The opinion
The Honorable Charlie Chapman Opinion No. H-898
Executive Director
Structural Pest Control Board Re: The Structural Pest
of Texas Control Act "grandfather
313 East Anderson Lane clause."
Austin, Texas 78752
Dear Mr. Chapman:
The Structural Pest Control Act, article 13513-6,V.T.C.S.,
was amended in 1975 to require licenses for both structural
pest control businesses and for certified applicators of
pesticides. Prior to the 1975 changes only those persons
engaged in the business of structural pest control were
required to be licensed, and employees of licensed persons
were exempted. See Acts 1971, 62nd Leg., ch. 726 at 2363,
2365. The amendedAct now contains this "grandfather"
language:
Sec. 5. (a) Except as provided in
Subsection (b), no person, 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.
(b) A person who has engaged in the
business of structural pest control for a
period of two years next preceding the
effective date of this Act may apply to the
board. . .and shall be issued a temporary
p. 3374
The Honorable Charlie Chapman - page 2 W-899)
Structural Pest Control Business License
and Certified Applicator's License which
shall be valid for a period not to exceed
two years. . .without further qualifications
or examination. All applicants under this
subsection shall furnish evidence substanti-
ating their eligibility before temporary
licenses may be granted.
you ask whether the phrase "the effective date of this
Act" as used in the amended version of the grandfather
clause refers to the date the amendment became effective in
1975 or the effective date of the original Act in 1971.
The 1975 version of the "grandfather clause" authorizes
the issuance of a combination "temporary Structural Pest
Control Business License and Certified Applicator's License"
to certain persons. The purpose of grandfather provisions
in licensing acts is to exempt from statutory regulations
those members who have acceptably followed their profession
or trade for a required period of years. Such exemptions
are granted upon the presumption that those already practicing
their profession were lawfully and satisfactorily performing
their services on the date the regulatory act became effec-
tive. Bloom v. Texas State Board-of Examiners of Psychol-
ogists,~STR.~O(Tex.Sup.1973~. See CoiiFtructionof
"Grandfather Clause" of Statute or Ordinance Regulating or
Licensing Business or Occupation, 4 ALR2d 667 (1949).
The 1975 changes in the Structural Pest Control Act
bring within the Act's ambit persons and activities which
previously were not required to be licensed. Prior to the
1975 changes, a person (including a corporation but excluding
an employee of a licensed person) was "engaged in the busi-
ness of structural pest control" if, among other things, he
offered to perform, or performed, particular services for
compensation, including inspecting or identifying infesta-
tions, making inspection reports, recommendations, estimates
or bids, or contracting to control or controlling infesta-
tions with pesticides, fumigants or insecticides. Infesta-
tions covered were those of insects, spiders, mites, ticks
and related pests, wood-infesting organisms, rodents, weeds,
nuisance birds and any other obnoxious or undesireable
animals which may infest households, railroad cars, ships,
p. 3375
I . .
. r
The Honorable Charlie Chapman - page 3 (H-800)
or the contents
docks, trucks, airplanes, or other structures, --
thereof, or
-- the immediate ajacent outside areas. Excluded
from coverage was "a person or his regular wyee who
performs'pest control work upon property which he owns,
leases or rents." Acts 1971, 62nd Leg., ch. 726 at 2363,
2365.
Under the newly amended Act, however, a person addition-
ally is deemed to be engaged in the business of structural
pest control if he performs or offers to perform such services
regarding infestations of "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." V.T.C.S. art. 13533-6,92(a)(l)(B).
Cf. Attorney General Opinion M-1115 (1972). Moreover, the
exemption for landlords has been eliminated. The exemption
now covers onlv 'a Person who performs pest control work
upon property ;hich-he owns, leases, or-rents --
as his dwelling."
V.T.C.S. art. 135b-6, S ll(2).
The original Act provided for only one type of license.
Under it, the Structural Pest Control Board licensed persons
(including corporations) engaged in the business of structural
pest control, and by express statutory language could require
applicants for the license to pass an examination demonstrating
competence in the field of structural pest control. Under the
amended Act, the board issues two types of licenses: (1) the
Structural Pest Control Business License and (2) the Certified
Applicator's License. The first is issued on a "per business"
basis to persons (including corporations) engaged in the business
of structural oest control and entitles such persons and their
employees to engage in that business "under the direct super-
vision of a certified applicator." V.T.C.S.=t.-6, 5
27ETV)Y- There is no statutory requirement that applicants
for the new Business License demonstrate "competence in the
field." The board, rather, is authorized by the statute to
"develop standards and criteria" for its issuance. V.T.C.S.
art. 13513-6,6 4(b).
p. 3376
The Honorable Charlie Chapman - page 4 (H-800)
The second license which the board is empowered to
issue under the amended Act, the Certified Applicator's
License, is issued only to individuals determined by the
board to be competent to use or supervise the use of certain
pesticides. V.T.C.S. art. 13513-6,5 2(b) (4). The board is
given express statutory authority to require examinations of
applicants for this license. V.T.C.S. art. 135b-6, 8 4(a).
The amended Act makes other significant changes, but
the changes discussed above are sufficient to show that a
"grandfather clause" taking effect with the amendment would
inure to the benefit of persons whom the Legislature might
reasonably have intended to protect. Cf. Vaughan v. State
Board of Embalmers and Funeral Directors, 82 S.E.2r-618
Tva Tv54). -
Furthermore, we find particularly compelling the fact
that the Legislature not only re-enacted the grandfather
clause, but amended it to reflect the new types of licenses
which are issued. Had the Legislature not intended that the
grandfather clause be re-enacted, it could have repealed it
as surplusage or simply left it as it was. However, when
the clause was amended to include the new types of licenses
established by the 1975 amendments, there was a strong
implication that the grandfather clause was intended to have
new vitality.
In answer to your first question, we think it was the
intention of the Legislature to conditionally and temporarily
exempt from the immediate license requirements of the amended
Act those persons affected by it who, at the time the 1975
amendment took effect and for the required preceding time,
had been lawfully engaged in the activities regulated by the
amended Act.
you have also asked if the Structural Pest Control
Board has the discretion to determine the time period of any
temporary license issued pursuant to the grandfather clause,
so long as the period does not exceed two years.
p. 3377
The Honorable Charlie Chapman - page 5 (H-800)
The 1975 amended grandfather clause states that the
combination temporary license it authorizes "shall be valid
for a period not to exceed two years. . . ." V.T.C.S. art.
13533-6,S 5(b). The same words appeared in the original
1971 grandfather clause. Under both the 1971 and 1975
versions of the Structural Pest Control Act, re ular licenses
must be renewed every year. V.T.C.S. art. 13h 6(b).
It was obviously expected by the Legislature that the dura-
tion of temporary licenses might exceed one year.
Any discretion exercised by a licensing agency in
applying a grandfather clause must be consistent with the
statute involved and the agency is not free to require an
examination where the Legislature has excused it. Bloom v.
Texas State Board,of Examiners of Psychologists, w. -
A statute delegating discretion to an administrative agency
ordinarily contains standards to guide its exercise. This
statute contains no standards to guide the board in setting
non-statutory durational limits for temporary licenses.
We believe the Legislature has shown an intent that the
temporary licensee be excused from the examination require-
ment for the full two year period unless other statutory
obligations imposed on the Board require the Board to issue
such licenses for a shorter period. See Attorney General
Opinion H-504 (1975). In our opinion,such a statutory
obligation does exist because the Legislature has required
that rules and regulations of the Board relating to economic
poisons "comply with applicable standards of the federal
government . . .governing the use of such substances."
V.T.C.S. art. 135b-6, S 4(c).
Federal regulations for certification of applicators of
pesticides require determinations of competency to be made
on the basis of written examinations. 7 U.S.C. 136b; 40
C.F.R. 5 171.4. See generally Comment, Pesticides: The
Problem and the Solution, 7 Texas Tech L.Rev. 79. These
regulations become applicable to state plans for certifica-
tion in October, 1976, four years after the enactment of 7
u.S.C. 136. See Pub.L. 92-516 5 4(c)(4), 86 Stat. 973.
Under presentlaw, no temporary Certified Applicator's
License granted to a person pursuant to the grandfather
clause can validly extend beyond then, in our opinion, and,
p. 3378
The Honorable Charlie Chapman - page 6 (~-999)
because a temporary business license may be issued under the
1975 grandfather clause only in combination with a temporary
Certified Applicator's License (". . .shall be issued a
temporary Structural Pest Control Business License and
Certified Applicator's License which shall . . ." VrC.S.
art. 135b-6, S 51, neither can extend beyond October, 1976.
In answer to your second question, we are of the opinion
that the Structural Pest Control Board has no discretion in
fixing the length of time for which a temporary license,
issued pursuant to the 1975 grandfather clause, is valid.
All such licenses will expire when federal standards become
mandatory in October, 1976.
SUMMARY
The "grandfather clause" of the Structural
Pest Control Act, as amended in 1975, con-
ditionally and temporarily exempts from the
immediate license requirements of the amended
Act those persons affected by it who, at the
time the 1975'amendment took effect and for
the required preceding time, had been lawfully
engaged in the activities regulated by the
amended Act. Under present law, temporary
licenses issued pursuant to the clause expire
in October, 1976.
Attorney General of Texas
irst Assistant
Opinion Committee
jwb
p. 3379