Agriculture code

Sec. 76.106.  CLASSIFICATION OF LICENSES. (a) The head of each regulatory agency may classify commercial applicator and noncommercial applicator licenses under subcategories of license use categories according to the subject, method, or place of pesticide application.

(b)  A regulatory agency head shall establish separate testing requirements for licensing in each license use category for which the agency is responsible and may establish separate testing requirements for licensing in subcategories within a license use category.

(c)  Each regulatory agency may charge a testing fee, as fixed by the head of the regulatory agency, for testing in each license use category.

Acts 1981, 67th Leg., p. 1198, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1985, 69th Leg., ch. 239, Sec. 64, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 230, Sec. 90, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 419, Sec. 2.37, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 766, Sec. 1, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.107.  LICENSING BY MORE THAN ONE AGENCY. (a) A person who wants to be licensed as a pesticide applicator under license use categories regulated by more than one regulatory agency may do so by paying a single license fee to the agency regulating the person's primary business and meeting licensing requirements for each category for which the person desires licensing.

(b)  A person licensed under this section must pay testing fees required by each regulatory agency.

Acts 1981, 67th Leg., p. 1198, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 91, eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.108.  COMMERCIAL APPLICATOR LICENSE. (a) A person who operates a business or is an employee of a business that applies state-limited-use or restricted-use pesticides or regulated herbicides to the land of another person for hire or compensation and who is required to be licensed by Section 76.105 of this code shall apply to the appropriate regulatory agency for a commercial applicator license issued for the license use categories and subcategories in which the pesticide application is to be made.

(b)  A person shall apply for an original or renewal commercial applicator license on forms prescribed by the regulatory agency. The application shall include information as required by rule of the head of the agency and must be accompanied by an annual license fee, as fixed by the head of the agency.

(c)  The head of a regulatory agency may not issue an original commercial applicator license before the applicant has passed an examination under Section 76.110 of this code.

(d)  The head of a regulatory agency may not issue a commercial applicator license if it has been determined that:

(1)  the applicant has been convicted of a felony involving moral turpitude in the last five years;

(2)  the applicant has had a license issued under this subchapter revoked within the last two years;

(3)  the applicant has been unable to satisfactorily fulfill licensing requirements; or

(4)  the applicant for any other reason cannot be expected to be able to fulfill the provisions of this subchapter applicable to the license use category for which application is made.

(e)  An individual to whom a commercial applicator license is issued is authorized to purchase, use, and supervise the use of restricted-use and state-limited-use pesticides or regulated herbicides in the license use categories and subcategories in which the individual is licensed.

(f)  As a condition to issuance of a commercial applicator license, an applicant located outside this state shall file with the regulatory agency a written instrument designating a resident agent for service of process in actions taken in the administration and enforcement of this chapter. Instead of designating a resident agent, the applicant may designate in writing the secretary of state as the recipient of service of process for the applicant in this state.

Acts 1981, 67th Leg., p. 1198, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1981, 67th Leg., p. 2590, ch. 693, Sec. 4, eff. Sept. 1, 1981; Acts 1985, 69th Leg., ch. 239, Sec. 65, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 230, Sec. 92, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 419, Sec. 2.38, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.109.  NONCOMMERCIAL APPLICATOR LICENSE. (a) A person who is required to be licensed under Section 76.105 of this code but who does not qualify as a commercial applicator or a private applicator shall apply to the appropriate regulatory agency for a noncommercial applicator license issued for the license use categories and subcategories in which the pesticide application is to be made.

(b)  A person shall apply for an original or renewal noncommercial applicator license on forms prescribed by the regulatory agency. The applicant shall include with the application an annual license fee, as fixed by the governing body of or the head of the regulatory agency. The governing body of or the head of the regulatory agency may set other fees as necessary to defray the costs of administering a pesticide applicator certification program.

(c)  The head of a regulatory agency may not issue an original noncommercial applicator license before the applicant has passed an examination under Section 76.110 of this code.

(d)  An individual to whom a noncommercial applicator license is issued by the department is authorized to purchase, use, and supervise the use of restricted-use and state-limited-use pesticides or regulated herbicides in the license use categories and subcategories in which the individual is licensed.

(e)  If a license is issued in the name of a governmental entity, the entity must have a licensed applicator employed at all times. Failure to have a licensed applicator employed is a ground for revocation of a governmental entity noncommercial applicator license.

(f)  As a condition to issuance of a noncommercial applicator license, an applicant located outside this state shall file with the regulatory agency a written instrument designating a resident agent for service of process in actions taken in the administration and enforcement of this chapter. Instead of designating a resident agent, the applicant may designate in writing the secretary of state as the recipient of service of process for the applicant in this state.

(g)  An individual to whom a noncommercial applicator license is issued by the Texas Department of Health is authorized to use and supervise the use of general-use, restricted-use, and state-limited-use pesticides in the license use categories and subcategories in which the individual is licensed.

(h)  Neither this section nor any other law shall prohibit a political subdivision from reducing the number of hours of training or other requirements for an employee conducting larval mosquito control on property owned or controlled by the political subdivision using biological pesticides approved for general use by the Texas Department of Health, provided the employee is given instructions adequate to ensure the safe and effective use of such pesticides.

Acts 1981, 67th Leg., p. 1199, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1981, 67th Leg., p. 2590, ch. 693, Sec. 5, eff. Sept. 1, 1981; Acts 1985, 69th Leg., ch. 239, Sec. 66, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 230, Sec. 93, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 419, Sec. 2.39, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 766, Sec. 2, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 884, Sec. 1, eff. June 20, 2003.

Sec. 76.110.  COMMERCIAL AND NONCOMMERCIAL APPLICATOR EXAMINATION; RECIPROCAL AGREEMENTS. (a) Each person applying for a license as a commercial applicator or a noncommercial applicator must pass an examination demonstrating that the person:

(1)  is properly qualified to perform functions associated with pesticide application to a degree directly related to the nature of the activity and the associated responsibility; and

(2)  has knowledge of the use and effects of restricted-use and state-limited-use pesticides or regulated herbicides in the license use categories and subcategories in which the person is to be licensed.

(b)  Not later than the 30th day after the date on which a licensing examination is administered under this section, the appropriate regulatory agency shall notify each examinee of the results of the examination. However, if an examination is graded or reviewed by a national testing service, the appropriate regulatory agency shall notify examinees of the results of the examination not later than the 14th day after the date on which the appropriate regulatory agency receives the results from the testing service. If the notice of examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the appropriate regulatory agency shall notify the examinee of the reason for the delay before the 90th day. The appropriate regulatory agency may require a testing service to notify examinees of the results of an examination.

(c)  If requested in writing by the person who fails a licensing examination administered under this section, the appropriate regulatory agency shall furnish the person with an analysis of the person's performance on the examination.

(d)  The appropriate regulatory agency may waive any prerequisite to obtaining a license for an applicant after reviewing the applicant's credentials and determining that the applicant holds a valid license from another state that has license requirements substantially equivalent to those of this state.

Acts 1981, 67th Leg., p. 1199, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1989, 71st Leg., ch. 230, Sec. 94, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 419, Sec. 1.20, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.111.  APPLICATOR BUSINESSES; PROOF OF FINANCIAL RESPONSIBILITY. (a) In this section:

(1)  "Applicator business" means a person who applies a state-limited-use or restricted-use pesticide or regulated herbicide to the land of another for compensation and who:

(A)  is a licensed commercial applicator; or

(B)  employs at least one licensed commercial applicator.

(2)  "M-44 device" means a nonexplosive, spring-operated mechanical device designed to deliver a capsule of sodium cyanide into the mouth of the target animal as a method of livestock predation control.

(b)  This section does not apply to an employee or agent of an applicator business.

(c)  Except as otherwise provided by this section, each applicator business shall file with the regulatory agency issuing the license a liability insurance policy, certification of a policy, or other proof of financial responsibility considered acceptable by the department protecting persons who may suffer damages as a result of the operations of the applicator business, its employees, and its agents.

(d)  The proof of financial responsibility required by this section is not required to apply to damages or injury to agricultural crops, plants, or land being worked on by the applicator business, its employees, or its agents.

(e)  Except as otherwise provided by this section, the amount of the proof of financial responsibility may not be less than $100,000 for each occurrence for property damage and may not be less than $100,000 for each occurrence for bodily injury or a general aggregate at a minimum of $200,000 for each occurrence. The head of a regulatory agency by rule may require different amounts of coverage for different classifications of operations under this chapter. Each commercial M-44 applicator license applicant must provide proof of financial responsibility acceptable to the department for bodily injury and property damage coverage insuring the applicator against liability for damage to persons or property occurring as a result of operations performed in the course of the application to premises or any other property under the applicator's care, custody, or control. The department will strive to set minimum acceptable coverage at an amount that is economically feasible to applicants. The coverage must at all times be maintained at not less than the amount set by the agency head or the Texas Department of Insurance.

(f)  The head of a regulatory agency may accept a liability insurance policy in the proper sum which has a deductible clause in an amount of not more than $1,000 for the total amount of the liability insurance policy required by this section. If the applicator business has not satisfied the requirement of the deductible amount in any prior legal claim, an agency head may not accept a policy with a deductible clause unless the applicator business furnishes the agency with a surety bond that satisfies the amount of the deductible clause as to all claims that may arise as a result of the operation of the applicator business.

(g)  An applicator business shall cease state-limited-use or restricted-use pesticide or regulated herbicide application operations during a period in which the applicator business is unable to provide adequate proof of financial responsibility under Subsection (e).

Acts 1981, 67th Leg., p. 1200, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1981, 67th Leg., p. 2590, ch. 693, Sec. 6, eff. Sept. 1, 1981; Acts 1987, 70th Leg., ch. 223, Sec. 2, eff. May 28, 1987; Acts 1987, 70th Leg., ch. 630, Sec. 1, eff. June 19, 1987; Acts 1989, 71st Leg., ch. 230, Sec. 95, eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 117, Sec. 1, 2, eff. Sept. 1, 1999.

Sec. 76.112.  PRIVATE APPLICATOR. (a) A person is a private applicator if the person uses or supervises the use of a restricted-use or state-limited-use pesticide or regulated herbicide for the purpose of producing an agricultural commodity:

(1)  on property owned or rented by the person or the person's employer or under the person's general control; or

(2)  on the property of another person if applied without compensation other than the trading of personal services, or services related to agricultural production, including the use of equipment, between producers of agricultural commodities.

(b)  A private applicator is required to be either licensed or certified to use restricted-use or state-limited-use pesticides or regulated herbicides.

(c)  An employee qualifies as a private applicator under Subsection (a)(1) of this section only if he is employed to perform other duties related to agricultural production and provide labor for the pesticide application but does not provide the necessary equipment or pesticide.

(d)  A private applicator who is required to be licensed by Section 76.105 of this code shall apply to the department for a private applicator license.

(e)  A person shall apply for an original or renewal private applicator license on forms prescribed by the department. The application shall include information as required by department rule and must be accompanied by a fee, as fixed by the department.

(f)  The department may not issue an original private applicator license before the applicant has attended a training course conducted by the Texas Agricultural Extension Service or another training course approved by the department. The department shall approve appropriate training courses developed under the coordination of the Texas Agricultural Extension Service and to be conducted by other governmental agencies or nongovernmental entities. The training course shall cover the use, effects, and risks of restricted-use and state-limited-use pesticides or regulated herbicides.

(g)  The department may not issue a private applicator license if the applicant has had a license issued under this subchapter revoked within the last two years.

(h)  An individual to whom a private applicator license is issued is authorized to purchase, use, and supervise the use of restricted-use and state-limited-use pesticides or regulated herbicides in all license use categories and subcategories for the purpose of producing an agricultural commodity on property described by Subsection (a)(1) or (a)(2) of this section.

(i)  As a condition to issuance of a private applicator license, an applicant located outside this state shall file with the department a written instrument designating a resident agent for service of process in actions taken in administration and enforcement of this chapter. Instead of designating a resident agent, the applicant may designate in writing the secretary of state as the recipient of service of process for the applicant in this state.

(j)  For purposes of this chapter, a certified private applicator is a private applicator who has been previously certified under the department's voluntary certification program and who holds a private applicator certificate dated prior to January 10, 1989. A certified private applicator is authorized to use restricted-use and state-limited-use pesticides or regulated herbicides in all license use categories and subcategories for the purpose of producing an agricultural commodity on property described by Subsection (a)(1) or (a)(2) of this section. A certified private applicator may not supervise the use of restricted-use and state-limited-use pesticides or regulated herbicides.

Acts 1981, 67th Leg., p. 1200, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1981, 67th Leg., p. 2590, ch. 693, Sec. 7, eff. Sept. 1, 1981; Acts 1989, 71st Leg., ch. 230, Sec. 96, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 419, Sec. 2.40, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.113.  TERM  AND RENEWAL OF LICENSES. (a) Each pesticide applicator license issued under this chapter, other than a private applicator license, expires at the end of the license period established by department rule.

(b)  Each private applicator license is valid for five years.

(c)  Except as provided by Subsection (d) of this section, a person having a valid license issued under this subchapter may renew the license for another term without retesting by paying to the regulatory agency the license fee required by this subchapter. A person who fails to apply for renewal of a license on or before the expiration date must pay, in addition to the annual license fee, the late fee provided by Section 12.024 of this code.

(d)  A licensee must undertake training, submit to retesting, or both, before renewal of a license if the head of the agency determines that additional knowledge is required for renewal.

Acts 1981, 67th Leg., p. 1201, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1981, 67th Leg., p. 2591, ch. 693, Sec. 8, eff. Sept. 1, 1981; Acts 1989, 71st Leg., ch. 230, Sec. 97, eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 44 (H.B. 901), Sec. 2, eff. September 1, 2005.

Acts 2009, 81st Leg., R.S., Ch. 506 (S.B. 1016), Sec. 6.04, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 506 (S.B. 1016), Sec. 6.05, eff. September 1, 2009.

Sec. 76.114.  RECORDS. (a) A regulatory agency shall require each commercial and noncommercial applicator licensee to maintain records of all pesticide applications. The department may require each commercial or noncommercial applicator licensee to keep records of the licensee's application of a specific restricted-use or state-limited-use pesticide or regulated herbicide and may require those records to be kept separate from other business records. The regulatory agency by rule shall prescribe the information to be entered into the records.

(b)  Each private applicator shall maintain records of regulated herbicide and state-limited-use pesticide applications and shall maintain those records of restricted-use pesticide applications required by federal law.

(c)  A licensee shall keep records required under this section for a period of two years from the date of the pesticide application. The licensee shall keep these records accessible and available for copying and shall store them in a location suitable to preserve their physical integrity.

(d)  On written request of the regulatory agency, a licensee shall furnish the department a copy of any requested record pertaining to the application of pesticides. The department may require all persons who apply a regulated herbicide to submit periodically to the department a copy of the records required by this section.

Acts 1981, 67th Leg., p. 1201, ch. 388, Sec. 1, eff. Sept. 1, 1981; Acts 1989, 71st Leg., ch. 230, Sec. 98, eff. Sept. 1, 1989. Amended by Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.115.  INSPECTION OF EQUIPMENT. (a) Each regulatory agency may inspect equipment used in the application of a restricted-use or state-limited-use pesticide.

(b)  A regulatory agency may require repairs or alterations of equipment before further use in the application of restricted-use or state-limited-use pesticides.

(c)  The department by rule may:

(1)  provide requirements for and inspect equipment used to apply regulated herbicides; and

(2)  regulate or prohibit the use of certain equipment in the application of regulated herbicides if that use would be hazardous in an area of the state.

(d)  Each piece of registered equipment shall be identified by a license plate or decal furnished by a regulatory agency at no cost to the licensee. The license plate or decal must be attached to the equipment in a manner and location prescribed by the regulatory agency.

Acts 1981, 67th Leg., p. 1201, ch. 388, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1997, 75th Leg., ch. 1369, Sec. 1, eff. Sept. 1, 1997.

Sec. 76.116.  SUSPENSION, MODIFICATION, OR REVOCATION OF LICENSE. (a) The head of a regulatory agency that licensed or certified an applicator may suspend, modify, or revoke a license or certificate, assess an administrative penalty, place on probation a person whose license or certificate has been suspended, reprimand a licensee or certificate holder, or take a combination of those actions if the head of the agency finds that the licensee or certificate holder has:

(1)  made a pesticide recommendation or application inconsistent with the pesticide's labeling or with the restrictions on the use of the pesticide imposed by the state or the Environmental Protection Agency;

(2)  operated in a faulty, careless, or negligent manner;

(3)  refused, or after notice, failed to comply with an applicable provision of this chapter, a rule adopted under this chapter, or a lawful order of the head of a regulatory agency by which the licensee is licensed;

(4)  refused or neglected to keep and maintain the records required by this chapter or to make reports when and as required by this chapter;

(5)  failed to maintain financial responsibility as required by this chapter;

(6)  made false or fraudulent records, invoices, or reports;

(7)  used fraud or misrepresentation in making an application for a license or renewal of a license; or

(8)  aided or abetted a certified, licensed, or an unlicensed person to evade the provisions of this chapter, conspired with a certified, licensed, or an unlicensed person to evade the provisions of this chapter, or allowed the licensee's license or the certificate holder's certificate to be used by another person.