Shared from the 6/16/2019 Houston Chronicle eEdition

Abbott’s revival of state plumbing board sets uneasy precedent


When the Texas Legislature decided last month to abolish the state’s Board of Plumbing Examiners, it was probably a bad decision. Texas plumbers certainly thought so, as did many legislators on both sides of the aisle. It might be more accurate to say that the Lege accidentally abolished the plumbing board, due to the fatigue and confusion of the final days of the session, as well as the friction between the

Texas House and Senate.

Even so, Gov. Greg Abbott’s decision to unilaterally revive the plumbing board poses problems of its own, specifically by raising the question of whether he’s exceeding his authority in drawing on emergency powers.

The executive order that he issued on Thursday may seem like a reasonable response, but legislators have the right to make suboptimal decisions — and the governor could have called a special session if he wanted them to revisit this one.

The State Board of Plumbing Examiners was among the agencies scheduled for sunset review this year — such a review allows for an evaluation of the need to continue a program or agency — and lawmakers who serve on the Sunset Commission in January recommended that it not be renewed.

However, the Sunset Commission didn’t recommend that the plumbing industry be completely deregulated, or that Texans working in it shouldn’t need a license to do so.

In its report, the commission explained that the plumbing board “no longer meets the expectations of the state or the growing demands of the industry” given the state’s population growth, as well as the additional demand for plumbing services resulting from severe storms such as Hurricane Harvey.

And although there is a shortage of plumbers across the country, the commission concluded that the issue has been exacerbated by the plumbing board, which has “serious, ongoing problems” as well as a reluctance to change, which would hinder reform.

The commission recommended that the regulation of plumbing be shifted to the Texas Department of Licensing and Regulation, which oversees Texans working in a number of professions, including midwives and electricians.

Legislators were trying to follow this recommendation, but the House and Senate disagreed about the timeline for doing so and proved unable to reconcile their differences before the clock ran out onthe session.

State Rep. Chris Paddie, R-Marshall, who serves as vice-chair of the Sunset Advisory Committee, was wry about the fallout from that failure: the plumbing board would have ceased to exist on Sept. 1, and the industry would have become unregulated as a result.

“Our plumbing shortage is solved because we can all become plumbers,” Paddie observed, after his colleagues voted down the measure that would have kept the industry regulated until the next regular session, in 2021.

I was secretly curious about the likely results of this unplanned experiment in occupational licensing. But the fact of the matter is that plumbing is a skilled trade —and substandard plumbing work can have spillover effects, no pun intended, on property owners who have themselves paid for professionals to tackle such jobs.

I agree with Abbott, then, that lawmakers should revisit the question in 2021. It’s not clear why he rejected the option of calling a special session to keep the plumbing board afloat, but he tweeted on June 4, “The Legislature has given the Governor many tools in my toolbox to extend the State Board of Plumbing Examiners for two years without needing to call a special session.”

The tool he used is one that he says was given to the governor long ago. In his executive order, Abbott invokes his emergency powers under the Texas Disaster Act of 1975.

That law does give the governor certain powers, in the event of a disaster — as well as the power to issue disaster declarations in the first place. But it doesn’t specify whether the aforementioned emergency powers include the power to unilaterally overrule the Legislature, as Abbott did on Thursday.

And the governor’s invocation of Harvey is odd, in this context, given the Sunset Commission’s conclusion that the plumbing board’s problems have exacerbated the problems Texans faced in the aftermath of severe storms, including Harvey.

This is the second time Abbott has invoked his powers under the Texas Disaster Act of 1975 to suspend a section of state law. In April 2018 he suspended a section of the Texas Election Code, by executive order, to call an emergency special election in the 27th Congressional District, after the resignation of U.S. Rep. Blake Farenthold left it without voting representation.

That executive order wasn’t challenged in court, and the one Abbott issued Thursday probably won’t be either; it’s possible that his interpretation of his powers under the Disaster Act would be upheld in court, if so.

But Texans should be wary of the precedent the governor is setting here, if nothing else. Abbott’s interpretation of his powers is a maximalist one. His successor’s may well be, too.

See this article in the e-Edition Here
Edit Privacy