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 licensing and other requirements 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 following 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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1 . 

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

weeds, nuisance birds, 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 the immediate adjacent outside areas; 

"(2) making inspection reports, recommendations, 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 adjacent 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 (hereinafter 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 Pollution, 48 Texas L. Rev. 1130 (1970). 

zare stated in Section 4(b): 

The regulatory purposes of the 

"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 application or custom application of pesticides to agricultural 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 construction that an exception makes plain the intent 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 mention or enumeration of one person, thing, consequence 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 inclined 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 treating lawns or trees around homes with pesticides, and who' are not regular 

employees of the owner or tenant thereof, or are not otherwise specifically 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 otherwise specifically 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 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 

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 

(M-1115) 

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