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NO. 2019-29049
JOSEPH AIKINS AND
TAMARA AIKINS
Plaintiffs,
IN THE DISTRICT COURT
Vv. 333” JUDICIAL DISTRICT
JONATHAN JASON SMITH
§
§
§
§
§
;
DBA GLENCO SERVICES §
§
§
Defendant HARRIS COUNTY, TEXAS
MOTION TO TAKE JUDICIAL NOTICE OF 4 TAC §7.175
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant JONATHAN JASON SMITH DBA GLENCO SERVICES,
Defendant in the above-styled and numbered cause, and requests the Court to take Judicial Notice
of certain provisions of the Texas Administrative Code, specifically 4 TAC §7.175 pursuant to
Tex. R. Evid. 204.
Texas R. Evid. 204 provides that "[a] court upon its own motion may, or upon the motion
of a party shall, take judicial notice of the.... codified rules of the agencies published in the
Administrative Code. Any party requesting that judicial notice be taken of such matter shall
furnish the court sufficient information to enable it properly to comply with the request, and shall
give all parties such notice, if any, as the court may deem necessary, to enable all parties fairly to
prepare to meet the request... ".
Attached hereto are true and correct copies of the provisions of the Texas Administrative
Code applicable to the performance of Wood Destroying Insect Report Inspections, specifically 4
TAC §7.175.
Wherefore, premises considered, Defendant requests the Court to take judicial notice of
MOTION TO TAKE JUDICIAL NOTICE OF 4 TAC §7.175 AND FIGURE 22 TAC PART 25 — Page 1the afore-mentioned provisions of the Texas Administrative Code.
Respectfully submitted,
O’NEIL WYSOCKI, P.C.
5323 Spring Valley Road, Suite 150
Dallas, Texas 75254
Tel: (972) 852-8000
Fax: (214) 306-7830
/s/ LeAnn W. Diamond
LEANN W. DIAMOND
State Bar No. 17688700
LeAnn@owlawyers.com
Attorney for JONATHAN JASON SMITH
DBA GLENCO SERVICES
Certificate of Service
I certify that a true copy of the above was served on each attorney of record or party in
accordance with the Texas Rules of Civil Procedure on August 13, 2021.
4s/ LeAnn W_ Diamond
LeAnn W. Diamond
MOTION TO TAKE JUDICIAL NOTICE OF 4 TAC §7.175 AND FIGURE 22 TAC PART 25 — Page 2eLaws | eCases | Texas Statutes | Texas Courts | Counties & Cities of Texas | Code of Federal Regulations |
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Texas Administrative Code (Last Updated: May 19,2021)
s TITLE 4. AGRICULTURE
a PART 1. TEXAS DEPARTMENT OF AGRICULTURE
a CHAPTER 7. PESTICIDES
o» SUBCHAPTER H. STRUCTURAL PEST CONTROL SERVICE
2 DIVISION 5. TREATMENT STANDARDS
SECTION 7.175. Official Wood Destroying Insect Report Inspection
Procedures
Latest version.
(a) Inspections for the purpose of issuing a WDIR must be conducted in a manner consistent
with the procedures described in this section by a licensed certified applicator or technician in
the termite category. The printed name and registration number or license number of any
employees receiving training that are present for the inspection must be listed on the report.
The purpose of the inspection is to provide a WDIR regarding the absence or presence of
wood destroying insects and conditions conducive to wood destroying insect infestation. The
inspection should provide the basis for recommendations for preventive or remedial actions, if
necessary, to minimize economic losses. Only for purposes of a Real Estate Transaction
Inspection Report, as described in §7.176 of this title, relating to Real Estate Transaction
Inspection Reports, there must be visible evidence of active infestation in the structure or
visible evidence of a previous infestation in the structure with no evidence of prior treatment to
recommend a corrective treatment. The inspection must be conducted so as to ensure
examination of all visible accessible areas in or on a structure in accordance with accepted
procedures. While such an examination may reveal wood destroying insects, there are
instances when concealed infestations and/or damage may not be discovered. Examinations
of inaccessible or obstructed areas are not required.
(b) Inaccessible or obstructed areas recognized by the Department include, but are not limited
to:
(1) inaccessible attics or portion thereof;
(2) the interior of hollow walls, spaces between a floor or porch deck and the ceiling or soffit
below;
(3) such structural segments as porte cocheres, enclosed bay windows, buttresses, and
similar areas to which there is no access without defacing or tearing out lumber, masonry, or
finished work;(4) areas behind or beneath stoves, refrigerators, furniture, built-in cabinets, insulation, floor
coverings; and
(5) areas where storage conditions or locks make inspection impracticable.
(c) The inspector must describe the structure(s) inspected and include the following:
(1) the address or location;
(2) a diagram showing:
(A) approximate numerical perimeter measurements of the structure as accurately as practical
(does not have to be to scale);
(B) construction details needed for clarity of the report;
(C) areas of current wood destroying insect activity;
(D) areas of previous wood destroying insect activity; and
(E) areas of conditions conducive to infestation by wood destroying insects;
(3) inaccessible or obstructed areas, including, but not limited to the areas listed in subsection
(b) of this section.
(d) The inspection must include, but is not limited to, the following areas if accessible and
unobstructed:
(1) plumbing, which includes:
(A) bathroom;
(B) kitchen;
(C) laundry; or
(D) other specified area, i.e., hot tub, etc.;
(2) window and door frames and sills;
(3) baseboards, flooring, walls, and ceilings;
(4) entrance steps and porches;
(5) exterior of slab or foundation wall;
(6) crawl spaces, which include:
(A) support piers (include stiff legs);
(B) floor joist;(C) sub floors;
(D) sill plates; and
(E) foundation wall.
(7) fireplace; and
(8) weep holes.
(e) Visible evidence of the following conditions must be reported:
(1) wood destroying insects or signs of current active infestation;
(2) termite tubes or frass;
(3) exit holes or frass from other wood destroying insects;
(4) evidence of previous treatment or infestation;
(5) conditions conducive to wood destroying insect infestation, including but not limited to:
(A) a structure with wood to ground contact;
(B) formboards left in place;
(C) excessive moisture;
(D) wood debris under or around structure;
(E) footing too low or soil line too high;
(F) insufficient clearance in crawl space;
(G) expansion joints or cracks in slab;
(H) decks; or
(6) infestation of other wood destroying insects.
Source Note: The provisions of this §7.175 adopted to be effective January 9, 2018, 43
TexReg 42
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NO. 2019-29049 JOSEPH AIKINS AND TAMARA AIKINS Plaintiffs, IN THE DISTRICT COURT Vv. 333” JUDICIAL DISTRICT JONATHAN JASON SMITH § § § § § ; DBA GLENCO SERVICES § § § Defendant HARRIS COUNTY, TEXAS MOTION TO TAKE JUDICIAL NOTICE OF 4 TAC §7.175 TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendant JONATHAN JASON SMITH DBA GLENCO SERVICES, Defendant in the above-styled and numbered cause, and requests the Court to take Judicial Notice of certain provisions of the Texas Administrative Code, specifically 4 TAC §7.175 pursuant to Tex. R. Evid. 204. Texas R. Evid. 204 provides that "[a] court upon its own motion may, or upon the motion of a party shall, take judicial notice of the.... codified rules of the agencies published in the Administrative Code. Any party requesting that judicial notice be taken of such matter shall furnish the court sufficient information to enable it properly to comply with the request, and shall give all parties such notice, if any, as the court may deem necessary, to enable all parties fairly to prepare to meet the request... ". Attached hereto are true and correct copies of the provisions of the Texas Administrative Code applicable to the performance of Wood Destroying Insect Report Inspections, specifically 4 TAC §7.175. Wherefore, premises considered, Defendant requests the Court to take judicial notice of MOTION TO TAKE JUDICIAL NOTICE OF 4 TAC §7.175 AND FIGURE 22 TAC PART 25 — Page 1the afore-mentioned provisions of the Texas Administrative Code. Respectfully submitted, O’NEIL WYSOCKI, P.C. 5323 Spring Valley Road, Suite 150 Dallas, Texas 75254 Tel: (972) 852-8000 Fax: (214) 306-7830 /s/ LeAnn W. Diamond LEANN W. DIAMOND State Bar No. 17688700 LeAnn@owlawyers.com Attorney for JONATHAN JASON SMITH DBA GLENCO SERVICES Certificate of Service I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on August 13, 2021. 4s/ LeAnn W_ Diamond LeAnn W. Diamond MOTION TO TAKE JUDICIAL NOTICE OF 4 TAC §7.175 AND FIGURE 22 TAC PART 25 — Page 2eLaws | eCases | Texas Statutes | Texas Courts | Counties & Cities of Texas | Code of Federal Regulations | Th elaws.us Sign In Sign Up Texas Administrative Code (Last Updated: May 19,2021) s TITLE 4. AGRICULTURE a PART 1. TEXAS DEPARTMENT OF AGRICULTURE a CHAPTER 7. PESTICIDES o» SUBCHAPTER H. STRUCTURAL PEST CONTROL SERVICE 2 DIVISION 5. TREATMENT STANDARDS SECTION 7.175. Official Wood Destroying Insect Report Inspection Procedures Latest version. (a) Inspections for the purpose of issuing a WDIR must be conducted in a manner consistent with the procedures described in this section by a licensed certified applicator or technician in the termite category. The printed name and registration number or license number of any employees receiving training that are present for the inspection must be listed on the report. The purpose of the inspection is to provide a WDIR regarding the absence or presence of wood destroying insects and conditions conducive to wood destroying insect infestation. The inspection should provide the basis for recommendations for preventive or remedial actions, if necessary, to minimize economic losses. Only for purposes of a Real Estate Transaction Inspection Report, as described in §7.176 of this title, relating to Real Estate Transaction Inspection Reports, there must be visible evidence of active infestation in the structure or visible evidence of a previous infestation in the structure with no evidence of prior treatment to recommend a corrective treatment. The inspection must be conducted so as to ensure examination of all visible accessible areas in or on a structure in accordance with accepted procedures. While such an examination may reveal wood destroying insects, there are instances when concealed infestations and/or damage may not be discovered. Examinations of inaccessible or obstructed areas are not required. (b) Inaccessible or obstructed areas recognized by the Department include, but are not limited to: (1) inaccessible attics or portion thereof; (2) the interior of hollow walls, spaces between a floor or porch deck and the ceiling or soffit below; (3) such structural segments as porte cocheres, enclosed bay windows, buttresses, and similar areas to which there is no access without defacing or tearing out lumber, masonry, or finished work;(4) areas behind or beneath stoves, refrigerators, furniture, built-in cabinets, insulation, floor coverings; and (5) areas where storage conditions or locks make inspection impracticable. (c) The inspector must describe the structure(s) inspected and include the following: (1) the address or location; (2) a diagram showing: (A) approximate numerical perimeter measurements of the structure as accurately as practical (does not have to be to scale); (B) construction details needed for clarity of the report; (C) areas of current wood destroying insect activity; (D) areas of previous wood destroying insect activity; and (E) areas of conditions conducive to infestation by wood destroying insects; (3) inaccessible or obstructed areas, including, but not limited to the areas listed in subsection (b) of this section. (d) The inspection must include, but is not limited to, the following areas if accessible and unobstructed: (1) plumbing, which includes: (A) bathroom; (B) kitchen; (C) laundry; or (D) other specified area, i.e., hot tub, etc.; (2) window and door frames and sills; (3) baseboards, flooring, walls, and ceilings; (4) entrance steps and porches; (5) exterior of slab or foundation wall; (6) crawl spaces, which include: (A) support piers (include stiff legs); (B) floor joist;(C) sub floors; (D) sill plates; and (E) foundation wall. (7) fireplace; and (8) weep holes. (e) Visible evidence of the following conditions must be reported: (1) wood destroying insects or signs of current active infestation; (2) termite tubes or frass; (3) exit holes or frass from other wood destroying insects; (4) evidence of previous treatment or infestation; (5) conditions conducive to wood destroying insect infestation, including but not limited to: (A) a structure with wood to ground contact; (B) formboards left in place; (C) excessive moisture; (D) wood debris under or around structure; (E) footing too low or soil line too high; (F) insufficient clearance in crawl space; (G) expansion joints or cracks in slab; (H) decks; or (6) infestation of other wood destroying insects. Source Note: The provisions of this §7.175 adopted to be effective January 9, 2018, 43 TexReg 42 Disclaimer | Terms of Use | Privacy Policy | ContactUs | Feedback Copyright © 2021 by eLaws. All rights reserved.