                                          The Attorney          General of Texas
                                                         December 22, 1982

MARK WHITE
Attorney General


                                         Mr. Charlie Chapman                    Opinion No. MW-525
Supreme      Court Building              Executive Director
P.O.BOU       12546
Austin.    TX. 76711-2546
                                         Structural Pest Control Board          Re:    Whether     real estate
5121475-2501
                                            of Texas                            inspector may make termite
Telex    9101674.1367                    5555 North Lamar, Building H           inspection without licensing
Telecopier      51214750266              suite 123                              by   Texas   Structural    Pest
                                         Austin, Texas   78751                  Control Board
1607 Main St., Suite 1400
Dallas.   TX. 75201-4709                 Dear Mr. Chapman:
2141742.8944
                                              You have asked whether individuals who have not complied with the
                                         provisions of the Texas Structural Pest Control Act, article 135b-6,
4624 Alberta        Ave.,Suite     160
El Paso. TX.        799052793
                                         may make Inspections of real property for termite infestation.
9151533.3484
                                              Article 135b-6, section 2(a), subsections (1) and (2) provide:
1220 Dallas Ave.. Suite           202
                                                     sec. 2. (a) For purposes of this Act a person
Houston.   TX. 77002.6966
7131650-0666
                                                  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
806 Broadway,         Suite 312                   performs any of the following services for
Lubbock,     TX.     79401-3479
                                                  compensation:
8061747-5238

                                                      (1) identifying     infestations   or making
4309 N. Tenth. Suite B                             inspections for the purpose of identifying or
McAllen,     TX. 76501-1685                        attempting to identify infestations of:
5121662-4547

                                                      (A) arthropods    (insects, spiders, mites,
200 Main Plaza. Suite 400                          ticks,   and   related    pasts),   wood-infesting
San Antonio,  TX. 76205-2797                       organisms, rodents, weeds, nuisance birds, and any
5121225-4191                                       other obnoxious or undesirable animals which may
                                                   infest households, railroad cars, ships, docks,
 An Equal OpportunityI                             trucks, airplanes, or other structures, or the
 Affirmative       Action   Employer               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;




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Mr. Charlie Chapman - Page 2 (MS-525)




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

     Section 5(a) of the act provides:

            No parson, except an individual under the
         direct supervision of a certified applicator, may
         engage in the business of structural pest control
         after the effective date of this Act unless he
         meets the standards set by the board and possesses
         a valid Structural Pest Control Business License
         issued by the board.

The clear meaning of these statutes is that no person may make
structural pest inspections and reports unless the inspector has been
licensed by the Structural Pest Control Board.

     Your question arises as the result of the passage of article
6573.a. section 18C, effective August 31, 1981. Section 18C provides
for the registration (not licensing) of the following:

         Any person or persons who hold themselves out to
         the public as being trained and qualified to
         inspect improvements to real property, including
         structural items and/or equipment and systems, and
         who   accept employment for the purpose of
         performing such an inspection for a buyer or
         seller of real property pursuant to the provisions
         of any earnest money contract form adopted by the
         commission shall:

            (1) register his or her current name, type of
         legal entity, mailing address, place of business
         or businesses, and business telephone number or
         numbers with the commission....

     Section lBC(e) states:

            It is the intent of the legislature that the
         provisions of this section shall not apply to any
         electrician, plumber, carpenter. any       person
         engaging in the business of structural pest
         control in compliance with the Texas Structural
         Pest Control Act, as amended (Article 135b-6,
         Vernon's Texas Civil Statutes), or any other
         parson who    repairs, maintains, or inspects
         improvements to real property and who does not
         hold himself or herself out to the public via




                              p. 1903
.   .


        Mr. Charlie Chapman - Page 3   (MW-525)




                 personal solicitation or public advertising as
                 being   in  the business of    inspecting such
                 improvements pursuant to the provisions of any
                 earnest money contract form adopted by the
                 commission.

        The meaning of section lBC(e) is clear and is reinforced by
        legislative history. Persons engaged in the various building trades,
        those licensed by the Structural Pest Control Board, and persons who
        repair, maintain or inspect improvements or persons who do not solicit
        inspection business are exempted from the requirements of this
        statute. All others who hold themselves out as trained or expert to
        inspect, and who inspect improvements to real property for a buyer or
        seller pursuant to an earnest money contract must register. Section
        18C does not create a new agency or provide standards. It merely
        requires registration of persons who advertise themselves as
        inspectors and who do inspect improvements to real property in
        connection with the sale of that real property.

             Your question is, essentially, whether section 18C of article
        6573a creates an exemption from the Structural Pest Control Act, that
        is, whether section 18C permits persons not licensed by the Structural
        Pest Control Board to inspect structures for pest infestation. In our
        opinion, article 6573a, section 18C does not create an exemption from
        the Structural Pest Control Act. The statutes have entirely different
        functions. The Structural Pest Control Act is designed to establish
        standards for persons licensed under the statute. As a result of
        licensing, the board has access to the names and addresses of the
        licensees, article 135b-6, section 4(b).        Consequently, it is
        reasonable that persons licensed are exempt from registration under
        article 6573a, section 18C. as duplicative. However, article 6573a,
        section 18C is not duplicative of theStrucura1 Pest Control Act. The
        statute only requires that certain persons register and post a bond.
        Persons who register do not fulfill the requirements of the Structural
        Pest Control Act; the act of registration serves only to identify
        persons who inspect real property and are not licensed under other
        statutes. Article 6573a, section 18C, therefore, is designed to begin
        at the point that licensing statutes end. See transcript of Senate
        Committee on Economic Development, Senate Bili??o. 478, March 2, 1981.

             The public policies and legislative purposes of the statutes are
        also different, and should be examined to determine whether a conflict
        exists. -See Brown v. Patterson, 609 S.W.2d 287, 290 (Tex. Civ. App. -
        Dallas 1980, no writ). The policy for the Structural Pest Control Act
        is obvious; it is to protect the public by regulating and requiring
        certain standards of those engaged in the business of structural pest
        treatment and inspection. The purpose of article 6573a, section 18C
        is also clear: registration is an aid to buyers who have been injured
        by false or inaccurate reports, so that buyers may locate the real




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Mr.   Charlie Chapman - Page 4    (MN-525)




estate inspector for restitution. Examined in this light, it is
unlikely that the legislature intended to create an exception to
article 135b-6, and thereby encourage unlicensed persons to register
and avoid the provisions of article 135b-6.

     It   is our opinion that the two statutes can be read in harmony.
Article    135b-6 is unaffected by article 6573a. section IBC, which
applies   to inspections for which a structural pest control business
license   is not required.

                                 SUMMARY

               Pursuant to article 135b-6, only persons who
            possess a valid Structural Pest Control Business
            License may inspect and make reports with respect
            to structural pest infestations. Section 18C of
            article 6573a does not create an exemption to that
            requirement.




                                             MARK      WHITE
                                             Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Patricia Hinojosa
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpln
Patricia Hinojosa
Eva Loutzenhiser
Jim Moellinger




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