                                     The Attorney          General of Texas

     JIM MATTOX                                      February 23, 1984
     Attorney General



     Supreme Court Building         Mr. David A. Ivie                       Opinion No. JM-131
     P. 0. BOX 12549                Executive Director
     Austin, TX. 70?tl- 2549                                                Re:
                                    Structural Pest Control Board                 Use of electrical or
     5121475-2501
     Telex 9101874-1387
                                    1300 East Anderson Lane                 ultrasonic devices to kill or
     Telecopier   51214750286       Building C, Suite 250                   repel termites
                                    Austin, Texas   78752
     714 Jackson. Suite 700
     Dallas, TX. 75202.4508
                                    Dear Mr. Ivie:
     214/742-8944
                                        Your letter to us states:

     4824 Alberta Ave., Suite 160               The Structural Pest Control Board regulates
     El Paso, TX. 79905.2793
                                             pest control operators under the authority of
     915/5X3-3464
                                             artikle 135b-6. Texas Civil Statutes. Although
                                             the majority of work performed by commercial
P,
        01 Texas, Suite 700                  operators requires the use of chemical pesticides,
      ,ous,on, TX. 77002-3111                [recently] developments have resulted in some
     713/22358@                              companies making attempts to control various pests
                                             using electronic or ultrasonic devices. There has
     608 Broadway, Sulle 312
                                             been   considerable discussion concerning the
     Lubbock, TX. 79401.3479                 authority of the Structural Pest Control Board to
     806/747-5239                            regulate users of these instruments. The board
                                             has asked me to request an official opinion from
                                             your office in answer to the following questions:
     4309 N. Tenth, Suite B
     McAllen, TX. 79501-1685
     5121582.4547                                1. Does an electrical apparatus which directs
                                              an electric current across wood for the purpose of
                                              killing infestations of termites and other pests
     200 Main Plaza, Suite 400
     San Antonio, TX. 79205.2797
                                              constitute a 'device' as that term is defined in
     5121225.4191                             article 135b-6, section Z(b)(8), and as used in
                                              [section 2(a)(3)]?

     An Equal Opportunity/                       2. Is a person who commercially uses an
     Affirmative Action Employer
                                              electrical or ultrasonic apparatus for killing or
                                              repelling infestations of termites and other pests
                                              'engaged in the business of structural pest
                                              control' as defined in article 135b-6, section
                                              2(a)?

                                         Section 2(b)(8) of the Structural Pest Control Act, article
r-                                  135b-6, V.T.C.S.. defines "device" as




                                                                p. 554
Mr. David A. Ivie - Page 2   (JM-131)




          an instrument or contrivance, except a firearm,
          that is designed for trapping, destroying,
          repelling, or mitigating the effects of a pest or
          another form of plant or animal life, other than
          human beings or bacteria, viruses, or other
          microorganisms that live on or in human beings or
          animals. The term does not include any equipment
          used for the application of pesticides if the
          equipment is sold separately from a device as
          defined in this subdivision.

The term is similarly defined by section 76.001(6) of the Texas
Agriculture Code. (Chapter 76 of the code deals with pesticide
regulations.)

     We first conclude that an electrical apparatus that   directs an
electrical current across wood for the purpose of killing termites is
clearly a "device" within the meaning of the first sentence in section
2(b)(8). Such an apparatus certainly constitutes "an instrument or
contrivance," and it is "designed for trapping, destroying, repelling,
or mitigating the effects of s pest." The next issue is whether the
second sentence of section 2(b)(8), which attempts to create some kind
of exception to the first sentence, removes       such an electrical
apparatus from the definition of "device."

     The second sentence in section 2(b)(8) is exceedingly ambiguous.
One aspect of the second sentence & clear, however, and that is that
it attempts to except from the definition of "device" only certain
"equipment" used for the application of pesticides. The electrical
and ultrasonic devices at issue in this opinion are clearly not used
for the application of pesticides. Thus, whatever the exception
excepts, it does not except these particular electrical and ultrasonic
devices. If these items    are "devices" under the first sentence   of
section 2(b)(8) -- and we conclude that they are -- they are not taken
out of this category by the second sentence of this section.

     We therefore answer your first question in the affirmative.

     In answer to your second question, we note that under the
Structural Pest Control Act, a person is not engaged in the business
of structural pest control for purposes of the act unless, for
compensation, he "engages in. offers to engage in, advertises for,
solicits, or performs" any of three particular services. V.T.C.S.
art. 135b-6, 52(a). The three are:

             (1) identifying     infestations   or making
          inspections for the purpose of identifying or
          attempting to identify infestations of:




                                 p. 555
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        Hr. David A. Ivie - Page 3   (JM-131)




                       04 arthropods (insects, spiders, mites,
                    ticks, and related pests), wood-infesting
                    organisms, rodents, weeds, nuisance birds, and
                    any other obnoxious or undesirable animals
                    which may infest households, railroad cars,
                    ships, docks, trucks, airplanes, or other
                    structures, or the contents thereof, or

                        (B) pests or diseases of trees, shrubs, or
                     other plantings in a park or adjacent to a
                     residence, business establishment, industrial
                     plant, institutional building, or street;

                     (2)  making         inspection         reports,
                  recommendations, estimates, or bids, whether oral
                  or written, with respect to such infestations; or

                     (3) making contracts, or submitting bids for,
                  or performing services designed to prevent,
                  control, or eliminate such infestations by the use
                  of    insecticides,   pesticides,    rodenticides,
                  fumigants, or allied chemicals or substances or
C                 mechanical devices. (Emphasis added).

             We believe the answer to your second question turns on whether
        the electrical or ultrasonic apparatus to which you refer constitutes
        a "mechanical device." It has been suggested that this is not the
        case, and that we need not determine whether such an apparatus
        constitutes a "mechanical device" because the use of devices to
        prevent, control, or eliminate infestations constitutes "engaging in
        the business of structural pest control" under the act only. if the
        device is allied with an insecticide, pesticide, rodenticide, or
        fumigant. In other words, it has been argued that the adjective
        "allied" in subsection 2(a)(3) modifies "mechanical devices" as well
        as "chemicals" and perhaps "substances." We disagree, however. In
        our opi"io", the legislature chose the terms "chemicals" and
        "substances" to make it clear that "insecticides, pesticides,
        rodenticides, [and] fumigants" was not intended as a" exhaustive list.
        It meant to say, in other words, "insecticides, etc. . . . and similar
        chemicals or substances." Given this, the word "allied" clearly makes
        sense as a modifier of both "chemicals" and "substances"; it does not,
        however, make sense as a modifier of "mechanical devices."
        Accordingly, we conclude that "mechanical devices" is a separate
        category, that the term is not modified by the word "allied," and that
        the dispositive question in this instance involves its meaning. Under
        subsection 2(a)(3), in other words, a person is engaged in the
        business of structural pest control if he makes contracts, or submits
        bids for, or performs services designed to prevent, control or
        eliminate infestations "by the use of . . . mechanical devices."




                                       p. 556
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Mr. David A. Ivie - Page 4   (JM-131)




      The term "mechanical device" is not defined in the act. We must
therefore attempt to determine the "ordinary signification" of this
term. V.T.C.S. art. 10, $1; Texas Employers' Insurance Association v.
Haunschild, 527 S.W.Zd 270 (Tex. Civ. App. - Amarillo 1975, writ ref'd
n.r.e.). We first note that Black's Law Dictionary, (4th ed.) defines
"mechanical" as "[hlaving relation to , or produced or accomplished by,
the use of mechanisms or machinery." This~definition cleariy seems to
include electrical or ultrasonic apparatus. We have, moreover,
examined cases in which certain items have been held to be "mechanical
devices," and we believe that an electrical apparatus that directs an
electrical current across wood for the purpose of killing termites and
other pests can certainly be a "mechanical device" if those items can
be. In State v. Edwards, 446 P.2d 1, 3 (Aria. 19681, for example, a
crowbar, pro11 pry bar, brace and bit, screwdriver, flashlight, and
jimmy bar were held to be within the term "mechanical device or
contrivance" as used in an Arizona statute. A plastic telephone
directory cover was held to be a "mechanical apparatus or device"
within the meaning of the applicable state law in Illinois Bell
Telephone Company v. Miner, 136 N.E.2d 1, 9 (Ill. App. 1956), and a
"pinball machine, and similarly constructed and operated mechanisms"
were held to be within the term "mechanical device" within the meaning
of an Ohio statute in Stickley v. Board of Liquor Control, 155 N.E.2d
81, 82 (Ohio App. 1956). If pinball machines, crowbars, screwdrivers,
and plastic telephone book covers can constitue "mechanical devices,"
we believe that the electrical apparatus you describe certainly can as
well.

     Although they did not explicitly say so, the courts in the cited
cases, in our opinion, simply applied the well-know" rule of statutory
construction that statutes are to be construed with reference to their
manifest object, and that if the language is suceptible to two
constructions, one of which will carry out and the other defeat the
legislative objective, the statute should receive the former
construction. Citizens Bank of Bryan v. First State Bank of Hearne,
580 S.W.2d 344, 348 (Tex. 1979). These courts, in other words, took
the position that legal hair-splitting should not be used to defeat
the manifest purpose of a statute. We believe that we should take the
same approach. We believe there is a clear public purpose underlying
article 135b-6, and that it was to regulate, in the public interest,
people who engage in the business of structural pest control. In our
opi"io". the statute was clearly intended to embrace items such as an
ultrasonic apparatus and an electrical apparatus that directs an
electric current across wood for the purpose of killing termites and
other pests; we further believe that the cited cases provide ample
authority for the proposition that such an apparatus can be a
"mechanical device," and that to conclude that such an apparatus is
not a "mechanical device" within the meaning of article 135b-6 would
be to defeat the very purpose of the statute. We therefore answer
your second question in the affirmative.




                                p. 557
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        Mr. David A. Ivie - Page 5   (JM-131)




                                     SUMMARY

                    An   electrical apparatus that directs an
                 electric current across wood for the purpose of
                 killing termites and other pests is a "device"
                 within the meaning of article 135b-6, V.T.C.S.,
                 and a person who commercially uses an electrical
                 or ultrasonic apparatus to kill or repel termites
                 or other pests is "engaged in the business of
                 structural pest control" within the meaning of
                 that statute.




                                                JIM     MATTOX
                                                Attorney General of Texas

        TOM GREEN
        First Assistant Attorney General

        DAVID R. RICHARDS
        Executive Assistant Attorney General

        Prepared by Jon Bible
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Rick Gilpin. Chairman
        Jon Bible
        David Brooks
        Colin Carl
        Jim Moellinger
        Nancy Sutton




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