DAN MORALES

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## Office of tfy ~ttornep @heral

$&date ofQexas
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 ofthis 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 11of 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’sdefinition of “thebusiness of s~rochuaipest oxarol” is quite comprehensive. See V.T.C.S.art 135b-6.8Z(a).

*Section S(a)

provides asfollows:

sT’hebrief sob&ted with your rcqucst wntcmis that the act is who& inapplicable to cities bazmsa the act’sdefinition ofa “person”does not indude a “municipality”

. See V.T.C.S. art. 135b-6, p2@)(1). Thus, it suggeststhat the act’sprohibition agaiost engaging in thebusinessofsuxtmal pest control without a licensein section 5(a)does not applyto cities. Wedisagree. Fi the term “PZson” clearlyappliesto cityemployees. Second,referencestocitycmployccsin thepriorversionofsection 11 andinsection4B(b)oftheactindicatethatthelegislatureintendsthe acttoapplytocities.

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(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 inthe business ofstructural 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) ofthe actby adding the following highlighted language:

@) An individual without a license may, on his own premises or on premises in which he owns a partnership orjoint 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, 37, 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 ofgovernmental 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 &omsection 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

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state law or rule or by rule of the United States Environmental Protection Agency, restricted-use. pesticides or state-limited-use pesticides.’ Piiy, atthe sametime 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 aplace that isvacant, 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 invacant or residential, office, retail, or industrial buildings owned and occupied by the city.

DAN MORALES Attorney General ofTexas
+Thetams ‘mstrictcd-USC

pesticide”

and “state-Iimircd-use

pesticide” are defined by sections 2@)(Z) aad2@)(3)

oftheactrespdively.

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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

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