Do city employees in Texas who spray for pests need a structural pest control license?

Plain-English summary

Texas regulates "structural pest control," the business of treating buildings for termites, roaches, rodents, and the like, by requiring a license. For years the law carved out a blanket exemption: anyone who worked for a government or school and did pest control as part of the job did not need a license. In 1991 the legislature deleted that exemption. A state senator asked the Attorney General what that meant for city employees: now that the blanket pass was gone, did the rest of the act require them to be licensed, or did some other exception still cover them?

The Attorney General first cleared away a threshold argument. A brief filed with the request claimed the act does not apply to cities at all, because the act's definition of "person" does not list "municipality." The opinion disagreed. The term "person" still reaches city employees, and the statute's own references to city employees (in the old exemption and in another section) show the legislature meant the act to apply to cities.

Then the opinion walked through the 1991 changes. One new provision, section 4B, said that a state, city, or county employee who engages in the business of structural pest control must be licensed as a certified noncommercial applicator (unless already a certified commercial applicator). So the default answer was yes, a city pest control worker needs that license.

But two exceptions survived. Section 5(b), as amended, lets a person who was hired by an employer primarily to do other work use ordinary pest products on the employer's premises without a license, as long as the product is not prohibited by state or federal EPA rule and is not a restricted-use or state-limited-use pesticide. The opinion reasoned that because the legislature tweaked section 5(b) to account for the dropped school-employee exemption but left it otherwise intact, it meant the section to cover government employees too, so a city worker hired mainly for other duties can fall under it. And a brand-new section 11(4) exempts using household pest chemicals sold in retail stores (aerosol bombs and spray cans) in vacant buildings or in residential, office, retail, or industrial buildings owned and occupied by the city. A city employee using those over-the-counter products in city buildings does not need a license.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Texas Structural Pest Control Act has since been recodified (the structural pest control program was moved into the Occupations Code and the Department of Agriculture), so confirm the current statute and licensing rules before relying on anything described here.

Background and statutory framework

The request, from the Chairman of the Senate Natural Resources Committee, asked whether the Texas Structural Pest Control Act, V.T.C.S. article 135b-6, exempts city employees who perform pest control services from its licensing requirements. The act generally prohibits any person from engaging in the business of structural pest control without a license, subject to limited exceptions (§ 5(a)), and the act's definition of "the business of structural pest control" is comprehensive (§ 2(a)). Section 11 had contained an explicit blanket exemption for "an officer or employee of a governmental or educational agency who performs pest control services as part of his duties of employment," but the 72d Legislature deleted that language (Acts 1991, 72d Leg., ch. 771, § 16). The question was whether any of the act's other exceptions reached city employees after that deletion.

The opinion addressed, and rejected, the contention in the brief that the act is wholly inapplicable to cities because the act's definition of "person" does not include a "municipality" (§ 2(b)(1)). First, the term "person" clearly applies to city employees. Second, references to city employees in the prior version of section 11 and in section 4B(b) indicate the legislature intended the act to apply to cities.

When the 72d Legislature deleted the blanket exemption, it also added provisions reaching city employees. Section 4B provides that an individual must be licensed as a certified noncommercial applicator if the individual is not licensed as a certified commercial applicator and is an employee of the state or a city or county and engages in the business of structural pest control (§ 4B; Acts 1991, 72d Leg., ch. 771, § 6; see also § 2(a) defining the business of structural pest control). That provision requires a city employee who engages in the business of structural pest control to obtain a noncommercial applicator license.

At the same time, the legislature amended section 5(b) by adding language so that an individual without a license may, on his own premises or premises in which he owns an interest, or on the premises (other than an apartment building as defined in section 4B, a day-care center, hospital, nursing home, hotel, motel, lodge, warehouse, food-processing establishment, or school or educational institution) of an employer by whom he was hired primarily to perform other services, use insecticides, pesticides, rodenticides, fumigants, or allied chemicals or mechanical devices to control pests, unless that use is prohibited by state law or rule or by rule of the United States Environmental Protection Agency, or unless the substance is labeled as a restricted-use or state-limited-use pesticide (Acts 1991, 72d Leg., ch. 771, § 7). Before this amendment, section 5(b) did not apply to employees of governmental and educational agencies because section 11 wholly exempted them. The opinion reasoned that in adding the highlighted language the legislature was adjusting section 5(b) for the deletion of the educational-agency exemption, and that it did not make a similar adjustment for the governmental-agency exemption because it contemplated that section 5(b) would otherwise apply to governmental employees once the blanket exemption was gone. The opinion therefore concluded that section 5(b) excepts city employees hired primarily to perform other services from the licensing requirements, provided they do not use methods prohibited by state or EPA rule or restricted-use or state-limited-use pesticides. (The terms "restricted-use pesticide" and "state-limited-use pesticide" are defined in sections 2(b)(2) and 2(b)(3) of the act.)

The legislature also added a general exemption to section 11. Section 11(4) covers a person who uses pest control chemicals that are for household use and available for purchase in retail food stores, such as aerosol bombs and spray cans, if the insecticide is used in accordance with board rules or guidelines and is (A) used by the owner or his employee or agent in space occupied by the building owner in a residential, office, retail, or industrial building, or (B) used in a place that is vacant, unused, and unoccupied (§ 11(4); Acts 1991, 72d Leg., ch. 771, § 16). The opinion read this to apply to any premises owner or its employee using household pest control chemicals on its premises, including a city or a city employee, and concluded that section 11(4) exempts a city employee who uses household pest control chemicals in vacant or residential, office, retail, or industrial buildings owned and occupied by the city.

Common questions

After 1991, does a Texas city employee who does pest control need a license?
The opinion concluded that a city employee who engages in the business of structural pest control must obtain a noncommercial applicator license, because the 1991 amendments added section 4B requiring it and deleted the old blanket exemption for government employees.

Is the whole act inapplicable to cities because "person" does not list "municipality"?
No. The opinion rejected that argument, explaining that "person" applies to city employees and that other parts of the act refer to city employees, showing the legislature meant the act to apply to cities.

Are there any ways a city worker can do pest control without a license?
Two, under the opinion. A worker hired primarily for other duties can use ordinary pest products on the employer's premises so long as they are not prohibited by state or EPA rule and are not restricted-use or state-limited-use pesticides (section 5(b)). And anyone can use household pest chemicals sold in retail stores in vacant buildings or in residential, office, retail, or industrial buildings the city owns and occupies (section 11(4)).

Citations

• V.T.C.S. art. 135b-6 (Texas Structural Pest Control Act): § 5(a) (license required to engage in the business); § 5(b) (premises owners and employees hired primarily for other services); § 4B (state/city/county employees must hold certified noncommercial applicator license); § 11(4) (household retail pest chemicals exemption); § 2(a) (definition of the business of structural pest control); § 2(b)(1) (definition of "person"); §§ 2(b)(2), 2(b)(3) (restricted-use / state-limited-use pesticide definitions)
• Acts 1991, 72d Leg., ch. 771, § 6 (added § 4B), § 7 (amended § 5(b)), § 16 (deleted former § 11 blanket exemption; added § 11(4))

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0190
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0190.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

December 15, 1992

Honorable Bill Sims
Chairman
Natural Resources Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. DM-190

Re: Whether the Texas Structural Pest Control Act, V.T.C.S. article 135b-6, exempts city employees who perform pest control services from its licensing requirements (RQ-459)

Dear Senator Sims:

You have requested an opinion regarding whether the Texas Structural Pest Control Act, V.T.C.S. article 135b-6 (the "act"), exempts city employees who perform pest control services from its licensing requirements. Generally, the act prohibits any person from engaging in the business of structural pest control without a license, with certain limited exceptions. See V.T.C.S. art. 135b-6, § 5(a).[2] In the past, the act contained an explicit blanket exemption in section 11 for "an officer or employee of a governmental or educational agency who performs pest control services as part of his duties of employment," but this language was deleted by the 72d Legislature. Acts 1991, 72d Leg., ch. 771, § 16, at 2758. In light of this amendment, you ask whether any of the act's other exceptions apply to city employees.[3]

At the same time the 72d Legislature amended section 11 of the act to delete the blanket exemption for employees of governmental and educational agencies, it added a number of other provisions that apply to city employees. First, it added the following:

(b) An individual must be licensed as a certified noncommercial applicator if the individual is not licensed as a certified commercial applicator and the individual:
(1) is an employee of the state or a city or county and engages in the business of structural pest control . . . .

V.T.C.S. art. 135b-6, § 4B; Acts 1991, 72d Leg., ch. 771, § 6, at 2750-51; see also V.T.C.S. art. 135b-6, § 2(a) (defining the term "business of structural pest control"). This provision requires a city employee who engages in the business of structural pest control to obtain a noncommercial applicator license.

[1] The act's definition of "the business of structural pest control" is quite comprehensive. See V.T.C.S. art. 135b-6, § 2(a).

[2] Section 5(a) provides as follows: . . . .

[3] The brief submitted with your request contends that the act is wholly inapplicable to cities because the act's definition of a "person" does not include a "municipality." See V.T.C.S. art. 135b-6, § 2(b)(1). Thus, it suggests that the act's prohibition against engaging in the business of structural pest control without a license in section 5(a) does not apply to cities. We disagree. First, the term "person" clearly applies to city employees. Second, references to city employees in the prior version of section 11 and in section 4B(b) of the act indicate that the legislature intends the act to apply to cities.

At the same time the 72d Legislature amended section 11 of the act to delete the blanket exemption for employees of governmental and educational agencies, it also amended section 5(b) of the act by adding the following highlighted language:

(b) An individual without a license may, on his own premises or on premises in which he owns a partnership or joint venture interest, or on the premises other than an apartment building as defined in Section 4B of this Act, a day-care center, hospital, nursing home, hotel, motel, lodge, warehouse, food-processing establishment, or school or educational institution, of an employer by whom he was hired primarily to perform other services, use insecticides, pesticides, rodenticides, fumigants, or allied chemicals or substances or mechanical devices designed to prevent, control, or eliminate pest infestations unless that use is prohibited by state law or rule or by rule of the United States Environmental Protection Agency or unless the substance used is labeled as a restricted-use pesticide or a state-limited-use pesticide.

Acts 1991, 72d Leg., ch. 771, § 7, at 2755 (emphasis added). Prior to this amendment, section 5(b) permitted premises owners and their employees hired primarily to perform other services to control pests, with certain limitations. Section 5(b) did not apply to employees of governmental and educational agencies, as they were wholly exempted from the act by virtue of section 11. In adding the highlighted language, the legislature was clearly adjusting section 5(b) in light of the deletion of the blanket exemption for employees of educational agencies from section 11. The legislature did not make a similar adjustment for the deletion of the blanket exemption for employees of governmental agencies from section 11. Thus, we believe that the legislature contemplated that this section would be otherwise applicable to employees of governmental agencies following the deletion of the blanket exemption from section 11. Therefore, we conclude that section 5(b) excepts city employees hired primarily to perform other services from the act's licensing requirements provided that they refrain from using methods prohibited by state law or rule or by rule of the United States Environmental Protection Agency, restricted-use pesticides or state-limited-use pesticides.[4]

[4] The terms "restricted-use pesticide" and "state-limited-use pesticide" are defined by sections 2(b)(2) and 2(b)(3) of the act respectively.

Finally, at the same time the 72d Legislature enacted the foregoing amendments to the act, it also added the following general exemption to section 11:

[A] person who uses pest control chemicals that are for household use and are available for purchase in retail food stores, such as aerosol bombs and spray cans, if the insecticide is used in accordance with board rules or guidelines and is:
(A) used by the owner or his employee or agent in space occupied by the building owner in a residential building, office building, retail building, or industrial building; or
(B) used in a place that is vacant, unused, and unoccupied.

V.T.C.S. art. 135b-6, § 11(4); Acts 1991, 72d Leg., ch. 771, § 16, at 2759. This provision appears to apply to any premises' owner or his or her employee who uses household pest control chemicals on his or her premises, including a city or a city employee. Thus, we conclude that section 11(4) exempts a city employee who uses household pest control chemicals in vacant or residential, office, retail, or industrial buildings owned and occupied by the city from the act's licensing requirements.

SUMMARY

The Texas Structural Pest Control Act, V.T.C.S. article 135b-6, requires a city employee who engages in the business of structural pest control to obtain a noncommercial applicator license. The act exempts from its licensing requirements city employees 1) who are hired primarily to perform other services provided that they do not use methods prohibited by state law or rule or by rule of the United States Environmental Protection Agency, restricted-use pesticides or state-limited-use pesticides, or 2) who use household pest control chemicals in vacant or residential, office, retail, or industrial buildings owned and occupied by the city.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General