A-N ii..
* I
Hon. C. B. Belk, Administrator : i,~‘,
.Bcerd or Plumbing Bxamlners
Austin, Texas ,Opinion No.~ V+28.
.:
., He :. Whether then licenser r
r9e iixed.;by., the, P&umb-
ing ticenae Iaw Oi‘1917,
~. :&B. ;188,, ;,Acts 50th Leg-
islature,. is a license
ree .or,anoccupation
tax; and. related ques-
.,iti.ons. .,;..
.- ,i .: ?; > :
Dear Sir: ~
Your request ror.. an. opinion
reads as ‘&ows:
. ..~
.*This Board has received sevaral’ communica-
tlons rrom;plumbers~ complaining that some of the
smaller cities require the payment of a prohibi-
tive occupation t.ax or ,l%censa fee ~of plumbers.
Therefore, we -..submit the hollowing questions rsr
answer:
“1.
charging ‘an occupation tax of more than
one-halr 0r the state occupation tax, ap-
pllcable: to a part.icular.~~occu~tiidn,
plsaae advise ua whether the.-~license fee
as riied in the Plumbing .License .Law or
1947 .would. const$tute an oc’cupation tax
under the. provision ,o? the .const:,tut$oh?
“2. &uestion: If such rees w0Q.d constitu’te
an .odcupation tax unqer the ;provision. of
the constitution,. v&at would be the, ,max-
imum amount that could be charged ,by clt-
las o$ t,h6 State,. ror occupati~on tax .,or, ll-
censa fee of plumbers?
“3.
&on.. c. E. Belk, Page 2, V-428.
citks under 5,000 inhabitants charge an
occu tion tax or 1lcense ree ot plumb-
~xcess~ or one-hali
ers r II OXC~SS~ one-half Or
or the State Li-
COMI rwv..
COMI ,
In your rlrst question you ask whether the ll-
tense roe provided by the Plumbing License Law or 1947,
S. B. 188 is an occupetlon tax, cornin& within Section 1,
Artiole VIII, or the Texas 0oristitution.
In the csse
dr City 0r Fort worth V. wr w-
flnily Conpeny, Ter. 512, 83 8. W, (2d) 610, the Sa-
125
prem 0ourt distinguishes between an occupation tax and
.a lloumr ?a0 a8 r0ii0w8:
WAn’oooupation tax is levied primrilp
ror the p.urpom of .ralslng revenue, and unless
the mat+rq before ud Is primarily a revenue
ma&~ur:(,~it is not an ,oocupation tex, . . A
&lcense 1$w IS one whloh tourers upon those
“ho ~oomply ‘thonwith a right denied all, others,
and it is ima.t+rial whether or not it provides
a tee theretor a . ; An orrioiai ii0~13e may
be said to br a. permission granted by pub110 au-
thority to oarry on a business or trade or~prr-
ronn other aots whioh are rorbldden by law ex-
~oept to persoy ‘obtalnlng suoh permlsslon . . .I
An oocupation tax la thus dletinguishable irOn
a licemite fee or tax imposed under the police’ power, In
that an occupatlofi tax Is primarily Intended to ralue re?e-
MI, uhlle a lioenm tee or tax is priemlly intended as
a man.~ or, or ald to, re&alatlon.
A ply-, this yardstick t0 .tho Plumbin& Lloense
LOW 0r , we tee1 that them is little
194? doubt that the
primary purpose of the Aot Is the re ulatlon or ‘the plumb-
ing trade. This Is clear rran the --h-T
pr no pa provisions or
the Aot which provide for the lssuanoe and ‘nnevml or li-
oenaas to varying types of plumbers and plumbing Inspectors
and rOr ‘qualifying examinations to detanine the tltnere or
applicants. Also tha exoluslon or t& purpose or raising
revenue as ‘the solo 0~ as even a primary purpose of the Pot
IS left beyond ,quesflOp bi the provision ‘or the Bat that
the lloense fees provided for therein shall be Teduoed if
then fw&ds rema lning in the hands of the Board at the end
of any oalendar year are in excess of the expenses of the
Board (See Section 7). We, therefore, advise you as to
your rimat question that the license leas provided for In
Hon. C. E. Belk, Page 3, v-4.28.
the Plumbing License Law of 1947 are not occupation taxes,
but arr license fees.
Your second and third,questionsask whether muni-
cipalitiesmay charge an occupation tax or license fee or
plumbers, and if so, in what amount,
We quote Section 1,.Article VIJI, of the Texas
Constitution,on the question of whether a mmicipality
may levy an occupation tax on plumbers:
". 0 . It (The Legislnture) may also
impose occupation taxes, both upon natural
persons and upon corporations,other than
municipal, doing any business in this State
. except that persons engaged in mechan-
i&l and agriculturalpursuits shall never
be required to pay an occupation tax; . . .
and provided rurther that the occupation
tax levied by any county, city or town for
any year on persons or corporationspursu-
ing any profession or business, shall not
exceed one half of the tax levied by the
State ror the same period on such prorossion
or business.n (Parentheticaladdition ours).
In the light of the for8gOing constitutional
provision, a municipalitymay not levy an occupation tax
on plumbers for two reasons:
First, because plumbing is a mechanical pursuit
aud as such is not subject to an occupation tax. wsstrrn
Company v. Sheppard, 181 S. W. (2d) 850, error refused.
Second, because a plunicipalitymay not tax an
occupation which is not taxed by the Legislature for the
benefit or the State. Hoefling v. City Of San Antonio, 20
S. Wi 85; Ex Part8 Stevenson,169 S. W. (2d) 175; 27 Tex.
Jur. 901, Section 54-.
This answers your second and third questions with
respect to the levying of an occupationtax.
As to whether municipalitiesmay charge a license
fee of plumbers, we interpret the statute as ,establishing
the Texas State Board of Plumbing Exa.tinersas the sole ll-
tensing agency ror plumbers, fron and after the erfective
date of the statute, to the exclusion of all municipalities.
Hon. C. E. Belk, Page 4, V-L28 *
This Interpretationfollows from the provis-
ions of the Plumbing License Law of 1947 repealing the
previous statutory authority for municipal licensing of
plumbers (Arts. 1078, 1079, 1080, and 1081, R. C. S.),
from the provisions throughout the Aot establishinga
uniform State licensing system to beginitiatedand ad-
administeredby the Texas State Board of Plumbing Exam-
iners, and from the provisions of the Act to the effect
that no city or town shall prescribe any ordinance, by-
law, rule or regulation inconsistentwith the Act.
In this holding,~we follow Opinion No. V-333
of this department,a copy of,which opinion we enclose
herewith.
The license fee provided for in the
Plumbing License Law oi 1947, 9. B. 188,
is not an occupationtax. City or Fort
Worth v. Gulf Retining Co., 83 5. WV..
(2d)
610.
Municipalitiesmay not levy an occu-
pation tax on the plumbing trade. Sec. 1,
Art.,VIII, Texas Constitution;Hoefling v.
City or San Antonio,'20 8..W. 85; Ex Parte
Stevenson, 169 S, W. (2d) 175; Western Co.
v. Sheppard, 181 9. W, (26) 850.'
The Texas State Board of Plumbing Ex-
aminers is the exclusive licensing agency
for plumbers, and municipalitiesare pre-
cluded iron issuing licenses to plumbers
after the efrective date.of the Plumbing
License Law.~
Yours very truly
APPROVWD: ATTGRNEYGENERALOFTElL4S
BY
RNEYGENERAL
DJC:jmc