HomeMy WebLinkAboutPO 6656: ADDING TO CHAPTER 14, BOARDS, AUTHORITIES, COMMISSIONS AND COMMITTEES, ARTICLE XXIII - PORT ARTHUR ELECTRICAL ADVISORY BOARD TO THE CODE OF ORDINANCES 4
P.O. No. 6656
10/20/17 vrt
ORDINANCE NO.
AN ORDINANCE ADDING TO CHAPTER 14, BOARDS,
AUTHORITIES, COMMISSIONS AND COMMITTEES, ARTICLE
XXIII - PORT ARTHUR ELECTRICAL ADVISORY BOARD TO
THE CODE OF ORDINANCES CREATING SAID BOARD,
ESTABLISHING MEMBERSHIP CRITERIA, TERMS OF OFFICE,
AND DELINEATING DUTIES OF SAID BOARD (REQUESTED BY
COUNCILMEMBER LEWIS)
WHEREAS, Councilman Lewis has requested that the City Council
consider specific changes to the Code of Ordinances of the City of Port Arthur,
which will require the establishment of an Electrical Advisory Board; and,
WHEREAS, Section 1305.201 of the Texas Occupations Code permits a
City to regulate its own electricians under specific circumstances and in order
to facilitate the requested changes, the City Council must authorize the
establishment of a board by ordinance to regulate local electricians; and,
WHEREAS, Article XXIII will be added of Chapter 14 of the Code of
Ordinances in order to create the Electrical Advisory Board, establish
membership criteria, set terms of office, and delineate the duties and
responsibilities said board, to be determined by the City Council in Exhibit "A".
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF PORT ARTHUR, TEXAS:
Section 1. That the facts and opinions in the preamble are true and
correct.
, n
Section 3. That a copy of the caption of this Ordinance be spread upon
the Minutes of the City Council.
Section 4. That the ordinance shall be effective immediately.
READ, ADOPTED AND APPROVED on this day of A.D.,
2016, at a Regular Meeting of the City Council of the City of Port Arthur, Texas,
by the following vote: AYES:
Mayor
Councilmembers
NOES:
Mayor
ATTEST:
City Secretary
APPROVED AS TO FORM:
City Attor 's'
T . .
APPROVED FOR ADMINISTRATION:
City Manager
I
Exhibit"A"
Sec. 14-684- Created.
There is created the Electrical Advisory Board composed of members.
Sec. 14-685 - Membership.
The members of the Electrical Advisory Board shall be nominated by a councilmember at
a council meeting and approved by city council by majority vote in a resolution
Sec. 14-686- Terms of office.
The terms of office of the members of the Electrical Advisory Board shall be years.
Sec. 14-687 Creation of Bylaws and establishment of Duties.
The Electrical Advisory Board shall create bylaws and perform the following duties:
interoffice
MEMORANDUM
To: Mayor and City Council r0
From: Valecia R. Tizeno, City Attorney V�
Date: November 7, 2017
Subject: P.R. No. 19954 — Electrical Advisory Board and
P.O. No. 6656 - Amending the Code of Ordinances as to the Electrical
Advisory Board
Please find attached Article 11, Section 5, of the Texas Constitution. This is the
provision that we must rely upon in formulating and implementing any City Ordinance.
Therefore, in moving forward with the licensing process, the City must be certain to do
so solely within the parameters of the Texas Constitution.
I am also attaching a copy of an updated memo from the Bojorquez Firm
specifically dealing with the standard for licensing any electricians and/or electrical
contractors that we must follow. If you have any questions, I will be happy to further
discuss this matter with you.
1 nr. 1 tAHJ 1..U1NJ 111 U 11U1N AK 11LLL 11. N1UNILIYAL LUKYUKA HUNS Page 2 of 6
Cities and towns having a population of five thousand or less
may be chartered alone by general law. They may levy, assess and
collect such taxes as may be authorized by law, but no tax for any
purpose shall ever be lawful for any one year which shall exceed one
and one-half per cent of the taxable property of such city; and all
taxes shall be collectible only in current money, and all licenses
and occupation taxes levied, and all fines, forfeitures and penalties
accruing to said cities and towns shall be collectible only in
current money.
(Amended Aug. 3, 1909, and Nov. 2, 1920 . )
Sec. 5 . CITIES OF MORE THAN 5, 000 POPULATION; ADOPTION OR
AMENDMENT OF CHARTERS; TAXES; DEBT RESTRICTIONS. (a) Cities having
more than five thousand (5000) inhabitants may, by a majority vote of
the qualified voters of said city, at an election held for that
purpose, adopt or amend their charters. If the number of inhabitants
of cities that have adopted or amended their charters under this
section is reduced to five thousand (5000) or fewer, the cities still
may amend their charters by a majority vote of the qualified voters
of said city at an election held for that purpose. The adoption or
amendment of charters is subject to such limitations as may be
prescribed by the Legislature, and no charter or any ordinance passed
under said charter shall contain any provision inconsistent with the
Constitution of the State, or of the general laws enacted by the
Legislature of this State. Said cities may levy, assess and collect
such taxes as may be authorized by law or by their charters; but no
tax for any purpose shall ever be lawful for any one year, which
shall exceed two and one-half per cent . of the taxable property of
such city, and no debt shall ever be created by any city, unless at
the same time provision be made to assess and collect annually a
sufficient sum to pay the interest thereon and creating a sinking
fund of at least two per cent . thereon, except as provided by
Subsection (b) . Furthermore, no city charter shall be altered,
amended or repealed oftener than every two years .
file:1//C:/Tjsers/gthibodeauxlDocumentsllHE%2OTEXAS%2OCONSTITUTION%2OART... 11/7/2017
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BOJORQUEZ
12325 Hymeadow Drive (512
Phone: 250-0411
D )
Suite 2-100 LAW FIRM PLLC Fax: (512)250-0749
Austin,Texas 78750 TexasMunicipalLawyers.com
LEGAL MEMORANDUM
TO: Val Tizeno, City Attorney, City of Port Arthur
FROM: Elizabeth Elleson, Special Projects -Associate City Attorney
DATE: November 7, 2017
RE: Municipal Regulation of Electricians
QUESTION PRESENTED
What regulations on electricians can a city enact?
SUMMARY ANSWER
While a city can issue regulations for licensing electricians and their electrical work, these
regulations and requirements must be equal to or can be stricter than state law requirements.
LEGAL ANALYSIS
Authority for Municipal Regulation of Electricians
The Texas Electrical Safety and Licensing Act ("Act") was enacted in 2003. See Texas
Occupations Code, Chapter 1305. Electricians. The Act establishes standard regulations for
electrical work and gives authority to enforce the Act and to enact rules to the Texas Department
of Licensing and Regulation ("TDLR"). This includes licensing for classes of electricians and
work standards for licensees and electrical contractors.
In addition, the Act gives the City authority to also regulate electricians. This authority is
contained in the Act, and reads as follows:
Occupations Code Section 1305.201 Municipal or Regional Regulation
as amended,effective September 1,2017
(a) This chapter does not prohibit a municipality or region from regulating
electricians or residential appliance installers by:
(1) enacting an ordinance requiring inspections;
(2) offering examinations;
(3) issuing municipal or regional licenses; or
(4) collecting permit fees for municipal or regional licenses and examinations
from appliance installers for work performed in the municipality or region.
(b) A municipality or region may not require a person to take a municipal or
regional examination if that person holds the appropriate license issued under
this chapter and is working within the scope of that license.
Legal Memorandum:Municipal Regulation of Electricians Page 1 of 7
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(c) A municipality may adopt procedures for the:
(1) adoption of local amendments to the National Electrical Code; and
(2) administration and enforcement of that code.
(d) Electrical work performed within the corporate limits of a municipality must be
installed in accordance with all applicable local ordinances.
(e) Electrical work performed in an unincorporated area of the state must be
installed in accordance with standards at least as stringent as the requirements
of the state electrical code as adopted under Section 1305.101.
(f) A municipality or region may not collect a permit fee, registration fee,
administrative fee, or any other fee from an electrician who holds a license
issued under this chapter for work performed in the municipality or region. This
subsection does not prohibit a municipality or region from collecting a building
permit fee.
Extent of Municipal Regulation and the Doctrine of Preemption
While Occupations Code Section 1305.201 allows a City to issue regulations, the Texas
Constitution limits how far the regulation can go. This is known as the Doctrine of Preemption
and reads as follows (emphasis supplied):
Texas Constitution Article XI
Section 5. CITIES OF MORE THAN 5,000 POPULATION; ADOPTION OR
AMENDMENT OF CHARTERS; TAXES; DEBT RESTRICTIONS.
(a) Cities having more than five thousand (5000) inhabitants may, by a majority
vote of the qualified voters of said city, at an election held for that purpose, adopt
or amend their charters. ... The adoption or amendment of charters is subject to
such limitations as may be prescribed by the Legislature, and no charter or any
ordinance passed under said charter shall contain any provision inconsistent with
the Constitution of the State, or of the general laws enacted by the Legislature of
this State.
What this means is a municipality may only enact an ordinance that is consistent, and does not
conflict, with federal and state law. This doctrine was cited by the Texas Supreme Court which
held that an ordinance that is inconsistent with state legislation is impermissible. City of Brookside
Village v. Comeau, 633 S.W.2d 790, 796 (Tex.1982). A city may adopt local regulations that are
ancillary to and in harmony with the general scope and purpose of the state law. Id.
The Attorney General has issued opinions citing to and relying on the Doctrine of Preemption.
One opinion stands out in particular as it is similar, if not identical, to the City's questions on
regulation standards and licensing. In AG Opinion JM-1278 (1990), the Texas Department of
Health asked about a local governmental entity's authority to regulate on-site sewage disposal
systems. After analyzing caselaw and state law,the Attorney General found that a local entity has
that authority:
Legal Memorandum:Municipal Regulation of Electricians Page 2 of 7
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"Nevertheless, local governmental entities may not adopt regulations that impose
standards in direct conflict with [Health and Safety Code] chapter 366. Standards
less stringent than those imposed under [Health and Safety Code] chapter 366
would directly conflict with state law and thus would be preempted. Also
preempted would be local regulations allowing installers to construct or alter onsite
sewage disposal systems locally without state registrations or approved permits as
required by chapter 366."
The Attorney General also answered a related question: whether a state licensed plumber must
also get a state installer registration to operate as an installer under the Health and Safety Code.
The answer was yes:
[W]e conclude that individuals holding valid state plumbing licenses must also be
registered as installers in accordance with [Health and Safety Code] chapter 366
before constructing, installing, repairing, or altering an on-site sewage disposal
system in this state for compensation.
In Attorney General Op. JH-495 (1975), the Attorney General was asked whether a landscape
irrigator could install connections without a license under the Plumbing License Law. After
analyzing law,the AG answered in the negative:
To the extent that a particular action might constitute plumbing under the definition
given that term by the Legislature, the Board of Landscape Architects is not
permitted to promulgate a rule which would empower its licensees to perform that
activity without a plumber's license.
Essentially,as a matter of practice for a city,if a state statute or federal regulation sets forth specific
rules, procedures or penalties, the municipality's ordinance, rule or regulation, should mirror that
state rule or procedure or penalty,otherwise it is preempted. In the City's case,the City can impose
regulations on electricians but these must be consistent with state law and state rules.
City Regulations and State Law
As noted above, because of the preemption doctrine, regulations enacted by the City through an
electrical advisory board, must be either equal to or stricter than state law or state rules. For the
City's purposes,the state law is the Electrical Safety and Licensing Act. The rules are those issued
by TDLR which are contained in Title 16, Chapter 73 of the Texas Administrative Code.' (The
index of these rules is listed in Attachment A to this memo.)
The TDLR has the authority to adopt further standards for licensing of and activities by an electrician (emphasis
supplied): Occupations Code Sec. 1305.102. RULES. (a) The executive director shall adopt rules for the licensing
of electricians, sign electricians, electrical sign contractors, electrical contractors,journeyman linemen, residential
appliance installers,and residential appliance installation contractors as prescribed by this chapter. (b) The executive
director by rule shall prescribe descriptions of the types of activities that may be performed by each class of license
holder under this chapter. (c) The executive director by rule shall adopt standards of conduct requirements for license
holders under this chapter.
Legal Memorandum:Municipal Regulation of Electricians Page 3 of 7
For example, a city's requirements for the licensing of a residential wireman must follow or be
stricter than state law. Checking the law,the Act requires the following for a residential wireman
license.
Occupations Code Sec. 1305.157. RESIDENTIAL WIREMAN.
An applicant for a license as a residential wireman must:
(1) have at least 4,000 hours of on-the-job training under the supervision of a
master electrician or residential wireman; and
(2) pass a residential wireman examination administered under this chapter.
By rule, a residential wireman is defined as:
16 TAC 73.10(15) Definitions
(15) Residential Wireman--An individual, licensed as a residential wireman, who
works under the general supervision of a master electrician, on behalf of an
electrical contractor, or employing governmental entity, while performing
electrical work that is limited to electrical installations in single family and
multifamily dwellings not exceeding four stories, as defined by Texas
Occupations Code, §1305.002(13).
The work requirements which a residential wireman must comply with are further outlined in the
Act and the rules:
Occupations Code Sec. 1305.151. LICENSE REQUIRED.
Except as provided by Section 1305.0032,a person or business may not perform or
offer to perform electrical work3 or residential appliance installation unless the
person or business holds an appropriate license issued or recognized under this
chapter.
16 TAC 73.53 Responsibilities of All Persons Performing Electrical Work
All persons must perform non-exempt electrical work, non-exempt electrical sign
work,non-exempt journeyman lineman work, or non-exempt residential appliance
installation work in compliance with applicable codes and ordinances. The
department will interpret applicable codes and ordinances for purposes of
enforcement of the Act.
16 TAC 73.70 Responsibility of Licensee-- Standards of Conduct
(a) An individual licensee must provide all electrical work requiring a license
through a licensed contractor, or employing governmental entity.
2 Section 1305.003 lists those activities which are exempted under the Act.
3 The Act defines"electrical work"as"any labor or material used in installing,maintaining,or extending an electrical
wiring system and the appurtenances,apparatus,or equipment used in connection with the use of electrical energy
in, on, outside, or attached to a building, residence, structure, property, or premises. The term includes service
entrance conductors as defined by the National Electric Code."Texas Occupations Code Section 1305.002(11).
Legal Memorandum:Municipal Regulation of Electricians Page 4 of 7
In conclusion, under state law and the administrative rule, in order to obtain a license a residential
wireman must have acquired training under the supervision of a master electrician. In order to
work,the residential wireman must be licensed and work under the general supervision of a master
electrician.
The City's Electrical Code mirrors state law and the administrative rule:
Sec. 18.72 Definitions
One- or two-family dwelling unit electrician (residential wireman) means a
qualified individual who has passed the SBCCI standard electrician's test and works
under the supervision of a master electrician and is licensed by the state electrical
safety and licensing board.
Sec. 18-80. - Supervision of work.
(a) Responsibility for work. In the actual work of installing, maintaining, altering
or preparing of any electrical conductors of equipment for which a permit is
required by the electrical code, there shall be in direct supervision a qualified4 or
journeyman electrician. It shall be required that a qualified or sign electrician, as
the case may be, is liable and responsible for the layout and technical supervision
of any work which requires the securing of a permit,and a qualified or journeyman
4 Under the Act, an electrical contractor must be licensed as a master electrician or have employed a master
electrician. The City Code contains this master electrician requirement is its definition of"qualified electrician." See:
Sec. 18.72 Definitions
Electrician means:
(1) Qualified electrician. Any person engaged in or carrying on the business of electrical contracting who holds a
certificate of competency of master electrician issued by the examining board shall also be licensed by the state
electrical safety and licensing board.
Occupations Code Sec. 1305.002. Definitions
(5) "Electrical contracting" means the business of designing, installing, erecting, repairing, or altering electrical
wires or conductors to be used for light,heat,power,or signaling purposes. The term includes the installation
or repair of ducts, raceways, or conduits for the reception or protection of wires or conductors and the
installation or repair of any electrical machinery,apparatus,or system used for electrical light,heat,power,or
signaling.
(6) "Electrical contractor"means a person engaged in electrical contracting.
Occupations Code Sec. 1305.159.Electrical Contractor.
(a)An applicant for a license as an electrical contractor must:
(1)be licensed under this chapter as a master electrician or employ a person licensed under this chapter as a
master electrician;
(2)establish proof of financial responsibility in the manner prescribed by the executive director;and
(3)maintain workers' compensation coverage for the contractor's employees through an insurance company
authorized to engage in the business of insurance in this state or through self-insurance,or elect not to obtain
workers'compensation coverage,as provided by Subchapter A,Chapter 406,Labor Code.
(b)A person who holds a master electrician license issued or recognized under this chapter may only be assigned
to a single electrical contractor, unless the master electrician owns more than 50 percent of the electrical
contracting business.
Legal Memorandum:Municipal Regulation of Electricians Page 5 of 7
electrician shall not supervise at the job site more than two nonqualified
electricians.
As the Code reads today, it is in accord with the Texas Constitution. Because of the Doctrine of
Preemption, any changes to the Code must be either equal to or more stringent than those listed
above.
Licensing
It is worth noting that while a city can offer an examination or issue a municipal electrician license,
it cannot require a person to take the examination if the person holds the appropriate state license
and is working within the scope of that license.' In addition,a city cannot charge an electrician a
registration or administrative fee such as for taking an exam. (A building permit fee can be
collected from an electrician.6)
Further, under Occupations Code Section 1305.201, while a city can regulate electricians, the
section requires that electrical work performed within city limits be installed in accordance with
all applicable ordinances.' In the City's case,this would require that electrical work be conducted
in accordance with the National Electrical Code adopted by the City and incorporated in Chapter
18, Article III Electrical Code of the City's Code of Ordinances. TDLR also adopted the NEC
2017 version.8
CONCLUSION
The City can regulate electricians, however, regulations, including those for licensing, cannot be
less than those standards contained in state law and administrative rule. Consequently, as the City
prepares to enact regulations, Council should consider whether these will be duplicative of state
law,whether the proposal is necessary and whether it is valid given the preemption limitation.
5 "A municipality or region may not require a person to take a municipal or regional examination if that person holds
the appropriate license issued under this chapter and is working within the scope of that license."Texas Occupations
Code Section 1305.201(b).
6"A municipality or region may not collect a permit fee,registration fee,administrative fee,or any other fee from an
electrician who holds a license issued under this chapter for work performed in the municipality or region. This
subsection does not prohibit a municipality or region from collecting a building permit fee." Texas Occupations
Code Section 1305.201(f).
7 "Electrical work performed within the corporate limits of a municipality must be installed in accordance with all
applicable local ordinances." Texas Occupations Code Section 1305.201(d).
8 16 TAC §73.100 Technical Requirements
Effective September 15, 2017,the department adopts the National Electrical Code, 2017 Edition as it existed on
August 24,2016,as adopted by the National Fire Protection Association,Inc.
Legal Memorandum:Municipal Regulation of Electricians Page 6 of 7
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ATTACHMENT A
Texas Administrative Code
TITLE 16 ECONOMIC REGULATION
PART 4 TEXAS DEPARTMENT OF LICENSING AND REGULATION
CHAPTER 73 ELECTRICIANS
Rules
§73.1 Authority
§73.10 Definitions
§73.20 Licensing Requirements--Applicant and Experience Requirements
§73.21 Licensing Requirements--Examinations
§73.22 Licensing Requirements--General
§73.23 Licensing Requirements--Renewal
§73.24 Licensing Requirements--Waiver of Examination Requirements
§73.25 Continuing Education
§73.26 Documentation of Required On-The-Job Training
§73.27 Licensing Requirements--Temporary Apprentices
§73.28 Licensing Requirements--Emergency Licenses
§73.30 Exemptions
§73.40 Insurance Requirements
§73.51 Electrical Contractors' Responsibilities
§73.52 Electrical Sign Contractors'Responsibilities
§73.53 Responsibilities of All Persons Performing Electrical Work
§73.54 Residential Appliance Installation Contractors'Responsibilities
§73.60 Standards of Conduct for Engaging in Electrical Work
§73.65 Advisory Board
§73.70 Responsibility of Licensee--Standards of Conduct
§73.80 Fees
§73.90 Sanctions--Administrative Sanctions/Penalties
§73.91 Enforcement Authority
§73.100 Technical Requirements
Available at:
http://texreg.sos.state.tx.us/public/readtac$ext.ViewTAC?tac view=4&ti=16&pt-4&ch=73&r1=Y
Legal Memorandum:Municipal Regulation of Electricians Page 7 of 7
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E OR �v
•,r* • ManiATTORNEY GENERAL
R OF TEXAS
,`•'' AUf3TIN, Fxsxlks 78711
JOHN L. MLI.
Anrronriirrf GSNSK AL
January 15, 1975
The Honorable Jim Clark Opinion No. H- 495
House of Representatives
Committee on Labor Re: Interrelationship of
P. O. Box 2910 acts regulating landscape
Austin, Texas 78767 architects (Art. 249c, V. T. C. S. )
and plumbers (Art. 6343-101,
V. T. C. S, ) _
Dear Mr. Clark:
You have asked our opinion on questions involving landscape
architects. Your first question asks:
Does Section 4(a) of Article 249c, authorizing
"procedural rules and regulations . . . setting
standards governing the connections to any public
or private water supply by a landscape irrigator"
have the effect of authorizing landscape irrigators
to install or repair such connections without a
license under the Plumbing License Law?
Section 4(a) of article 249c, V. T. C. S. , provides in part:
The board shall promulgate procedural rules
and regulations, consistent with the provisions of this
Act, to govern the conduct of its business and proceedings,
and setting standards governing the connections to any
public or private water supply by a landscape irrigator.
Notwithstanding any other provision of this Act, the
board shall not have any power or authority to amend
or enlarge upon any provision of this Act by rule or
regulation or by rule or regulation to change the
meaning in any manner whatsoever of any provision
p. 2234
The Honorable Jim Clark page 2 (H-495)
of this Act or to promulgate any rule or regula-
tion which is in any way contrary to the underlying
and fundamental purposes of this Act or to make any
rule or regulation which is unreasonable, arbitrary,
capricious, illegal, or unnecessary.
Section 14 of the Plumbing License Law of 1947, article 6243-101,
V. T. C. S., prohibits a person from engaging in, working at or conducting
the business of plumbing unless such person is the holder of a valid
plumber's license. For purposes of the Plumbing License Law of 1947,
plumbing is defined in section 2 of that Act as meaning and including:
(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
buildings where a person or persons live, work
or assemble; all piping, fixtures, appurtenances
and appliances outside a building connecting the
building with the source of water or gas supply, or
both, on the premises, or the main in the street,
alley or at the curb; all piping, fixtures, appurtenances,
appliances, drain or waste pipes carrying waste water
or sewage from or within a building b 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 and 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.
Whether the installation or repair of a water connection by a
landscape architect constitutes pumbing is a question of fact which must
be determined according to the circumstances of each case. This office
cannot resolve such disputes. To the extent that a particular action might
constitute plumbing under the definition given that term by the Legislature,
p. 2235
The Honorable Jim Clark page 3 (H-495)
the Board of Landscape Architects is not permitted to promulgate a rule
which would empower its licensees to perform that activity without a
plumbers license. Section 12 of article 249c prohibits a construction
of the landscape architects act which repeals or amends a law affecting
or regulating another profession.
Your second question inquires about the effect of the majority
rights law upon the minimum age established by section 5a of article
249c. Article 5923b extended the "rights, privileges and obligations
of a person who is 21 years of age" to all persons at least 18 years of
age. Except for one unrelated exception specified in the Act, the
statute provided that any "law, rule, regulation, or ordinance which
extends a right, privilege, or obligation to a person on the basis of
a minimum age of 21, 20 or 19 years shall be interpreted as prescrib-
ing a minimum age of 18 years. " We have held previously that this
statute extends to persons 18 years of age all the rights formerly
granted to persons 21 years of age. Attorney General Opinion H-82
(1973).
It is our opinion that section 5a of article 249c, establishing 21
as the minimum age to apply for a landscape architects license, is
controlled by article 5923b, and that a person who meets all the other
requirements set forth in the statute may apply for and obtain a landscape
architect's license if he is at least 18 years old.
SUMMARY
The Texas State Board of Landscape Architects
may not authorize its licensees to perform plumbing
acts without a plumbing license. Whether the installa-
tion or repair of water connections constitutes
plumbing is a fact question which depends on the
circumstances of each case. This office cannot
resolve such disputes. A person is eligible to be
licensed as a landscape architect at the age of
eighteen.
V .ry truly yours,yy
Or lir
,,.2.66
4 O`N L. HILL
Attorney General of Texas
p. 2236
The Honorable Jim Clark, page 4 (H-495)
APPROVED:
A / / PO
DAVID M. KENDALL, First • ssistant
/
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2237
p14'- 1�NEY04-A
THE ATTORNEY GENERAL
OF TEXAS
JIM Ha'r'ms December 28, 1990
ATTORNEY GENERAL
Robert Bernstein, M.D. Opinion No. JM-1278
Commissioner
Texas Department of Health Re: Registration of installers
1100 West 49th Street of on-site sewage disposal
Austin, Texas 78756-3199 systems, and related questions
under chapter 366 of the
Health and Safety Code
(RQ-2037)
Dear Dr. Bernstein:
You ask three questions concerning state and local
regulation of installers of on-site sewage disposal systemsl
under chapter 366 of the Health and Safety Code. Chapter
366 codifies article 4477-7e, V.T.C.S. , which was repealed
effective September 1, 1989, the date the Health and Safety
'Code took effect. Acts 1989, 71st Leg. , ch. 678 , § 13, at
3165.
Since your second question is narrower than your first,
we will address it first. You ask whether an "authorized
agent" as defined in chapter 366 may require installers to
meet more stringent registration standards than those
required by the Texas Department of Health [the "depart-
ment"] pursuant to section 366.073 . The registration of
1. On-site sewage disposal systems for purposes of
chapter 366 are treatment devices and disposal facilities
that produce not more than 5, 000 gallons of waste each day,
are used only for disposal of sewage produced on site, and
are not regulated by the Texas Water Commission. Id.
§ 366.002 (8) . For the most part, these systems are septic
tank systems, aerobic treatment plants and other treatment
devices used by homeowners and small businesses. See
generally Tex. Engineering Extension Service, Tex. A & M
Univ. System, On-Site Sewerage Facilities 4-1 to 4-14, 6-1
to 6-12 (July 1989) . Installers are persons who are compen-
sated by others to construct., install, alter or repair
on-site sewage disposal systems. Health & Safety Code
§ 366.002 (5) .
p. 6848
Dr. Robert Bernstein - Page 2 (JM-1278)
installers is covered by subchapter E of chapter 366. It
provides that no person may operate as an installer in Texas
unless registered by the department or an authorized agent.
Health & Safety Code § 366. 071. Section 366.073 (a) requires
the department to issue or authorize the issuance of
installer registrations. Section 366. 073 (b) provides that
the department shall issue a registration to an installer if
he completes both an application in compliance with chapter
366 and the training program provided by the department.
"Authorized agents" are local governmental entities
designated by the department to implement and enforce
chapter 366 and the rules adopted by the Texas Board
of Health under chapter 366. Health & Safety Code
§ 366.002 (1) ; see also id. § 366.033. For purposes of
chapter 366, the phrase "local governmental entities" refers
to municipalities, counties, river authorities or special
districts. Id. § 366.002 (6) . According to section 366. 011,
either the department or an authorized agent has "general
authority over the location, design, construction, installa-
tion, and proper functioning of on-site sewage disposal
systems. " Neither subchapter E nor any other provision in
chapter 366 or its predecessor, article 4477-7e, states that
state registration in accordance with chapter 366 is
exclusive or that authorized agents may not impose more
stringent installer registration standards or require state
registered installers to register locally. In fact, the one
reference in chapter 366 describing departmental registra-
tion of installers as "statewide" does not indicate any
legislative intent to prohibit more stringent local regula-
tion of installers. dee id. § 366.077 (a) (permitting an
authorized agent as well as the department to revoke an
installer's "statewide registration" for violating chapter
366 or rules adopted under the chapter) .
Subchapter C of chapter 366 requires a local govern-
mental entity desiring designation as an authorized agent
to hold a public hearing and adopt an order or resolution
satisfying certain statutory requirements so that it
rather than the department may exercise the general author-
ity provided by section 366. 011. Health & Safety Code
§§ 366. 031-.032. Designation takes effect when the
department approves the order or resolution in writing.
Id. § 366. 031(b) .
The order or resolution must satisfy the department's
minimum requirements for on-site sewage disposal systems and
include a written enforcement plan. Id. § 366.032 (a) ; see
also id. § 366.034 (b) ' (revocation of an authorized agent's
designation if it does not consistently enforce the minimum
requirements) . More stringent requirements are permissible,
p. 6849
Dr. Robert Bernstein - Page 3 (JM-1278)
however, in accordance with section 366.032 (b) which
provides:
If the order or resolution adopts more strin-
gent standards for on-site sewage disposal
systems than this chapter or the department's
standards and provides greater public health
and safety protection, the authorized agent's
order or resolution prevails over this
chapter or the standards.
We conclude the legislature intended section 366. 032 (b) to
authorize any governmental entity that is an authorized
agent to adopt more stringent standards and for such
standards to prevail after their adoption. Our construction
is consistent with the language of article 4477-7e, from
which section 366. 032 (b) was derived, and with the testimony
presented to the legislature in 1987 on behalf of House Bill
1875, the bill that enacted article 4477-7e.
Section 366.032 (b) modifies and combines language from
sections 5(c) and 13 of article 4477-7e, V.T.C.S. Acts
1987, 70th Leg. , ch. 406, at 1935, 1938. Section 5 (c)
stated " [t]he order or resolution may adopt more stringent
standards for on-site sewage disposal systems than the
department's standards. " ;d. at 1935. Section 13 stated:
A local governmentalentity's orders and
rules that are more stringent than this
article or rules adopted under this article
and that provide greater protection to the
public health or safety prevail in the local
governmental entity's jurisdiction.
Id. at 1938. The language in section 5 (c) that an "order or
resolution may adopt more stringent standards for on-site
sewage disposal systems" clearly constitutes authority for
any governmental entity who is an authorized agent to adopt
more stringent standards, and we conclude that the modifi-
cation of this language from section 5(c) and its combina-
tion with language from section 13 was not intended to make
a change in the law.2
2 . Repeal of these and other sections of article
4477-7e and enactment of chapter 366 was part of a non-
substantive codification of existing health and safety laws
and thus was not intended to make substantive legal changes.
(Footnote Continued)
p. 6850
Dr. Robert Bernstein - Page 4 (JM-1278)
Furthermore, the testimony offered in 1987 on behalf of
House Bill 1875 supports our conclusion that the legislature
intended counties and other local entities to have the power
to adopt more stringent standards. Several speakers at a
public hearing held in 1987 on House Bill 1875 referred to
the bill as a means of implementing minimum standards
statewide. Those speakers stated that minimum state stan-
dards would discourage incompetent installers from moving
from counties that currently regulated sewage disposal
systems and installers to counties without such regula-
tions.3 They also testified that the adoption of minimum
state standards in conjunction with a grant of authority to
authorized agents to collect permit fees, see Health &
Safety Code § 366.059, would encourage additional counties
to regulate sewage disposal systems locally and thereby
avoid departmental regulation within their jurisdictions.
No mention was made of any intent to restrict more stringent
(Footnote Continued)
Acts 1989, 71st Leg. , ch. 678, § 14, at 3165 (legislation
adopting the Health and Safety Code intended as
recodification only; no substantive change intended) ;
see Also Johnson v. City of Fort Worth, 774 S.W.2d 653,
654-55 (Tex. 1989) (with regard to nonsubstantive revisions
of statutory law, former statutes control over codified
language in cases of conflict) ; Attorney General Opinion
JM-1230 (1990) .
3 . In 1987 sections 26.031 and 26. 032 of the Water
Code authorized county commissioners courts to regulate
private sewage facilities within their jurisdictions.
Testimony at the public hearing indicated that between 70
and 110 counties were regulating sewage facilities and their
installers locally. Hearings on Tex. H.B. 1875 Before the
House Comm. on Natural Resources, 70th Leg. (March 25, 1987)
(testimonies of Larry Soward and R.J. King) (tapes on file
with House Technical Services) . House Bill 1875 repealed
sections 26.031 and 26.032 effective September 1, 1989, the
date that the bill required the rules to be adopted by the
state under article 4477-7e to take effect. Acts 1987 , 70th
Leg. , ch. 406, §§ 2-3 , at 1938 . Given the current language
of section 366. 032 (b) of the Health and Safety Code, the
prior language of section 5(c) , and the public testimony
stating minimum state standards were needed for counties not
regulating sewage disposal facilities, the repeal of
sections 26.031 and 26.032 does not indicate any intent to
deprive counties of their authority to regulate on-site
sewage disposal facilities more stringently than the
department.
p. 6851
Dr. Robert Bernstein - Page 5 (JM-1278)
local regulation or deprive entities such as counties that
were currently regulating sewage facilities or their
installers of their power to do so. See. e.g. , Hearings on
Tex. H.B. 1875 Before the House Cowit. on Lural Resources,
70th Leg. (March 25, 1987) (testimonies of Mark Hoelscher,
Larry Soward, Jack Purcell, R.J. King, representatives of
various state and local entities) (tapes available from
House Technical Services) .4
The department's brief filed with us states that sec-
tion 366.032 (b) of the Health and Safety Code does permit
authorized agents to adopt more stringent standards. The
brief, however, concludes that authorized agents may adopt
more stringent standards only with regard to on-site sewage
disposal systems and not more stringent standards for the
registration of installers who hold state registrations. We
disagree with this conclusion.
Section 5(c) does expressly refer only to "more strin-
gent standards for on-site sewage disposal systems" and does
not contain express language referring to more stringent
standards for installer registrations. Nevertheless, the
language of section 366.032 (b) permitting authorized agents
in their orders or resolutions to adopt more stringent stan-
dards for on-site sewage disposal systems implies the powers
necessary to carry out the grant of the express power.
Terrell v. Sparks, 135 S.W. 519, 521 (Tex. 1911) ; Austin
goad Co. v. Evans, 499 S.W.2d 194 , 203 (Tex. Civ. App. -
Fort Worth 1973, writ ref'd n.r.e. ) ; 67 Tex. Jur. 3d
Statutes 4 118, at 701-02 (grant of express power conveys
every incidental power necessary and proper to effectuate
legislative grant) . As stated earlier, no provision of
chapter 366 or its predecessor, article 4477-7e, states that
state registration is exclusive or that localities may not
impose more stringent registration requirements.5 Thus, an
4. See also House Research Organization Daily Floor
Report - Pt. Two on C.S.H. B. 1875 at 47 (May 6, 1987) (local
government may adopt more stringent standards than the
department) .
5. One speaker testifying at the 1987 public hearing
on House Bill 1875 stated that the bill would not prevent a
local entity from imposing more stringent standards if it
wanted to license installers and require some additional
training. That speaker had participated in the Texas Rural
Water Quality Task Force whose work resulted in House Bill
(Footnote Continued)
p. 6852
Dr. Robert Bernstein - Page 6 (JM-1278)
authorized agent who adopts more stringent standards for
on-site sewage disposal systems in its order or resolution
pursuant to section 366.032 (b) may adopt more stringent
standards for local registration of installers if those
standards are necessary to ensure that local installers will
satisfy the agent's more stringent disposal system
standards.6
We now turn to your first question. You ask if local
governmental entities, whether or not designated as
authorized agents, may impose certain specific requirements
on installers who hold state registrations. You describe
the requirements as "paying fees, attending training cours-
es, posting surety bonds, or obtaining licenses or registra-
tions. " The department's brief contends - that chapter 366
preempts all local regulation not in conformance with its
provisions. You have not provided us with the texts of any
existing local orders, resolutions or ordinances adopting
such requirements. You also have not indicated either the
type of entity imposing the requirements or the legal
authority relied upon to impose specific local requirements.
Accordingly, we answer your question only generally.
We address this question first with regard to local
governmental entities that have been designated as author-
ized agents and that possess the power to regulate on-site
sewage disposal systems only under chapter 366. Consistent
with our first answer, authorized agents that have adopted
in their orders or resolutions more stringent standards for
on-site sewage disposal systems pursuant to section 366. 032
may adopt additional regulatory requirements necessary to
achieve those more stringent standards as long as the addi-
tional requirements do not directly conflict with chapter
366 Consequently, to be valid, requirements for local
fees, training, bonds, licenses, or registrations must
ensure compliance with the more stringent standards adopted
(Footnote Continued)
1875. Hearings on Tex. H.B. 1875, supra (testimony of R.J.
King, speaking on behalf of the Texas Department of
Agriculture) .
6. An agent's more stringent system or installer
standards must not directly conflict with the department's
minimum standards. Bee infra Note 7 and accompanying text;
see also Attorney General Opinion JM-790 (1987) (local
regulation preempted if in direct conflict with state law
that does not exclusively occupy the field) .
p. 6853
Dr. Robert Bernstein - Page 7 (JM-1278)
by authorized agents for sewage disposal systems within
their jurisdictions.
We next turn to local governmental entities that
possess statutory or other legal authority outside of
chapter 366 to regulate on-site sewage disposal systems and
their potential threat to the environment and public health.
These entities may or may not be designated as authorized
agents. Local regulations are preempted by state law only
if the regulations are expressly prohibited by state law, if
the legislature intended state law to exclusively occupy the
field, or if the regulations directly conflict with state
law. See Attorney General Opinions JM-790, JM-619 (1987) .
As we previously stated, we do not find in chapter 366
or in its predecessor, article 4477-7e, any express prohibi-
tion against local regulations that reflect local soil and
water conditions as well as local public health concerns.
Comiare Attorney General Opinion JM-1195 (1990) (express
statutory provision that local licenses not required) with
Attorney General Opinion JM-994 (1988) (no express prohibi-
tion in Controlled Substances Act on local regulation of
abusable glues) . Furthermore, the legislature expressly
repealed only sections 26.031 and 26. 032 of the Water Code
when it passed House Bill 1875, and even then it replaced
those sections with section 5(c) of article 4477-7e, now
section 366.032 (b) of the code. See supra, n. 3. No provi-
sion of either chapter 366 or article 4477-7e suggests the
legislature intended to repeal by implication any legal
authority to regulate on-site sewage disposal systems at the
local level.
Implicit in our first answer was the determination that
the legislature did not intend chapter 366 or its prede-
cessor, article 4477-7e, to exclusively occupy the field
of on-site sewage disposal regulation. Read as a whole,
chapter 366 imposes minimum statewide standards and a state
registration requirement to protect communities within
counties imposing little or no regulation. Chapter 366 does
not indicate any legislative intent to negate equivalent or
more stringent local regulation authorized by the charters
of home rule cities or by state laws. Compare Attorney
General Opinion JM-1195 (1990) (insurance coverage required
by state law indicates legislative intent to preempt local
bond requirements) And Attorney General Opinion JM-790
(1987) (detailed state landlord and tenant law indicates
legislative intent to occupy field and preempt all local
regulation) with Attorney General Opinion JM-994 (1988)
(state authority to regulate sale of abusable glues does not
per se preempt local ordinance requiring business personnel
to assist customers in such sales) and Attorney General
p. 6854
Dr. Robert Bernstein - Page 8 (JM-1278)
Opinion JM-226 (1984) (state public health statutes do not
preempt municipal standards for storage of hazardous waste) .
In addition, various speakers at the public hearing in
1987 referred to a need for statewide minimum requirements
and the creation of incentives to encourage more counties to
regulate on-site systems. No speaker described House Bill
1875 as a restriction on or implied repeal of local powers
to promote the public health and protect the environment.
See. e.a. , Jiearinas on Tex. H.B. 1875, supra (testimonies of
Mark Hoelscher, Wayne Farrell, Larry Soward and R.J. King) .
Thus, we conclude that the legislature did not intend to
occupy the field of on-site sewage disposal system
regulation.
Nevertheless, local governmental entities may not adopt
regulations that impose standards in direct conflict with
chapter 366.7 Standards less stringent than those imposed
under chapter 366 would directly conflict with state law
and thus would be preempted. dee Health & Safety Code
§§ 366. 032 (a) (2) , 366. 034 (b) . Also preempted would be local
regulations allowing installers to construct or alter on-
site sewage disposal systems locally without state registra-
tions or approved permits as required by chapter 366. See
id. §§ 366.051, 366. 071. Furthermore, additional permit
fees for costs covered by the state permit fees would
directly conflict with state law. Additional registration
and licensing fees also may not be charged by local entities
for costs already covered by the state registration fees.
Id. §§ 366. 001(2) , 366. 058, 366. 074. Conclusive determina-
tion of the validity of a particular fee, license,
7. Local entities, however, may adopt local regula-
tions that are ancillary to and in harmony with the general
scope and purpose of the state law. City of Brookside
Village v. Comeau, 633 S.W.2d 790, 796 (Tex. ) , cert. denied,
459 U.S. 1087 (1982) (general law city) . A local regulation
and a state law should not be found repugnant if any
reasonable construction can give effect to both provisions.
Johnson v. City of Dallas, 702 S.W.2d 291 (Tex. App. -
Dallas 1985, writ ref'd n.r.e. ) (home rule city) . Limita-
tions on local power will not be implied unless the pro-
visions of the general law "are clear and compelling. "
Lower Colorado River Auth. v. City of San Marcos, 523 S.w.2d
641, 645 (Tex. 1975) (home rule city) ; see also City of
Weslaco v. Melton, 308 S.W. 2d 18, 21 (Tex. 1957) (more
stringent regulation by home rule city in some instances
constitutes a separate field of regulation) .
p. 6855
Dr. Robert Bernstein - Page 9 (JM-1278)
registration, bonding or training requirement, however,
would depend on factual determinations that cannot be made
as part of the opinion process.
Your last question concerns the registration of li-
censed plumbers as installers. You ask whether individuals
licensed as plumbers in accordance with article 6243-101,
V.T.C.S. , must be registered as installers as required by
chapter 366.
Chapter 366 does not exempt state licensed plumbers
from its registration requirements. Section 366. 071 re-
quires all persons operating as installers of on-site sewage
disposal systems in this state to be registered by the
department or an authorized agent. As mentioned earlier, an
"installer" is defined by section 366. 002 (5) as any person
who receives compensation from another to construct, in-
stall, alter, or repair on-site sewage disposal systems.
See also 25 T.A.C. §§ 301. 107 (a) (5) , 301. 107 (j) (property
owner exempt from registration with regard to facilities on
his property) .
Neither does article 6243-101 exempt licensed plumbers
from the registration requirements of chapter 366 . Section
3 (e) of that article currently provides that plumbers
holding a license from the Texas State Board of Plumbing
Examiners are not "required to be licensed by any other
board or agency when installing or working on a lawn irriga-
tion system. " No other provision of article 6243-101 or any
other state law exempts licensed plumbers from the registra-
tion requirements of chapter 366.
We are aware that the statutory definitions of "plumb-
ing" and "on-site sewage disposal system" create some regu-
latory overlap. See V.T.C.S. art. 6243-101, § 2 (plumbing
includes all piping, appurtenances and appliances for the
elimination of sewage, including disposal systems) ; Health &
Safety Code § 366. 002 (8) (one or more treatment or disposal
systems producing not more than 5, 000 gallons of on-site
waste daily) . Although particular actions may fall within
only one of the two definitions or within both definitions,
we are unable to resolve questions of fact in the opinion
process. Thus, we limit our discussion to the legal issue
of whether a state licensed plumber must obtain a state
installer registration to operate as an installer for
purposes of chapter 366.
With regard to the legal issue, this office has previ-
ously held that statutory exemptions are necessary to avoid
state licensing requirements. See. e.g. , Attorney General
Opinion H-495 (1975) ; see also Attorney General Opinion
p. 6856
Dr. Robert Bernstein - Page 10 (JM-1278)
H-960 (1977) (affirming holding of H-495) ; Attorney General
Opinion H-890 (1976) (state agencies cannot create by
contract licensing exemptions not available by statute) .
Therefore, we conclude that individuals holding valid state
plumbing licenses must also be registered as installers in
accordance with chapter 366 before constructing, installing,
repairing, or altering an on-site sewage disposal system in
this state for compensation.
SUMMARY
A local governmental entity that has been
designated an authorized agent for purposes
of chapter 366 of the Health and Safety Code
may adopt more stringent standards for on-
site sewage disposal systems in its order or
resolution pursuant to section 366.032 (b) of
the code. An authorized agent that adopts
more stringent standards for on-site sewage
disposal systems pursuant to that section may
adopt more stringent standards for local
registration of installers if those standards
are necessary to ensure that local installers
will satisfy the agent's more stringent
disposal system standards. Thus, authorized
agents are authorized by section 366. 032 (b)
to require additional fees or training, local
licenses or registrations, and the posting of
surety bonds if necessary to ensure accom-
plishment of their more stringent standards
for on-site sewage disposal systems. Local
standards must not directly conflict with
chapter 366 of the Health and Safety Code.
Furthermore, chapter 366 of the Health and
Safety Code does not preempt local regula-
tions not directly in conflict with its
requirements that are adopted by local
governmental entities in accordance with
other legal authority. Thus, local govern-
mental entities, whether or not they are
designated as authorized agents, may adopt
more stringent requirements than the state
for on-site sewage disposal systems and their
installers if they possess the legal
authority to do so and if such requirements
do not directly conflict with chapter 366.
Individuals who hold state plumbing
licenses in accordance with article 6243-101,
p. 6857
Dr. Robert Bernstein - Page 11 (JM-1278)
V.T.C.S. , must obtain state installer regis-
trations as required by chapter 366 to con-
struct, install, alter or repair on-site
sewage disposal systems for compensation in
this state.
Very truly ,
A. .„
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Celeste A. Baker
Assistant Attorney General
p. 6858