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 asArt. 135b-6,V.C.S.) The answer to,your question is 'yes", except for certain persons whom theAct expressly exempts as hereinafter discussed.

Sec. 2(a) of Article 135b-6, reads as follows: "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 attempting to identify infestations of arthropods (insects,spiders, mites, ticks, and related pests), wood-infesting organisms, rodents,

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

weeds, nuisancebirds, and any other obnoxious or undesirable animalswhich may infest households, railroad cars, ships, docks, trucks, airPlanes. or other structures,or the contents thereof, or the immediateadjacent outside areas; "(2) making inspection reports, recommendations, estimates, or bids, whether oral or written, with respect to such infestations: "(3) making contracts, or submittingbids 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." (Emphasisadded). 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 Statev. Texas City, 157 Tex. 450, 303 S.W.2d 780 (1957)said:

"The term 'adjacent'is not aword of fixed or definitemeaning. The authorities are almost unanimous in according to that term the meaning of 'neighboringor closeby' or 'inthe vicinity of and not necessarily contiguous or touchingupon.' The meaning is determined to some extentby the context or by the subjectmatter.
. . ." (atp. 784). See also State v. Camper, 261 S.W.Zd 465 (Tex.Civ.App.1953, error ref.); City of Irvingv. 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 theAct) would seem to include those areas neighboring or close by or in the vicinity of (butnot necessarily contiguous to) those structures set out in Sec. 2(a).

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The use of pesticides in the State is said tobe excessive and the need for effective regulation clear. Walls, Pesticide Pollution, 48 Texas L. Rev. 1130 (1970). zare stated in Section 4(b): The regulatorypurposes of the

"Theboard shallpromulgate rules and regulations governing themethods and practices of structural pest controlwhen it determines that the DUbliC’S health andwelfare necessitates such regulations in order to prevent adverse effects on human life and the environment 2..
.T ." (Emphasisadded). Itwould certainly seem a senseless distortion of the intent andmeaning of theAct as awhole 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 existwhen such pesticides are applied to lawns and trees nearby.

The Act lists those persons towhom it does not apply; Section 11 reads:

"Sec. 11. The provisions of thisAct shall not apply to nor shall the followingpersonsbe deemed to be engaging in the business of structural pest control: "(1) an officer or employee of a governmental or educational agencywho performs pest control services as part of his duties or employment; "(2) a person or his regular employee who performs pest controlwork uponproperty which he owns, leases, or rents; "(3) an employee of aperson licensed to engage in the business of structural pest control; and "(4) aperson or his employeewho is engaged in the business of agriculturalor aerial application or custom applicationof pesticides to agricultural lands." (Emphasisadded). The Act obviously does not apply to a homeowner or tenant using pesticides upon the property he owns or is occupying. However, -5438-Hon. Vernon Walter, page 4 (M-1115)

it does not specifically exclude persons applyingpesticides 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 exceptionmakes 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:

"Themaxim expressio unius est exclusio alterius is a logical, sensible,and sound rule of construction; and ithas been frequently applied in the construction of the statutes.

. . .The maxim signifies that the expressmention or enumeration of one person, thing, consequenceor class is tantamount to an express exclusion of all others.
. . . "Theprinciple expressedby themaxim is properly applied, under certain conditions, to enable a court to determine the intention of the legislature,not otherwisemanifest.
. . ." Accordingly, by excluding from theprovisions of theAct those personsset forth in Sec. 11, the Legislature inferentially included all others.

We note fromyour letter that all themembers of the Structural Pest Control Board have considered that the Act clearly covered everyonewho appliedpesticides in and around a home unless they were exempted by specificmention therein.

The construction of Section 11 by your Board is entitled to greatweight, as:

"The courts will ordinarily adopt and uphold a constructionplaced on a statuteby an executive officer or department chargedwith 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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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 serioushardship or injustice, though the courtmight otherwise have been inclined to place a different construction on the act. 53 Tex.Jur.Zd, 259-60, Statutes, Sec. 177." See also, Armco SteelCor
.v. Texas EmploymentCommission, 386 S.W.2d p 894 (Tex.Civ.App.1965, error ref. n.r.e.);United States v. 525Compan 242 F.2d 759 (5thCir. 1965) andAttorney 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, andwho'are not regular employees of the owner or tenant thereof, or arenot otherwise specifically exempted, are subject to the licensingand other requirements of the Texas Structural Pest Control Act (S.B.910, 62nd Leg., R.S., 1971, Ch. 726, p. 2363) codified asArticle 135b-6,Vernon's Civil Statutes. SUMMARY Persons treating lawns or trees aroundhomes with pesticides, andwho 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, codifiedby Vernon asArt. 135b-6, V.C.S.).

ey General of Texas Prepared by Bill Campbell Assistant Attorney General APPROVED: OPINION COMMITTEE

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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 ExecutiveAssistant NOIA WHITE First Assistant (M-1115)

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