   OFFICE   0~   TXE    ATTORNEY     GENERAL   . STATE    OF   TEXAS

   JOHN      CORNYN




                                                         September 26,200l



The Honorable Rene 0. Oliveira                                         Opinion No: JC-0416
Chair, House Committee on Ways and Means
Texas House of Representatives                                         Re: Whether the Texas Department of Public
P-0. Box 2910                                                          Safety has authority to establish and administer a
Austin, Texas 78768-2910                                               training and safety program for off-road dirt bikes
                                                                       (RQ-0364-JC)


Dear Representative           Oliveira:

         You have requested our opinion as to whether the Texas Department of Public Safety (the
“DPS”) may regulate courses of instruction in the operation of off-road dirt bikes. For the reasons
set forth below, we conclude that the DPS may not do so.

        Chapter 662 of the Transportation Code provides for a motorcycle operator training and
safety program. Section 662.001 requires the Governor to designate a state agency to establish and
administer a motorcycle operator training and safety program. See TEX. TRANSP. CODE ANN. 8
662.001 (Vernon 1999). The Governor has designated the DPS as that state agency.’ The purpose
of the program is:

                       (1) to make available to motorcycle                operators:

                                   (A) information             relating   to   the     operation   of
                                   motorcycles; and

                                   (B) courses in knowledge, skills, and safety relating
                                   to the operation of motorcycles; and

                       (2) to provide relevant information to the public on sharing roadways
                       with motorcycles.

Id. 8 662.002(a).   “The program shall include curricula developed by the Motorcycle Safety
Foundation.” Id. 5 662.002(b). The DPS is authorized to “license or contract with qualified persons



         ‘Letter from Honorable Mark White, Governor of Texas, to Colonel James B. Adams, Texas Department of
Public Safety (Sept. 1, 1983) (on file with Opinion Committee).
The Honorable     Rene 0. Oliveira      - Page 2        (JC-0416)




to administer or operate the motorcycle operator training and safety program.” Id. 8 662.005.
Section 662.004 requires that the program “include instructor certification requirements developed
by the Motorcycle Safety Foundation.”       Id. $ 662.004. “A person may not offer training in
motorcycle operation for a consideration unless the person is licensed by or contracts with the
designated state agency,” i.e., the DPS. Id. 4 662.006.

          The Motorcycle Safety Foundation (the “Foundation”) plans to offer a new training program,
“The DirtBike School,” to “provide hands-on rider training with an emphasis on safety and skills
development for riding in the off-highway environment.“2 Children as young as six-years old may
attend the school. Citing section 662.006 of the Transportation Code, the DPS has advised the
Foundation “to discontinue offering the [dirt bike] program because the instructor coaches are not
under contract or licensed by the DPS.” See MSF Brief, note 2, at 2. Thus, the DPS clearly believes
that it is authorized by chapter 662 of the Transportation Code to regulate courses of instruction in
the operation of off-road dirt bikes because it regards a dirt bike as a “motorcycle” for purposes of
that chapter. Contemporaneous     construction of a statute by an administrative agency charged with
its enforcement is entitled to weight, but such construction must be reasonable. See TEX. GOV’T
CODE ANN. 8 3 11.023 (Vernon 1998); Denton County Elec. Co-op, Inc. v. Pub. Util. Comm iz, 818
S. W.2d 490,493 (Tex. App.-Texarkana 199 1, writ denied). The question before us, then, is whether
the DPS construction of the term “motorcycle” is consistent with state law. We conclude that it is
not.

         “Dirt bike” is neither defined nor recognized in Texas statutory law. In the American
Heritage Dictionary,      it is described as “a lightweight motorcycle designed for use on rough
surfaces, such as dirt roads or tracks.” AMERICANHERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
5 13 (4th ed. 2000). The Random House Dictionary defines “dirt bike” as a “trail bike,” which in
turn is described as “a small motorcycle designed and built with special tires and suspension for
riding on unpaved roads and over rough terrain.” RANDOM HOUSE DICTIONARY OF THE ENGLISH
LANGUAGE 560,2007 (2d ed. 1987). A 1976 decision from the United States Customs Court states
the following:

                 It is pertinent to note that the motocross or “dirt” motorcycle differs
                 from the motorcycle suitable for lawful or safe “street” use in the
                 following essential respects:

                          (a) it has a narrower frame;

                          (b) it has a greater ground clearance;




        *Brief from Kathy R. Van Kleeck, Vice President, Government Relations, Motorcycle Safety Foundation, to
Ms. Susan D. Gusky, Chair, Opinion Committee, Office of Attorney General, at 1 (Apr. 26,200l) (on file with Opinion
Committee) [hereinafter MSF BriefJ.
The Honorable Rene 0. Oliveira     - Page 3       (JC-0416)




                       (c) it has “knobby” tires which cannot be used on
                       paved roads;

                       (d) it lacks the       necessary    electrical   lighting
                       equipment; and

                       (e) it is lighter than the “street” motorcycle in that it
                       weighs only 220 pounds instead of 400 to 500
                       pounds.

Porter v. United States, 76 Cust. Ct. 97, 101 (1976). Another case describes a “dirt bike” in this
manner:

               [T]he dirt bike has been designed for recreational use and not for use
               on public highways. It has no headlights, no taillight, no horn, no
               turn signals, no mirror, and no speedometer. Because it lacks these
               features, the dirt bike cannot be licensed under the Vehicle Code.

Pistorius v. Travelers Ins. Co., 502 A.2d 670,672 (Pa. Super. 1985). It may be the case that more
recent dirt bikes possess some of the listed features, such as lights, a horn, or a speedometer.  For
purposes of this opinion, however, as will become clear below, the key feature of a dirt bike is that
it is not designed for use on public highways.

         The term “motorcycle” is not defined in chapter 662 of the Transportation Code. When a
statute fails to define a term, however, a court may look to other statutes that deal with the same
subject matter. See Ex parte Harrell, 542 S.W.2d 169 (Tex. Crim. App. 1976); Duval Corp. v.
Sadler, 407 S.W.2d 493 (Tex. 1966). See also TEX.GOV'TCODEANN. 6 311.01 l(b) (Vernon 1998)
(“Words and phrases that have acquired a technical or particular meaning, whether by legislative
definition or otherwise, shall be construed accordingly.“).     Accordingly, in order to determine
whether a dirt bike fits within the definition of “motorcycle” for purposes of Texas law, we turn to
other statutes for guidance.

         Chapter 661 of the Transportation  Code requires protective         headgear   for motorcycle
operators and passengers. “Motorcycle” is defined therein as:

               a motor vehicle designed to propel itself with not more than three
               wheels in contact with the ground, and having a saddle for the use of
               the rider. The term does not include a tractor or a three-wheeled
               vehicle equipped with a cab, seat, and seat belt and designed to
               contain the operator in the cab.
The Honorable Rene 0. Oliveira      - Page 4       (JC-0416)




TEX. TFUNSP.CODE ANN. 8 661 .OOl( 1) (Vernon 1999). Hence, if a dirt bike is a “motor vehicle,”
which term is not defined in chapter 661, this definition suggests that it is in fact a “motorcycle” for
purposes of Texas law. Other statutes, however, point to a different conclusion.

         Chapter 501 of the Transportation Code, the Certificate of Title Act, requires that every
motor vehicle have a certificate of title in order to be operated on a public highway. See id. 9
501.022(a). “Motor vehicle” includes, inter alia, “a motorcycle, motor-driven cycle, or moped that
is not required to be registered under the laws of this state, other than a motorcycle, motor-driven
cycle, or moped designed for and used exclusively on a golf course.” Id. 8 501.002(14)(E) (Vernon
Supp. 2001). Thus, the owner of a dirt bike is required to have a certificate of title in order to
operate a dirt bike on a public highway. But dirt bikes, by their very nature, are not designed for
operation on public highways.

        Chapter 502 of the Transportation Code requires the owner of a motor vehicle to apply
annually to register the vehicle. See id. 9 502.002 (Vernon 1999). “Motorcycle” is defined there as
“a motor vehicle designed to propel itself with not more than three wheels in contact with the
ground. The term does not include a tractor.” Id. 4 502.001(12). “Motor vehicle,” in turn, means
“a vehicle that is self-propelled.”  Id. 5 502.001(13). “Vehicle” is defined as “a device in or by
which a person or property is or may be transported or drawn on a public highway, other than a
device used exclusively on stationary rails or tracks.” Id. 9 502.001(24). Hence, because a dirt bike
is not designed for use on a public highway, it is not a “vehicle,” and thus, not a “motor vehicle,”
and consequently, not a “motorcycle” for purposes of the vehicle registration law.

        Chapter 601 of the Transportation Code, the Motor Vehicle Safety Responsibility Act,
requires that a person, in order to “operate a motor vehicle in this state,” demonstrate financial
responsibility. Id. 9 601.05 1. “Motor vehicle” is defined in this chapter as “a self-propelled vehicle
designedfor use on a highway, a trailer or semitrailer designed for use with a self-propelled vehicle,
or a vehicle propelled by electric power from overhead wires and not operated on rails.” Id. 0
601.002(5) (emphasis added). As a result, a dirt bike is not a “motor vehicle” for purposes of the
Motor Vehicle Safety Responsibility Act.

         Subtitle C of title 7 of the Transportation Code, denominated “Rules of the Road,” defines
“motorcycle” as “a motor vehicle, other than a tractor, that is equipped with a rider’s saddle and
designed to have when propelled not more than three wheels on the ground.” Id. 0 541.201(9)
(Vernon Supp. 2001). A “motor vehicle” is “a self-propelled vehicle or a vehicle that is propelled
by electric power from overhead trolley wires.” Id. 9 541.201(11). Subtitle C is by definition not
applicable to dirt bikes, however, by virtue of section 542.001, which states: “A provision of this
subtitle relating to the operation of a vehicle applies only to the operation of a vehicle on a highway
unless the provision specifically applies to a different place.” Id. 0 542.001 (Vernon 1999).
Consequently, the definitions of “motorcycle” and “motor vehicle” in subtitle C of title 7 can have
no application to dirt bikes.
The Honorable Rene 0. Oliveira     - Page 5       (JC-0416)




         Chapter 152 of the Tax Code, which relates to taxes on the sale, rental, or use of motor
vehicles, defines the latter as “a self-propelled vehicle designed to transport persons or property on
a public highway.” TEX. TAX CODE ANN. 5’152.001(3)(A) (V emon Supp. 2001). And chapter 153,
which deals with motor fuel taxes, similarly defines “motor vehicle” as “a self-propelled vehicle
licensed for highway use or used on the highway.” Id. 8 153.001(20).

         From a review of these statutes, it becomes clear that most provisions of Texas law define
the term “motorcycle” in terms of “motor vehicle,” which in turn is defined in terms of highway use.
Although it is not inconceivable that an individual might attempt to operate a dirt bike on a public
highway, such vehicle is not designed or intended for use in that manner. In determining that a
forklift was not a “motor vehicle” for purposes of registration, a Texas court said:

                The definition of “vehicle” in Articles 6675a and 6701d must
                logically be said to implicitly contain the concept that the device was
                designed to transport people or property upon the public highway. If
                a vehicle is simply every device which conceivably “may be” used to
                transport persons or property, in the sense of “might” be used, then
                a vast array of self-propelled devices having no relation to the public
                highways would be included in these statutes governing the public
                roads and highways.

Brookshire v. Houston Indep. Sch. Dist., 508 S.W.2d 675,678 (Tex. Civ. App.-Houston [ 14th Dist.]
1974, no writ) (emphasis in original.) In our opinion, the term “motorcycle” as used in chapter 662
of the Transportation Code is inseparable from the common statutory qualification on the concept
of “motorcycle” in Texas law: that it is a motor vehicle designed for use on the public highways.
We caution, however, that if a vehicle is in fact “designed for use on a public highway,” it does not
fall within the conceptual framework of “dirt bike” as described herein.

         A state agency may exercise only those powers specifically conferred by statute, or those
which may necessarily be inferred therefrom. See dth& Neches, L.L. C. v. Aldridge, 992 S.W.2d 684,
687 (Tex. App.-Austin 1999, pet. denied); Sexton v. Mount Olivet CemeteryAss ‘n, 720 S.W.2d 129,
137 (Tex. App.-Austin 1986, writ ref d n.r.e.); see also Tex. Att’y Gen. Op. No. JC-0189 (2000) at
4 (citing above cases). Chapter 662 of the Transportation Code grants to the DPS authority to
establish and administer “a motorcycle operator training and safety program.” Because a “dirt bike”
is not a “motorcycle” for purposes of chapter 662, we conclude that the DPS may not regulate
courses of instruction in the operation of off-road dirt bikes.
The Honorable   Rene 0. Oliveira    - Page 6     (JC-0416)




                                        SUMMARY

                             The Texas Department of Public Safety is not authorized
                to establish and administer operator training and safety programs for
                off-road dirt bikes.




                                               Attorney General of Texas



 HOWARD G. BALDWIN, JR.
 First Assistant Attorney General

 NANCY FULLER
 Deputy Attorney General - General Counsel

 SUSAN D. GUSKY
 Chair, Opinion Committee

 Rick Gilpin
 Assistant Attorney General, Opinion Committee
