Hon. Vernon Walter, Chairman                 Opinion No. M- 1115
Texas Structural'Pest Control Board
Box 13026, Capitol Station                   Re:   Whether persons treating
Austin, Texas 78711                                lawns or trees around
                                                   homes with pesticides
                                                   are subject to the li-
                                                   censing and other re-
                                                   quirements of the Texas
                                                   Structural Pest Control
                                                   Act (S.B. 910, 62nd Leg.,
                                                   R.S., 1971, Ch. 726, p.
Dear   Mr. Walter:                                 2363, Art. 135b-6, V.C.S.)
          You have requested our answer to the question which we
rephrase as follows:
            Whether persons treating lawns or trees
       around homes with pesticides are subject to
       the licensing and other requirements of the
       Texas Structural Pest Control Act (S.B. 910,
       62nd Leg., R.S., 1971, ch. 726, p. 2363,
       codified by Vernon as Art. 135b-6, V.C.S.)
          The answer to,your question is 'yes", except for certain
persons whom the Act expressly exempts as hereinafter discussed.
            Sec. 2(a) of Article   135b-6,    reads as follows:

            "Sec. 2(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 follow-
       ing 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,


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    Hon. Vernon Walter, page 2         (M-1115)


          weeds, nuisance birds, and any other obnoxious
          or undesirable animals which may infest house-
          holds, railroad cars, ships, docks, trucks, air-
          Planes. or other structures, or the contents
          thereof, or the immediate adjacent outside areas;
               "(2) making inspection reports, recommenda-
          tions, estimates, or bids, whether oral or written,
          with respect to such infestations:
               "(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." (Emphasis added).
              Your question resolves itself into a determination of what
    the Legislature intended to encompass by including "immediately ad-
    jacent outside areas" to the enumerated structures.
              In ruling on a question of the authority of a city to annex
    additional territory lying adjacent to said city under the provisions
    of Article 1175, Subdivision 2, Vernon's Civil Statutes, the Texas
    Supreme Court in State v. Texas City, 157 Tex. 450, 303 S.W.2d 780
    (1957) said:
               "The term 'adjacent' is not a word of
          fixed or definite meaning. The authorities
          are almost unanimous in according to that
          term the meaning of 'neighboring or close by'
          or 'in the vicinity of and not necessarily
          contiguous or touching upon.' The meaning is
          determined to some extent by the context or
          by the subject matter. . . ." (at p. 784).
    See also State v. Camper, 261 S.W.Zd 465 (Tex.Civ.App. 1953, error
    ref.); City of Irving v. Dallas County Flood Control District, 383
    S.W.2d 571 (Tex.Sup. 19641, for similar construction.
              Therefore,   the Texas Structural Pest Control Act (herein-
    after referred to as   the Act) would seem to include those areas
    neighboring or close   by or in the vicinity of (but not necessarily
    contiguous to) those   structures set out in Sec. 2(a).



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Hon. Vernon Walter, page 3        (M-1115)


          The use of pesticides in the State is said to be excessive
and the need for effective regulation clear. Walls, Pesticide Pollu-
tion, 48 Texas L. Rev. 1130 (1970). The regulatory purposes of the
zare    stated in Section 4(b):
          "The board shall promulgate rules and
     regulations governing the methods and practices
     of structural pest control when it determines
     that the DUbliC’S health and welfare necessitates
     such regulations in order to prevent adverse
     effects on human life and the environment 2.. . T ."
     (Emphasis added).
          It would certainly seem a senseless distortion of the intent
and meaning of the Act as a whole to assume the Legislature recognized
the dangers of the uses of pesticides on houses and other structures
but failed to recognize that these same dangers exist when such
pesticides are applied to lawns and trees nearby.
          The Act lists those persons to whom it does not apply;
Section 11 reads:
          "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:
          "(1) an officer or employee of a governmental
     or educational agency who performs pest control
     services as part of his duties or employment;
          "(2) a person or his regular employee who
     performs pest control work upon property which he
     owns, leases, or rents;

          "(3) an employee of a person licensed to
     engage in the business of structural pest control;
     and
          "(4) a person or his employee who is engaged
     in the business of agricultural or aerial applica-
     tion or custom application of pesticides to agri-
     cultural lands." (Emphasis added).
          The Act obviously does not apply to a homeowner or tenant
using pesticides upon the property he owns or is occupying. However,

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Hon. Vernon Walter, page 4       (M-1115)


it does not specifically exclude persons applying pesticides only on
lawns and trees around homes. The applicable rule of statutory
construction is stated in State v. Richards, 301 S.W.Zd 597, 600
(Tex.Sup. 1957):
          "It is a familiar rule of statutory con-
     struction that an exception makes plain the in-
     tent that the statute should apply in all cases not
     excepted."
          In 53 Texas Jurisprudence 2d 205, 207, Statutes, Sec. 142
another rule is stated:
          "The maxim expressio unius est exclusio
     alterius is a logical, sensible, and sound rule
     of construction; and it has been frequently
     applied in the construction of the statutes.
     . . . The maxim signifies that the express men-
     tion or enumeration of one person, thing, con-
     sequence or class is tantamount to an express
     exclusion of all others. . . .
          "The principle expressed by the maxim is
     properly applied, under certain conditions,
     to enable a court to determine the intention
     of the legislature, not otherwise manifest. . . ."
          Accordingly, by excluding from the provisions of the Act
those persons set forth in Sec. 11, the Legislature inferentially
included all others.
          We note from your letter that all the members of the
Structural Pest Control Board have considered that the Act clearly
covered everyone who applied pesticides in and around a home unless
they were exempted by specific mention therein.
          The construction of Section 11 by your Board is entitled
to great weight, as:
          "The courts will ordinarily adopt and
     uphold a construction placed on a statute by
     an executive officer or department charged with
     its administration, if the statute is ambiguous
     or uncertain, and if the construction so given
     it is reasonable. In other words, the judiciary


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Bon. Vernon Walter, page 5         (M-1115)



    will adhere to the executive or departmental
    construction of an ambiguous statute unless it
    is clearly erroneous or unsound, or unless it
    will result in serious hardship or injustice,
    though the court might otherwise have been in-
    clined to place a different construction on the
    act. 53 Tex.Jur.Zd, 259-60, Statutes, Sec. 177."
See also, Armco Steel Cor p . v. Texas Employment Commission, 386 S.W.2d
894 (Tex.Civ.App. 1965, error ref. n.r.e.); United States v. 525 Compan
242 F.2d 759 (5th Cir. 1965) and Attorney Geniions~Nos.             M-102
(1971) and M-1050 (1972).
          In view of the foregoing, you are advised that persons treat-
ing lawns or trees around homes with pesticides, and who' are not regular
employees of the owner or tenant thereof, or are not otherwise specifi-
cally exempted, are subject to the licensing and other requirements of
the Texas Structural Pest Control Act (S.B. 910, 62nd Leg., R.S., 1971,
Ch. 726, p. 2363) codified as Article 135b-6, Vernon's Civil Statutes.
                       SUMMARY
          Persons treating lawns or trees around homes
     with pesticides, and who are not regular employees
     of the owner or tenant thereof, or are not other-
     wise specifically exempted, are subject to the li-
     censing and other requirements of the Texas Structural
     Pest Control Act (S.B. 910, 62nd Leg., R.S. 1971, Ch.
     726, p. 2363, codified by Vernon as Art. 135b-6,
     V.C.S.).




                                     ey General of Texas
Prepared by Bill Campbell
Assistant Attorney General
APPROVED:
OPINION COMMITTEE




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Hon. Vernan Walter, page 6     (M-1115)



Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
James A. Maxwell
Jim Hackney
Charles Lind
Fisher Tyler
SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOIA WHITE
First Assistant




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