                                  ATTORNEY GENERAL OF TEXAS
                                                GREG         ABBOTT




                                                    March 15,2006



Mr. Murray Walton                                             Opinion No. GA-04 14
Executive Director
Texas Structural Pest Control Board                           Re: Whether the Texas Structural Pest Control
Post Office Box 1927                                          Board may require apartment employees to obtain
Austin, Texas 78767-1927                                      licenses before they may apply pesticides to the
                                                              apartment landscape (RQ-0398-GA)

Dear Mr. Walton:

        You ask whether the Texas Structural Pest Control Board (the “Board”) may require
apartment employees whose regular duties include the application of pesticides to the apartment
landscape to obtain a license.’

         Generally, a person may not engage in the business of structural pest control unless the
person holds a license from the Board. See TEX. OCC. CODE ANN. $6 1951.201, .301(b) (Vernon
2004). The Board must develop standards and criteria for issuing four varieties of structural pest
control licenses: (1) the business license, (2) the certified commercial applicator’s license, (3) the
certified noncommercial applicator’s license, and (4) the technician’s license. See id. 8 195 1.203.
A person is generally “engaged in the ‘business of structural pest control”’ if the person performs
certain “services for compensation,        including services performed as part of the person’s
employment.” Id. 3 195 1.003. The services described in the statute include “services designed to
prevent, control, or eliminate an infestation [of certain described pests] by the use of insecticides,
pesticides rodenticides, fumigants, allied chemicals or substances, or mechanical devices.” Id
$ 195 1.003(3).2 Thus, if an employee provides the services described in section 1951.003, then the



            ‘See Letter from Murray Walton, Executive Director, Texas Structural Pest Control Board, to Honorable Greg
Abbott, Attorney General of Texas (Sept. 19,2005) (on tile with the Opinion Committee, also available at http://www
.oag.state.tx.us) [hereinafter Request Letter]; Brieffrom Glen Grunberger, Texas Structural Pest Control Board, to Nancy
S. Fuller, Chair, Opinion Committee, Office of the Attorney General (Nov. 17, 2005) (on file with the Opinion
Committee) [hereinafter Board Brief].

            ‘The Board suggests that an opinion from this office established as a general principle that if the Board has
jurisdiction of services concerning a structure the jurisdiction includes the “curtilage or grounds around structures
 occupied by the public.” Board Brief, supra note 1, at 5-6 (citing Tex. Att’y Gen. Op. No. M-l 115 (1972)). The
 opinion addressed the meaning of “engaged in the business of pest control” as that phrase appeared in the predecessor
 to section 1951.003. See Tex. Att’y Gen. Op. No. M-l 115 (1972); Act of May 3 1, 1971, 62d Leg., R.S., ch. 726, 4 2,
                                                                                                             (continued.. .)
Mr. Murray Walton         - Page 2                     (GA-0414)




employee is engaged in the practice of structural pest control and subject to the Board’s licensing
requirements unless exempted by another provision in chapter 195 1. See id. 5 195 1.003.

         Sections 195 1.05 1,195 1.303, and 195 1.459 are particularly pertinent to the employees of an
apartment building owner. See id. $0 1951.051, .303, ,459. We consider these sections in turn.
Section 195 1.05 1 contains a limited exception for unlicensed persons using certain substances on
an owner’s property. See id. $ 1951.051. Those substances must not be restricted-use or state
limited-use pesticides or be prohibited by state or other law. See id. 5 195 1.05 1(a)( l)-(3). Section
1951.051 provides that an unlicensed individual may use permissible substances but “only on
premises” that are:

                  (b) . . .

                              (1) owned by the individual;

                              (2) in which the individual         owns a partnership         or joint
                              venture interest; or

                              (3) of a person who employs the individual               primarily    to
                              perform services other than pest control.

                  (c) Subsection (b)(3) does not apply to:

                              (1) an apartment building;

                              (2) a day-care center;

                              (3) a hospital;

                              (4) a nursing home;

                              (5) a hotel, motel, or lodge;



           “(. continued)
1971 Tex. Gen. Laws 2363 (former article 135b-6, 9 2(a) of the Revised Civil Statutes), amended by Act of May 30,
1975,64th Leg., R.S., ch. 709, 5 2, 1975 Tex. Gen. Laws 225 1, repealed and recodfred by Act of May 22,2001,77th
Leg., R.S., ch. 1421, $9 4, 13,200l Tex. Gen. Laws 4570,4862, 5020. The opinion concluded that the statute applied
to a person treating the lawn and trees around a residence. See Tex. Att’y Gen. Op. No. M- 1115 (1972) at 5. But the
opinion also noted that the statute was subject to exemptions including an exemption for regular employees ofthe owner.
See id. Moreover, the specific statutory language considered in the opinion was later substantially revised by the
legislature. See Act ofMay 30, 1975,64th Leg., R.S., ch. 709, $2, 1975 Tex. Gen. Laws 225 1, repealedandrecodified
by Act of May 22,2001,77th       Leg., R.S., ch. 1421, $3 4, 13, 2001 Tex. Gen. Laws 4570,4862, 5020 (codified atTEX.
Oct. CODEANN. 5 1951.003(l)(A)-(B)           (Vernon 2004)). Consequently, even if M-l 115 may be read as the Board
suggests, its construction of the statues in 1972 has only limited usefulness to the construction of present chapter 195 1
of the Occupations Code.
Mr. Murray Walton         - Page 3                       (GA-0414)




                            (6) a warehouse;

                            (7) a food-processing        establishment;

                            (8) a facility owned by the state or a political subdivision             of
                            the state . . .; or

                            (9) a school.

Id. 0 1951.051(b)-(c).    The exception in subsection (b)(3) is for an employer’s “premises.” Id.
$195 1.05 1(b)(3). The exception to the exception in subsection (c)( 1) is for an “apartment building.”
Id. $ 195 1.05 l(c)( 1). Chapter 195 1 defines an “apartment building” as a “building” consisting of
two or more dwelling units. See id. 4 195 1.002( 1). “Building” is not defined, but undefined words
and terms generally are given their ordinary meaning. See TEX. GOV’T CODE ANN. 5 3 11 .Ol 1
(Vernon 2005). A “building” is commonly understood to be an edifice or structure.3 By contrast,
the term “premises” generally denotes both land as well as the buildings or structures located on the
land.4 The plain language of subsections (b) and (c)( 1) of section 195 1.05 1 permits an apartment
employee whose principal duties are not pest control to use the described permissible substances on
the premises other than the buildings themselves. See TEX. OCC. CODE ANN. 6 195 1.051 (Vernon
2004). Depending on the facts in a particular case, premises other than an apartment building could
include the surrounding landscape.

         We do not construe this statutory language in isolation. See TEX. GOV’T CODE ANN.
6 3 11 .Ol 1(a) (Vernon 2005) (requiring statutory words and phrases to be construed in context). The
Board suggests that the term “apartment building” should be considered in context with the other
terms listed in section 195 1.05 l(c), such as “a hospital, ” “a facility owned by the state or a political
subdivision,” or “a school,” and should be construed as identifying the types of premises excluded
from the application of section 195 1.051(b)(3).            TEX. OCC. CODE ANN. §§ 1951.002(l),



          3See, e.g., TEX. GOV’T CODEANN. $ 1232.003(3)(AHB)             (V emon 2000) (in provisions concerning public
finance, “‘building’ means. . . a structure used by a state agency to conduct state business[] and . . . the major equipment
or personal property related functionally to a structure”); TEX. HEALTH & SAFETYCODEANN. Q 343.002(2) (Vernon
2001) (in provisions concerning abatement of public nuisances, “‘building’ means a structure built for the support,
shelter, or enclosure of a person, animal, chattel, machine, equipment, or other moveable property”); TEX. PEN. CODE
ANN. 5 28.01(2) (Vernon 2003) (concerning offenses against property, “‘[bluilding’ means any structure or enclosure
intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use”).

           4See, e.g., TEX. ALCO. BEV. CODE ANN. $ 11.49(b) (V emon 1995) (providing that in that code “‘premises’
means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent
premises if they are directly or indirectly under the control of the same person”); TEX. HEALTH& SAFETYCODEAm.
5 343.002(2) (Vernon 2001) (concerning abatement of public nuisances, “‘[plremises            means all privately owned
property, including vacant land or a building designed or used for residential, commercial, business, industrial, or
religious purposes [as well as] a yard, ground, walk, driveway, fence, porch, steps, or other structure appurtenant to the
property”);T~~.TN(C0~~A~.          9 33.51(i)(l)(V emon Supp. 2005) (concerning writ ofpossession, “‘[plremises means
all of the property described in the purchaser’s deed, including the buildings, dwellings, or other structures located on
the property”).
Mr. Murray Walton - Page 4                          (GA-04 14)




.05 1(c)(1)-(9) (V ernon 2004); Board Brief, supra note 1, at 6-l 1. However, there is nothing
inherent in the terms listed in section 195 1.05 1(c)(1)-(9) to guide whether they should be uniformly
construed to include a building as well as its surrounding premises. See TEX. OCC. CODE ANN.
0 1951.051(c)(l)-(9)     (Vernon 2004). To the contrary, the legislature specifically used the term
“building” in subsection (c)( 1) as an exception to the authority to use permitted substances on the
“premises” in subsection (b). We must assume that “the legislature chooses its words carefully and
means what it says.” Nauslar v. Coors Brewing Co., 170 S.W.3d 242,252-53 (Tex. App.-Dallas
2005, no pet.). Had the legislature intended section 195 1.05 1(c)( 1) to apply not only to an apartment
building but to its premises as well, it could have said so.

         The Board contends that its construction of section 195 1.05 1 is supported by sections
1951.303 and 1951.459. See Board Brief, supra note 1, at 6-11. Section 1951.303 authorizes
certain employees to engage in structural pest control if the employee obtains a noncommercial
applicator’s license. See TEX. Oct. CODEANN. Ij 195 1.303 (Vernon 2004). That section provides,
in pertinent part:

                (b) An individual who does not hold a certified commercial
                applicator’s license may not engage in the business of structural pest
                control unless the individual holds a certified noncommercial
                applicator’s or technician license and:

                        (1) is employed by the state or a political subdivision of the
                        state and engages in the business of structural pest control
                        other than by applying a general use pesticide in an incidental
                        use situation; or

                        (2) engages in the business of structural pest control as an
                        employee of a person who owns, operates, or maintains a
                        building that is:

                                (A)   an apartment building;

                                (B)   a day-care center;

                                (C)   a hospital;

                                (D)   a nursing home;

                                (E)   a hotel, motel, or lodge;

                                m     a warehouse;

                                (G) a food-processing establishment, other than a
                                restaurant, retail food, or food service establishment;
                                or
Mr. Murray Walton - Page 5                       (GA-0414)




                               (H)   a school.

Id. 6 195 1.303(b). On a related subject, section 195 1.459 provides:

               The owner of a building that is an apartment building, day-care
               center, hospital, nursing home, hotel, motel, lodge, warehouse,
               school, or food-processing establishment, other than a restaurant,
               retail food, or food service establishment, may obtain pest control
               services for that building from a person only by:

                       (1) contracting with a person who holds a license to perform
                       the services; or

                       (2) requiring a person employed         by the owner who is
                       licensed as a certified noncommercial   applicator or technician
                       to perform the services.

Id. 5 195 1.459. The Board suggests that these statutes establish a categorical rule that an employee
of an apartment building owner must be licensed to engage in structural pest control services on the
premises. However, considering section 195 1.459 first, that statute’s terms require an apartment
building owner to obtain pest control services from an employee or other person who has a license
only when the services are “for that building.” Id. 6 195 1.459. Section 195 1.459 does not purport
to apply to services rendered for the premises generally.

         Section 195 1.303, if read literally, would appear to categorically require all employees of
the owner of an apartment building to hold a noncommercial applicator’s license or other license
before they may engage in any act that may constitute the business of structural pest control. Id.
5 195 1.303. However, giving section 195 1.303 that construction would conflict with section
195 1.05 1(b)‘s authority for an employee to apply permitted substances to property owned by the
employer, such as the employer’s own residence. See id. $0 195 1.05 l(b), .303. If possible, we must
construe statutes to harmonize with each other. See La Sara Grain Co. v. First Nat7 Bank of
Mercedes, 673 S.W.2d 558,565 (Tex. 1984). When we construe sections 1951.051,1951.303, and
 195 1.459 together, we conclude that section 195 1.303 requires an apartment employee to hold a
chapter 1951 license only when the employee renders structural pest control services for the
apartment building. Section 195 1.303 does not require an employee of the owner of an apartment
building to hold a license before the employee may use permitted substances under section
 195 1.05 1(b) on the employer’s premises other than the apartment building itself.
Mr. Murray Walton - Page 6                   (GA-0414)




                                      SUMMARY

                       Under section 195 1.05 1 of the Occupations Code, the Texas
               Structural Pest Control Board may not require an employee of the
               owner of an apartment building to obtain a license before the
               employee may use certain substances on the premises other than the
               apartment building itself.

                                            Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
