January 23, 1975

The Honorable Charlie Chapman Executive Director Structural Pest Control Board 313East Anderson Lane Chevy Chase III Austin, Texas 78752 Opinion No. H- 504 Re: The applicability ofthe licensing fee provisions of the Texas Structural Pest Control Act to employees ofpersons who engage in the business ofStructural Pest Control. Dear Mr. Chapman:

You have asked our opinion as towhether the Structural Pest Control Board may require employees ofanapplicant or alicensee (for or holding alicense under the Texas Structural Pest Control Act) to pay the required license fee if said persons’ duties consist entirely ofon site sales, solicitations, estimates or bids.

You particularize your opinion request byfurther observing:

Section 7(a) ofthe Texas Structural Pest Control Act authorizes the Structural Pest Control Board to collect from each applicant for alicense afee of between $5.00 and $15.00 for “each employee ofthe applicant who is engaged in structural pest control services. ” The Texas Structural Pest Control Act, article 135b-6, V. T. C.S., requires persons engaging in the business ofstructural pest control to obtain alicense before conducting such abusiness. Sec. 5(a), art. 135b-6. A temporary license may be obtained by those who engaged in such work prior tothe effective date ofthe Act, and atwo year grace period is

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provided within which such persons must fully qualify under the Act and pay the regular licensing fees required by theAct. Sec. 5(b).

Section 7(a) provides for the following licensing fees:

Sec. 7(a) An applicant for an initial or renewal license shall accompany his application with afee of$50for each place ofbusiness located in the State and afee ofbetween $5and $15, as determined by the board, for each employee ofthe applicant who is engaged in structural pest control services. This is not toapply tothose locations serving only as answering services for alicensed business. Section 2defines those persons who are subject to the provisions ofthe Act, as those “engaged in the business of structural pest control, ” and, as such, **must** accordingly secure the license required by section 5 and pay the licensing fee required by section 7(a): (a) For purposes ofthis Act aperson shall be deemed tobe engaged in the business of structural pest control ifhe engages in, offers to engage in, advertises for, solicits, or performs any ofthe following services for compensation: (1)identifying infestations or making inspections for the purpose ofidentifying or attempting to identify infestations ofarthropods (insects, spiders, mites, ticks, and related pests), wood-infesting organisms, rodents, weeds, nuisance birds, and any other obnoxious or u,ndesirable animals which may infest households, railroad cars, ships, docks, **trucks,** airplanes, or other structures, or the contents thereof, or the immediate adjacent outside areas; (2) naking inspection reports, recommendations, estimates, or bids, whether oral or written, with respect to such infestations;

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The Honorable Charlie Chapman page 3 (H- 504)

(3) making contracts, or submitting bids for, or performing services designed toprevent, control, or eliminate such infestations by the use ofinsecticides, pesticides, rodenticides, fumigants, or allied chemicals or substances or mechanical devices. (b) as used in this Act, “person” means an individual, firm, partnership, corporation, association, or other organization, or any combination thereof, or any type of business entity. (Emphasis supplied) It is therefore clear that persons who, in the course ofa structural pest control operation, solicit and sell pest control services or make estimates ofthe cost ofsuch services and bid for the performance ofthese services, perform services that come within the ambit oftheAct.

However, section ll(3) excludes “employees” oflicensees from the operation ofthe Act, providing: Sec. 11The provisions ofthis Act shall not apply to nor shall the following persons be deemed to be engaging in the business ofstructural pest control:

. . . . (3) an employee ofaperson licensed to engage in the business of structural pest control;
. . . Accordingly, an employee ofone engaged in the business of structural pest control who solicits and sells pest control services and who estimates the cost ofsuch work and submits bids for its performance, does not have to secure the license or pay the fees required by section 7(a). However, the holder ofalicense or an applicant therefore must pay the $5.00 to $15.00 fee, as required by section 7(a), for each employee who engages in the selling ofpest control services as apart ofthe employers total license fee.

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SUMMARY Employees, who solicit and sell structural pest control services for aperson engaged in the business of structural pest control, donot have to be licensed under the Texas Structural Pest Control Act or pay the licensing fees provided for by theAct. However, their employer must pay the $5.00 to $15.00 fee for such employee as required by section 7(a) ofthe Act. Very truly yours, n 

# u Attorney General of Texas

DAVID M. KENDALL. First Assistant

C. ROBERT HEATH, Chairman Opinion Committee

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