JIM MATTOX 

Attorney General 

Supreme CarI Bullding 

P. 0. Box 1254a 

A”,!,“. TX. 78711.254Q 

512l47525m 

Telex 9101874.13S7 

Telecopier 5121475-0268 

714 Jackson. suite 700 

Dallas. TX. 75202.4505 

2141742.8944 

4824 A,bwta Ave.. BUite 180 

El Paso. TX. 79QC62793 

915/53534S4 

1 Texas. Suite 700 

“couston, 7X. 77002-3111 

71~2235886 

806 Broadway. Suite 312 

Lubbock. 7X. 7Q401.3479. 

QOSi747-5235 

43oQ N. Tenth. Suite 8 

McAlm. TX. 78501.1685 

5121882.4547 

200 Win Plaza, Suite 4W 

SPY &ntonio. TX. 782Q5-2797 

51212254191 

The Attome!!, General of Texas 

Octsber 12, 1984 

Mr. Lynn Brown, Adwnistrator 

Teraa State Board ofi Plumbing 

Examiners 

P. 0. Box 4200 

Austin, Texas 78:‘tiS 

Dear Mr. Brown: 

Opinion No. JR-210 

Re: Authority of a municipality 

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 Worth v. 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. See Aoefling v. City of 

San Antonio, 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 Worth v. 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. You have 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 who vish to do business 

must first registl!:: vith the city. Although both ordinances charge 

p. 947 
. ’ 

I 

Nr. Lynn grovn - 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. We conclude, 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 much of the authority to regulate the plumbing occupation 

from cities. See Attorney General Opinion V-549 (1948). The Texas 

State Board of-&mbing Rxa~sIiners is 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 made the following observation: 

The Board’s respou:~ibilitles deal primarily with 

the personal fitness and skill of individual 

plumbers. The ’ 11 c.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:d 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. 

The opinion vent on to conclude that a city may require 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, home rule 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. See Trevitt v. City 

of Dallas, 242 S.W. 1073, lC177-78 (Tex. Civ. App.?Dallas 1922, no 

writ). 

p. 948 
Mr. Lynn Brown - 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 

an occupational 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:lng in the profession is valid. 

-JIM M A- T T 0 X 

Attoruey General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICEARDS 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION CCWITTEE 

Rick Gilpln. Chairman 

David Brooks 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton