Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General
Mr. Charlie Chapman Opinion No. MW-525
Supreme Court Building Executive Director
P.O.BOU 12546
Austin. TX. 76711-2546
Structural Pest Control Board Re: Whether real estate
5121475-2501
of Texas inspector may make termite
Telex 9101674.1367 5555 North Lamar, Building H inspection without licensing
Telecopier 51214750266 suite 123 by Texas Structural Pest
Austin, Texas 78751 Control Board
1607 Main St., Suite 1400
Dallas. TX. 75201-4709 Dear Mr. Chapman:
2141742.8944
You have asked whether individuals who have not complied with the
provisions of the Texas Structural Pest Control Act, article 135b-6,
4624 Alberta Ave.,Suite 160
El Paso. TX. 799052793
may make Inspections of real property for termite infestation.
9151533.3484
Article 135b-6, section 2(a), subsections (1) and (2) provide:
1220 Dallas Ave.. Suite 202
sec. 2. (a) For purposes of this Act a person
Houston. TX. 77002.6966
7131650-0666
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
806 Broadway, Suite 312 performs any of the following services for
Lubbock, TX. 79401-3479
compensation:
8061747-5238
(1) identifying infestations or making
4309 N. Tenth. Suite B inspections for the purpose of identifying or
McAllen, TX. 76501-1685 attempting to identify infestations of:
5121662-4547
(A) arthropods (insects, spiders, mites,
200 Main Plaza. Suite 400 ticks, and related pasts), wood-infesting
San Antonio, TX. 76205-2797 organisms, rodents, weeds, nuisance birds, and any
5121225-4191 other obnoxious or undesirable animals which may
infest households, railroad cars, ships, docks,
An Equal OpportunityI trucks, airplanes, or other structures, or the
Affirmative Action Employer 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;
p. 1902
Mr. Charlie Chapman - Page 2 (MS-525)
(2) making inspection reports,
recommendations, estimates, or bids, whether oral
or written, with respect to such infestations....
Section 5(a) of the act provides:
No parson, except an individual under the
direct supervision of a certified applicator, may
engage in the business of structural pest control
after the effective date of this Act unless he
meets the standards set by the board and possesses
a valid Structural Pest Control Business License
issued by the board.
The clear meaning of these statutes is that no person may make
structural pest inspections and reports unless the inspector has been
licensed by the Structural Pest Control Board.
Your question arises as the result of the passage of article
6573.a. section 18C, effective August 31, 1981. Section 18C provides
for the registration (not licensing) of the following:
Any person or persons who hold themselves out to
the public as being trained and qualified to
inspect improvements to real property, including
structural items and/or equipment and systems, and
who accept employment for the purpose of
performing such an inspection for a buyer or
seller of real property pursuant to the provisions
of any earnest money contract form adopted by the
commission shall:
(1) register his or her current name, type of
legal entity, mailing address, place of business
or businesses, and business telephone number or
numbers with the commission....
Section lBC(e) states:
It is the intent of the legislature that the
provisions of this section shall not apply to any
electrician, plumber, carpenter. any person
engaging in the business of structural pest
control in compliance with the Texas Structural
Pest Control Act, as amended (Article 135b-6,
Vernon's Texas Civil Statutes), or any other
parson who repairs, maintains, or inspects
improvements to real property and who does not
hold himself or herself out to the public via
p. 1903
. .
Mr. Charlie Chapman - Page 3 (MW-525)
personal solicitation or public advertising as
being in the business of inspecting such
improvements pursuant to the provisions of any
earnest money contract form adopted by the
commission.
The meaning of section lBC(e) is clear and is reinforced by
legislative history. Persons engaged in the various building trades,
those licensed by the Structural Pest Control Board, and persons who
repair, maintain or inspect improvements or persons who do not solicit
inspection business are exempted from the requirements of this
statute. All others who hold themselves out as trained or expert to
inspect, and who inspect improvements to real property for a buyer or
seller pursuant to an earnest money contract must register. Section
18C does not create a new agency or provide standards. It merely
requires registration of persons who advertise themselves as
inspectors and who do inspect improvements to real property in
connection with the sale of that real property.
Your question is, essentially, whether section 18C of article
6573a creates an exemption from the Structural Pest Control Act, that
is, whether section 18C permits persons not licensed by the Structural
Pest Control Board to inspect structures for pest infestation. In our
opinion, article 6573a, section 18C does not create an exemption from
the Structural Pest Control Act. The statutes have entirely different
functions. The Structural Pest Control Act is designed to establish
standards for persons licensed under the statute. As a result of
licensing, the board has access to the names and addresses of the
licensees, article 135b-6, section 4(b). Consequently, it is
reasonable that persons licensed are exempt from registration under
article 6573a, section 18C. as duplicative. However, article 6573a,
section 18C is not duplicative of theStrucura1 Pest Control Act. The
statute only requires that certain persons register and post a bond.
Persons who register do not fulfill the requirements of the Structural
Pest Control Act; the act of registration serves only to identify
persons who inspect real property and are not licensed under other
statutes. Article 6573a, section 18C, therefore, is designed to begin
at the point that licensing statutes end. See transcript of Senate
Committee on Economic Development, Senate Bili??o. 478, March 2, 1981.
The public policies and legislative purposes of the statutes are
also different, and should be examined to determine whether a conflict
exists. -See Brown v. Patterson, 609 S.W.2d 287, 290 (Tex. Civ. App. -
Dallas 1980, no writ). The policy for the Structural Pest Control Act
is obvious; it is to protect the public by regulating and requiring
certain standards of those engaged in the business of structural pest
treatment and inspection. The purpose of article 6573a, section 18C
is also clear: registration is an aid to buyers who have been injured
by false or inaccurate reports, so that buyers may locate the real
p. 1904
. .
Mr. Charlie Chapman - Page 4 (MN-525)
estate inspector for restitution. Examined in this light, it is
unlikely that the legislature intended to create an exception to
article 135b-6, and thereby encourage unlicensed persons to register
and avoid the provisions of article 135b-6.
It is our opinion that the two statutes can be read in harmony.
Article 135b-6 is unaffected by article 6573a. section IBC, which
applies to inspections for which a structural pest control business
license is not required.
SUMMARY
Pursuant to article 135b-6, only persons who
possess a valid Structural Pest Control Business
License may inspect and make reports with respect
to structural pest infestations. Section 18C of
article 6573a does not create an exemption to that
requirement.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Patricia Hinojosa
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpln
Patricia Hinojosa
Eva Loutzenhiser
Jim Moellinger
p. 1905