I'm suing the State of Texas on behalf of Home Inspectors, and Here's why you should care

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If you're a home inspector virtually anywhere in America, you likely have a bit of a love/hate relationship with contractors. Sure, you find things that need repaired and quick in a real estate transaction, so they should be grateful every time you did your job correctly. On the other hand there are times when you call a contractor out for building/installing something that is unsafe or unsightly. This is just a reality of what we have to deal with and the thin line we walk as an industry.

Here's the most important thing we do as an industry: We maintain our objectivity.

Without our objectivity, we're nothing. We turn into contractors for hire that just charge for estimates so to speak, and that's already available from any...contractor. A home inspection and a home inspector are neutral parties that despite every possible inclination to turn otherwise to this day has remained objective. Contractors on the other hand have an inherent conflict of interest whenever their truck pulls into a driveway and they know it. If they're honest, the conflict is irrelevant, but in the course of a real estate transaction it's simply typical & customary (and sometimes required in licensed states) that the party assessing the property condition is not a contractor.

With One Exception: Texas.

In Texas, there is a regulation from the Plumbing Board restricting home inspectors from doing sewer camera inspections- allowing for only plumbers (with that inherent conflict of interest) to perform such duties.

WHOA.

Why should this matter to you?

If you're an inspector in Kansas or New York, the Texas regulation coming out of their plumbing board shouldn't affect you directly unless you plan on moving to Texas, but it could affect you indirectly in two ways:

1. The Plumbing Board in your State (which is made up of plumbers mostly) could come up with the same regulations using Texas as a model.
2. The agents/buyers in Texas that are forced to use licensed plumbers in Texas for this inspection spread the word a bit that "it's only for licensed plumbers in Texas", giving a perceived value to the thing that really just has a conflict and protectionism.

If you're an agent or a buyer in Texas, the problem is obvious: You have less choice and the market for you to get these Sewer Camera inspections is adversely affected in a monopolistic way by your Plumbing Board. You pay more, it's less available, and it always comes with the conflict of interest.

So why are we suing the State of Texas?

Well first we will fire a warning shot. The bottom line is that the Texas State Board of Plumbing Examiners on their own accord added camera inspections to the list of duties only licensed plumbers can do. This, in our estimation, is outside their authority and we will challenge the State of Texas on that issue and that issue alone. It's a bad precedent to allow a licensing Board, separate from home inspection licensing authorities (in Texas, TREC), to unilaterally decide what issues outside of repair and installation they want to do exclusively - especially when those activities are inspection related.

How are we going to do it?

We've established standing as of today and we would appreciate your help referring any and all Texas Licensed Home Inspectors to this link:

https://na3.docusign.net/Member/PowerFormSigning.aspx?PowerFormId=b49f17d9-a890-4eca-8562-da961a3acc75

What this link does is gives us the standing, on their behalf, to go after this issue with our funds being utilized for all legal costs once the State refuses to rescind the ridiculous regulations that have been passed by this irresponsible and protectionist plumbing board.

Letter to TREC. Going out today/tomorrow from our Austin based Counsel.

Letter to TSBPE 10.5.18.pdf

Letter to the Plumbing Board in Texas.

And here's what comes next. We will be adding to the petition around 100 inspectors who have assigned rights in this case as needed for standing. Thank you all for your support. (Our counsel believes we only need one for the moment)

Signed, and shared. Thanks, as always!

UPDATE 10/19/18

In response to our letters (see above attachments) to both the Plumbing Board and TREC (along with our draft petition), the Attorney General's office Administrative Law Division has requested a meeting to try to resolve the issue.

Why this is good

It is clear and evident that the Plumbing Board in Texas went beyond their authority by defining plumbing as simply looking at pipes. While no one can know intent for sure, it stands to reason that a bunch of plumbers who make money looking for problems (and prescribing the repairs in the thousands) would take a protectionist position when given the opportunity. As is often the case, the expertise of such board members doesn't extend much beyond their primary roles. It is unlikely that when they overstepped their authority that they knew they were doing so. The fact that the Attorney General has been quick to step in on this tells us that they likely see this as well and will make the appropriate changes.

The worst case scenario

If we don't see a result and action from the Attorney General's office, the suit will be filed as written. So worst case we are delayed in filing an action by 30 days or so, which isn't a big deal.

I applaud the Administrative Law division of the Attorney General's office of the State of Texas for stepping in. This is a big issue and one that deserves attention, and they're giving it. Your Texas (and my Texas) Tax Dollars hard at work!

UPDATE 11/2/18

The Attorney General's Office of Texas has met with our Counsel, and given us the following: (I'm paraphrasing)

1. That TREC simply parroted what the Plumbing Board said and as soon as a rule is changed (or eliminated) TREC will remove any such notation from their site.

2. That the Plumbing Board is willing to initiate proceedings to amend the rules. During such exchange, there were some proposed terms including "breach of sealed systems" which I cannot agree to and I have addressed below in my latest response to the Plumbing Board.

It is our position that this new wording of “no breaching the sealed plumbing system” is a farce and essentially seeks to accomplish the same thing, exceeding the plumbing board’s authority once again, of imposing a standard outside of repair, installation, and permit driven activities for which the Plumbing Board actually has authority. In fact, the phrase “sealed plumbing system” itself is a misnomer. “Sealed systems”, in the category of mechanical systems, could only possibly relate to issues including and similar to CFC based systems and closed loop systems (as in the case of geothermal heat pumps). There is absolutely nothing in the realm of the plumbing category at least as it relates to sewer lines that could be considered a “sealed system”.

The most common methods of accessing the sewer lines for a camera inspection or otherwise would be through a clean out/access point, removal of a toilet, or entry through a roof vent – in order of commonality. The way this verbiage has come back indicates the Plumbing Board seeks further protectionism outside their authority by (and interpreted here through the implication within the verbiage) restricting home inspectors (or anyone else without a plumbing license) from removing a clean out plug, removing a toilet, or otherwise accessing anything normally accessible by means not requiring plumbing skills nor a plumbing license. This is simply more of the same.

Put very simply, the license law is very clear outside of this sewer camera issue and those laws would apply to this sewer camera issue. In order to modify, install, pull a permit, etc. a license is needed. If none of those things are required to look inside a pipe – whether with your eyes, a mirror, a scope, a camera, a nanobot, teleportation, or some sort of sorcery – then there is no license needed to look at something.

Therefore, both in light of the history here and common sense, any and all verbiage regarding any restrictions for Sewer Camera inspections (or any other visible inspection of plumbing components) shall be removed from the regulations in order to bring the Plumbing Board back into compliance with their regulatory authority.

It is our goal at this point to eliminate any reference to regulations from the Plumbing Board outside their authority of installation, modification, and permits for Plumbing Components. Period.

Update:

The State of Texas has been a little slow on responses, but we had unleashed probably 150 active inspectors into the sewer line inspection biz. We figured we had already won candidly - but we had no idea how big.

As it turns out, the State of Texas finds the Plumbing Board to be completely useless and plans to abolish it completely.

https://www.texastribune.org/2019/05/27/texas-plumbing-board-and-laws-abolished-after-legislative-strife/?utm_campaign=trib-social&utm_content=1558983181&utm_medium=social&utm_source=facebook

Update 1/28/2020

The Plumbing Board in Texas has been granted a 2 year extension to exist, we will see if there is a plumbing board thereafter. TREC has simply deferred the matter of whether looking at a pipe is a plumbing license issue back to The Plumbing Board, and they've taken zero actions against any home inspector that does sewer camera inspections. Meanwhile, the Attorney General for the State of Texas is looking at it and will come out with a statement we hope soon - but don't expect it within any short amount of time.

Here's our official position:

1. There's no legitimate prohibition against anyone looking at a pipe. Home Inspector or not. Anyone suggesting you can't "look" at something is acting outside of their authority.
2. TREC has essentially taken themselves out of this and we respect that. We certainly wish they saw things differently, but TREC has not prohibited inspectors from looking at a pipe.
3. If the Attorney General suggests that looking at a pipe is something only a licensed plumber can do, we will continue down the path we had detoured from to end this nonsense more quickly (and economically).
4. If any of our clients taking our advice on this matter find themselves under scrutiny, we will be stepping in.

So can a home inspector in the State of Texas look at a pipe? YES. If anyone tells you otherwise, they're confused and we are here to help resolve such confusion. Thank you.

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Update 4/8/2020

Sorry for the delay on this all, but see attached! The Attorney General of the Great State of Texas has not only agreed with our position, but also took the time to write at great length on the issue of overreach by the Texas Plumbing Board.

Thank you to all that helped including our very own Mark Cohen, Alix Vollmer, and our Outside Counsel in Texas as well. This is an important victory for home inspectors everywhere and should serve as a warning to any Professional Licensing group in any skilled trade that you only have authority to oversee the actual repair and installation as set forth by your State Law. If you go outside of your box, be advised I will not stop until you have been rightly put back into your box.

Further, it is my position that a home inspector has the right and even the duty to report on conditions in the home, and at times that may go beyond the minimum SOP required by law. Any board or licensing authority for home inspectors is going outside of their authority if they restrict, attempt to restrict, or parrot restrictions to such.

Thank you Nathan!

We are all set up and ready to perform sewer camera inspections as well as septic tank locating in the San Antonio, TX and hill country area.

Very nice update. Looking forward toward using them soon.

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