November 2, 1976
The Honorable A. R. Schwartz Opinion No. H- 890
Chairman
Jurisprudence Committee Re: Validity of agreement
State Senate between Texas State Board
Austin, Texas 78701 of Plumbing Examiners and
Texas State Board of
Landscape Architects.
Dear Senator Schwartz:
You have requested our opinion regarding the validity
of an apparent agreement between the Texas State Board of
Plumbing Examiners and the Texas State Board of Landscape
Architects, whereby the two boards agreed not to require
that landscape architects and irrigators making connections
to public water supplies be licensed as plumbers, or that
master plumbers installing sprinkler systems be licensed as
landscape irrigators. You attached to your request documents
promulgated by the Board of Plumbing Examiners and the Board
of Landscape Architects. The Board of Plumbing Examiners'
unsigned document, dated March 17, 1975, states:
The Board of Plumbing Examiners will not
att&pt.to require that landscape architects
and irrigators making connections to public
water supplies have a Plumber's license.
The Board of Landscape Irrigators [sic], in
return, will not attempt to require that
licensed Master plumbers who, incidental to
their regular business of plumbing, install
a sprinkler system or irrigation system have
an Irrigator's license.
The Board of Landscape Architects, in a February 24, 1975
letter to the Board of Plumbing Examiners, declared:
p. 3747
The Honorable A. R. Schwartz - page 2 (H-890)
The Texas State Board of Landscape Architects
has adopted the following position with
regard to a Master Plumber installing land-
scape irrigation systems:
Anyone who represents himself as a
Landscape Irrigator and is actively
engaged in the landscape irrigation
industry, is required to have the
Landscape Irrigator license. If,
however, a Master Plumber is asked
to install a sprinkler system, and
he is not actively in the landscape
irrigation business and does not
hold himself out to be a Landscape
Irrigator, or advertise as such,
then he is not required to have the
Landscape Irrigator license.
We have previously determined that the Board of Landscape
Architects may not authorize its licensees to perform plumbing
acts without a plumbing license. Attorney General Opinion
H-495 (1975). The Board of Landscape Architects sought in
that case to extend its jurisdiction beyond that conferred
by statu~te. In the present situation, the Board of Landscape
Architects and Board of Plumbing Examiners seek to enter into
a reciprocal agreement that each Board will limit the scope
of its jurisdiction by exempting certain unlicensed persons
(i.e. the other Board's licensees) from the statutory require-
ment of licensing. This abrogation of licensing authority is
impermissible.
It is well settled that no governmental
agency can, by contract or otherwise, suspend
or surrender its functions, nor can it
legally enter into any contract which will
embarrass or control its legislative powers
and duties or which amount to an abdication
thereof. Nairn v . Bean, 48 S.W.2d 584, 586
(Tex. Sup.m).
p. 3748
The Honorable A. R. Schwartz - page 3 (H-890)
Accordingly, it is our opinion that the two agencies
were without authority to enter into the purported agreement.
Any new exemptions to the two laws must be created by statutory
amendment rather than by agency regulation. Whether particular
actions constitute "plumbing" or "landscape irrigation" within
the statutory meanings of those terms are questions of fact
which depend on the circumstances of each case. -See Attorney
General Opinion H-495 (1975).
SUMMARY
The purported agreement between the Texas
State Board of Plumbing Examiners and
Texas State Board of Landscape Architects
is invalid insofar as it purports to exempt
persons performing plumbing acts from the
statutory requirement of licensing as a
plumber and persons engaging in landscape
irrigation from the statutory requirement
of licensing as a landscape irrigator.
Very truly yours,
Attorney General of Texas
c. ROBERT HEATH, Chairman
Opinion Committee
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p. 3749