# The Attorney General of Texas
December 22, 1982
MARK WHITE Attorney General

Supreme Court Building P.O.BOU 12546 Austin. TX. 76711-2546 5121475-2501 Telex 9101674.1367 Telecopier 51214750266

1607 Main St., Suite 1400 Dallas. TX. 75201-4709 2141742.8944

4624 Alberta Ave.,Suite 160 El Paso. TX. 799052793 9151533.3484

1220 Dallas Ave.. Suite 202 Houston. TX. 77002.6966 7131650-0666

806 Broadway, Suite 312 Lubbock, TX. 79401-3479 8061747-5238

4309 N. Tenth. Suite B McAllen, TX. 76501-1685 5121662-4547

200 Main Plaza. Suite 400 San Antonio, TX. 76205-2797 5121225-4191
AnEqualOpportunityI Affirmative Action Employer Mr. Charlie Chapman ExecutiveDirector StructuralPest Control Board of Texas 5555North Lamar, BuildingH suite 123 Austin, Texas 78751 OpinionNo. MW-525
Re: Whether real estate inspector may make termite inspection without licensing by Texas Structural Pest Control Board
Dear Mr. Chapman:
You have askedwhether individualswho have not compliedwith the provisions of the Texas Structural Pest Control Act, article 135b-6, may make Inspectionsof realproperty for termite infestation. Article 135b-6,section 2(a), subsections (1)and (2)provide:

sec. 2. (a) For purposes of thisAct 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 attemptingto identify infestationsof: (A) arthropods (insects, spiders, mites, ticks, and related pasts), wood-infesting organisms,rodents,weeds, nuisancebirds, and any other obnoxious or undesirable animals which may infest households, railroad cars, ships, docks, trucks, airplanes, or other structures, or the 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, institutionalbuilding, or street;

p. 1902Mr. 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 structuralpest control after the effective date of this Act unless he meets the standards setby theboard and possesses a valid Structural Pest Control Business License issuedby theboard. The clear meaning of these statutes is that no person may make structuralpest inspectionsand reportsunless the inspectorhas been licensedby the StructuralPest 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 structuralitems and/or equipmentand systems,and who accept employment for the purpose of performing such an inspection for a buyer or seller of real propertypursuant to theprovisions of any earnestmoney contract form adopted by the commission shall: (1) registerhis or her current name, type of legal entity, mailing address, place of business or businesses, and business telephone number or numberswith 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 legislativehistory. Persons engaged in the various building trades, those licensedby the Structural Pest Control Board, and persons who repair,maintain or inspect improvementsor personswho do not solicit inspection business are exempted from the requirements of this statute. All otherswho 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 contractmust 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 connectionwith the sale of that realproperty.
Your question is, essentially, whether section 18C of article 6573a creates an exemption from the StructuralPest ControlAct, that is,whether section 18Cpermits personsnot licensedby the Structural Pest Control Board to inspect structuresfor pest infestation. In our opinion, article 6573a, section 18C does not create an exemption from the StructuralPest ControlAct. The statuteshave entirelydifferent 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 duplicativeof theStrucura1 Pest ControlAct. The statute only requires that certain persons register and post a bond. Personswho registerdo not fulfill the requirementsof 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 Committeeon EconomicDevelopment,SenateBili??o. 478,March 2, 1981. The public policies and legislativepurposes of the statutes are also different,and shouldbe examined to determinewhether a conflict exists. See Brownv. Patterson, 609 S.W.2d 287, 290 (Tex.Civ.App. -

- Dallas 1980,no writ). The policy for the StructuralPest ControlAct is obvious; it is to protect the public by regulating and requiring certain standards of those engaged in the business of structuralpest treatment and inspection. The purpose of article 6573a, section 18C is also clear: registrationis an aid to buyerswho have been injured by false or inaccurate reports, so that buyers may locate the real

p. 1904. . 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 provisionsof 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 Licensemay inspect and make reportswith 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. FirstAssistantAttorney General
RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby PatriciaHinojosa AssistantAttorney General
APPROVED: OPINION COMMITTEE
SusanL. Garrison,Chairman Jon Bible Rick Gilpln PatriciaHinojosa Eva Loutzenhiser Jim Moellinger

p. 1905