Untitled Texas Attorney General Opinion ( 2001 )

OfPlCE OF THE ATTORNEY GENERAL. ST*TE Of TEXAS
JOHN CORNYN
January 5,200l
Mr. Benny M. Mathis Opinion No. JC-0324
Executive Director
Texas Structural Pest Control Board Re: Whether the Texas Structural Pest Control
1106 Clayton Lane, Suite 100 LW Board may regulate contract language, and related
Austin, Texas 78723-1066 question (RQ-0272-JC)
Dear Mr. Mathis:
As a legislatively created state agency, the Texas Structural Pest Control Board (“Board”)
has only those powers that the legislature has explicitly or implicitly delegated to it. See City of
Sherman v. Public Util. Comm’n, 643 S.W.2d 681, 686 (Tex. 1983). You ask whether the Board
may regulate contract language in contracts between its licensees and consumers.’ Except for
prescribing language that defines the Board’s jurisdiction and that instructs consumers how to tile
complaints, it may not.
You also ask whether the Board may enforce a contract between its licensees and consumers.
The Board has no enforcement powers, although it may, in response to a complaint from a consumer,
conduct informal settlement negotiations through which the licensee may agree to comply with the
contract. See TEX. REV. CIV. STAT. ANN. § 135b-6, 9 9A (Vernon Supp. 2000).
You state that increasing numbers of consumers are asking the Board to assist “in resolving
contractual issues between” the consumer and a licensee. Request Letter, supra note 1, at 1. “This
increasing consumer concern” leads the Board to ask this office to define the Bbard’s authority with
respect to regulating and enforcing contracts between its licensees and consumers. Id.
We look to the Texas Structural Pest Control Act (“Act”), article 135b-6 of the Texas
Revised Civil Statutes, which establishes and empowers the Board, to delineate the Board’s
authority. See TEX. REV. CIV. STAT. ANN. art. 135b-6, 5 1 (Vernon Supp. 2000) (entitling Act);
Baker v. Guaranty Nat? Ins. Co., 615 S.W.2d 303, 305 (Tex. Civ. App.-Austin 1981, writ refd
n.r.e.) (stating that Act created Board and charged Board with certain responsibilities). As an
administrative agency created by the legislature, the Board has only those powers that are expressed
in a relevant statute or necessarily implied from the statute. See Grace v. Structural Pest Control
Bd.,620 S.W.2d 157,160 (Tex. App.-Waco 1981, writref dn.r.e.)(tindingimpliedauthorityinAct
‘See Letter from Benny M. Matbis, Executive Director, Texas St~ctural Pest Control Board, to Honorable
John Comyn, Texas Attorney General (Aug. l&2000) (on file with Opinion Committee) [hereinafter Request Letter].
Mr. Benny M. Mathis - Page 2 (X-0324)
to appoint hearing examiner); Baker, 615 S.W.2d at 305-06 (refusing to read Act to imply
judgement-bond requirement); see also Ratcliffv. National County Mut. Fire Ins. Co., 735 S.W.2d
955, 958 (Tex. App.-Dallas 1987, writ dism’d woj.) (citing Baker for proposition that Act’s
insurance requirements may not be read to render unenforceable policy-notice provisions). See
generally City of Sherman, 643 S.W.2d at 686 (stating that agency may exercise only those powers
granted by statute, together with those necessarily implied from statutory authority conferred or
duties imposed); Tex. Att’y Gen. Op. Nos. JC-241 (2000) at 3 (same); JC-204 (2000) at 3 (same).
Under the Act, the Board’s jurisdiction encompasses each individual and entity “engaged in
the business of structural pest control” by advertising for, soliciting, or performing certain pest-
control services for compensation. See TEX. F&V. CIV. STAT.ANN. art. 135b-6,s 2(a) (Vernon Supp.
2000). These pest-control services include “making contracts, or submitting bids for, or performing
services designed to prevent, control, or eliminate” infestations of “obnoxious or undesirable
animals,” including arthropods, wood-infesting organisms, rodents, and nuisance birds; weeds; and
pests or diseases of trees, shrubs, or other plantings “by the use of insecticides, pesticides,
rodenticides, fumigants, or allied chemicals or substances or mechanical devices.” Id.
The Board has express statutory authority to perform several tasks, including:
. to “develop and implement policies that provide the public with a reasonable
opportunity to appear before the board and to speak on any issue” under the
Board’s jurisdiction, id. art. 135b-6, 5 3(k) (Vernon Supp. 2000);
. to develop “standards and criteria” for licensing individuals, persons, and
technicians engaged in the business of structural pest control, and for certified
noncommercial applicators, see id. §§ 4(a), (b), (c), 4B(e); see also id. $5 4A
(requiring Board to develop technician training program), 4C(a)( 1) (requiring
Board to adopt policy requiring inspection of structural pest control
businesses), 7B (authorizing Board to require licensee to make records of
pesticide use), 9 (permitting Board to refuse to license, to revoke or suspend
license, or to discipline licensee);
. to “promulgate rules and regulations governing the methods and practices of
structural pest control when it determines that” the rules are necessary “to
prevent adverse effects on human life and the environment,” id. 5 4(d);
. on finding that pesticides have been misapplied, to “keep records of health
injuries and property damages” that result from the misapplication, id.
§ 4X4;
. on the request of a consumer, to provide a pretreatment inspection to verify
that pests have infested the premises, see id. 5 4E(a), (b), (c);
Mr. Benny M. Mathis - Page 3 (JC-0324)
. to resolve a complaint (other than a complaint involving misapplication) by
a consumer against a licensee, see id. 5 9A; and
. to penalize a person who violates the Act or a rule or order adopted by the
Board, see id. 9 lOB(a).
We conclude that the Board’s authority to regulate contract language is limited to that
provided in sections 4(h) and 4F. The Board’s general authority to protect public health and safety
does not encompass authority to regulate contract language. See, e.g., id. $3 4D, 4F(h), 4G, 4H.
Only two sections of the Act even suggest that the Board may regulate certain contract language.
First, “[i]n each written contract in which a licensee agrees to perform structural pest control
services in this state,” section 4(h) of the Act requires the licensee to “include the mailing address
and telephone number of the board and a statement that the board has jurisdiction over individuals
licensed under this Act.” Id. 5 4(h). Second, section 4F(b)( 1) ofthe Act permits the Board to require
that every written contract for the services of an individual or entity regulated by the Act notify
consumers of the method by which the consumer or “service recipient[]” may complain to the Board
regarding the purchased structural pest control. See id. 5 4F(b)(l). Beyond the authority granted
in sections 4(h) and 4F of the Act, the Board has no authority to regulate the language of contracts
between its licensees and consumers.
You ask next about the Board’s authority to enforce a contract between a licensee and a
consumer. See Request Letter, suprn note 1, at 1. You do not explain what you mean by the term
“enforce.”
The Board has no statutory authority to require a licensee to perform services he or she
contracted with a consumer to perform. Rather, the Board may “revoke or suspend [the] license [of],
place on probation, . or reprimand” a licensee who violates the Act or a Board rule. Id. 5 9(b)
(Vernon Supp. 2000). The Board also may assess an administrative penalty against a person who
violates the Act or a Board rule. See id. 5 lOB(a).
Although the Board may not compel a licensee to agree to fulfill his or her contractual duties,
the Board may oversee settlement negotiations that result in a settlement requiring the licensee to
fulfill contractual duties. In response to a complaint from a consumer, the Board may appoint
representatives to conduct informal settlement negotiations to resolve a contested case under the
Administrative Procedure Act, chapter 2001 of the Government Code. Section 9A of the Act
authorizes the board to “conduct informal settlement negotiations between the board and a licensee
to resolve a complaint, other than a complaint involving a misapplication, between a consumer
against the licensee.” Id. 5 9A(a), (c). “Any informal settlement may not require the licensee
to refund money to the consumer in an amount greater” than the original contract specifies or “to
perform any services that the licensee had not agreed to perform in the original contract.” Id.
§ 9Nc).
Mr. Benny M. Mathis - Page 4 (X-0324)
SUMMARY
Except for language describing its jurisdiction and instructing
consumers how to tile a complaint, the Texas Structural Pest Control
Board may not regulate the language of contracts between structural
pest control service providers and consumers. See TEX. REV. CIV.
STAT. ANN. art. 135b-6, §§ 4(f), 4F(b)(l) (Vernon Supp. 2000). The
Board may not require a licensee to perform services he or she
contracted with a consumer to perform, although the Board may
oversee informal settlement negotiations in which the parties agree to
perform the contract. See id. 5 9A(c).
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee