Does a Texas real estate inspector need a plumber's license to do a sewer-line camera inspection?

Plain-English summary

Two licensed professions overlap here: real estate inspectors and plumbers. When you buy a house, the inspector looks over its condition, including the plumbing. A "sewer scope" runs a camera down the sewer line to check for problems. A state representative asked the AG whether a real estate inspector is allowed to do that camera inspection, or whether only a licensed plumber can, because the Texas Real Estate Commission had posted on its website that a home inspector needs a plumber's license to run a sewer scope.

The AG read the two licensing statutes side by side. Occupations Code chapter 1102, governing real estate inspectors, defines a "real estate inspection" as an opinion on the condition of improvements to real property "including . . . plumbing systems." The chapter does not define "plumbing systems" or limit the methods an inspector can use, and the Real Estate Commission's minimum inspection rules expressly let an inspector provide a higher level of inspection than the minimum requires. So the AG read the inspector's authority broadly enough to include a camera inspection of the plumbing.

The wrinkle was the Plumbing Board's rule. Chapter 1301 requires a license to engage in "plumbing," which the Legislature defined as the "installation, repair, service, or maintenance" of plumbing. The Board, by rule, defined "service" to include "performing a camera inspection through a code-approved existing opening." Read broadly, that rule would force even a real estate inspector to hold a plumber's license to run a camera inspection. The AG concluded that went too far. The ordinary meaning of "service" is an affirmative act done to the plumbing to improve its condition, and the surrounding statutory list (installation, repair, maintenance) all involve physically working on the plumbing, so a court would likely read "service" the same way. By stretching "service" to cover a mere camera inspection, the rule enlarged the practice of plumbing beyond the statute and imposed an extra license burden on real estate inspectors that the Legislature did not require. The AG concluded a court would have a basis to find the rule invalid as applied to camera inspections by real estate inspectors. The AG left a related procedural question, whether the rule was voidable under the Administrative Procedure Act's reasoned-justification requirement, to the courts.

Currency note

This opinion was issued in 2020. 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.

What the opinion meant for those who asked

For Texas real estate inspectors, the opinion's reading at the time was that running a sewer-line camera inspection fell within their chapter 1102 authority to opine on plumbing systems, and that the Plumbing Board's rule, to the extent it demanded a separate plumber's license for that work, was vulnerable as an invalid overreach. For the Plumbing Board, the AG signaled that its rule defining "service" to capture camera inspections stretched the statutory definition past its ordinary meaning and conflicted with the inspectors' statute. For the Texas Real Estate Commission, whose website postings prompted the question, the opinion cut against the position that a home inspector needed a plumber's license to perform a sewer scope. The AG framed the conclusion as one a court "would have a basis to" reach, not a final ruling, and declined to decide the separate Administrative Procedure Act voidability question, leaving that to the courts.

Common questions

Q: Can a Texas home inspector run a sewer-line camera scope without being a licensed plumber?
A: Likely yes. The AG concluded a camera inspection of plumbing falls within a real estate inspector's chapter 1102 authority, and that the Plumbing Board rule requiring a separate plumber's license for it is likely invalid as applied to inspectors.

Q: Why did the Plumbing Board think a plumber's license was required?
A: Because the Board, by rule, defined the plumbing "service" that needs a license to include "performing a camera inspection through a code-approved existing opening." The AG found that definition stretched the statutory term too far.

Q: What does "service" actually mean in the plumbing statute?
A: The AG read it by its ordinary meaning, an affirmative act done to the plumbing to repair or maintain it, reinforced by the surrounding words (installation, repair, maintenance), all of which involve physically working on the plumbing rather than just inspecting it.

Q: Did the AG strike down the rule?
A: No. The AG concluded a court would have a basis to find the rule invalid as applied to inspectors. Only a court can actually invalidate it, and the AG left a separate procedural challenge under the Administrative Procedure Act to the courts as well.

Background and statutory framework

Occupations Code chapter 1102 (sections 1102.001-.408) governs real estate inspectors and defines a "real estate inspection" to include an opinion on the condition of "plumbing systems" (section 1102.001(9)); the Real Estate Commission's rules set minimum plumbing inspection requirements (22 Tex. Admin. Code § 535.231) and confirm an inspector is not required to use specialized equipment or inspect concealed items but may exceed the minimum (§ 535.227). Chapter 1301 (sections 1301.001-.713) governs plumbers, requires a license to engage in "plumbing" (section 1301.351), and defines plumbing as the "installation, repair, service, or maintenance" of plumbing components (section 1301.002(7)). The Plumbing Board's rule defined "service" to include camera inspections (22 Tex. Admin. Code § 361.1(a)(37)(B)). The AG applied the agency-authority and rule-validity framework from Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28 (Tex. 2017), the agency's power to define undefined terms from Sw. Bell Tel. Co. v. Pub. Util. Comm'n of Tex., 745 S.W.2d 918 (Tex. App.-Austin 1988, writ denied), the noscitur a sociis canon (citing Third Nat'l Bank v. Impac Ltd., 432 U.S. 312 (1977)), and the rule that agency regulations cannot conflict with other statutes from State v. Exiga, 71 S.W.3d 429 (Tex. App.-Corpus Christi 2002, no pet.) and State v. Jackson, 376 S.W.2d 341 (Tex. 1964). The two chapters were codified in the same 2001 bill (Act of May 22, 2001, 77th Leg., R.S., ch. 1421). Prior opinions KP-0266 (2019) and JC-0441 (2001) were cited.

Citations and references

Statutory provisions:

• Tex. Occ. Code § 1102.001; § 1301.002; § 1301.351
• Tex. Gov't Code § 2001.035
• 22 Tex. Admin. Code § 361.1(a)(37)(B); § 535.227; § 535.231

Cases:

• Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28 (Tex. 2017)
• Tex. Ass'n of Acupuncture & Oriental Med. v. Tex. Bd. of Chiropractic Exam'rs, 524 S.W.3d 734 (Tex. App.-Austin 2017, no pet.)
• Sw. Bell Tel. Co. v. Pub. Util. Comm'n of Tex., 745 S.W.2d 918 (Tex. App.-Austin 1988, writ denied)
• State v. Exiga, 71 S.W.3d 429 (Tex. App.-Corpus Christi 2002, no pet.)
• State v. Jackson, 376 S.W.2d 341 (Tex. 1964)
• Third Nat'l Bank v. Impac Ltd., 432 U.S. 312 (1977)

Prior AG opinions referenced: KP-0266 (2019); JC-0441 (2001).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0294
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0294.pdf

Original opinion text

March 16, 2020

The Honorable Poncho Nevarez
Chair, Committee on Homeland Security and Public Safety
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0294

Re: Whether a real estate inspector is authorized to perform inspections of sewer lines by camera (RQ-0307-KP)

Dear Representative Nevarez:

You ask whether a real estate inspector is authorized to perform an inspection of sewer lines by camera.[1] You tell us that licensed plumbers are authorized to perform "sewer scope inspections." See Request Letter at 1; see also 22 TEX. ADMIN. CODE § 361.1(a)(37)(B) (Tex. State Bd. of Plumbing Exam'rs, "Definitions") (defining "service" to include "performing a camera inspection through a code-approved existing opening"). You state that a licensed real estate inspector's broad authority to provide an "opinion as to the condition of improvements to real property, including . . . plumbing systems" could include the authority to inspect plumbing systems. Request Letter at 1-2 (quoting Texas Occupations Code section 1102.001(9) defining "real estate inspection"). However, you advise that the Texas Real Estate Commission "has taken the position in two postings on its website . . . that a home inspector may not perform a sewer scope inspection unless the inspector is also a licensed plumber." Id. at 2.

"[T]he scope of practice between regulated professions sometimes overlaps." Tex. Att'y Gen. Op. No. KP-0266 (2019) at 1. Here, we consider the respective scopes of practice of licensed plumbers and licensed real estate inspectors. To address your question, we examine two chapters from the Occupations Code: chapter 1102, governing real estate inspectors; and chapter 1301, governing plumbers. See TEX. OCC. CODE §§ 1102.001-.408 ("Real Estate Inspectors"), 1301.001-.713 ("Plumbers").

Relevant to your question, Occupations Code chapter 1102 defines a "real estate inspection" as a "written or oral opinion as to the condition of the improvements to real property, including structural items, electrical items, mechanical systems, plumbing systems, or equipment." Id. § 1102.001(9) (emphasis added). The chapter does not, however, define "plumbing systems" for purposes of the chapter or provide further detail about the requirements for an inspection. See generally id. §§ 1102.001 ("Definitions"), 1102.001-.408. By rule, the Texas Real Estate Commission ("Commission") has provided minimum inspection requirements for plumbing systems. 22 TEX. ADMIN. CODE § 535.231(a) (Tex. Real Estate Comm'n, "Minimum Inspection Requirements for Plumbing Systems"). Those minimum inspection requirements require an inspector to operate plumbing fixtures, test for drain performance, and report deficiencies in water supply pipes and waste pipes. See id. They do not require an inspector to use specialized equipment or inspect for defects and deficiencies that are buried, hidden, latent, or concealed. Id. § 535.227(a)(3)(C)(i) (Tex. Real Estate Comm'n, "General Provisions") (stating that a real estate inspection does not require the use of specialized equipment), (d)(1)(D) (providing that a real estate inspector is not required to inspect "anything buried, hidden, latent, or concealed"). You assert, and the Commission acknowledges,[2] that the minimum inspection requirements for plumbing systems do not prohibit an inspector from providing "a higher level of inspection performance than required." Request Letter at 2; see also 22 TEX. ADMIN. CODE § 535.227(a)(4) (Tex. Real Estate Comm'n, "General Provisions"). The Legislature's provision that a real estate inspection may include an opinion on the condition of plumbing systems is broad and does not, by itself, preclude a camera inspection by a professional real estate inspector. Thus, we examine Occupations Code chapter 1301, governing licensed plumbers, for any limitation. Cf. Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 34 (Tex. 2017) (examining the overlapping jurisdiction of medical doctors and family therapists and determining that the therapists' behavior at issue was permitted because it was authorized by the Therapists Act and not negated by the Medical Practice Act).

Chapter 1301 requires a person to have a license before engaging in plumbing.[3] See TEX. OCC. CODE § 1301.351. In chapter 1301, the Legislature defined "plumbing" as the "installation, repair, service, or maintenance of" one of various types of fixtures, appurtenances, appliances, or piping. Id. § 1301.002(7)(D); see also id. § 1301.002(7)(A)-(C). Pertinent to your request, chapter 1301 does not further define installation, repair, service, or maintenance. See generally id. § 1301.002. Yet, the Texas State Board of Plumbing Examiners ("Plumbing Board") defined "service" to include "performing a camera inspection through a code-approved existing opening." 22 TEX. ADMIN. CODE § 361.1(a)(37)(B) (Tex. State Bd. of Plumbing Exam'rs, "Definitions") (defining "service"); see also TEX. OCC. CODE § 1301.002(7)(D) (defining plumbing as the "installation, repair, service, or maintenance" (emphasis added)); id. § 1301.251(2) (authorizing the Board to "adopt and enforce rules necessary to administer" chapter 1301). Applying Rule 361.1(a)(37)(B), a person, including a licensed real estate inspector, who conducts a camera inspection through a code-approved existing opening is engaged in an activity that constitutes plumbing and therefore must have a plumbing license under chapter 1301. Cf. Tex. Ass'n of Acupuncture & Oriental Med. v. Tex. Bd. of Chiropractic Exam'rs, 524 S.W.3d 734, 736 (Tex. App.-Austin 2017, no pet.). You question the validity of Rule 361.1(a)(37)(B), and we therefore consider whether the Plumbing Board exceeded its authority in adopting Rule 361.1(a)(37)(B). See Request Letter at 1, n.1.[4]

An administrative agency has only those powers expressly conferred by the Legislature or implied as reasonably necessary to carry out the agency's statutory duties. Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 33 (Tex. 2017). Courts will presume an agency's rule is valid and require a challenging party to bear the burden of proving a rule's invalidity by showing that the rule contravenes specific statutory language, is counter to the statute's general objectives, or "imposes additional burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory provisions." Id. Courts will consider whether the rule's provisions are "in harmony" with the general objectives of the statute, as those objectives are determined from the plain text of the statutes that grant or limit the agency's authority. Id.

An administrative agency can define terms that are undefined in its governing statute.[5] See Sw. Bell Tel. Co. v. Pub. Util. Comm'n of Tex., 745 S.W.2d 918, 923-24 (Tex. App.-Austin 1988, writ denied) (recognizing agency's discretion to assign meaning to an undefined term). But it cannot construe a defined term to enlarge its authority. See Tex. Att'y Gen. Op. No. JC-0441 (2001) at 2-3 (discussing Board of Podiatric Medical Examiner's rule defining "tibia" such that it extended the practice of podiatry beyond the foot).

The common understanding of the term "service" is "to perform services for: meet the needs of . . . to repair or provide maintenance for." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2075 (2002). This definition suggests service of a plumbing system requires an affirmative act performed on the plumbing system to improve its condition or functionality.[6] Insofar as the Plumbing Board's rule expands the definition of service beyond the term's common understanding to include merely "performing a camera inspection" of the plumbing system, it unnecessarily enlarges the definition of plumbing, and hence the practice of plumbing, in a way that is inconsistent with the common understanding of undefined terms used in the statute.[7]

In addition, the Legislature codified chapters 1102 and 1301 in the same bill so the Legislature can be presumed to intend both chapters to operate harmoniously in the governance of their respective licensed occupations. See Act of May 22, 2001, 77th Leg., R.S., ch. 1421, § 2 (Chapter 1102), § 3 (Chapter 1301), 2001 Tex. Gen. Laws 4570, 4689, 4783. Thus, a court would likely conclude that the Legislature intended its definition of plumbing in chapter 1301 to coexist with the real estate inspectors' authority to inspect "plumbing systems" in chapter 1102.

Construed broadly, Rule 361.1(a)(37)(B) excludes a method of inspecting plumbing systems that a real estate inspector can use to conduct a statutorily authorized real estate inspection. The rule's implicit requirement that a real estate inspector must obtain a plumbing license in order to conduct a camera inspection, an action within his or her authority under chapter 1102, would thus impermissibly impose an additional burden, limit, or condition on the real estate inspector. See State v. Exiga, 71 S.W.3d 429, 433 (Tex. App.-Corpus Christi 2002, no pet.) ("The rulemaking power of administrative agencies does not permit the enactment of regulations which are inconsistent with the expression of the lawmakers' intent in statutes other than those under which the regulations are issued."), citing State v. Jackson, 376 S.W.2d 341, 345 (Tex. 1964). Such a construction of the rule would be inconsistent with the relevant statutes, and a court would have a basis to conclude that the rule is facially invalid.

SUMMARY

Occupations Code chapter 1102's express authorization for a real estate inspector to provide an opinion on real estate's "plumbing systems" likely includes a camera inspection. Occupations Code chapter 1301 requires a person to have a license to engage in activities that constitute plumbing. The Texas State Board of Plumbing Examiners has by rule defined the "service" of plumbing to include performing a camera inspection. To the extent this rule requires a real estate inspector to get a plumber's license to do a job within the scope of his or her real estate inspector's license, the rule impermissibly imposes an additional burden, limit, or condition in addition to what the Legislature has required. Accordingly, a court would have a basis to conclude that the rule is invalid, as applied to camera inspections performed by real estate inspectors.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Poncho Nevarez, Chair, House Comm. on Homeland Sec. & Pub. Safety, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 16, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] See Letter from Chelsea Buchholtz, Gen. Counsel, Tex. Real Estate Comm'n, to Virginia K. Hoelscher, Chair, Op. Comm. at 2 (Oct. 18, 2019) (on file with the Op. Comm.).

[3] Like chapter 1102, chapter 1301 provides for different types of licenses for different types of plumbers. See TEX. OCC. CODE §§ 1301.002(4) (defining "journeyman plumber"), 1301.002(5) (defining "master plumber"), 1301.002(6) (defining "plumbers apprentice").

[4] You also suggest that Rule 361.1 "appears to be invalid and thus voidable" under the reasoned justification requirement in the Texas Administrative Procedure Act. Request Letter at 1; see TEX. GOV'T CODE § 2001.035(a) (providing that a "rule is voidable unless a state agency adopts it in substantial compliance with Sections 2001.0225 through 2001.034"); see also id. § 2001.033(a)(1) (requiring, among other things, "a reasoned justification"). We leave to the courts the question whether the rule is voidable for failure to substantially comply with procedural requirements. See id. § 2001.040 (providing that a court finding an agency has not substantially complied with one or more procedural requirements "may remand the rule, or a portion of the rule, to the agency and . . . shall provide a reasonable time for the agency to either revise or readopt the rule through established procedure").

[5] The Plumbing Board has not defined the terms "installation," "repair," or "maintenance." See 22 TEX. ADMIN. CODE § 361.1(a) (Tex. State Bd. of Plumbing Exam'rs, "Definitions").

[6] The noscitur a sociis canon of construction provides that "words grouped in a list should be given related meaning." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 195 (2012) (quoting Third Nat'l Bank v. Impac Ltd., 432 U.S. 312, 322 (1977)). Because the Legislature included "service" in a list of other actions that require physical manipulation or control of plumbing, a court would likely conclude that the application of that term must likewise be limited to activities involving those characteristics. See TEX. OCC. CODE § 1301.002(7)(D).

[7] Rule 361.1(a)(37)(B)'s definition of "service" appears to focus on certain drain-cleaning activities. 22 TEX. ADMIN. CODE § 361.1(a)(37)(B) (defining "service" as including "cleaning a drain or sewer line using a cable or pressurized fluid, or performing a camera inspection through a code-approved existing opening" (emphases added)); see also id. § 361.1(a)(13) (defining "code-approved existing opening" as "[f]or the purposes of drain cleaning activities described in § 1301.002(3) of the Plumbing License Law, a code-approved existing opening is any existing cleanout fitting, inlet of any p-trap or fixture, or vent terminating into the atmosphere that has been approved and installed in accordance with the adopted plumbing code" (emphasis added)). Because both examples identified in Rule 361.1(a)(37)(B) involve cleaning activities, a court could conclude that Rule 361.1(a)(37)(B)'s application to camera inspections applies only when the inspection is performed in connection with drain-cleaning activities or other plumbing activities regulated by the Plumbing License Law.