Could a Texas city charge plumbers a registration fee before they worked in the city?

Texas AG Opinion JM-210: Plumber Registration Fees

Plain-English summary

The Texas State Board of Plumbing Examiners reported that several cities required licensed plumbers to pay a "registration fee" before practicing in the city. It asked whether those fees were licenses, occupation taxes, or valid requirements under the Plumbing License Law. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

JM-210 distinguished a licensing fee from an occupation tax. It said licensure conferred a right to practice that others lacked, while an occupation tax was imposed primarily to raise revenue. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

The two ordinances provided to the Attorney General imposed small registration fees, but the amount did not control. The opinion classified the ordinances as licensing fees because of what they required as a condition of doing business. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

The state board was the sole licensing agency for plumbers and controlled personal fitness, skill, and related licensing matters. JM-210 concluded that a city ordinance regulating the profession or occupation of plumbing invaded that state function and was invalid. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

The opinion preserved a municipal role. It concluded that a city could require registration of a plumbing business as a condition of engaging in the business, and could regulate specific acts within the field section 15 reserved to municipalities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a city license an individual plumber's professional qualifications?

No. JM-210 said the Plumbing License Law had made the state board the sole plumber-licensing agency, so municipal regulations conflicting with that responsibility were invalid. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

Could a city require a plumbing business to register?

Yes. The opinion concluded that an ordinance requiring registration of a plumbing business before it engaged in the business was valid. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

Were the fees occupation taxes?

JM-210 said a fee was an occupation tax if it was imposed primarily to raise revenue. The two ordinances supplied with the request were treated instead as licensing fees, and their small amount was immaterial to that classification. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

Could cities regulate any plumbing activity?

Yes, within the municipal field recognized by section 15. The opinion cited earlier advice allowing a city to prescribe permit conditions and require a bond for specific plumbing work, while leaving occupational fitness and skill to the state board. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

Did the opinion treat business registration and occupational licensing as the same thing?

No. Its final distinction was between an invalid ordinance regulating the plumbing profession and a valid ordinance registering a plumbing business as a condition of doing business. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

Background and statutory framework

Article 6243-101, the Plumbing License Law, created the Texas State Board of Plumbing Examiners in 1947. JM-210 said the act removed much of the cities' prior authority to regulate the plumbing occupation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

The opinion relied on prior Attorney General opinions to divide regulatory authority. The board controlled individual licensing, skill, and personal fitness; cities could regulate specified acts and permit conditions within their reserved municipal field. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

JM-210 also quoted article 1175.23 as allowing home-rule cities to license a lawful business, occupation, or calling susceptible to control under the police power. It cited the plumbing business as within that general category, subject to the state-law division of authority described in the opinion. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

Citations and references

• Article 6243-101, V.T.C.S., was the Plumbing License Law whose allocation of licensing authority controlled the opinion. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf
• City of Fort Worth v. Gulf Refining Co., 83 S.W.2d 610, 617 (Tex. 1935), appeared in the distinction between licensing fees and revenue-raising occupation taxes. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf
• Hoefling v. City of San Antonio, 20 S.W. 85, 87 (Tex. 1892), appeared for the description of a license as permission to practice a trade otherwise prohibited. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf
• Trewitt v. City of Dallas, 242 S.W. 1073, 1077-78 (Tex. Civ. App. - Dallas 1922, no writ), appeared in the home-rule discussion of plumbing-business regulation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0210
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0210.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

October 12, 1984

Mr. Lynn Brown, Administrator
Texas State Board of Plumbing Examiners
P. O. Box 4200
Austin, Texas 78765

Opinion No. JM-210

Re: Authority of a municipality to impose a registration fee on plumbers

Dear Mr. Brown:

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 plumbing in that city. In connection with this, you have asked this office the following questions:

1. Do such registration fees constitute a form of licensure?

2. Are these registration fees "occupation taxes," as set forth in Attorney General Opinion V-428 (1947)?

3. Are 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 licensure, it must confer a right to a deserving individual that would be denied to all others. See City of Fort Worth v. Gulf Refining Co., 83 S.W.2d 610, 617 (Tex. 1935). A license will allow a person to practice a trade which he could not practice without such a license. See Hoefling v. City of San Antonio, 20 S.W. 85, 87 (Tex. 1892). For such a fee to constitute an occupation tax, however, it must be levied primarily for the purpose of raising revenue. See City of Fort Worth v. Gulf Refining Co., supra; Attorney General Opinion V-428 (1947).

Therefore, the answers to your first two questions depend upon whether these ordinances confer an occupational right to an individual who wants to engage in the profession of plumbing, or whether these ordinances are revenue raising devices. You have supplied this office with two ordinances from cities in Texas: one provides for a registration fee for plumbing contractors; the other provides that an organization consisting of licensed plumbers who wish to do business must first register with the city. Although both ordinances charge small fees for registration, we are of the opinion that this is immaterial to our findings. See City of Fort Worth v. Gulf Refining Co., supra. We conclude, therefore, that these ordinances are, in effect, licensing fees.

Article 6243-101, V.T.C.S. ("Plumbing License Law") was enacted in 1947. This act created the State Board of Plumbing Examiners, thus taking away much of the authority to regulate the plumbing occupation from cities. See Attorney General Opinion V-549 (1948). The Texas State Board of Plumbing Examiners 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 the licensing of plumbers, any municipal regulations which conflict with the board's responsibilities are invalid under section 15 of the Plumbing License Law. Attorney General Opinions V-1217 (1951); V-720 (1948); V-333 (1947). See also Attorney General Opinion MW-565 (1982).

This office has previously considered a problem similar to this question. Attorney General Opinion V-1217 (1951) dealt with several municipal requirements that required plumbers to post indemnity bonds before engaging in specified plumbing work. One such ordinance, for example, required plumbers to post a bond before that plumber could engage in his profession. That opinion made the following observation:

The Board's responsibilities deal primarily with the personal fitness and skill of individual plumbers. The "license" which it grants and its authority to promulgate rules respecting the licensing of plumbers are intended to 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.

The opinion went on to conclude that a city may require a bond under its authority to prescribe the terms and conditions for the granting of a "permit" under the terms of section 15, and that the Board has no jurisdiction over that subject matter. The distinction between these two statements is clear: the Board may regulate the plumbing occupation in its licensing procedures; a city may only regulate certain specific acts of plumbers, as set forth in section 15 of the Plumbing License Law. See Attorney General Opinion V-549 (1948). See also Attorney General Opinion V-720 (1948). However, cities may require plumbing organizations to register with 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 control of the police power." V.T.C.S. art. 1175.23. This includes the business of plumbing. See Trewitt v. City of Dallas, 242 S.W. 1073, 1077-78 (Tex. Civ. App. - Dallas 1922, no writ).

Therefore, it is our opinion that ordinances which regulate the profession or occupation of plumbing infringe upon a function conferred solely to the Texas State Board of Plumbing Examiners by the Plumbing License Law and are invalid. However, ordinances which require the registration of plumbing businesses as a condition precedent to engaging in the profession are valid.

SUMMARY

A municipal ordinance which purports to confer an occupational right to an individual, and is not designed for the sole purpose of raising revenue, is a license fee. A municipal ordinance which regulates the profession or occupation of plumbing infringes upon a function conferred solely to the Texas State Board of Plumbing Examiners by the Plumbing License Law, article 6243-101, V.T.C.S., and is invalid. An ordinance which requires the registration of a plumbing business as a condition precedent to engaging in the profession is valid.

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton