Can a Texas residential appliance installer do electrical work on commercial pools?

Plain-English summary

Texas licenses a category of tradesperson called a "residential appliance installer," a step below a full electrician, under the Texas Electrical Safety and Licensing Act (Occupations Code chapter 1305). These installers can do certain pool electrical work. The Texas Department of Licensing and Regulation asked the Attorney General to settle a real ambiguity in the statute: can a residential appliance installer work on any pool, including a commercial one, or only on residential pools?

The dispute came down to a comma. The statute defines a "residential appliance" as "a pool-related electrical device, or equipment that" is installed in a single-family or multifamily dwelling of four stories or less, is connected to an electrical circuit, and performs a specific function. One reading says all of those limits apply to both "pool-related electrical device" and "equipment," so the installer is limited to residential pools. The competing reading uses the comma after "pool-related electrical device" to split it off as its own category, free of the residential limit, which would let the installer work on commercial pools too.

The Attorney General sided with the residential-only reading. Courts try to carry out what the Legislature meant and will not let strict grammar (or a stray comma) defeat the clear intent of a statute read as a whole. Here the surrounding provisions repeatedly fold "pool-related electrical device" into the "residential appliance" category, and the Department's own rule describes the license as covering residential pool work. Reading it all together, the Attorney General concluded a court would hold that a residential appliance installer may work only on residential pools, and that the license does not authorize work on commercial pools.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later Attorney General 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

Residential appliance installers (as the opinion held for them): The opinion concluded that the license authorizes work only on residential pools, those installed as a unit in a single-family or multifamily dwelling of no more than four stories, and not on commercial pools.

The Texas Department of Licensing and Regulation (what the opinion described): The opinion read the statute consistently with the Department's own rule (16 Tex. Admin. Code § 73.10(23)), which describes the license as limited to residential appliance installation including residential pool-related electrical work.

On the competing comma reading (what the opinion rejected): The opinion explained that a court would not rely on the comma, to the exclusion of the rest of the statute, to read "pool-related electrical device" as a separate category reaching commercial pools.

Common questions

Can a residential appliance installer wire or service a commercial pool in Texas?
The opinion concluded the license does not authorize work on commercial pools. It covers only residential pools.

What counts as a "residential" pool for this license?
The opinion pointed to the statute's description: a pool installed as a unit in a single-family or multifamily dwelling that does not exceed four stories.

Why was there an argument that it covered commercial pools too?
The opinion explained that one reading used the comma after "pool-related electrical device" to treat that term as a separate category not limited to residential dwellings, which would have reached commercial pools.

Why did the Attorney General reject the comma argument?
The opinion explained that courts follow legislative intent over strict grammar, the surrounding provisions place "pool-related electrical device" within the "residential appliance" category, and the agency's rule read the license the same way.

Background and statutory framework

The Texas Electrical Safety and Licensing Act, Occupations Code chapter 1305, licenses residential appliance installers along with several classes of electricians. Tex. Occ. Code Ann. § 1305.001 (West 2004); id. § 1305.102(a) (West Supp. 2010). A "pool" includes an outdoor or indoor structure for swimming or recreational bathing, including a hot tub, spa, or wading pool. Id. § 1305.002(14) (West Supp. 2010). A residential appliance installer is a person, other than a licensed electrician, licensed to perform residential appliance installation, including pool-related electrical maintenance. Id. § 1305.002(12-e) (West Supp. 2010); id. § 1305.151. A "residential appliance" is defined as a pool-related electrical device, or equipment that (A) is installed as a unit in a single-family or multifamily dwelling not exceeding four stories, (B) is directly connected to an electrical circuit, and (C) performs a specific function. Id. § 1305.002(12-a) (West Supp. 2010).

The Department asked whether that definition limits the installer to residential pools or reaches commercial pools too. One reading applies paragraphs (A), (B), and (C) to both "pool-related electrical device" and "equipment." The alternative emphasizes the comma after "pool-related electrical device" to treat it as a separate category, defined generally at id. § 1305.002(15) (West Supp. 2010), that would include commercial pools. Construing statutes to give effect to legislative intent, Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009); Tex. Gov't Code Ann. § 311.011(a) (West 2005), the Attorney General noted that a court will not adhere to strict grammar where doing so violates the manifest legislative intent, State v. Hogg, 70 S.W.2d 699, 701 (Tex. 1934); see also Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 508 n.18 (Tex. 1992), and may even omit a comma to give effect to intent, Interstate Forwarding Co. v. Vineyard, 3 S.W.2d 947, 958 (Tex. Civ. App.-Dallas 1928), rev'd on other grounds, 49 S.W.2d 403 (Tex. 1932).

Reading chapter 1305 as a whole, the opinion observed that section 1305.002(12-a) categorizes a pool-related electrical device as a residential appliance, and section 1305.002(12-b) places it within "residential appliance installation." Id. § 1305.002(12-b). The Legislature's use of "residential" pointed to residential pools only, as described in section 1305.002(12-a)(A). The Department's rule defining the license agreed. 16 Tex. Admin. Code § 73.10(23) (2010). Courts generally defer to a reasonable agency interpretation that does not conflict with plain language. City of Corpus Christi v. Pub. Util. Comm'n, 51 S.W.3d 231, 259, 261 (Tex. 2001). The Attorney General therefore concluded a court would not rely on the comma alone, and that a residential appliance installer may work only on residential pools.

Citations

Statutes and rules:

• Tex. Occ. Code Ann. § 1305.001 (West 2004)
• Tex. Occ. Code Ann. § 1305.102(a) (West Supp. 2010)
• Tex. Occ. Code Ann. § 1305.002(14) (West Supp. 2010)
• Tex. Occ. Code Ann. § 1305.002(12-e) (West Supp. 2010)
• Tex. Occ. Code Ann. § 1305.151
• Tex. Occ. Code Ann. § 1305.002(12-a) (West Supp. 2010)
• Tex. Occ. Code Ann. § 1305.002(12-a)(A)
• Tex. Occ. Code Ann. § 1305.002(12-b)
• Tex. Occ. Code Ann. § 1305.002(15) (West Supp. 2010)
• Tex. Gov't Code Ann. § 311.011(a) (West 2005)
• 16 Tex. Admin. Code § 73.10(23) (2010)

Cases:

• Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009)
• State v. Hogg, 70 S.W.2d 699, 701 (Tex. 1934)
• Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 508 n.18 (Tex. 1992)
• Interstate Forwarding Co. v. Vineyard, 3 S.W.2d 947, 958 (Tex. Civ. App.-Dallas 1928), rev'd on other grounds, 49 S.W.2d 403 (Tex. 1932)
• City of Corpus Christi v. Pub. Util. Comm'n, 51 S.W.3d 231, 259, 261 (Tex. 2001)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0825
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0825.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 1, 2010

Mr. William H. Kuntz, Jr. Opinion No. GA-0825
Executive Director
Texas Department of Licensing and Re: Scope of licensed pool-related electrical
Regulation service under chapter 1305 of the Occupations
Post Office Box 12157 Code (RQ-0891-GA)
Austin, Texas 78711-2157

Dear Mr. Kuntz:

On behalf of the Texas Department of Licensing and Regulation (the "Department") you ask about the scope of authority of a "residential appliance installer" under Occupations Code section 1305.002(12-a) of the Texas Electrical Safety and Licensing Act (the "Act").[1] See TEX. OCC. CODE ANN. § 1305.001 (West 2004) (short title). The Act provides for licensing residential appliance installers as well as several classes of electricians. See id. § 1305.102(a) (West Supp. 2010). You inquire about the authority of residential appliance installers to work on pools. Request Letter at 1; see TEX. OCC. CODE ANN. § 1305.002(14) (West Supp. 2010) (defining "pool" as "an outdoor or indoor structure intended for swimming or recreational bathing, including ... [a] hot tub, spa, portable spa, or non-portable wading pool").

A "residential appliance installer" is "a person, other than a licensed electrician, who is licensed to perform residential appliance installation, including pool-related electrical maintenance." TEX. OCC. CODE ANN. §§ 1305.002(12-e) (West Supp. 2010) (providing definition); 1305.151 (requiring residential appliance installer to hold license). A "residential appliance" is defined as

a pool-related electrical device, or equipment that:

(A) is installed as a unit in a single-family or multifamily dwelling that does not exceed four stories;

(B) is directly connected to an electrical circuit; and

(C) performs a specific function.

Id. § 1305.002(12-a).

You ask whether the definition of "residential appliance" and related provisions limit a residential appliance installer's work on pools to residential[2] pools only or whether they permit the licensee to work on both residential and commercial pools. Request Letter at 1. One interpretation reads paragraphs (A), (B), and (C) of section 1305.002(12-a) to modify both the terms "pool-related electrical device" and "equipment." Id. at 2. Under this reading, the terms "a pool-related electrical device" and "equipment" are limited to items that are "installed as a unit in a single-family or multifamily dwelling that does not exceed four stories." TEX. OCC. CODE ANN. § 1305.002(12-a) (West Supp. 2010).

An alternative construction emphasizes the comma following the term "pool-related electrical device" in section 1305.002(12-a). See Request Letter at 2; see also TEX. OCC. CODE ANN. § 1305.002(12-a) (West Supp. 2010) (providing that a "residential appliance" is "a pool-related electrical device, or equipment that" complies with paragraphs (A), (B), and (C)) (emphasis added). The alternative interpretation argues that the comma makes the term "pool-related electrical device" a separate and distinct classification from "equipment," so that only the term "equipment" is limited by paragraphs (A), (B), and (C). Request Letter at 2. Under this interpretation of section 1305.002(12-a), "pool-related electrical device" would include commercial as well as residential pools. See id.; see also TEX. OCC. CODE ANN. § 1305.002(15) (West Supp. 2010) (defining "pool-related electrical device" for chapter 1305 in general as "equipment for a pool that: (A) is installed as a unit; (B) is directly connected to an electrical circuit; and (C) performs a specific function").

"In construing statutes, our primary objective is to give effect to the Legislature's intent as expressed in the statute's language." See Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009). "Words and phrases shall be read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE ANN. § 311.011(a) (West 2005). A court will not, however, "adhere to strict grammatical rules in construing statutes, when to do so violates the manifest intention of the Legislature." State v. Hogg, 70 S.W.2d 699, 701 (Tex. 1934). See also Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 508 n.18 (Tex. 1992). A court may omit a comma to give effect to the legislative intent found in the statute as a whole. See Interstate Forwarding Co. v. Vineyard, 3 S.W.2d 947, 958 (Tex. Civ. App.-Dallas 1928), rev'd on other grounds, 49 S.W.2d 403 (Tex. 1932); see also 2A NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47:15 (7th ed. 2007) (stating that "[a] misplaced comma cannot be used to distort the meaning of the statute"). We determine the Legislature's intent by reading the term "pool-related electrical device" in the context of chapter 1305.

Section 1305.002(12-a) provides that a "residential appliance" is "a pool-related electrical device, or equipment." TEX. OCC. CODE ANN. § 1305.002(12-a) (West Supp. 2010). Thus, section 1305.002(12-a) categorizes a pool-related electrical device as a residential appliance. Moreover, section 1305.002(12-b) defines "residential appliance installation" to mean "electrical work that is limited to the connection or disconnection of a residential appliance, including a pool-related electrical device, to an existing electrical circuit other than by inserting or removing a plug from an electrical outlet." Id. § 1305.002(12-b) (emphasis added). Thus, subsection 1305.002(12-b) also places a "pool-related electrical device" within the category of "residential appliance." The Legislature's use of the term "residential" to describe a "pool-related electrical device" indicates that a residential appliance installer may work only on residential pools as described by section 1305.002(12-a)(A), i.e., a pool "installed as a unit in a single-family or multifamily dwelling that does not exceed four stories." Id. § 1305.002(12-a)(A). Our reading of the statutes is consistent with the Department's rule defining residential appliance installer:

Residential Appliance Installer—An individual, licensed as a residential appliance installer, who on behalf of a residential appliance installation contractor, performs electrical work that is limited to residential appliance installation including residential pool-related electrical installation and maintenance as defined by Texas Occupations Code, § 1305.002(12-b).

16 TEX. ADMIN. CODE § 73.10(23) (2010) (Tex. Dept. Licensing & Reg., Electricians) (emphasis added). The courts will generally give some deference to an agency's interpretation of a statute it administers if it is reasonable and does not conflict with the statute's plain language. City of Corpus Christi v. Pub. Util. Comm'n, 51 S.W.3d 231, 259, 261 (Tex. 2001).

Given the provisions describing a pool-related electrical device as a residential appliance and the agency's rule interpreting Occupations Code chapter 1305, we do not believe a court would rely on the comma to the exclusion of other statutory language to determine the legislative intent. In our opinion, a court would conclude that a licensed residential appliance installer may work only on residential pools.

SUMMARY

A residential appliance installer licensed under Occupations Code chapter 1305 may work only on pools that are installed as a unit in a single-family or multifamily dwelling that does not exceed four stories. The residential appliance installer's license does not authorize an individual to work on commercial pools.

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

[1] Request Letter at 1 (available at http://www.texasattorneygeneral.gov). Section 1305.002(12-a) of the Occupations Code and related provisions were adopted by companion bills of the 81st Legislature, House Bill 1973 and Senate Bill 1982. See Act of May 27, 2009, 81st Leg., R.S., ch. 416, 2009 Tex. Gen. Laws 997, 997-1000; Act of May 26, 2009, 81st Leg., R.S., ch. 1392, 2009 Tex. Gen. Laws 4363, 4363-66.

[2] The Department understands "residential" in Occupations Code section 1305.002(12-a) to describe "a single family or multifamily dwelling that does not exceed four stories." Request Letter at 2. It describes other pools as "commercial pools." Id. at 1-2.