                                ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT




                                                 August 152005



Mr. Dale Burnett                                           Opinion No. GA-0346
Executive Director
Texas Structural Pest Control Board                        Re: Whether the Structural Pest Control Board
Post Office Box 1927                                       may regulate the removal of vertebrate animals
Austin, Texas 78767-l 927                                  from the vicinity of structures (RQ-03 14-GA)

Dear Mr. Burnett:

         You ask whether, pursuant to section 195 1.003 of the Texas Occupations Code and its use
of the terms “rodents” and “other obnoxious or undesirable animals,” the Texas Structural Pest
Control Board (the “Board’) may regulate the removal of “vertebrate animals” from around
structures.’ You state that the Board is increasingly concerned about “individuals who deal with the
removal of vertebrate creatures from around structures.” See Request Letter, supru note 1, at 1. You
relate that these individuals consider themselves, because of their trapping services, to operate solely
under the jurisdiction of the.Texas Parks and Wildlife Department. See id. The Board’s increasing
interaction with such individuals and the different views of the regulatory authority of the Board and
the Parks and Wildlife Department prompts you to seek our opinion on the scope of the Board’s
authority.* See id.

        We recognize that section 195 1.003 of the Occupations Code gives the Board jurisdiction
that overlaps and potentially conflicts with jurisdiction of other state agencies. For example, the
Texas Department of Agriculture has jurisdiction over the regulation of pesticides and herbicides,
see TEX. AGRIC. CODE ANN. $0 76.001-.009 (Vernon 2004); see aZso TEX. Oct. CODE ANN.
6 195 1.053 (pest control work regulated by Department of Agriculture), and the Texas Parks and
Wildlife Department has jurisdiction over game, fur-bearing, and non-game animals. See TEX.
PARKS &WILD. CODE ANN. $8 12.001(a), 67.002(a), 71.002 (Vernon 2002). However, you do not
inquire about the legal limits of the Board’s regulatory authority with respect to the jurisdiction of
other state agencies. Instead, you inquire only whether “[t]he Board [may] regulate the remova of
vertebrate animals from around structures.” Request Letter, supra note 1, at 1. Moreover, the
challenge of construing the various agencies’ enabling legislation and defining the legal parameters


          ‘Letter fromDale Burnett, Executive Director, Texas Structural Pest Control Board, to Honorable Greg Abbott,
Texas Attorney General (Jan. 26,2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].

         2See also Brief from Ann Bright, General Counsel, Texas Parks and Wildlife Department, to Honorable Greg
Abbott, Texas Attorney General (Mar. 14,2005) (on file with Opinion Committee).
Mr. Dale Burnett - Page 2                              (GA-0346)



of each agency’s respective jurisdiction is complex and has untold consequences. In addition, the
need to engage in such a task depends, in large part, on how the Board applies our construction of
section 195 1.003 of the Occupations Code. Therefore, we focus here solely on the scope of the
Board’s authority under section 1951.003 with respect to the specific animals about which you
inquire and leave for another day the extent to which other agencies’ authority limits the Board’s
authority.

        You inquire specifically about the removal of “vertebrate animals.” See id. The term
“vertebrate animals” is not a statutory term but merely your characterization of the animals at issue.
It encompasses a very large segment of the animal population. See MERRIAM WEBSTER’S
COLLEGIATE     DICTIONARY13 13 (10th ed. 1993). Because of its broad scope, the definition of
“vertebrate” does not provide much guidance as to the specific animals about which the Board is
concerned. A brief Corn the Board informs us that the specific animals at issue here are “armadillos,
squirrels, skunks, raccoons, [and] gophers.“3 We received information suggesting that feral dogs,
alligators, bobcats, rabbits, coyotes, beavers, deer, and ducks are also of concem.4 Where possible
we will refer to all of the listed animals collectively.

        Created in 197 1 with the adoption of the Texas Structural Pest Control Act, see Act of May
31, 1971, 62d Leg., R.S., ch. 726, 1971 Tex. Gen. Laws 2363,2363-65 (enacting article 135b-6,
Revised Civil Statutes), repealed and recodzjied by Act ofMay 22,2001,77th Leg., R.S., ch. 1421,
$8 4, 13,200l Tex. Gen. Laws 4570,4857-82, 5020, the Board is the “sole authority in this state
for licensing persons engaged in the business of structural pest control.” TEX. Oct. CODEANN.
$1951.201 (Vernon 2004). However, the Occupations Code does not define “structural pest.” Nor
does it expressly give the Board jurisdiction over structural pests. Instead, the Occupations Code
authorizes the Board to develop the standards and criteria for issuing business licenses, commercial
applicator’s licenses, noncommercial applicator’s licenses, and technician’s licenses to those
“engaged in the business of structural pest control.” Id. 0 195 1.203. A person is engaged in the
business of structural pest control if

                  the person performs, offers to perform, or advertises for or solicits
                  the person’s performance of any of the following services for
                  compensation, including services performed as part of the person’s
                  employment:




         ‘See Brief from Frank M. Crull, General Counsel, Texas Structural Pest Control Board, to Honorable Greg
Abbott, Texas Attorney General (Mar. 22,2005) (on file with Opinion Committee).

         California implicitly recognizes the biological differences in those types of animals. The California structural
pest control statute does not require a structural pest control license for those involved in the removal of “vertebrate
pests.” See MerrzjYeldv. Schwanenegger,     No. 04-0498 MMC, 6,7,2004 WL 2926164, * 3 (N.D. Cal. Apr. 2 1,2004).
Vertebrate pests “include, but are not limited to, bats, raccoons, skunks, and squirrels.” Id.

        4See Brief from Cliff Moore, President, Animal Services, Inc., to Opinion Committee, Attorney General of
Texas (Mar. 17,2005) (on file with Opinion Committee).
Mr. Dale Burnett - Page 3                            (GA-0346)



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

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

                               (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 oral or written inspection reports, recommendations,
                  estimates, or bids with respect to an infestation described by
                  Subdivision (1); or

                         (3) making contracts, or submitting bids for services or
                  performing services designed to prevent, control, or eliminate an
                  infestation described by Subdivision (1) by the use of insecticides,
                  pesticides, rodenticides, fumigants, allied chemicals or substances, or
                  mechanical devices.

Id. $ 1951.003.

        It is well established that an administrative agency such as the Board,’ a creature of statute,
has only those powers clearly delegated by the legislature and those that are impliedly necessary to
perform a delegated function or duty. See Sexton v. Mount Olivet Cemetery Ass ‘n, 720 S. W.2d 129,
137 (Tex. App.-Austin 1986, writ ref d n.r.e.); see also GTE SW., Inc. v. Pub. Util. Comm it, 10
S.W.3d 7, 12 (Tex. App.-Austin 1999, no pet.). But “[c]ourts will not imply additional authority
to agencies, nor may agencies create for themselves any excess powers.” Subaru of Am., Inc. v.
David &David Nissan, Inc., 84 S.W.3d 212,220 (Tex. 2002) (citing Key IV.Life Ins. Co. v. State
Bd. ofhs., 350 S.W.2d 839,848 (Tex. 1961)). Moreover, courts will not by implication enlarge the
meaning of any word in a statute beyond its ordinary meaning. See Sexton, 720 S.W.2d at 138. We
are mindful of these fundamental principles as we examine section 195 1.003.

         Section 195 1.003 defines the business of structural pest control in part by specific activities:

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




        SThe Texas Structural Pest Control Board is a legislatively created state agency. See Tex. Att’y Gen. Op. No.
JC-0324 (2001) at 1.
Mr. Dale Burnett - Page 4                             (GA-0346)



                                [specified organisms];

                       (2) making oral or written inspection reports, recommendations,
                  estimates, or bids with respect to an infestation described by
                  Subdivision (1); or

                        (3) making contracts, or submitting bids for services or
                  performing services designed to prevent, control, or eliminate an
                  infestation described by Subdivision (1) by the use of insecticides,
                  pesticides, rodenticides, fumigants, allied chemicals or substances, or
                  mechanical devices.

TEX.   Oct. CODE ANN. 3 1951.003 (Vernon 2004). All activities involved in the business of
structural pest control relate to “identifying infestations or making inspections for the purpose of
identifying or attempting to identify infestations of: [the listed organisms].” Id. $ 1951.003(l)
(emphasis added); see also id. $5 1951.003(2) (“with respect to an infestation described by
Subdivision (1)“) (emphasis added), .003(3) (“an infestation described by Subdivision (1)“)
(emphasis added). Thus, even if these animals are rodents, the Board has licensing authority over
their removal only if they are animals that “infest.” Similarly, even if these animals are “other
obnoxious or undesirable animals that may infest households” or are “pests or diseases of trees,
shrubs, or other plantings . . . adjacent to a residence,” they must be ones that “infest” before the
Board has regulatory authority over licensing those engaged in the business of their removal. Id.
0 1951.003(l)-(3). We find no guidance as to what meaning to give the term “infest” as it relates
to these vertebrate animals from Texas statutes, judicial opinions, or agency rule.

         Nonetheless, we believe that the scope of the Board’s regulatory authority with respect to
these animals is absolutely predicated on whether they infest. See id. 3 195 1.003( 1) (“identifying
infestations or making inspections for the purpose of identifying or attempting to identify
infestations. . . .“), .003(2) (referencing subdivision (l)), .003(3) (same). Despite the dispositive
nature of the term infestation, the legislature has failed to define it in the statute. See generally TEX.
OCC.CODEANN.ch. 195 1 (Vernon 2004). Moreover, while we construe undefined terms according
to their common meaning, see TEX. GOV’T CODE ANN. 0 3 11.01 l(b) (Vernon 2005) (Code
Construction Act) (“Words and phrases shall be read in context and construed according to the rules
of grammar and common usage.“), the numerous dictionary definitions we have examined do not
provide concrete guidance to enable us to legally define the term so that we may construe it in the
context of this statute and these animals.

      In the definitions we examined, there are two components - a component of damage and a
component of quantity or numbers. 6 Both components are themselves vague and subjective and


         ?he term “infest,” from which the term “infestation” derives, is defined as “to trouble greatly by numbers or
by frequency ofpresence; to assail or annoy persistently and in numbers.” WEBSTER’SNEW     INTERNATIONALDICTIONARY
1274 (2d ed. 1947). Another definition of the term “infest” is “to spread or swarm in or over in a troublesome manner.”
MERRJAMWEBSTER’SCOLLEGIATE            DIC~ONARY598 (10th ed. 1993). As the tern pertains to insects or animals, it
                                                                                                            (continued...)
Mr. Dale Burnett - Page 5                               (GA-0346)



necessarily involve factual considerations. Resolving fact questions is generaliy outside the scope
of the opinion process. See Tex. Att’y Gen. Op. No. GA-0003 (2002) at 1 (stating that the opinion
process does not determine facts). Whether these vertebrate animals “infest” is a fact-intensive and
animal-specific inquiry that can only be made by a thorough examination of the nature and behavior
of the particular animal. We believe therefore that the question of whether these animals “infest”
can be answered only by the legislature or the Board through its rulemaking authority.’ Of course
any determination by the Board would be subject to judicial review.’ See Flares v. EmpZoyees Ret.
Sys., 74 S.W.3d 532, 538 (Tex. App.-Austin 2002, pet. denied) (citing TEX. GOV’T CODEANN.
$ 2001.174(2)(F)); Tex. Real Estate Comm’n v. Howard, 538 S.W.2d 429, 430 (Tex. Civ.
App.-Houston [ 1st Dist.] 1976, writ ref d n.r.e.) (“An administrative agency, though vested with
discretion in its acts, must not exercise its powers arbitrarily or capriciously, and the reasonableness
of its orders will be subject to judicial review.“). Because the term “infestation” is dispositive of the
scope of the Board’s jurisdiction over the licensing of those involved in the removal of these animals
and because we are‘unable to adequately define the term and then construe it as it relates to these
animals, we are therefore unable to further construe section 195 1.003 until such time as the term has
been defined.

        In sum, we conclude that the reach of section 195 1.003 ofthe Occupations Code with respect
to these animals depends on the definition and construction ofthe term infestation. Because defining
the term infestation involves factual considerations that we cannot entertain, we are unable to give
meaning to the term “infest” with respect to these animals. Only the legislature or the Board through
its rulemaking authority may do that. In a rulemaking, we believe habitat, usual environment, and
behavior are some of the factors that would direct the determination of whether these animals
“infest”- such that the Board has regulatory authority over the licensing of those involved in the
removal of these animals.




requires those creatures to be “present (in a place or site) in large numbers, typically so as to cause damage or disease.”
THENEW OXFORDAMERICANDICTIONARY869 (2001).

          ‘An administrative agency such as the Board has no inherent authority and may exercise only the specific powers
conferred on it by law. See Sexton, 720 S.W.2d at 137. “v]ith respect to a power specifically granted the agency, the
full extent of that power must be ascertained with due regard for the rule that the Legislature generally intends that an
agency should have by implication such authority as may be necessary to carry out the specific power delegated, in order
that the statutory purpose might be achieved.” Id.; see also Tex. Att’y Gen. Op. No. GA-0022 (2003) at 3. The power
to determine what particular plants and animals are subject to the Board’s regulatory authority is a necessary prerequisite
to the Board’s specific authority to adopt standards and criteria regarding licenses issued for the removal of a particular
plant or animal, see TEX. OCC. CODEANN. $ 195 1.203 (Vernon 2004), and its authority to adopt rules regarding the
methods and practices of structural pest control. See id. $ 195 1.205. Thus, the express rulemaking authority given to
the Board in these sections, though limited, impliedly includes the power to determine whether a particular plant or
animal “infests” as contemplated by section 195 1.003.
Mr. Dale Burnett - Page 6                     (GA-0346)



                                       SUMMARY

                      Irrespective of whether any of the animals about which you
              inquire is a “rodent, ” an “obnoxious or undesirable animal that may
              infest households. . . or other structures,” or a “pest[] of trees, shrubs,
              or other plantings” adjacent to a “residence, business establishment,
              industrial plant, institutional building, or street,” pursuant to the
              language of section 1951.003, Texas Occupations Code, it must
              nevertheless be one that “infests” for the Texas Structural Pest
              Control Board to have regulatory authority over the licensing of those
              engaged in the business of its removal. Because fact considerations
              are involved in determining whether these animals infest, defining
              and construing the term as it pertains to vertebrate animals is a task
              for the legislature or the Board.




                                               Attoweneral         of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
