Can a Texas home-rule city add its own pesticide notice and reporting rules on top of state pest-control law?

Plain-English summary

The City of Greenville, trying to cut pesticide pollutants in its waste water, passed an ordinance layering local rules on top of how Texas already regulates the pest-control business. The state's Structural Pest Control Board asked the Attorney General which of those local rules could stand and which collided with state law.

The answer split the ordinance in two. The part that failed was the advance-notice rule. Greenville required owners of multi-occupancy dwellings to warn occupants at least 24 hours before an indoor pesticide treatment. The state Act has its own notice scheme that is different: for small residential rentals (under five units) it requires no advance notice at all, just an information sheet left at the time of treatment, and for larger properties and places like hospitals and schools it requires 48 hours. A 24-hour rule cannot coexist with a 48-hour rule, and it cannot coexist with a no-notice rule either. Because there was no way to follow both, the Attorney General concluded the ordinance's notice provisions were preempted and void.

The parts that survived were about information and paperwork. Requiring retail stores and professional applicators to hand out educational material supplied by the city did not clash with the Act. The Act does not regulate retail pesticide sellers at all, and while it makes applicators distribute the Board's own pest-control information sheets, adding the city's material on top of that is not a conflict. And requiring licensed applicators to file reports with the city's water utilities department was not a licensing rule, so it did not run into the Board's exclusive authority over licensing. The line the opinion drew: a city cannot rewrite the state's notice rules or set up its own licensing of pest-control operators, but it can add information and reporting duties that sit alongside the Act without contradicting it.

Currency note

This opinion was issued in 1993. 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 Structural Pest Control Act (then V.T.C.S. article 135b-6) has since been recodified into the Texas Occupations Code, and structural pest control regulation was later moved to the Texas Department of Agriculture, so confirm current law before relying on anything described here.

Background and statutory framework

The Structural Pest Control Act, V.T.C.S. article 135b-6, comprehensively regulated the structural pest control business. It licensed persons engaged in the business, set limited exceptions to the general requirement that only licensed persons apply pesticides and other pest-control agents, and specified the conditions under which such agents could be applied. A first violation of any section was a Class C misdemeanor and a repeat violation a Class B misdemeanor. Section 11A declared the Structural Pest Control Board "the sole authority in this state for licensing persons engaged in the business of structural pest control."

Section 4G governed notice of treatment. For indoor treatment at a residential rental property with fewer than five rental units, the applicator had to leave a "pest control information sheet" at the time of each treatment, and no advance notice was required (§ 4G(c)). For indoor treatments at residential rental properties with five or more units, workplaces, and institutions such as hospitals and schools, 48 hours' notice was required (§ 4G(d)-(f)).

Greenville's Ordinance No. 92-083 required retail vendors to attach educational material to pesticide products and display use-and-disposal information (§ 4.802); required professional applicators to distribute city-supplied educational material and file reports with the city's Water Utilities Department (§ 4.803); and required owners of "multi-occupancy dwellings" to give occupants 24-hour advance notice of an indoor application, distribute city material, and file reports (§ 4.804). The ordinance defined "multi-occupancy structures" as dwellings housing more than one family, including duplexes, apartments, hotels, motels, and nursing homes (§ 4.801). Violations were misdemeanors punishable by a fine up to $2,000.

As a home-rule city (Tex. Const. art. XI, § 5), Greenville had all powers of self-government not denied by the Legislature, but could not enforce legislation inconsistent with state law. The opinion applied the Texas Supreme Court's framework: reconcile a local ordinance and a state law so both stay in effect when possible, and find field preemption only where the Legislature speaks "with unmistakable clarity."

Citations

• V.T.C.S. art. 135b-6 (Structural Pest Control Act), including §§ 4, 4B, 4C, 4G, 4H, 5, 9, 10A, 11, and 11A; section 4G(c) and (d)-(f) (notice of treatment); section 11A (Board is sole licensing authority)
• Tex. Const. art. XI, § 5 (home-rule city powers; no enforcement of legislation inconsistent with state law)
• City of Greenville Ordinance No. 92-083, §§ 4.801-4.804 (pesticide regulation; notice, education, and reporting)
• Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, No. D-2159 (Tex. April 7, 1993) (home-rule preemption requires unmistakable clarity)
• City of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex.), cert. denied, 459 U.S. 1087 (1982)
• City of Richardson v. Responsible Dog Owners of Texas, 794 S.W.2d 17, 19 (Tex. 1990) (mere state legislation on a subject does not fully preempt it)
• City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex. 1964)

Common questions

Could Greenville require 24-hour notice before indoor pesticide treatment?
No. The Attorney General concluded the ordinance's notice provisions were preempted and void. The Structural Pest Control Act's section 4G requires no advance notice for small residential rentals and 48 hours for larger properties and institutions, and the ordinance's flat 24-hour rule could not be harmonized with either.

Why were the education and reporting rules treated differently?
Because they did not conflict with the Act. Requiring retail vendors and applicators to hand out city-supplied educational material did not contradict the Act, which does not regulate retail vendors and only requires applicators to distribute the Board's information sheets. Requiring applicators to file reports with the city's water utilities department was not a licensing rule, so it did not collide with the Board's exclusive licensing authority.

Does the state Board's "sole authority" over licensing block all local pest-control rules?
No. The opinion read section 11A to preempt local licensing requirements for pest-control operators, but not to bar a city from imposing additional requirements that are not licensing requirements and are not inconsistent with the Act, such as the reporting duty here.

When does a state law override a home-rule city ordinance?
Under the framework the opinion applied, courts try to read the ordinance and statute so both survive. A state law overrides a conflicting ordinance only where they cannot be reconciled, or where the Legislature has shown with unmistakable clarity that it meant to occupy the entire field.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0221
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0221.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

May 12, 1993

Mr. Benny M. Mathis, Jr.
Executive Director
Structural Pest Control Board
9101 Burnet Road, Suite 201
Austin, Texas 78758

Opinion No. DM-221

Re: Whether provisions of the City of Greenville regulation of pesticides ordinance are preempted by the Structural Pest Control Act, V.T.C.S. article 135b-6 (RQ-511)

Dear Mr. Mathis:

On behalf of the Structural Pest Control Board (the "board"), you ask whether provisions of the City of Greenville regulation of pesticides ordinance, City of Greenville Ordinance No. 92-083 (the "ordinance"), are preempted by the Structural Pest Control Act, V.T.C.S. art. 135b-6 (the "act"). The act extensively regulates the business of structural pest control, by licensing persons engaged in the business, see V.T.C.S. art. 135b-6, §§ 4, 4B, 4C, 9, setting forth limited exceptions to the general requirement that only licensed persons may apply pesticides and other pest control agents, id. §§ 5, 11, and specifying the conditions under which pesticides and other agents may be applied, id. §§ 4G, 4H. A first-time violation of any section of the act constitutes a Class C misdemeanor. Id. § 10A. A repeat violation is a Class B misdemeanor. Id. Section 11A of the act provides that "[t]he Structural Pest Control Board is the sole authority in this state for licensing persons engaged in the business of structural pest control."

The ordinance appears to be an attempt to reduce the levels of pollutants in the City of Greenville's waste water. City of Greenville Ordinance No. 92-083, preamble (codified as City of Greenville Code of Ordinances, Chapter 4, § 4.800). It requires retail vendors of pesticides to attach educational material to pesticide products which are available for sale, and to display information about the proper use and disposal of pesticide products. City of Greenville Code of Ordinances, Chapter 4, § 4.802. It also requires professional pesticide applicators to disseminate educational material supplied by the city to customers at the time of application, and to file reports with the city's Water Utilities Department. Id. § 4.803. In addition, it requires owners of "multi-occupancy dwellings" to notify occupants of an indoor application of pesticides no later than 24 hours prior to the application, to distribute educational material supplied by the city, and to file reports with the city's Water Utilities Department. Id. § 4.804. Violation of the ordinance constitutes a misdemeanor punishable by a fine not to exceed $2,000.00. City of Greenville Ordinance No. 92-083, § 4.

The City of Greenville is a home-rule city. The Texas Constitution gives such cities all the power of self-government not expressly denied them by the legislature. Tex. Const. art. XI, § 5; Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, No. D-2159, slip op. at 3 (Tex. April 7, 1993). The Texas Constitution prohibits a home-rule city from enforcing any legislation inconsistent with state laws or the state constitution. Tex. Const. art. XI, § 5; Dallas Merchant's & Concessionaire's Ass'n, slip op. at 3 (citing City of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex.), cert. denied, 459 U.S. 1087 (1982)). The Texas Supreme Court has instructed that, in determining whether an ordinance is fatally inconsistent with a state law on the same subject matter, courts must seek to construe the two in a way that will leave both in effect if possible. City of Richardson v. Responsible Dog Owners of Texas, 794 S.W.2d 17, 19 (Tex. 1990). "[T]he mere fact that the legislature has enacted a law addressing a subject does not mean the complete subject matter is completely preempted." Id. Moreover, it is well established that "if the Legislature [intends] to preempt a subject matter normally encompassed by the broad powers of a home-rule city, it [must] do so with unmistakable clarity." Dallas Merchant's & Concessionaire's Ass'n, slip op. at 4 (citing City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex. 1964)).

First, you ask whether the City of Greenville may "define [a] multi-occupancy structure for purposes of providing notice in a manner different from the statutory definition of same in [section 4B of the act]." In a related question, you ask if "the City of Greenville has the authority to require 24-hour notice of pesticide application." We address these questions together.

Notice of treatment is governed by section 4G of the act, which sets forth different requirements for residential rental units with less than five and with five or more rental units. For an indoor treatment at a residential rental property with less than five rental units, an applicator is required to leave a "pest control information sheet" in the residence at the time of each treatment. V.T.C.S. art. 135b-6, § 4G(c). No notice is required. Id. For indoor treatments at residential rental properties with five or more rental units, work places, and other institutions such as hospitals and schools, 48 hours' notice is required. Id. § 4G(d)-(f). The ordinance, on the other hand, requires owners of "multi-occupancy dwellings" to notify occupants of an indoor application of pesticides no later than 24 hours prior to the application. City of Greenville Code of Ordinances, § 4.804. "Multi-occupancy structures" are defined as "dwellings which house more than one family living unit, which includes but is not limited to duplexes, apartments, hotels, motels, nursing homes, etc." Id. § 4.801.

Clearly, the ordinance's 24-hour notice requirement is totally inconsistent with the notice requirements set forth in section 4G of the act. The ordinance requires 24-hour notice in some residential rental properties where the act requires no notice at all. In other instances, the ordinance requires 24-hour notice where the act requires 48-hour notice. It is not possible to construe the act and the ordinance's notice provisions in harmony. Therefore, we conclude that the City of Greenville ordinance's notice provisions are preempted by the act and are therefore void.

Next, you ask whether the City of Greenville may require the dissemination of educational materials. The ordinance requires retail vendors and professional pesticide applicators to disseminate educational material supplied by the city. Id. §§ 4.802, 4.803. As you point out, the act requires persons who engage in the business of pest control to distribute "pest control information sheets" developed and approved by the board. V.T.C.S. art. 135b-6, § 4G. We do not believe, however, that the act preempts the ordinance's requirements regarding the dissemination of educational material. The act does not even purport to regulate retail vendors of pesticides. Although the act does require persons who engage in the business of pest control to disseminate pest control information sheets developed by the board, we do not believe it is inconsistent with this provision to require professional pesticide applicators to also disseminate additional educational material supplied by the city.

You also ask whether the act prohibits the City of Greenville from enacting additional local requirements specifically directed at "professional pesticide applicators," and if "the City of Greenville [has] the authority to require monthly or quarterly pesticide application reports from persons specifically required to be licensed by the State of Texas as pesticide applicators." We address these related questions together.

As noted above, section 11A of the act provides that "[t]he Structural Pest Control Board is the sole authority in this state for licensing persons engaged in the business of structural pest control." We believe that section 11A clearly establishes the legislature's intent to limit the power of home-rule cities with respect to the licensure of persons engaged in the business of pest control, and to preempt any local licensing requirements. The act, however, does not necessarily preclude a city from imposing additional requirements on persons engaged in the business of pest control, provided they do not constitute licensing requirements. For example, we do not believe that the ordinance's requirement that professional pesticide applicators submit certain reports to the Water Utilities Department amounts to a licensing requirement. Nor is this requirement inconsistent with any of the act's other provisions. Therefore, it is not preempted by the act.

SUMMARY

The City of Greenville regulation of pesticides ordinance provisions regarding notice are inconsistent and preempted by the Structural Pest Control Act, V.T.C.S. article 135b-6 (the "act"). The ordinance provisions regarding the dissemination of educational materials and requiring professional pesticide applicators to submit certain reports are not inconsistent with the act.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee