Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
JIM MATTOX February 23, 1984
Attorney General
Supreme Court Building Mr. David A. Ivie Opinion No. JM-131
P. 0. BOX 12549 Executive Director
Austin, TX. 70?tl- 2549 Re:
Structural Pest Control Board Use of electrical or
5121475-2501
Telex 9101874-1387
1300 East Anderson Lane ultrasonic devices to kill or
Telecopier 51214750286 Building C, Suite 250 repel termites
Austin, Texas 78752
714 Jackson. Suite 700
Dallas, TX. 75202.4508
Dear Mr. Ivie:
214/742-8944
Your letter to us states:
4824 Alberta Ave., Suite 160 The Structural Pest Control Board regulates
El Paso, TX. 79905.2793
pest control operators under the authority of
915/5X3-3464
artikle 135b-6. Texas Civil Statutes. Although
the majority of work performed by commercial
P,
01 Texas, Suite 700 operators requires the use of chemical pesticides,
,ous,on, TX. 77002-3111 [recently] developments have resulted in some
713/22358@ companies making attempts to control various pests
using electronic or ultrasonic devices. There has
608 Broadway, Sulle 312
been considerable discussion concerning the
Lubbock, TX. 79401.3479 authority of the Structural Pest Control Board to
806/747-5239 regulate users of these instruments. The board
has asked me to request an official opinion from
your office in answer to the following questions:
4309 N. Tenth, Suite B
McAllen, TX. 79501-1685
5121582.4547 1. Does an electrical apparatus which directs
an electric current across wood for the purpose of
killing infestations of termites and other pests
200 Main Plaza, Suite 400
San Antonio, TX. 79205.2797
constitute a 'device' as that term is defined in
5121225.4191 article 135b-6, section Z(b)(8), and as used in
[section 2(a)(3)]?
An Equal Opportunity/ 2. Is a person who commercially uses an
Affirmative Action Employer
electrical or ultrasonic apparatus for killing or
repelling infestations of termites and other pests
'engaged in the business of structural pest
control' as defined in article 135b-6, section
2(a)?
Section 2(b)(8) of the Structural Pest Control Act, article
r- 135b-6, V.T.C.S.. defines "device" as
p. 554
Mr. David A. Ivie - Page 2 (JM-131)
an instrument or contrivance, except a firearm,
that is designed for trapping, destroying,
repelling, or mitigating the effects of a pest or
another form of plant or animal life, other than
human beings or bacteria, viruses, or other
microorganisms that live on or in human beings or
animals. The term does not include any equipment
used for the application of pesticides if the
equipment is sold separately from a device as
defined in this subdivision.
The term is similarly defined by section 76.001(6) of the Texas
Agriculture Code. (Chapter 76 of the code deals with pesticide
regulations.)
We first conclude that an electrical apparatus that directs an
electrical current across wood for the purpose of killing termites is
clearly a "device" within the meaning of the first sentence in section
2(b)(8). Such an apparatus certainly constitutes "an instrument or
contrivance," and it is "designed for trapping, destroying, repelling,
or mitigating the effects of s pest." The next issue is whether the
second sentence of section 2(b)(8), which attempts to create some kind
of exception to the first sentence, removes such an electrical
apparatus from the definition of "device."
The second sentence in section 2(b)(8) is exceedingly ambiguous.
One aspect of the second sentence & clear, however, and that is that
it attempts to except from the definition of "device" only certain
"equipment" used for the application of pesticides. The electrical
and ultrasonic devices at issue in this opinion are clearly not used
for the application of pesticides. Thus, whatever the exception
excepts, it does not except these particular electrical and ultrasonic
devices. If these items are "devices" under the first sentence of
section 2(b)(8) -- and we conclude that they are -- they are not taken
out of this category by the second sentence of this section.
We therefore answer your first question in the affirmative.
In answer to your second question, we note that under the
Structural Pest Control Act, a person is not engaged in the business
of structural pest control for purposes of the act unless, for
compensation, he "engages in. offers to engage in, advertises for,
solicits, or performs" any of three particular services. V.T.C.S.
art. 135b-6, 52(a). The three are:
(1) identifying infestations or making
inspections for the purpose of identifying or
attempting to identify infestations of:
p. 555
.
Hr. David A. Ivie - Page 3 (JM-131)
04 arthropods (insects, spiders, mites,
ticks, and related pests), wood-infesting
organisms, rodents, 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
(B) pests or diseases of trees, shrubs, or
other plantings in a park or adjacent to a
residence, business establishment, industrial
plant, institutional building, or street;
(2) making inspection reports,
recommendations, estimates, or bids, whether oral
or written, with respect to such infestations; or
(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
C mechanical devices. (Emphasis added).
We believe the answer to your second question turns on whether
the electrical or ultrasonic apparatus to which you refer constitutes
a "mechanical device." It has been suggested that this is not the
case, and that we need not determine whether such an apparatus
constitutes a "mechanical device" because the use of devices to
prevent, control, or eliminate infestations constitutes "engaging in
the business of structural pest control" under the act only. if the
device is allied with an insecticide, pesticide, rodenticide, or
fumigant. In other words, it has been argued that the adjective
"allied" in subsection 2(a)(3) modifies "mechanical devices" as well
as "chemicals" and perhaps "substances." We disagree, however. In
our opi"io", the legislature chose the terms "chemicals" and
"substances" to make it clear that "insecticides, pesticides,
rodenticides, [and] fumigants" was not intended as a" exhaustive list.
It meant to say, in other words, "insecticides, etc. . . . and similar
chemicals or substances." Given this, the word "allied" clearly makes
sense as a modifier of both "chemicals" and "substances"; it does not,
however, make sense as a modifier of "mechanical devices."
Accordingly, we conclude that "mechanical devices" is a separate
category, that the term is not modified by the word "allied," and that
the dispositive question in this instance involves its meaning. Under
subsection 2(a)(3), in other words, a person is engaged in the
business of structural pest control if he makes contracts, or submits
bids for, or performs services designed to prevent, control or
eliminate infestations "by the use of . . . mechanical devices."
p. 556
.
Mr. David A. Ivie - Page 4 (JM-131)
The term "mechanical device" is not defined in the act. We must
therefore attempt to determine the "ordinary signification" of this
term. V.T.C.S. art. 10, $1; Texas Employers' Insurance Association v.
Haunschild, 527 S.W.Zd 270 (Tex. Civ. App. - Amarillo 1975, writ ref'd
n.r.e.). We first note that Black's Law Dictionary, (4th ed.) defines
"mechanical" as "[hlaving relation to , or produced or accomplished by,
the use of mechanisms or machinery." This~definition cleariy seems to
include electrical or ultrasonic apparatus. We have, moreover,
examined cases in which certain items have been held to be "mechanical
devices," and we believe that an electrical apparatus that directs an
electrical current across wood for the purpose of killing termites and
other pests can certainly be a "mechanical device" if those items can
be. In State v. Edwards, 446 P.2d 1, 3 (Aria. 19681, for example, a
crowbar, pro11 pry bar, brace and bit, screwdriver, flashlight, and
jimmy bar were held to be within the term "mechanical device or
contrivance" as used in an Arizona statute. A plastic telephone
directory cover was held to be a "mechanical apparatus or device"
within the meaning of the applicable state law in Illinois Bell
Telephone Company v. Miner, 136 N.E.2d 1, 9 (Ill. App. 1956), and a
"pinball machine, and similarly constructed and operated mechanisms"
were held to be within the term "mechanical device" within the meaning
of an Ohio statute in Stickley v. Board of Liquor Control, 155 N.E.2d
81, 82 (Ohio App. 1956). If pinball machines, crowbars, screwdrivers,
and plastic telephone book covers can constitue "mechanical devices,"
we believe that the electrical apparatus you describe certainly can as
well.
Although they did not explicitly say so, the courts in the cited
cases, in our opinion, simply applied the well-know" rule of statutory
construction that statutes are to be construed with reference to their
manifest object, and that if the language is suceptible to two
constructions, one of which will carry out and the other defeat the
legislative objective, the statute should receive the former
construction. Citizens Bank of Bryan v. First State Bank of Hearne,
580 S.W.2d 344, 348 (Tex. 1979). These courts, in other words, took
the position that legal hair-splitting should not be used to defeat
the manifest purpose of a statute. We believe that we should take the
same approach. We believe there is a clear public purpose underlying
article 135b-6, and that it was to regulate, in the public interest,
people who engage in the business of structural pest control. In our
opi"io". the statute was clearly intended to embrace items such as an
ultrasonic apparatus and an electrical apparatus that directs an
electric current across wood for the purpose of killing termites and
other pests; we further believe that the cited cases provide ample
authority for the proposition that such an apparatus can be a
"mechanical device," and that to conclude that such an apparatus is
not a "mechanical device" within the meaning of article 135b-6 would
be to defeat the very purpose of the statute. We therefore answer
your second question in the affirmative.
p. 557
. ,
Mr. David A. Ivie - Page 5 (JM-131)
SUMMARY
An electrical apparatus that directs an
electric current across wood for the purpose of
killing termites and other pests is a "device"
within the meaning of article 135b-6, V.T.C.S.,
and a person who commercially uses an electrical
or ultrasonic apparatus to kill or repel termites
or other pests is "engaged in the business of
structural pest control" within the meaning of
that statute.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
Nancy Sutton
p. 558