January 23, 1975
The Honorable Charlie Chapman Opinion No. H- 504
Executive Director
Structural Pest Control Board Re: The applicability of the
313 East Anderson Lane licensing fee provisions of
Chevy Chase III the Texas Structural Pest
Austin, Texas 78752 Control Act to employees
of persons who engage in
the business of Structural
Pest Control.
Dear Mr. Chapman:
You have asked our opinion as to whether the Structural Pest
Control Board may require employees of an applicant or a licensee
(for or holding a license under the Texas Structural Pest Control Act)
to pay the required license fee if said persons’ duties consist entirely
of on site sales, solicitations, estimates or bids.
You particularize your opinion request by further observing:
Section 7(a) of the Texas Structural Pest Control
Act authorizes the Structural Pest Control Board to
collect from each applicant for a license a fee of
between $5.00 and $15.00 for “each employee of the
applicant who is engaged in structural pest control
services. ”
The Texas Structural Pest Control Act, article 135b-6, V. T. C. S.,
requires persons engaging in the business of structural pest control to
obtain a license before conducting such a business. Sec. 5(a), art. 135b-6.
A temporary license may be obtained by those who engaged in such work
prior to the effective date of the Act, and a two year grace period is
p. 2274
The Honorable Charlie Chapman page 2 (H-504)
provided within which such persons must fully qualify under the Act and
pay the regular licensing fees required by the Act. Sec. 5(b).
Section 7(a) provides for the following licensing fees:
Sec. 7(a) An applicant for an initial or renewal
license shall accompany his application with a fee
of $50 for each place of business located in the State
and a fee of between $5 and $15, as determined
by the board, for each employee of the applicant who
is engaged in structural pest control services. This
is not to apply to those locations serving only as
answering services for a licensed business.
Section 2 defines those persons who are subject to the provisions
of the Act, as those “engaged in the business of structural pest control, ”
and, as such, must accordingly secure the license required by section 5
and pay the licensing fee required by section 7(a):
(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
following 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, weeds, nuisance birds, and any other obnoxious
or u,ndesirable animals which may infest households,
railroad cars, ships, docks, trucks, airplanes, or
other structures, or the contents thereof, or the
immediate adjacent outside areas;
(2) naking inspection reports, recommendations,
estimates, or bids, whether oral or written, with
respect to such infestations;
p. 2275
. . - _
The Honorable Charlie Chapman page 3 (H- 504)
(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.
(b) as used in this Act, “person” means an individual,
firm, partnership, corporation, association, or other
organization, or any combination thereof, or any type of
business entity. (Emphasis supplied)
It is therefore clear that persons who, in the course of a structural
pest control operation, solicit and sell pest control services or make
estimates of the cost of such services and bid for the performance of these
services, perform services that come within the ambit of the Act.
However, section ll(3) excludes “employees” of licensees from
the operation of the Act, providing:
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:
. . . .
(3) an employee of a person licensed to engage in
the business of structural pest control; . . .
Accordingly, an employee of one engaged in the business of
structural pest control who solicits and sells pest control services
and who estimates the cost of such work and submits bids for its
performance, does not have to secure the license or pay the fees
required by section 7(a). However, the holder of a license or an
applicant therefore must pay the $5.00 to $15.00 fee, as required by
section 7(a), for each employee who engages in the selling of pest
control services as a part of the employers total license fee.
p. 2276
The Honorable Charlie Chapman page 4 (H- 504)
SUMMARY
Employees, who solicit and sell structural
pest control services for a person engaged in the
business of structural pest control, do not have
to be licensed under the Texas Structural Pest
Control Act or pay the licensing fees provided
for by the Act. However, their employer must
pay the $5.00 to $15.00 fee for such employee
as required by section 7(a) of the Act.
Very truly yours,
n
u Attorney General of Texas
DAVID M. KENDALL. First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2277