                                   January     23, 1975



The Honorable      Charlie  Chapman                    Opinion   No.     H-   504
Executive    Director
Structural    Pest Control   Board                     Re: The applicability     of the
313 East Anderson      Lane                            licensing  fee provisions     of
Chevy Chase III                                        the Texas Structural     Pest
Austin,    Texas    78752                              Control Act to employees
                                                       of persons   who engage in
                                                       the business   of Structural
                                                       Pest Control.

Dear   Mr.     Chapman:

         You have asked our opinion as to whether            the Structural    Pest
Control   Board may require         employees    of an applicant   or a licensee
(for or holding a license       under the Texas Structural       Pest Control Act)
to pay the required     license    fee if said persons’    duties consist    entirely
of on site sales,   solicitations,     estimates    or bids.

         You     particularize   your   opinion   request   by further    observing:

                        Section 7(a) of the Texas Structural       Pest Control
                   Act authorizes     the Structural    Pest Control   Board to
                   collect   from each applicant     for a license   a fee of
                   between     $5.00 and $15.00 for “each employee         of the
                   applicant    who is engaged in structural      pest control
                   services.    ”

         The Texas Structural      Pest Control Act, article    135b-6, V. T. C. S.,
requires   persons    engaging in the business  of structural    pest control to
obtain a license    before conducting   such a business.     Sec. 5(a), art. 135b-6.
A temporary     license   may be obtained by those who engaged in such work
prior to the effective    date of the Act, and a two year grace period is




                                          p.   2274
The Honorable      Charlie    Chapman        page   2      (H-504)




provided  within    which such persons    must fully qualify under the Act              and
pay the regular     licensing fees required  by the Act.    Sec. 5(b).

        Section    7(a)   provides   for   the following      licensing   fees:

                        Sec. 7(a) An applicant   for an initial or renewal
                   license   shall accompany   his application     with a fee
                   of $50 for each place of business     located in the State
                   and a fee of between $5 and $15, as determined
                   by the board, for each employee       of the applicant     who
                   is engaged in structural    pest control    services.    This
                   is not to apply to those locations    serving    only as
                   answering     services for a licensed   business.

        Section 2 defines   those persons    who are subject to the provisions
of the Act, as those “engaged     in the business   of structural   pest control, ”
and, as such, must accordingly       secure the license    required   by section 5
and pay the licensing   fee required    by section 7(a):

                         (a) For purposes        of this Act a person shall be
                   deemed to be engaged in the business             of structural
                   pest control if he engages in, offers to engage in,
                   advertises     for,   solicits,   or performs   any of the
                   following    services     for compensation:

                         (1) identifying    infestations      or making inspections
                   for the purpose        of identifying     or attempting     to identify
                   infestations      of arthropods      (insects,    spiders,    mites,
                   ticks,    and related     pests),    wood-infesting      organisms,
                   rodents,     weeds, nuisance birds,           and any other obnoxious
                   or u,ndesirable       animals     which may infest households,
                   railroad     cars,    ships, docks,       trucks,   airplanes,    or
                   other structures,         or the contents thereof,         or the
                   immediate       adjacent    outside areas;

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




                                           p.   2275
.   .   -    _




            The Honorable     Charlie          Chapman    page   3   (H- 504)




                                   (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 mechanical      devices.

                                    (b) as used in this Act,      “person”    means an individual,
                              firm,    partnership,     corporation,     association,     or other
                              organization,       or any combination      thereof,    or any type of
                              business     entity.   (Emphasis     supplied)

                      It is therefore     clear that persons       who, in the course of a structural
            pest control     operation,     solicit    and sell pest control  services   or make
            estimates     of the cost of such services          and bid for the performance    of these
            services,     perform     services      that come within the ambit of the Act.

                    However,    section         ll(3) excludes   “employees”    of licensees   from
            the operation  of the Act,          providing:

                                  Sec. 11 The provisions   of this Act shall not apply
                              to nor shall the following  persons   be deemed to be
                              engaging  in the business  of structural  pest control:

                                 .   .   . .


                                  (3) an employee    of a person licensed          to engage   in
                              the business  of structural   pest control;         . . .

                      Accordingly,      an employee   of one engaged in the business        of
            structural     pest control who solicits    and sells pest control     services
            and who estimates        the cost of such work and submits bids for its
            performance,        does not have to secure the license       or pay the fees
            required     by section 7(a).    However,    the holder of a license     or an
            applicant    therefore    must pay the $5.00 to $15.00 fee, as required          by
            section 7(a), for each employee         who engages in the selling of pest
            control    services    as a part of the employers     total license  fee.




                                                         p. 2276
The Honorable    Charlie    Chapman       page   4       (H- 504)




                                    SUMMARY

                    Employees,      who solicit and sell structural
                pest control   services   for a person engaged in the
                business   of structural   pest control,  do not have
                to be licensed   under the Texas Structural      Pest
                Control Act or pay the licensing      fees provided
                for by the Act.     However,    their employer   must
                pay the $5.00 to $15.00 fee for such employee
                as required    by section 7(a) of the Act.


                                                         Very   truly     yours,
                                                     n




                                                 u       Attorney       General    of Texas




DAVID   M.   KENDALL.       First   Assistant




C. ROBERT   HEATH,         Chairman
Opinion Committee




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