                                  Office of tfy ~ttornep @heral
                                          $&dateof Qexas
DAN MORALES
 .*TTORs:EY
        CES’ERAL                                December 15, 1992


     Honorable Bill Sii                                     Opinion No. DM-190
     Chairman
     Natural Resources Committee                            Re: Whether the Texas Structural Pest
     Texas State Senate                                     Control Act, V.T.C.S. article 1356,
     P. 0. Box 12068                                        exempts city employees who perform pest
     Austin, Texas 78711                                    control   services  from  its   licensing
                                                            requirements (RQ459)

     Dear Senator Siis:

             You have requested an opinion regarding whether the Texas Structural Pest
     Control Act, V.T.C.S. article 135b-6 (the%ct”), exempts city employees who perform
     pest control services from its licensing requirements. Generahy, the act prohibits any
     person Tom engaging in the business of structural pest controlt without a license, with
     mtain limited exceptions. See V.T.C.S. art. 135b-6, § 5(a).* In the past, the act
     contained an explicit blanket exemption in section 11 for “an officer or employee of a
     governmental or educational agency who performs pest control services as part of his
     duties of employment,” but this language was deleted by the 72d Legislature. Acts 1991,
     72d Leg., ch. 771, § 16, at 2758. In light of this amendment, you ask whether any of the
     act’s other exceptions apply to city employees.3

            At the same time the 72d Legislature amended section 11 of the act to delete the
     blanket exemption for employees of governmental and educational agencies, it added a
     number of other provisions that apply to city employees. Fi, it added the following:


             %a act’s definition of “the business of s~rochuai pest oxarol” is quite comprehensive. See
     V.T.C.S. art 135b-6.8 Z(a).

              *Section   S(a)providesas follows:




              sT’he brief sob&ted with your rcqucst wntcmis that the act is who& inapplicable to cities
     bazmsa the act’s definition of a “person” does not indude a “municipality”. See V.T.C.S. art. 135b-6,
     p 2@)(1). Thus, it suggests that the act’s prohibition agaiost engaging in the business of suxtmal pest
     control without a license in section 5(a) does not apply to cities. We disagree. Fi           the term “PZson”
     clearly applies to city employees. Second, references to city cmployccs in the prior version of section 11
     and in section 4B(b) of the act indicate that the legislature intends the act to apply to cities.


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Honorable Bill Sims - Page 2            (DM-190)




                (b) An individual must be licensed as a certified noncommercial
           applicator if the individual is not licensed as a certified commercial
           applicator and the individual:
                 (I) is an employee of the state or a city or county and
                 engages in the business of structural pest control .
V.T.C.S. art. 13%6, §4B; Acts 1991, 72d Leg., ch. 771, 8 6, at 2750-51; see also
V.T.C.S. art. 135b-6, 4 2(a) (defining the term “business of structural pest control”).
This provision requires a city employee who engages in the business of structural pest
control to obtain a noncommercial applicator license.

      At the same time the 72d Legislature amended section 11 of the act to delete the
bhmket exemption for employees of governmental and educational agencies, it also
amended section 5(b) of the act by adding the following highlighted language:

               @) An individual without a license may, on his own premises or
          on premises in which he owns a partnership or joint venture interest,
          or on the premises other than an apartment building as defined in
          Section 4B of this Act, &-care center, hoqital, nursing home,
          hotel, motel, lodge, warehouse, food-processing establishment, or
          school or eakational institution, of an employer by whom he was
          hired primarily to perform other services, use insecticides, pesticides,
          rodenticides, fumigants, or allied chemicals or substances or
          mechanical devices designed to prevent,. control, or eliinate pest
          infestations unless that use is prohibited’by state law or rule or by
          rule of the United States Environmental Protection Agency or unless
          the substance used is labeled as a restricted-use pesticide or a state-
          limited-use pesticide.

Acts 1991, 72d Leg., ch. 771, 3 7, at 2755 (emphasis added). Prior to this amendment,
section 5(b) permitted premises owners and their employees hired primarily to perform
other services to control pests, with certain limitations. Section 5(b) did not apply to
employees of governmental snd educational agencies, as they were wholly exempted Tom
the act by virtue of section 11. In addmg the highlighted language, the legislature was
clearly adjusting section 5(b) in light of the deletion of the blanket exemption for
employees of educational agencies &om section Il. The legislature did not make a similar
adjustment for the deletion of the blanket exemption for employees of governmental
agencies from section 11. Thus, we believe that the legislature contemplated that this
section would be otherwise applicable to employees of governmental agencies following
the deletion of the blanket exemption from section Il. Therefore, we conclude that
section 5(b) excepts city employees hired primarily to perform other services from the
act’s licensing requirements provided that they refrain from using methods prohibited by




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 Honorable Bill Sims - Page 3              (DM-190)




state law or rule or by rule of the United States Environmental Protection Agency,
restricted-use. pesticides or state-limited-use pesticides.’

        Piiy,     at the same time the 72d Legislature enacted the foregoing amendments to
the act, it also added the following general exemption to section 11:

                 [A] person who uses pest control chemicals that are for
            household use and are available for purchase in retail food stores,
            such as aerosol bombs and spray cans, if the insecticide is used in
            accordance with board rules or guidelines and is:

                      (A) used by the owner or his employee or agent in space
                 occupied by the building owner in a residential building, office
                 building, retail building, or industrial building; or

                     (B) used in a place that is vacant, unused, and unoccupied.

V.T.C.S. art. 135b-6, $ ll(4); Acts 1991, 72d Leg., ch. 771, § 16, at 2759. This
provision appears to apply to my premises’ owner or his or her employee who uses
household pest control chemicals on his or her premises, including a city or a city
employee. Thus, we conclude that section ll(4) exempts a city employee who uses
household pest control chemicals in vacant or residential, office, retail, or industrial
buildings owned and occupied by the city from the act’s licensing requirements.

                                     SUMMARY

                The Texas Structural Pest Control Act, V.T.C.S. article 135b-6,
           requires a city employee who engages in the business of structural
           pest control to obtain a noncommercial applicator license. The act
           exempts from its licensing requirements city employees 1) who are
           hired primarily to perform other services provided that they do not
           use methods prohibited by state law or rule or by rule of the United
           States Environmental Protection Agency, restricted-use pesticides or
           state-limited-use pesticides, or 2) who use household pest control
           chemicals in vacant or residential, office, retail, or industrial buildings
           owned and occupied by the city.




                                                         DAN      MORALES
                                                         Attorney General of Texas

       +The tams ‘mstrictcd-USC  pesticide”and “state-Iimircd-use
                                                                pesticide” are defined by sections
2@)(Z)aad 2@)(3)ofthe act respdively.


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Honorable Bill Sims - Page 4             (DM-190)




WILL PRYOR
Fkst Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RBNEAHIcKs
Special As&ant   Attorney General

MADELEINE B. JOHNSON
Chair, Opiion Committee

Prepared by h4ary R Grouter
Assistant Attorney General




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