Texas Attorney General Opinion: GA-0292 Page: 3 of 5
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The Honorable Robert Duncan - Page 3
Returning to the exemption with these principles, we observe that reduced to its constituent
parts the exemption applies to "a person ... employed by .. a private industrial business." See
TEX. Occ. CODE ANN. 1305.003(14) (Vernon 2004). Although these terms, "person," "employed
by" and, "private industrial business" are the exemption's essential elements, they are not defined
in the Act. See id. 1305.001-.303. To answer your question, then, we begin by analyzing
individually each of these terms according to the guiding principles previously articulated in order
to determine the terms' meanings and, consequently, the exemption's meaning.
I. "Person"
In settling on a definition of "person" for the purposes of the exemption, we find two
competing concepts - the concept of "person" as an individual and the concept of "person" as any
legal entity. See BLACK'S LAW DICTIONARY 1028 (5th ed. 1979). The Occupations Code employs
both concepts in defining "person." See, e.g., TEX. Occ. CODE ANN. 151.002(11) (Vernon 2004)
(regulating physicians and defining "person" as an individual), id. 1302.002(14) (regulating air
conditioning and refrigeration contractors and defining "person" as an individual), id. 351.002(5)
(regulating optometrists and therapeutic optometrists and defining "person" as, among other things,
a partnership, corporation, or an "association of individuals"), and id. 1901.002(12) (regulating
water well drillers and defining "person" as any "private legal entity").
As noted, the industry regulated by the Act relies heavily on outsourcing jobs to companies
that supply contract labor to perform electrical work. Given this common practice to use these third-
party contractors, and because the Occupations Code employs both concepts of the term "person,"
we conclude that "person" as used in the exemption is ambiguous. Moreover, because there is an
absence of consideration for this industry practice in the Act's express purpose,5 or in its legislative
history,6 we cannot resolve this ambiguity with any degree of confidence by referring to such
documents.
II. "Employed By"
The term "employed by," however, is not ambiguous. In the context of the exemption, the
term refers to employees of a private industrial business. See TEX. Occ. CODE ANN. 1305.003(14)
(Vernon 2004) ("a person who is employed by and performs electrical work solely for a private
industrial business") (emphasis added). By definition, an independent contractor is not an employee.
See Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002) (distinguishing
by common-law test an employee from an independent contractor). However, the mere use of titles
such as "employee" and "contractor" do not determine a person's status; rather in the employee-
independent contractor dichotomy the common-law test articulated in Limestone controls.
5See SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. Comm. Substitute H.B. 1487, 78th Leg., R.S.
(2003).
6See HOUSE COMM. ON LICENSING & ADMIN. PROC., HOUSE RESEARCH ORG., BILL ANALYSIS, Tex. Comm.
Substitute H.B. 1487, 78th Leg., R.S. (2003).(GA-0292)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0292, text, January 10, 2005; (https://texashistory.unt.edu/ark:/67531/metapth275188/m1/3/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.