DAN MORALES 

.*TTORs:EY CES’ERAL 

Office of tfy ~ttornep @heral 

$&date of Qexas 

December 15, 1992 

Honorable Bill Sii 

Chairman 

Natural Resources Committee 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Opinion No. DM-190 

Re: Whether the Texas Structural Pest 

Control Act, V.T.C.S. article 1356, 

exempts city employees who perform pest 

control services from its licensing 

requirements (RQ459) 

Dear Senator Siis: 

You have requested an opinion regarding whether the Texas Structural Pest 

Control Act, V.T.C.S. article 135b-6 (the%ct”), exempts city employees who perform 

pest control services from its licensing requirements. Generahy, the act prohibits any 

person Tom engaging in the business of structural pest controlt without a license, with 

mtain limited exceptions. See V.T.C.S. art. 135b-6, § 5(a).* In the past, the act 

contained an explicit blanket exemption in section 11 for “an officer or employee of a 

governmental or educational agency who performs pest control services as part of his 

duties of employment,” but this language was deleted by the 72d Legislature. Acts 1991, 

72d Leg., ch. 771, § 16, at 2758. In light of this amendment, you ask whether any of the 

act’s other exceptions apply to city employees.3 

At the same time the 72d Legislature amended section 11 of the act to delete the 

blanket exemption for employees of governmental and educational agencies, it added a 

number of other provisions that apply to city employees. Fi, it added the following: 

%a act’s definition of “the business of s~rochuai pest oxarol” is quite comprehensive. See 

V.T.C.S. art 135b-6.8 Z(a). 

*Section S(a) provides as follows: 

sT’he brief sob&ted with your rcqucst wntcmis that the act is who& inapplicable to cities 

bazmsa the act’s definition of a “person” does not indude a “municipality”. See V.T.C.S. art. 135b-6, 

p 2@)( 1). Thus, it suggests that the act’s prohibition agaiost engaging in the business of suxtmal pest 

control without a license in section 5(a) does not apply to cities. We disagree. Fi the term “PZson” 

clearly applies to city employees. Second, references to city cmployccs in the prior version of section 11 

and in section 4B(b) of the act indicate that the legislature intends the act to apply to cities. 

p. 1002 
Honorable Bill Sims - Page 2 (DM-190) 

(b) An individual must be licensed as a certified noncommercial 

applicator if the individual is not licensed as a certified commercial 

applicator and the individual: 

(I) is an employee of the state or a city or county and 

engages in the business of structural pest control . 

V.T.C.S. art. 13%6, §4B; Acts 1991, 72d Leg., ch. 771, 8 6, at 2750-51; see also 

V.T.C.S. art. 135b-6, 4 2(a) (defining the term “business of structural pest control”). 

This provision requires a city employee who engages in the business of structural pest 

control to obtain a noncommercial applicator license. 

At the same time the 72d Legislature amended section 11 of the act to delete the 

bhmket exemption for employees of governmental and educational agencies, it also 

amended section 5(b) of the act by adding the following highlighted language: 

@) An individual without a license may, on his own premises or 

on premises in which he owns a partnership or joint venture interest, 

or on the premises other than an apartment building as defined in 

Section 4B of this Act, &-care center, hoqital, nursing home, 

hotel, motel, lodge, warehouse, food-processing establishment, or 

school or eakational institution, of an employer by whom he was 

hired primarily to perform other services, use insecticides, pesticides, 

rodenticides, fumigants, or allied chemicals or substances or 

mechanical devices designed to prevent,. control, or eliinate pest 

infestations unless that use is prohibited’by state law or rule or by 

rule of the United States Environmental Protection Agency or unless 

the substance used is labeled as a restricted-use pesticide or a statelimited-use pesticide. 

Acts 1991, 72d Leg., ch. 771, 3 7, at 2755 (emphasis added). Prior to this amendment, 

section 5(b) permitted premises owners and their employees hired primarily to perform 

other services to control pests, with certain limitations. Section 5(b) did not apply to 

employees of governmental snd educational agencies, as they were wholly exempted Tom 

the act by virtue of section 11. In addmg the highlighted language, the legislature was 

clearly adjusting section 5(b) in light of the deletion of the blanket exemption for 

employees of educational agencies &om section Il. The legislature did not make a similar 

adjustment for the deletion of the blanket exemption for employees of governmental 

agencies from section 11. Thus, we believe that the legislature contemplated that this 

section would be otherwise applicable to employees of governmental agencies following 

the deletion of the blanket exemption from section Il. Therefore, we conclude that 

section 5(b) excepts city employees hired primarily to perform other services from the 

act’s licensing requirements provided that they refrain from using methods prohibited by 

p. 1003 
Honorable Bill Sims - Page 3 (DM-190) 

state law or rule or by rule of the United States Environmental Protection Agency, 

restricted-use. pesticides or state-limited-use pesticides.’ 

Piiy, at the same time the 72d Legislature enacted the foregoing amendments to 

the act, it also added the following general exemption to section 11: 

[A] person who uses pest control chemicals that are for 

household use and are available for purchase in retail food stores, 

such as aerosol bombs and spray cans, if the insecticide is used in 

accordance with board rules or guidelines and is: 

(A) used by the owner or his employee or agent in space 

occupied by the building owner in a residential building, office 

building, retail building, or industrial building; or 

(B) used in a place that is vacant, unused, and unoccupied. 

V.T.C.S. art. 135b-6, $ ll(4); Acts 1991, 72d Leg., ch. 771, § 16, at 2759. This 

provision appears to apply to my premises’ owner or his or her employee who uses 

household pest control chemicals on his or her premises, including a city or a city 

employee. Thus, we conclude that section ll(4) exempts a city employee who uses 

household pest control chemicals in vacant or residential, office, retail, or industrial 

buildings owned and occupied by the city from the act’s licensing requirements. 

SUMMARY 

The Texas Structural Pest Control Act, V.T.C.S. article 135b-6, 

requires a city employee who engages in the business of structural 

pest control to obtain a noncommercial applicator license. The act 

exempts from its licensing requirements city employees 1) who are 

hired primarily to perform other services provided that they do not 

use methods prohibited by state law or rule or by rule of the United 

States Environmental Protection Agency, restricted-use pesticides or 

state-limited-use pesticides, or 2) who use household pest control 

chemicals in vacant or residential, office, retail, or industrial buildings 

owned and occupied by the city. 

DAN MORALES 

Attorney General of Texas 

+The tams ‘mstrictcd-USC pesticide” and “state-Iimircd-use pesticide” are defined by sections 

2@)(Z) aad 2@)(3) ofthe act respdively. 

p. 1004 
Honorable Bill Sims - Page 4 (DM-190) 

WILL PRYOR 

Fkst Assistant Attorney General 

MARYKELLER 

Deputy Assistant Attorney General 

RBNEAHIcKs 

Special As&ant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opiion Committee 

Prepared by h4ary R Grouter 

Assistant Attorney General 

p. 1005