Untitled Texas Attorney General Opinion ( 1972 )

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 li-
censing and other re-
quirements 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 follow-
ing 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 house-
holds, railroad cars, ships, docks, trucks, air-
Planes. or other structures, or the contents
thereof, or the immediate adjacent outside areas;
"(2) making inspection reports, recommenda-
tions, 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 ad-
jacent 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 (herein-
after 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 Pollu-
tion, 48 Texas L. Rev. 1130 (1970). The regulatory purposes of the
zare stated in Section 4(b):
"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 applica-
tion or custom application of pesticides to agri-
cultural 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 con-
struction that an exception makes plain the in-
tent 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 men-
tion or enumeration of one person, thing, con-
sequence 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 in-
clined 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 treat-
ing lawns or trees around homes with pesticides, and who' are not regular
employees of the owner or tenant thereof, or are not otherwise specifi-
cally 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 other-
wise specifically exempted, are subject to the li-
censing 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 (M-1115)
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
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