing vork. One such ordinance, for example, required plumbers ‘:o post a bond before that plumber could engage in his profession. ‘Pa+opinion madethe following observation:

The Board’s respou:~ibilitles deal primarily with the personal fitness and skill of individual plumbers. The ’11c.ense’ vhlch it grants and its authority to prc,sulgate rules respecting the licensing of plumblrrs are Intended to cover the subject of skill z.r:dpersonal fitness of plumbers and matters incidental thereto. Cities may not invade that field, Neither maythe Board invade the field reserved for municipal regulation. The opinion vent on to conclude that a city mayrequire a bond under its authority to prescribe t’le terms and conditions for the granting of a “permit” under the terms of Section 15, and that the Board has **no** jurisdiction over that subjc!ct matter. The distinction betveen these tvo statements is clear: the Board may regulate the plumbing occupation in its licensing procedures; a city may only regulate certain specific acts of ploobers, Plumbers License Lx as set forth in sectjon 15 of the See Attorney General Opinion V-549 (1948). See also Attorney General~ir:ion V-720 (1948). require plumbing organisat 1,ns However, cities e to register vith the city before engaging in the business of plumbing. For example, homerule cities may “license any lawful business, occupation or calling that is susceptible to the contra:. of the police power.” V.T.C.S. art. 1175.23. This includes the business of plumbing. SeeTrevitt v. City of Dallas, 242 S.W. 1073, lC177-78 (Tex. Civ. App.?Dallas 1922, no writ).

**p. 948** Mr. LynnBrown- Page 3 (JW:!lO)

Therefore, it la our opinion that ordinances vhich regulate the profesaion or occupation of plumbing infringe upon a function conferred solely to the Texas State Board of Plumbing Exaninera by the Plumbing License Lav and are invalid. Hovever, ordinances vhich require the registration of plumbing buainesacs as a condition ~precedent to engaging in the profession are valid.

**SUMMARY**

**A** municipal ortitnance vhich purports **to** confer anoccupational ri.I;ht to an individual. and is not designed for the sole purpose of raising revenue, is a license fee. A municipal ordinance vhich regulates the profession or occupation of plumbing infringes upon a function conferred solely **to** the Texas State Boar’i of Plumbing Examiners by the Plumbing License Law. article 6243-101, V.T.C.S., and is invalid. itn ordinance vhich requires the registration of a plumbing business as a condition precedent to enga:g:lngin the profession is valid.

-JIM MA-TT0X Attoruey General of Texas TOM GREEN First Assistant Attorney General DAVIDR. RICEARDS Executive Assistant Attorney General Prepared by Rick Gilpin Assistant Attorney General APPROVED: OPINIONCCWITTEE Rick Gilpln. Chairman David Brooks Colin Carl Susan Garrison JimMoellinger Nancy Sutton