REfLACE
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                              @ffice of tlJe Bttornep @eneral
                                             i%tate    of IICexae:
DAN MORALES
 ATTORNEY
       GENERAL
                                               February 23, 1996

      Mr. Mike Moses                                       Opinion No. DM-378
      Commissioner of Education
      Texas Education Agency                               Re: Construction of the term “school
      1701 North Congress Avenue                           bus” for purposes of Senate Bill 1, Act of
      Austin, Texas 78701-1494                             May 27,, 1995, 74th Leg., R.S., ch. 260,
                                                           1995 Tex. Sess. Law Serv. 2207 and
                                                           related questions (RQ-846)

      Dear Commissioner Moses:

               You have asked this office to’examine certain questions concerning standards for
      transporting school children in the light of Senate Bill 1, and in particular in light of
      section 34.003 of the Education Code enacted therein.’ See Act of May 27, 1995, 74th
      Leg., RS., ch. 260, $ 1, 1995 Tex. Sess. Law Serv. 2207, 2351. You are especially
      interested in whether, for the purposes of section 34.003, a motor vehicle being used to
      transport fewer than ten students may be considered a “passenger car” even if such a
      vehicle has a seating capacity greater than that of a “passenger ca? as defined by section
      541.201 of the Transportation Code. You further wish to know whether a vehicle owned
      by a private person, such as a teacher or parent, is subject to the same safety requirements
      and driver qualification requirements as a school bus when such a vehicle is being used to
      transport fewer than ten students to and from school or school activities.

             The general definition of a school bus is now provided by section 541.201(15) of
      the Transportation @de, which provides:

                  “School.~bus” means a motor vehicle, other than a bus used in an
                  urban area by a common carrier to transport schoolchildren, that:

                            (A) is being used to transport children to or from a school
                       or school-related activity; and

                           (B) complies with the color and identification requirements
                       provided in the most recent edition of standards produced and
                       sponsored by the National Education Association’s National
                       Commission on Safety Education.


              ‘On August 31, 1995, you withdrew your        predecessor’sprior opinion request on related
      questions,which was styled by this office RQ-78 1.
Mr. Mike Moses - Page 2                 (DM-378)




        Section 34.003 of the Education Code, enacted as part of Senate Bill 1, provides
that “school buses” will be used to transport students on bus routes with ten or more
students, while “passenger cars” may be used on routes with fewer than ten students.
Educ. Code 5 34.003(a). It further provides that, with respect to transporting students in
connection with extracurricular activities, ten or more students may only be transported in
school buses, buses chartered from motor bus companies, or district-owned buses which
meet the safety standards for vehicles owned by motor bus companies, while fewer than
ten students may be transported in passenger cars. Id. When students are transported in
passenger cars, the section provides that the operator must ensure that the number of
passengers does not exceed the vehicle’s design capacity and that ah passengers are
wearing safety belts. Id. 5 34.003(c).

        Section 34.003 was offered as a tloor amendment to Senate Bill 1 on
March 27, 1995, by Senator Bivins, who said in introducing it, “This amendment makes it
clear that school districts can charter buses and that they also may use passenger vehicles
to transport ten or fewer students on regular school bus routes, if those
passenger.     [vehicles] are equipped with seat belts and are capable of carrying the
proper number of people-number of children in that vehicle.” Debate on S.B. I on the
Floor of the Senate, 74th Leg., R.S. (Mar. 27, 1995) (transcript available from Senate
Staff Services).

         As you know, this office has previously held that the.portion of the statutory
definition of “school busy’in the predecessor to section 541.201(15) of the Transportation
Code was unconstitutional to the extent it referred to standards set by the National
Education Association.2 That decision was based on our interpretation of Dudding v.
Automatic Gus Co., 193 S.W.2d 517 (Tex. 1946). This office has consistently read
Dudding to stand for the proposition that a statute that prospectively adopts the mture
rules of an unofficial agency thereby delegates legislative authority in a manner that
violates article IIJ,+ction    1 of the Texas Constitution. Most recently, in Attorney
General Opinion DM-159, this office concluded that a provision of the Health and Safety
Code that required-~outdoor shooting ranges to adhere to standards “at least as stringent as
the standards printed in the National Rifle Association range manual” without reference to
a particular edition of the manual violated article III, section 1. Attorney General Opinion
DM-159 (1992) at 1. The definition here is not legally distinguishable from the standard
at issue in Attorney General Opinion DM-159, and therefore also improperly delegates
legislative authority. Id.

       This decision would excise from the statutory definition what is now section
541.201(15)(B), leaving as the definition section 541,201(15)(A). As a general matter,
we remain persuaded that that is a proper interpretation, and that for ah purposes save the

        2Former Attorney   GeneralOpinionDM-362 (1995) was withdrawnSeptember8, 1995.



                                           p.   2056
Mr. Mike Moses - Page 3                    (DM-378)




concerns of section 34.003 of the Education Code, the definition of “school bus” is that
contained in section 541,201(15)(A) of the Transportation Code. However, owe are
persuaded by the remarks of its sponsor in introducing section 34.003 of the Education
Code that the intent of that legislation was to exempt passenger cars from the safety
standards and driver qualifications goveming school buses to the limited extent that such
vehicles were being used to transport fewer than ten students to or from school or
extracurricular activities, and to permit the use of buses (whether chartered from motor
bus companies or owned by school districts) which meet the standards for motor buses set
down in sections 5.201 through 5.249 of title 16 of the Texas Administrative Code to
transport children to and from extracurricular activities3 We further conclude that
passenger cars owned by private persons such as parents or teachers are not subject to
school bus safety standards, nor do we believe that such persons are “school bus drivers”
subject to 1icensure.4

         You tinther ask “whether a motor vehicle with a seating capacity greater than that
of a passenger car as defined by Section 541.201, Transportation Code, may be used
under Section 34.003, Education Code, to transport less than ten students.” We think the
question as framed may suggest some confusion as to the state of the law. Section
541.201(15)(A), which defines “school bus,” says that a vehicle “being used to transport
children to or from a school or school-related activity” is a school bus. Tramp. Code
§ 541.201. That is to say, any such vehicle must comply with the requirements of sections
547.607 and 547.701(a) of the Transportation Code, which respectively require school
buses to be equipped with a fire extinguisher and a convex mirror and signal lamps, unless
it is exempted Tom such requirements by section 34.003 of the Education Code. Further,
any person driving such a vehicle, unless the vehicle is exempt, must have a school bus

         ‘The standards for motor buses were originally promulgated by the Transportation Division of
the Texas Railroad Commission pursuant to article 911a, V.T.C.S. Article 911a was repealed by Act of
May 24, 1995, 74th Leg., P.S., ch. 705, $ 31(a)(3), 1995 Tex. Sess. Law Serv. 3719, 3740. However,
chapter 705, section.32@) provides that “[a] role adopted by the Railroad Commission of Texas under a
law re&xaled by S&i&31 of this Act before the effective date of this Ad that is not inconsistent with this
Ad remains in effect as a role of the Texas Department of Transportation or the Department of public
Safety until supersede%!by a rule adopted by the appropriate department” Id. $32(b), at 3740. Section 3
of chapter 705 adds ‘utile 66756 V.T.C.S., which provides that the public safety director has role-
makingauthorityover “the safe operationof eommerciatmotor vehicles” Id. 5 3, at 3729. Accordingly,
unless and until superseded by roles adopted by the Department of Public Safety sections 5.201 through
5.249 of title 16 of the Texas Administrative Code remain in full force and effect,

          ‘Yom query assumes that a school district is authorized to hanspmt students in privately owned
vehicles operated by parents or teachers. We find nothing in the Education Code that permits or prohibits
a school district from doing so, but we believe such authority may be implied. We caution that nothing in
this opinion,or in section34.003 of the Education Code, speaks to the standard of care to be exercised by
drivers of privately owned vehicles. Hence, nothing suggests that such drivers are held to any lower
standard of care than ordinary drivers of passenger vehicles. Further, we do not consider whether courts
would consider such drivers agents of an independent school district for pmposcs of liability. On such
issues, school boards should consult their legal counsel.




                                               p.   2057
Mr. Mike Moses - Page 4              (DM-378)




driver’s license, the requirements for which--that the holder be at least eighteen years of
age, be enrolled in or have completed~a driver training course in school bus safety, have
undergone an annual physical examination and a pre-employment driver’s license check by
the Department of Public Safety--are mandated by section 521.022 of the Transportation
Code. A vehicle of the sort you describe may be used to transport school children.
However, unless it is a passenger car or a bus transporting students to -or from
extracurricular activities which meets the motor bus standards of sections 5.201 through
5.249 of title 16 of the Texas Administrative Code and therefore subject to the exceptions
of section 34.003 of the Education Code, such a vehicle must be considered a “school
bus”; it must therefore have the requisite mirror, fire extinguisher, and signal lamp, and
must be driven by a licensed school bus driver.

        We do not intend to suggest that the only vehicles which may be used to transport
school children to school or extra-curricular activities are “school buses” as popularly
understood--that is, the familiar big yellow school buses. However, if a vehicle being used
for this purpose is not a “passenger car” or “motor bus” within the terms of the
exceptions, we reiterate that it must meet the safety standards and operator licensing
requirements outlined above.

        The school bus standards we have discussed are statutory. We note in addition
that certain agencies also have regulatory authority in this area. Thus, section 34.002(a)
of the Education Code provides that “[tlhe General Services Commission, with the advice
of the Department of Public Safety, shall establish safety standards for school motor
vehicles.” Further, the Department of Public Safety pursuant to Transportation Code
section 547.101 has power to adopt standards for vehicle equipment to protect the public
and enforce United States safety standards, and pursuant to section 547.102 has power to
adopt supplementary standards for school bus lighting and warning device equipment.

        “‘Passenger car” is defined by section 541.201(12) of the Transportation Code as
“a motor vehicle,. other than a motorcycle, used to transport persons and designed to
accommodate 10 ot%ewer passengers.” Tramp. Code 5 541.201(12). The definition, we
note, stresses the number of passengers the vehicle is designed to carry, rather than the
number it may act@y carry. Accordingly, we read Education Code section 34.003’s
“passenger car” exception as limited to vehicles designed to carry ten or fewer passengers,
which may however under the Education Code be used only to transport fewer than ten
passengers. This reading includes such vehicles as Suburbarts, for example, which
transport nine passengers, within the exception, Fit&n passenger vans, on the other
hand, are not excepted by the “passenger cat” language of section 34.003. While, as we
have said, such vehicles may be used to transport students to school, they must for that
purpose meet the safety standards and licensure requirements for school buses. If they are
transporting ten or more students to or from extracurricular activities, they must meet the
motor bus standards of sections 5.201 through 5.249 of title 16 of the Texas
Administrative Code.




                                         p.   2058
Mr. Mike Moses - Page 8              (DM-378)




                                   SUMMARY

               Under section 34.003 of the Education Code, school districts
          may permit the transportation of fewer than ten students to and from
          school and extracurricular activities in passenger vehicles which are
          not subject to the same safety standards and driver qualifications as
          “schools buses” as defined by section 541,201(15)(A) of the
          Transportation Code, so long as such passenger vehicles do not carry
          more passengers than their design capacity permits and the operator
          ensures that all passengers are wearing safety belts. This “passenger
          car” exception does not apply to vehicles with a larger design
          capacity than that of “passenger cars” as defined by section
          541.201(12) of the Transportation Code. In addition, schools may
          transport ten or more students to and from extracurricular activities
          in school buses or buses either chartered from motor bus companies
          or owned by the school district which meet the motor bus standards
          of sections 5.201 through 5.249 of title 16 of the Texas
          Administrative Code. Operators of private passenger vehicles such
          as parents or teachers are not subject to school bus safety standards
          or licensure requirements when transporting fewer than ten students
          to or from school or extracurricular activities in such a passenger
          vehicle.




                                                    DAN MORALES
                                                    Attorney Genera1 of Texas

JORGE VEGA
First Assistant Att&ey   General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James E. Tourtelott
Assistant Attorney General




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