    OFFlCE OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

    JOHN    CORNYN




                                                   July 10,200O



The Honorable Jeff Wentworth                             Opinion No. JC-025 1
Chair, Nominations Committee
Texas State Senate                                       Re: Whether section 681.009, Transportation
P.O. Box 12068                                           Code, which relates to designation by a
Austin, Texas 78711                                      municipality of parking spaces for the disabled,
                                                         conflicts with the federal Americans with
                                                         Disabilities Act (RQ-0191-JC)

Dear Senator Wentworth:

        You ask whether the requirements of subsection 68 1.009(e) of the Transportation Code for
parking spaces for disabled persons would conflict with guidelines issued under the federal
Americans with Disabilities Act (“ADA”) and the accessibility guidelines issued by the Texas
Department of Licensing and Regulation (“TDLR”) by requiring two parking spaces where the
federal ADA and state TDLR guidelines require only one. We conclude that subsection 68 1.009(e)
of the Transportation Code does not require two disabled parking spaces where the federal ADA and
state TDLR guidelines require only one and, accordingly, there is no conflict between the
Transportation Code and the federal and state guidelines.

        UndertheAmericanswithDisabilitiesAct,seegenerully42U.S.C.§§             12101-12213(1994),
the United States Department of Justice has promulgated minimum standards designed to improve
access for the disabled for new or altered public parking lots. See generally 28 C.F.R. pt. 36, app.
A $3 4.1-4.35 (1999); see&o Tex. Att’y Gen. Op. No. JC-0077 (1999) (discussing federal and state
regulations in relation to van-accessible parking spaces). The Texas Department of Licensing and
Regulation has adopted substantially identical requirements in accordance with the Texas
Architectural Barriers Act. See TEX. REV. CIV. STAT.ANN art. 9102 (Vernon Supp. 2000); see also
16 TEX. ADMIN. CODE 5 68.100 (1999) (TDLR rule adopting Texas Accessibility Standards). The
federal and state guidelines relevant to your question establish the minimum number of accessible
spaces required in parking lots. If the parking lot has a total of one to twenty-five spaces, at least
one space must be accessible to disabled persons. See 28 C.F.R. pt. 36, app. A 5 4.1.2(5)(a) (1999);
see also Tex. Dep’t of Licensing & Regulation, Texas Accessibility Standards, 3 4.1.2(5)(a) (last
modified Mar. 31, 1999) <http://www.license.state.tx.us/AB/tas/abtas4.htm#4>.           The required
number of accessible spaces increases as the total number of spaces in the parking lot increases.

       You ask whether Transportation Code subsection 68 1.009(e) requires two accessible parking
spaces where the federal and state guidelines require only one. Chapter 681 of the Transportation
Code provides that a vehicle operated by or to transport a disabled person may be parked in a space
The Honorable Jeff Wentworth - Page 2            (X-0251)




designated for disabled persons if it has special license plates for disabled persons issued under
section 502.253 of the Transportation Code or displays a disabled parking placard. See TEX.
TRANSP. CODE ANN. 5 681.006 (Vernon Supp. 2000). It is possible for a vehicle to display both
special license plates and a placard, because a person who receives special license plates may also
receive a disabled parking placard. See id. $ 502.253. Subsection 681.009(e), with other
amendments to Transportation Code chapter 68 1 adopted by House Bill 1032 ofthe 76th legislative
session, provides for two different types of disabled parking placards that distinguish between
permanent mobility disabilities and other types of permanent and temporary disabilities. See Act
of May 27, 1999,76th Leg., R.S., ch. 1362, $ 5, 1999 Tex. Gen. Laws 4602,4603. The placard
issued to a person with a mobility problem that substantially impairs his or her ability to ambulate
is white on a blue shield, while the placard issued to a person with any other permanent or temporary
disability is white on a red shield. See TEX. TRANSP. CODE ANN.5 68 1.002(b) (Vernon Supp. 2000).
Section 68 1.009(e) of the Transportation Code requires a certain proportion of parking spaces
designated for disabled persons to be designated for the exclusive use of vehicles displaying a white
on blue shield disabled parking placard. It provides in part:

                       A private property owner or private person who controls
               property used for parking and who designates one or more uncovered
               parking spaces for the exclusive use of vehicles transporting persons
               with disabilities shall assign at least half of those spaces for the
               exclusive use of vehicles displaying a white on blue shield disabled
               parking placard, except that if an odd number of spaces is designated,
               only the number of spaces that is the largest whole number less than
               half of the number of designated spaces must be assigned for the
               exclusive use of vehicles displaying a white on blue shield placard.

Id..5 681.009(e).

        The spaces assigned to the blue-and-white placard must be the spaces that are closest to an
accessible route into the building. See id. The remaining designated parking spaces may be used
by vehicles displaying either kind of placard or disabled license plates. Finally, section 681.009(e)
applies only to a property used for parking that serves a building or other facility:

                         (1) that state law requires to be accessible to person with
                disabilities; and

                        (2) for which construction or an alteration of the building or
                other facility is completed on or after September 1, 1999.

Id.

        As a general matter, section 681.009(e) of the Transportation Code provides for two
categories of parking spaces for vehicles used by disabled persons. At least half of these are for the
The Honorable Jeff Wentworth - Page 3            (X-025 1)




exclusive use of vehicles displaying the blue-and-white placards issued to persons with permanent
mobility disabilities, and the remaining spaces may be used for vehicles displaying the blue-and.
white placard, the red-and-white placard issued to persons with any other permanent or temporary
disability, or for vehicles displaying disabled plates issued under section 502.253 of the
Transportation Code. It is suggested that a parking area subject to section 68 1.009(e) must include
at least two disabled parking places to comply with the requirement that at least half of the disabled
parking spaces be reserved for vehicles displaying the blue-and-white placard. Ifthis reading ofthe
statute is correct, it conflicts with the federal and state guidelines that require only one disabled
parking space in lots of one to twenty-five total parking spaces. It would require us to determine
whether section 681.009(e) of the Transportation Code limits the authority of the TDLR to adopt
accessibility standards under article 9102 of the Revised Civil Statutes,

         We do not, however, agree with the suggested construction of section 681.009(e). This
provision includes no language addressing the authority ofthe TDLR to adopt accessibility standards
or attempting to modify that authority. Moreover, section 68 1.009(e) does not itselfstate how many
disabled parking spaces must be included in parking areas subject to its provisions. This section
expressly applies when the property owner “designates one or more uncovered parking spaces for
the exclusive use of vehicles transporting persons with disabilities.” See TEX. TRANSP. CODE ANN.
$681.009(e) (Vernon Supp. 2000). Thus, the legislature assumed that someparkinglots would have
only one parking space designated for the exclusive use of vehicles transporting persons with
disabilities. The formula set out in section 681.009(e) for allocating an odd number of disabled
spaces establishes that under appropriate circumstances it requires only one such space in a parking
lot. The formula is as follows:

               [I]f an odd number of spaces is designated, only the number of spaces
               that is the largest whole number less than half of the number of
               designated spaces must be assigned for the exclusive use of vehicles
               displaying a white on blue shield placard.

Zd.

        One parking space is an odd number of spaces. Where an odd number of spaces is
designated, “only the number of spaces that is the largest whole number less than half of the number
of designated spaces must be assigned for the exclusive use of vehicles displaying a white on blue
shield placard.” See id. Where only one parking space in a lot is designated for vehicles
transporting disabled persons, no space need be assigned for the exclusive use of vehicles displaying
a white on blue shield placard. The single parking space required by federal and state guidelines will
be accessible to vehicles displaying either a blue-and-white or a red-and-white placard or disabled
license plates. Section 68 1.009(e) of the Transportation Code does not conflict with the federal and
state guidelines where the guidelines require only one parking space.
The Honorable Jeff Wentworth - Page 4          (JC-0251)




                                      SUMMARY

                      As a general matter, section 68 1.009(e) of the Transportation
              Code provides for two categories of parking spaces for vehicles used
              by disabled persons. At least half of these spaces are for the
              exclusive use of vehicles displaying the blue-and-white placards
              issued to persons with permanent mobility disabilities, and the
              remaining spaces may be used for vehicles displaying the blue-and-
              white placard, the red-and-white placard issued to persons with any
              other permanent or temporary disability, or for vehicles displaying
              disabled plates issued under section 502.253 of the Transportation
              Code. Where only one parking space in a lot is designated for
              vehicles transporting disabled persons, no space need be assigned for
              the exclusive use of vehicles displaying a white on blue shield
              placard. Section 681.009(e) of the Transportation Code does not
              conflict with the federal and state guidelines where the guidelines
              require a parking lot to have only one parking space for the exclusive
              use of vehicles transporting disabled persons.




                                             Attorney General of Texas


ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee
