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                                             AUSTIN,TEXAR             78711
CRAWFORD       C. MARTIN
  AlTORNEY     GENERAL.
                                                 December       8, 1971


        Hon. J. W. Edgar                                      Opinion     No. M-1011
        Commissioner   of Education
        Texas Education   Agency                              Re:     Are flight  schools
        201 East Eleventh Street                                      covered by the Texas
        Austin,  Texas      78701                                     Proprietary  School Act
                                                                      (Acts 62nd Deg., R.S.,
        Dear Dr.       Edgar:                                         1971, ch. 620, p. 2006).

               You ask our opinion   whether flight     echoolfi come within
        the scope of the Texas Proprietary       School Act.      These schools
        offer   varying courses   of Instruction    which enable a person to
        qualify   for the varying ty es of pilot      licenses   granted by the
        Federal Aviation    Agency.   Eg, U.S.C. Sec. 1341 et seq.

                Our opinion             Is    that   flight     schools       are   subject    to   the
        Act.

                Schools  covered               by the    Act    are     defined     In its    Section
        32.11 (1)     as follows,

                        "(1) 'Proprietary   School,'     referred   to as
                 'school,'   means any business      enterprise    operated
                for a profit,     or on a nonprofit      basis,   which maln-
                talns a place of business       within the State of Texas,
                or solicits    business   within the State of Texas, and
                which is not specifically       exempted by the provisions
                of this Chapter and;

                           "(A)        which offers       or maintains            a course    or
                courses           of   instruction       or study; or

                       "(B)   at which place of business       such a course
                or courses    of inetruction      or study is available
                through classroom      Instruction    or by correspondence,
                or both, to a person or persons          for the purpose of
                training    or preparing    the person for a field      of en-

                +
                    Acts 62nd Deg., R.S.,                1971,      ch. 620, p. 2006, H.B. 333,
        codified       by Vernon as Sec.                32.01,      et seq., Texas Education Code.


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Hon. J.   W. Edgar,    page   2         (M-1011)



       deavor in a business,     trade, technical,   or in-
       dustrial occupation,    or for avocation    or per-
       sonal improvement,    except as hereinafter    excluded.”

       Section    32.12 of the Act specifies       certain schools    or
educational      institutions    which are specifically    exempt from
all provisions       of the Act.    None of these exemptions      cover
a flight     school;    no claim is made to us that any does.

       The relevant    law Is stated   in 52 Texas       Jurisprudence      2d
209,   Statutes,   Section   143, as follows:
              I,   . The fact that an act contains      one or
       more ekeptions     discloses     an intention on the part
       of the legislature     that there should be no other
       exception   and that the act should apply in all
       cases not excepted.        . . .‘I

        In our opinion       the mere fact that some of the procedural
or other sections         of the Act are not feasible          or amenable to
literal     compliance      by a proprietary      school   does not serve~to
exempt it from the Act.             A substantial     compliance    with the
Act would suffice         in such instances.        Furthermore,     the fact
that certain       qualifications      are requd,red for instructors,
chief    pilots    and school      owners by Federal      Aviation   Regula-
tions,    does not result         In a pre-emption     by the federal
government so as to deprive             the state of the power to regu-
late flight       schools    under the Texas Proprietary          School Act.
So long as the state regulations              are caused to conform to,
and. are InterDreted           to be. consistent      with the federal     law
or regulations;        both state-and      federal    law are applicable.
See Kelly v. Washington,            302 U.S. 1, lo, 58 S.Ct. 87 (1927),
holding     that:

              “There is no constitutional      rule which compels
       Congress to occupy the whole field.          Congress may
       circumscribe    its regulation    and occupy only a limited
       field.    When It does so, state regulation        outside the
       limited   field   and otherwise   admissible   Is not for-
       bidden or displaced.     ’

       See also,   Antieu’s   Modern Constitutional      Law, Volume 2,
Section   10.24,   pp. 49-51,   and authorities     there cited.

       We hold that the police   power of the state to regulate   flight
schools   has not been superseded   by any federal  act, and that


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    Hon. J.     W. Edgar,   page 3             (M-1011)



    there has been no attempt by the federal    government to occupy
    the whole field,    and that the Texas Act does not conflict  with
    the Federal  statutes   or regulation as to flight  schools.

           There is no exemption in the statute      for a school    other-
    wise regulated    and ap roved pursuant to a federal      law, but
    under Section    32.12(a P (7) an exemption is recognized     for "a
    school   which is otherwise    regulated  and approved under and
    pursuant to any other law of the State."        'Flight schools     are
    not regulated    and approved under or pursuant to any other law
    of the state.

                                     SUMMARY

                   Flight    schools  are subject to the provisions
            of the Texas Proprietary       School Act.   Acte 62nd
            Leg.,    R.S.,   1971, ch. 620; p.~2006,   H.B. 333,
            codified     by Vernon as Sec. 32.01,    et seq., Texas
            Education      Code.




    Prepared     by W. E. Allen
    Assistant     Attorney General

    APPROVED:
    OPINION COMMITTEE

    Kerns    Taylor,   Chairman

    Lewis Jones
    Gordon Cass
    Brandon Bickett
    S. J. Aronson

    SAM MCDANIEL
    Staff Legal Assistant

    ALFRED WALKER
    Executive Assistant

    NOLA WZITE
    First Assistant
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