The opinion
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Honorable Lynn Brown, Administrator
Texas State Board of Plumbing Examiners
904 Lavaca
Austin, Texas
Opinion No. WW-517
Re: The effect to be accorded the
exemption 'In the Plumbing
License Law of 1947, S. B. 188,
Acts 50th Legislature, relative
to plumbing work done by anyone
who is regularly employed as or
acting as a maintenance man or
Dear Mr. Brown: maintenance engineer.
Your recent request for an opinion on the above cap-
tioned subject reads substantially as follows:
An Independent school district In
this State is presently engaged in construct-
ing a new twenty room junior high school build-
ing. The district regularly employs a man as
its Superintendent of Buildings and Grounds
and it also has other regular employees, all
being paid fixed salaries by the school dls-
trlct.
The school district has not employed
a general contractor in this construction pro-
gram but rather the Superintendent of Buildings
and Grounds is doing the work usually done by a
general contractor and other regular employee,s *
of the district are also doing construction work.
The Superintendent of Buildings and
Grounds supervises and gives instructions regard-
ing the plumbing work on the new building as he
deems necessary. In particular, he sees that
the plumbing installation is done in accordance
with the specifications and the applicable
Honorable Lynn Brown, page 2. wi-517 1
plumbing regulations. He interprets the
blueprints and mechanical plans and actually
"lays out' or points out the location of the
various fixtures and the location and type of
fittings and sizes of soil and vent pipes
needed to complete the system. He may also
be required to use his own judgment in resolv-
ing practical problems not foreseen In the
original plans and specifications. All of
these activities are performed in his super-
visory capacity over the "head plumber" and
for these duties he receives no extra compen-
sation.
The person in charge,of the actual
physical plumbing,work Is a man designated
as "head plumber , hired by the district for
this particular construction job, and who had,
previous to this job been employed by a master
plumber and followed the plumbing trade as a
means of livelihood. This so-called "head
plumber" performs the actual manual installa-
tion of the plumbing in accordance with blue-
prints and mechanical plans. This includes
cutting, threading, caulking and/or sweating
pipe to form assemblies or installations in
accordance with the blueprints and plans, and
the installation of fixtures. When necessary,
he works with the Superintendent in "laying out"
portions of the job.
Under this so-called "head:plumber'
two full time laborers of the ~schooldistrict
do actual plumbing work together with the "head
plumber". These laborers or "helpers" assist
the "head plumber" in the actual manual installa-
tion of plumbing by supplying materials such as
pipe, fittings, tools, etc.; by holding or steady-
. ing pipe; by digging ditches; and by performing
numerous other similar 'functionsIn connection
with the installation as dlrected by the "head
plumber". They receive no compensation for
this work other than their normal salaries as
employees of the district.
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Honorable Lynn Brown, page 3. NW-517)
None of these employees has a plumber's
license of any kind Issued by the Texas State
Board of Plumbing Examiners under the Plumbing
License Law of 1947.
Esentially, you have asked the following specific
question:
Whether any or all of these persons
under such circumstances are exempt from the
licensing requirement of the Plumbing License
Law of 1947.
The "Plumbing License Law of 1947", which is Senate
Bill 188, Acts of the 50th Legislature, Regular Session, 1947,
Chapter 115, Page 192, codified as Article 6243-101 of Vernon's
Civil Statutes, forbids plumbing work by those who do not hold
State licenses with certain exceptions:
Section 2(a) of the "Plumbing License Law of 1947"
defines plumbing as follows:
"The word or term 'plumbing' as used
in this act means and shall include: (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 bulld-
ings where a person or persons live, work or as-
semble; all piping, fixtures, appurtenances and
appliances outside a building connecting the
bulldlng with the source of water or gas supply,
or both on the premises, or the maln in the
street, alley or at the curb; all piping, fixtures,
appurtenances, appllanoes, drain or waste pipes
carrying waste water or sewage from or within a
building to the sewer service lateral at the curb
or in the street or alley or other disposal ter-
minal holding private or domestic sewage: (2)
the installation, repair or 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."
Section 14 of the Act provides as follows:
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'HonorableLynn Brown, page 4. (w-517)
"After the expiration of one hundred
twenty days from the effective date of this Act,
no person, whether as a master plumber, employ;n,g
plumber, journeyman plumber, or otherwise, shall
engage Ian,work at, or conduct the bunjness of
plumbing in this state or serve as a plumbing in-
spector as herein defined, except as herein specifi-
cally exempted from the provisions of this Act, un-
less such person is the holder of a valid license
as provided for by this Act; and after the expira-
tion of one hundred twenty days from the effective
date of this Act It shall be unlawful for any per-
son to engage in, work at, or conduct the business
of plumbing In this state or serve as a plumbing
inspector as herein deflned, except as here3.n
specifically exempted from the provisions of this
Act . . . and provided for hereby; and it shall be
unlawful for any person, firm, or corporation to
engage in or work at the business of installing
plumbing and doing plumbing work except as specifi-
cally herein provided unless such installation of
plumbing or plumbing work be under the supervision
and control of a plumber licensed under this Act.
And it is expressly provided that the provisions of
Article 122 of the Penal Code of Texas shall apply
to violations of this Act, and said Article 122 of
the Penal Code and the penalties therein provided
are hereby expressly referred to."
The Plumbers Act of 1947 then is a prohibition against
any person, firm, or corporation engaging in, working at, or
r;znductingthe business of plumbing (as defined in the Act) with-
o;lta license unless specifically provided'for or specifically
exempted.
Reference is made by your request to Section 3(c) of
i:ii<?
Article. In this section is found the only exception to
tr?;-;
requirement that one engaged in the plumbing business must
&\'e a license which might apply in the instant case. The
a;ssllcablepart reads as follows:
"Plumbing work done by anyone who is
regularly employed as or acting as a maintenance
man or maintenance engineer, incidental to and
in connection with the business in which he is
employed or engaged, and who does not engage in
the occupation of a plumber for the general t)ub-
lie; . . .'
The statute is given to two meanings and is ambiguous.
In discussing the dissolution of ambiguities and uncertainties
in legislation, the Court said in Hidalgo County Drainage Dis-
Honorable Lynn Brown, page 5. (w-517)
trict No. 1 v. Davidson, 102 Tex. 539, 543, 120 S.W. FM, 851,
11909) :
!I
. . . In determining the sense in
which the language was used by the Legisla-
ture, we look to the context and to the pur-
pose of the Legislature in enacting the law."
In Longoria v. State, 126 Tex. Crim. 362, 363, 71 S.W.
2d 268, 269.(1934), the following language is found:
"We further observe that in accordance
with settled rules of interpretation of statutes,
even when the language used is susceptible of two
meanings, the courts are to give It that meaning
which will conform to the scope of the act and
carry out the purpose of the statute. . . ."
In passing Senate Bill 188, the Legislature, in our
opinion, did not intend to exempt either the Superintendent of
Buildings and Grounds nor the ~"headplumber", as described in
your opinion request, from the licensing requirements of the
Act. For either of the persons to be exempted under the pro-
visions o,fSection 3(c), they must show that they are regularly
employed as maintenance men and that the work being done is in-
cidental to and in connection with the business in which they
are employed and further they cannot be engaged in the occupa-
tion of plumber for the general public.
The word 'maintain" ordinarily means to preserve some-
thing which is already in existence, and there must be something
in existence before it can be maintained. In this sense the
term does not include the concept of erecting or building some-
thing which is not already in existence. It has also been de-
fined as to hold or keep in any particular state or condition;
to support; to sustain; to uphold; to keep up; not to suffer
to fail or decline. Pacific Tank and Pipe Co. v. Pacific Box
** k.64 P. 2d 773; Anderson v. United States Fidelity & Guar-
Y 104 P. 2d 906 907, 44 N.M. 483; 129 A.L.R. 1084
Also see'perkins v. Becker, 157 S.W.2d 550, 552; Verdin v. 'St.
LO&S, 27 s.w. 447, 451.
In Madley v. Trustees of Conroe Independent School
District, 130 S.W.2d 929, 933 (,Tex.Civ.App.1939), the Court
astinguished "building" from 'Maintenance" as follows:
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Honorable Lynn Brown, page 6. m-517 1
the local tax levied and col-
lected by the'&uetees of an independent school
district for maintenance of the schools can be
used only for the purposes of maintenance, to
the extent needed for that purpose, . . . the
term 'maintenance' of schools does not include
the cost of the construction of school houses."
The character of work being done by both the Building
and Grounds Superintendent and the head plumber" cannot be said
to come within the meaning of the word maintenance as used in
the Act. The plumbing being done by these men consists of the
installation of a complete plumbing system in a new building.
This obviously is not maintenance work. The "head'plumber" was
hired by the school,system specifically for this new construc-
tion job and had not been previously employed by the district
in their maintenance department. Nor is there any evidence to
show that he had ever done any maintenance work for the school
district.
In the opinion of this office, reliance upon the re-
quirement that the plumbing work being done by the individuals
in the present case Is incidental to and in connection with the
business in which they are employed or engaged is not sufficient
to exempt them from the lioenslng requirements of the Act,
The word "incidental" has reference to something which
is subordinate to and dependent upon the'existence of another
and principal thing. It has been said to be dependent upon some-
thing else as primary and somethin Incidental to the main pur-
pose. Biggart v. Lewis, 192 Pac. &37, 440; The Robin Goodfellow
et al, 20 F. 2d 924, 925; Kelly v. Hill, 230 P. 2d 864, 867, 104
Cal. App. 2d 61.
It would be impossible to say that the work involved
in the construction of a brand new multi-classroom unit school
building, costing many thousands of dollars, is incidental to
the work of maintaining those structures already in existence
in the school district. ,Nor can the "head plumber", who has
been employed specifically to install the new plumbing system
in the building, be exempted merely because the school district
chooses to give him the title "maintenance man".
The courts, in writing concerning exceptions and their
application, will generally construe the exception according to
its fair and proper meaning. If the Act contains one OP more
exceptions that is evidence that the Legislature did not intend
to provide any other exceptions, thus the Act should apply in
P
Honorable Lynn Brown, page 7. tww-517)
all cases not excepted. It is not ordinarily permissible to im-
ply or to enlarge upon an exception to include cases not within
its terms. Nor may a Court engraft an exception upon a statute
by implication merely because there seems to be a good reason
for doing so. Snoddy v. Cage, 5 Tex. 106; Missouri, Kansas and
Texas Railway Company of Texas v. Thomason, 260 S.W. 325; -
Fed-
eral Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d
55 S.W.2d 211; Holmes v. Coalson, 154 S.W. 661; Roberts v.
Yarboro & Wimberly, 41 Texm Bradley v. Gilliam, 260 S.W. 289.
The very nature of plumbing work demands a degree of
expertness and competence. The health and safety factors involved
in the plumbing business are many and complex and it is reasonable
to believe that the Legislature never intended for the exceptions
provided to be enlarged upon. Trewitt v. City of Dallas, Civ.App.
242 S. W. 1073. In that case the Court described the nature of
plumbing and its importance as follows:
"It is universally regarded as essential
that all plumbing work should be planned and in-
stalled with a degree of skill which will insure
and safeguard lives and health of people from
dangers well known to flow from improper plumb-
ing. This being true, the calling of a plumber
bears a close relation to and does concern the
public health. It is accordingly a business
which is the proper subject of police regulation."
In view of the foregoing it is the opinion of this office
that the Superintendent
. of Buildings
. _ and Grounds and the "head
plumber", as tney are ciescribed in your request, are not exempt
from the licensin requirements of the Plumbing License Law of
1947 by Section 37c). To hold otherwise would be to impose upon
the statute an exemption not provided by the Legislature. The
statute is not applicable to the laborers or "helpers" while
performing their duties as you have set out.
All prior opinions by this office, which are in conflict
with this opinion, are hereby overruled to the extent of that
conflict. .,
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Honorable Lynn Brown, page 8. (ww-517)
SUMMARY
When doing plumbing work consisting
of the installation of a complete
plumbing system in a new building,
'the Superintendent of Buildings and
Grounds and the "head plumber are
not exempt from the licensing require-
ments of the Plumbers License Law of
1947 by Section 3(c) of the Act relative
to plumbing work done by anyone who is
regularly employed as or acting as a.
maintenance man or maintenance engineer.
Yours very truly,
WILL WILSON
Attorney General of Texas
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BF:bb:zt Assistant
APPROVED:
OPINION COMMITTEE
,Geo.P. Blackburn, Chairman
3 * Milton Richardson
.IohnReeves
Henry G. Braswell
RFVIRWED FOR THP ATTORNEY GENERAL
BY: W. V. Geppert