Can the Texas plumbing board set statewide plumbing codes, and can cities adopt their own?

Texas AG Opinion JC-0012: Statewide Plumbing Codes and How Far Cities May Vary

Plain-English summary

The Texas Plumbing License Law tells the State Board of Plumbing Examiners to adopt three plumbing codes that are written and updated by private organizations: the Southern Standard Plumbing Code, the Uniform Plumbing Code, and the National Standard Plumbing Code. The Board's administrator asked whether section 5B(a) actually lets the Board set plumbing standards that apply across the whole state, and how much room a city has to use a different code.

The Attorney General reached several conclusions. First, section 5B(a) does give the Board express authority to adopt a plumbing code of statewide applicability. That changed the picture from a 1982 opinion (MW-545), which had found the law gave the Board no power, express or implied, to govern plumbing work statewide; the 1993 enactment of section 5B superseded that opinion. Second, and importantly, the opinion read section 5B(a) to adopt the three codes only as they existed in 1993, when section 5B passed. The reason is a constitutional one: if the statute automatically pulled in whatever future edits the private code-writing groups made, it would amount to handing lawmaking power to private entities, which the constitution does not allow. To keep the statute valid, the opinion construed it to freeze the codes at their 1993 versions, which also means the Board cannot adopt post-1993 revisions. Third, a city does not have to adopt any of the three named codes. But whatever standards a city does adopt may not "substantially," meaning materially, vary from the state standards. Whether a particular local rule varies substantially from the state standard is a question of fact, which the Attorney General does not decide in the opinion process.

Currency note

This opinion was issued in 1999. 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. The Plumbing License Law has been amended since 1999, so the specific code references and section numbers may no longer match current law.

Common questions

Did the plumbing board have authority to set statewide plumbing codes?
The opinion concluded yes. Section 5B(a), enacted in 1993, gave the State Board of Plumbing Examiners express authority to adopt a plumbing code of statewide applicability, which superseded the 1982 opinion MW-545 that had found no such authority.

Why did the opinion say the codes are frozen at their 1993 editions?
To keep the statute constitutional. Automatically adopting whatever future revisions the private code-writing organizations issued would delegate lawmaking power to private entities. Reading section 5B(a) to incorporate the codes only as they existed in 1993 avoided that problem, so revisions made after 1993 were not part of state law and the Board could not adopt them.

Does a Texas city have to use one of the three state codes?
No. The opinion concluded a municipality need not adopt any of the three codes named in section 5B(a). Subsection (b) let a city adopt its own standards, as long as they did not substantially vary from state rules or laws.

How far can a city's plumbing rules differ from the state standard?
Not substantially, which the opinion equated with materially. A city had no authority to adopt standards that materially differ from the state standards incorporated in section 5B(a). Whether a specific local rule varies "substantially" was described as a question of fact that depends on the circumstances and that the Attorney General cannot resolve in an opinion.

Background and statutory framework

Section 5B of the Texas Plumbing License Law, Texas Revised Civil Statutes article 6243-101, directed in subsection (a) that, "[t]o protect the health and safety of the citizens of this state, the Board shall adopt the Southern Standard Plumbing Code, the Uniform Plumbing Code, and the National Standard Plumbing Code." Subsection (b) allowed a municipality or an owner of a public water system, in adopting plumbing standards, to "adopt standards that do not substantially vary with rules or laws of this state."

Because all three named codes are written by private entities, the opinion applied the presumption that the legislature intends its statutes to comply with the constitution (citing Government Code section 311.021(1), and Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex. 1990)). Reading section 5B(a) to adopt whatever future revisions those private groups might make would raise a nondelegation problem, an unconstitutional delegation of lawmaking authority to private entities. To avoid that, the opinion construed section 5B(a) to incorporate the three codes only as they existed in 1993, when section 5B was adopted, consistent with the general rule that a statute adopted by specific descriptive reference takes the referenced material as it exists at that time. Revisions made after 1993 were therefore not part of state law, and the Board had no discretion to adopt later editions.

On that construction, the opinion answered the administrator's questions. The 1993 enactment of section 5B(a) supplied the express statewide-code authority that the 1982 opinion MW-545 had found lacking, so MW-545 was superseded. As for municipalities, subsection (b) did not require a city to adopt any of the three named codes, but it barred standards that "substantially" vary from the state standards. Drawing on the ordinary meaning of "substantial" (ample, material, or considerable in degree, value, or amount), the opinion (citing Burrow v. State, 973 S.W.2d 764, 768 (Tex. App.-Amarillo 1998, no pet.), and City of Temple v. Mitchell, 180 S.W.2d 959, 962 (Tex. Civ. App.-Austin 1944, no writ), and Government Code section 312.002(a)) concluded a city could not adopt standards that materially differ from the state standards, while leaving whether any particular local standard varies substantially as a question of fact outside the opinion process. The same 1993-edition construction disposed of the final question: if a private organization stopped issuing a listed code and put a different, unlisted code under the same name, the Board could not adopt the new code, because only the codes as they existed in 1993 were incorporated into state law.

Citations

Statutory provisions:

• TEX. REV. CIV. STAT. ANN. art. 6243-101 (Texas Plumbing License Law), § 5B(a), (b) (Vernon Supp. 1999)
• TEX. GOV'T CODE ANN. § 311.021(1) (Vernon 1998)
• TEX. GOV'T CODE ANN. § 312.002(a) (Vernon 1998)

Cases:

• Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex. 1990)
• Burrow v. State, 973 S.W.2d 764, 768 (Tex. App.-Amarillo 1998, no pet.)
• City of Temple v. Mitchell, 180 S.W.2d 959, 962 (Tex. Civ. App.-Austin 1944, no writ)

Prior Attorney General opinions discussed or cited: MW-545 (1982); DM-98 (1992); H-56 (1973); M-187 (1968); O-2911 (1940).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0012
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0012.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, and a short passage on page 2 (the introduction to the constitutional-delegation discussion) did not extract cleanly. The linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

March 8, 1999

Ms. Doretta Conrad
Administrator
Texas State Board of Plumbing Examiners
P.O. Box 4200
Austin, Texas 78765

Opinion No. JC-0012

Re: Whether section 5B(a) of the Texas Plumbing License Law, TEX. REV. CIV. STAT. ANN. art. 6243-101 (Vernon Supp. 1999), authorizes the State Board of Plumbing Examiners to adopt plumbing codes of statewide applicability, and related questions (RQ-1034)

Dear Ms. Conrad:

Section 5B(a) of the Texas Plumbing License Law (the "Act"), TEX. REV. CIV. STAT. ANN. art. 6243-101 (Vernon Supp. 1999), see id. art. 6243-101, § 1 (entitling act), requires the State Board of Plumbing Examiners (the "Board") to adopt "the Southern Standard Plumbing Code, the Uniform Plumbing Code, and the National Standard Plumbing Code," all of which are adopted by private entities. You ask about the Board's authority under section 5B to adopt plumbing codes of statewide applicability and about a municipality's authority to adopt a code that varies from the codes the Board has adopted. We construe section 5B(a) under the presumption of constitutionality to incorporate by reference the three listed codes as they existed in 1993, when section 5B was adopted. Given this construction, we conclude that Attorney General Opinion MW-545 (1982) has been superseded by the adoption of section 5B and that the Board has authority to adopt statewide plumbing codes. A municipality need not adopt any of the statewide codes, but it may not adopt a plumbing code that varies in any material sense from the state standards. Finally, consistent with our presumption that section 5B(a) is constitutional, we conclude that the Board may not adopt a code that has been approved by one of the three listed entities since section 5B was enacted in 1993.

We look first at the statute about which you ask. Section 5B of the Act provides for the adoption of plumbing standards:

(a) To protect the health and safety of the citizens of this state, the Board shall adopt the Southern Standard Plumbing Code, the Uniform Plumbing Code, and the National Standard Plumbing Code.

(b) In adopting plumbing standards for the proper design, installation, and maintenance of a plumbing system, a municipality or an owner of a public water system may adopt standards that do not substantially vary with rules or laws of this state.

. . . no pet.). "Statutes are given a construction consistent with constitutional requirements, when possible, because the legislature is presumed to have intended compliance with [the constitution]." Proctor, 972 S.W.2d at 735 (quoting Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex. 1990)); see also TEX. GOV'T CODE ANN. § 311.021(1) (Vernon 1998) (stipulating that legislature intends to comply with state and federal constitutions).

To render the statute constitutional, we construe section 5B(a) to adopt the Southern Standard Plumbing Code, the Uniform Plumbing Code, and the National Plumbing Code as they existed at the time section 5B was adopted. This construction avoids an interpretation that may unconstitutionally delegate law-making authority to private entities. Accordingly, revisions to the three codes made since 1993 are not incorporated into state law. Cf. Ex parte Elliott, 973 S.W.2d at 741 ("The general rule is that when a statute is adopted by a specific descriptive reference, the adoption takes the statute as it exists at that time . . . .").

With this construction of section 5B(a), we consider the questions you ask. You ask whether the 1993 adoption of section 5B of the Act effectively supersedes Attorney General Opinion MW-545, which was issued prior to section 5B's adoption. We conclude that it does. Attorney General Opinion MW-545 concludes that the Act fails to provide the Board with either express or implied authority to adopt a plumbing code that governs plumbing work done throughout the state. Tex. Att'y Gen. Op. No. MW-545 (1982) at 3. Section 5B(a) now provides the Board with express authority to adopt a plumbing code of statewide applicability. Given the specific legislative enactment and our construction of section 5B(a) so as to render it constitutional, however, the Board's authority to adopt statewide codes is limited to the 1993 editions of the codes. Concomitantly, the Board has no discretion to adopt subsequent or other editions of the codes.

You also suggest alternative constructions of section 5B(b) and ask which is correct: "Does Section 5B taken as a whole mean that a city must adopt one of the three state approved codes in (a) but then may modify the standards within one of the three approved codes it has adopted so long as the modifications do not substantially vary with the standard contained in the code, or does Section 5B mean that a city can adopt any plumbing code it chooses so long as the code does not substantially vary with the rules or laws of this state?" Letter from Gilbert Kissling, Administrator, Texas State Board of Plumbing Examiners, to Sarah Shirley, Chair, Opinions Division, Office of the Attorney General (Nov. 18, 1997) (on file with Opinion Committee).

We conclude that a municipality need not adopt any of the three codes named in section 5B(a). Subsection (b) permits a municipality to "adopt standards that do not substantially vary with rules or laws of this state." TEX. REV. CIV. STAT. ANN. art. 6243-101, § 5B(b) (Vernon Supp. 1999). Subsection (b) plainly does not require a municipality to adopt one of the three codes named in subsection (a).

On the other hand, municipal standards may not vary "substantially" from the state standards that are incorporated by reference in section 5B(a). Thus, a municipality has no authority to adopt plumbing standards that materially differ from the state standards. The ordinary and plain meaning of the word "substantial" "encompasses the idea that the thing in question is 'ample,' 'material,' or 'considerable' in degree, value, or amount . . . ." Burrow v. State, 973 S.W.2d 764, 768 (Tex. App.-Amarillo 1998, no pet.) (quoting AMERICAN HERITAGE DICTIONARY 1284). The term does not permit material variations. See BLACK'S LAW DICTIONARY 1280 (5th ed. 1979) (defining "substantial"); see also City of Temple v. Mitchell, 180 S.W.2d 959, 962 (Tex. Civ. App.-Austin 1944, no writ) (suggesting that term "substantial" denotes more than a trifle). We are directed generally to construe statutory terms consistently with their ordinary meaning. See TEX. GOV'T CODE ANN. § 312.002(a) (Vernon 1998).

Whether a particular municipal standard that is not identical to state plumbing standards varies substantially from that state standard is a question of fact. See Burrow, 973 S.W.2d at 768 (stating that whether something is substantial will "depend upon the circumstances involved"). Questions of fact cannot be determined in the opinion process. See, e.g., Tex. Att'y Gen. Op. Nos. DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-2911 (1940) at 2.

Our construction of section 5B(a) obviates the need to answer your final question. You ask whether, if a private entity that promulgates one of the codes "quits issuing [that] code and binds a different [unlisted] code under its name," the Board must adopt the new code. The Board may not adopt the new code. As we have stated, to preserve section 5B(a)'s constitutionality, we presume that the section incorporates into state law the codes listed only as they existed in 1993, when section 5B was adopted. Any revisions to the codes that have occurred since 1993, including the one you particularly describe, consequently are not part of state law.

SUMMARY

Section 5B(a) of the Texas Plumbing Law, TEX. REV. CIV. STAT. ANN. art. 6243-101 (Vernon Supp. 1999), incorporates by reference "the Southern Standard Plumbing Code, the Uniform Plumbing Code, and the National Standard Plumbing Code" as each existed in 1993, when section 5B was adopted. The 1993 adoption of section 5B effectively overrules Attorney General Opinion MW-545, which was issued prior to the enactment of section 5B. See Tex. Att'y Gen. Op. No. MW-545 (1982) at 3. Consequently, the Texas State Board of Plumbing Examiners has express authority under section 5B(a) to adopt a plumbing code of statewide applicability.

A municipality need not adopt any of the three codes named in section 5B(a). On the other hand, municipal standards may not vary "substantially" from the state standards that are incorporated by reference in section 5B(a). Whether a particular municipal standard that is not identical to state plumbing standards varies substantially from that state standard is a question of fact.

Any revisions to the three codes listed in section 5B(a) that have occurred since 1993 are not incorporated into state law. Accordingly, the Texas State Board of Plumbing Examiners may not adopt post-1993 revisions to the codes.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General