             THE    ATTORNEY    GENERAL
                       OF TEXAS


                       December 21, 1990



Dr. W. N. Kirby                opinion No.    JM-1272
Commissioner of Education
Texas Education Agency         Re: Meaning of "commercial
1701 North Congress Ave.       driver-training schoolu and
Austin, Texas 78701-1494       ndriver-training instructor@*
                               under    article  4413(29c),
                               V.T.C.S. (RQ-2148)
Dear Dr. Kirby:
          You have requested our opinion as to whether the
American Association of Retired Persons [hereafter AARP] may
offer driver safety courses without complying ~.     with the
requirements      of article 4413(29c), V.T.C.S. Section 2 of
that statute provides:
          No person, firm, association, partnership
           corporation shall operate       commercial
       ZEiver-training school unless a cktificate of
       approval for the commercial driver-training
       school has been secured under the        Texas
       Proprietary School Act (Chapter 32, Education
       Code), provided that training or       classes
       conducted by colleges, universities,      high
       schools, and junior high schools for students
       as part of the normal program for such insti-
       tutions shall be exempt.
Yomnercial driver-training schooln     or "school" is   defined
in section l(a) as
      any enterprise conducted by an individual,
      association, partnership, or corporation, for
      the education and training of persons, either
      practically or theoretically, or both, to
      operate or drive motor vehicles and
      consideration or tuition for such services.
      (Emphasis added).
     Before September 1, 1989, the Department of Public
Safety regulated the licensing'of commercial driver-training
schools and instructors. Since that date, the Texas Educa-
tion Agency has been the regulating agency, and section 16



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Mr. W. N. Kirby - Page 2   (JM-1272)




provides that any reference in the statute "to the   Depart-
ment is a reference to the agency."1
     You indicate that the AARP offers a driver safety
course to its members and to other persons over the age of
50, at a charge of $8.00, for the purpose of ticket dismiss-
al and insurance discounts.   When the Department of Public
Safety was the regulating agency, it did not require the
AAPP or its instructors to obtain a license. The department
did so despite a 1970 attorney general opinion addressed to
the department stating that driver-training programs con-
ducted by non-profit organizations were subject to the
licensing requirement even if the organization charged only
a nominal fee. Attorney General Opinion M-682 (1970).
     The AARP contends that it should retain its exempt
status because 1) it is a non-profit organization: 2) it
charges no "tuition" but only a nominal fee to cover course
costs: and 3) its instructors teach on a non-salaried
volunteer basis, are reimbursed only for the expenses of
mileage, photocopying and telephone calls, and receive a
meal allowance of $5.00 for each of the two days of instruc-
tion.
     Those arguments were rejected in Attorney General
Opinion M-682, and we affirm the conclusions of that opin-
ion. The definition of llcommercialdriver-training school,"
S~BIB, is applicable to any entity that charges wa consid-
eration or tuition" for its services. Section 312.002(a) of
the Government Code declares that words in a statute "shall


     1.   In order to effect the transfer of regulatory
authority, section 4.30 of the 1989 amendatory act provides:
          The provider of a driver safety course
       approved by the Department of Public Safety
       may not continue the course after October 1,
       1989, unless the provider files on or before
       that date an application for a certificate of
       approval under Chapter 32, Education Code. If
       the provider files an application on or before
       that date, the provider may continue the
       course during the period that the application
       is pending.
Acts 1989, 71st Lag.,'ch. 813, S 4.30, at 3709.




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Mr. W. N. Kirby - Page 3   (JM-1272)




be given their ordinary meaning."     Whether AARP makes a
profit on its $8.00 fee is irrelevant for purposes of
whether that charge is deemed %onsideration or tuition."
The fact remains that the AARP imposes the charge, and the
statute contains no exemption for entities that do not make
a profit on the instructional enterprise.
      Nor does the construction formerly placed on article
4413(29c) by the Department of Public Safety act to exempt
the AARP from its scope. Although a departmental interpre-
tation of a statute may be useful when the statute is
ambiguous, the interpretation will not be followed when it
is contrary to the plain words of the statute.
#,                              ,   415 S.W.td 394, 397 E
1967); ;            I                  , 527 S.W.2.d175  (Tex.
1975); see also wssioner       of as. v. Allstate Ins. Co,
579 S.W.2d 553, 557 (Tax. Civ. App. - Austin 1979, wrii
ref td n.r.e). A clearly erroneous statutory construction by
an administrative agency carries no weight.           s & New
              oad Co. v. -          284 S.W.ld 402 (Tex. Civ.
APP. - Austin 1955, writ ref’d   n1r.e.). This is particular-
ly true when the agency interpretation was contrary to an
attorney general opinion issued to that agency. We conclude
that the AARP is not exempt from the definition of "commer-
cial driver-training school' in section l(a) and thus must
comply with the requirements of section 2 in order to
operate such a school.
     You also ask whether an AARP instructor, under       the
circumstances described, is subject to the licensing      re-
quirement set out in section 5 of article 4413(29c):
           No   person    shall   teach          give
        driver-training for hire or forortuition
        either as an individual or in a commerciai
        driver-training school, or any phase       of
        driver-training or education after January 1,
        1968, unless a license as a driver-training
        instructor or supervisory     driver-training
        instructor has been secured from the Depart-
        ment, provided that instructors in classes
        conducted by colleges, universities, high
        schools, and junior high schools for regular-
        ly enrolled students as a part of the normal
        program for such     institutions shall    be
        exempt.
We understand you to   ask about a situation in     which an
individual pays to     receive driver  training     but  the



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Mr. W. N. Kirby - Page 4 (JM-1272)




individual who provides the instruction receives no compen-
sation.2 Your question is whether the instructor in that
situation teaches "for hire or for tuition."
     In that context, the language "for hire or for tuition"
is susceptible to two interpretations. One is that an
individual who receives no compensation is not teaching for
hire or for tuition. The other interpretation is that as
long as the person receiving instruction has paid for that
instruction, the teacher is teaching for hire or tuition.
The latter interpretation, we think, better serves the
purpose of article 4413(29c).
     We think the legislature intended article 4413(29c) to
protect consumers. The act contemplates that a consumer who
pays for driver training will receive a certain standard of
training. Allowing schools that must be licensed to use
unlicensed instructors contravenes that purpose. We con-.
elude, therefore, that an instructor who teaches driver        _
training to a person who has paid to receive driver training
teaches "for hire or for tuition" and is subject to licens-
ing under section 5 of article 4413(29c).

                       SUMMARY
         A private, non-profit organization that
      charges an $8.00 fee for driver safety in-
      struction, and an instructor therefor, fall
      within    the     ambit     of   "commercial
      driver-training school" and "driver-training
      instructorlqand thus must comply with the
      requirement of article 4413(29c), V.T.C.S.,
      which regulates such operations.




                                 JIW     MATTOX
                                 Attorney General of Texas




     2. On the facts you present, the AARP instructors   are
not uncompensated since they receive a meal allowance.




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Mr.   W. N. Kirby - Page   5   (JM-1272)




MARYKE(ELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin and Sarah Woelk
Assistant Attorneys General




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