                            QBfficeof tty Wxnep              General
                                       Btate of Qexae
DAN MORALES
 ATTORSEY
      CENERAL                              April 22,1996

     The Honorable Chris Harris                    Opiion No. DM-386
     Chair
     Senate Committee  on Administration           RC: Whether the Texas Education
     Texas State Senate                            AS-Y      my, under V.T.C.S. article
     P.O. Box 12068                                4413(29c), section 94 supply cc&icates
     Austin, Texas 78711                           of completion to a public school in the state
                                                   whose driver education course does not
                                                   meet the standards of and has not been
                                                   approved by the Texas Education Agency
                                                   or the Department of Public Safety and
                                                   related questions (RQ-839)

     Dear Senator Harris:

             You have requested our opinion as to whether the Central Education Agency may,
     under article 4413(29c), section 9A, V.T.C.S., supply certificates of completion to a
     public school in the state whose driver education course does not meet the standards of
     and has not been approved by the Central Education Agency or the Depamnent of Public
     Safety.~ You also ask whether a driving safety course that the State Board of Education
     has approved “c4xditionaUy”or “temporarily prior to September 1,1995. must be finally
     approved at&r September 1,199s.

             Your questions require us to construe the Texas Driver and Tratlic Safety
     Education Act (the “act”), V.T.C.S. article 4413(29c). The act purports to regulate both
     driver training and driving safety courses. See V.T.C.S. art. 4413(29c), 0 2. As you
     arplain, a driver education course teaches a student “how to drive, inchuiing the laws
     applicable to operating a motor vehicle.” See id. 8 3(4). A driving safety course, on the
     other hand, teaches a licensed driver how to be.a better driver. See id. 8 3(6). Under the
     act, the Central Education Agency is authorki to regulate and oversee the system of
     driver education and driving safety schools. Id. 8 4(a).

            Preliinarily, we note that the Central Bducation Agency is equivalent to the
     Texas Education Agency. “A reference in law to the Central Education Agency means the
     Texas Education Agency.” Act of May 27, 1995, 74th Leg., RS., ch. 260, 5 80, 1995
The Honorable Chris Harris - Page 2            (DM-386




Ten. Sess. Law Serv. 2207,2504. Accordingly,we will refer only to the Texas Education
Agency (the “agency”) throughout the remainder of this opinion.

       Your first question assumes that a driver education course offered in a public
school does not meet the standards of and has not been approved by the agency or the
Department of Public Safety. We will begin by considering the law as it relates to your
6rst question. A “driver education school”is
           an enterprise that maintains a place of business or solicits business in
           this state, that is operated by an individual, association, partnership,
           or corporation for the education and training of persons at a primary
           or branch location in driver education or driver education instructor
           development, and that is not speci6callyexempted by this Act.*
V.T.C.S. art. 4413(29c). 5 3(18) (footnote added). Section 7(c) of the act exempts from
all of the act except section 9A, see i&x, several types of driver education courses
h~cludinga wurse offered by -a school that is otherwise regulated and approved under
any other state law.“” A public school is regulated and approved under the Education
Code. See generally Educ. Code tit. 2.


  . . ~whavc~ollrlred~&Qnot,thacforr.conddawbahaarchoolir”w’manaprirethnt
mamtamaaplwcofhwinwsorao~tsburinco . . ..thatisopaatcdbyaoilMmdwlusodrtion.
putnenhip, or coQomtioo....” See BL.$x’s LAWDICIIONARY
                                                     476.77 (5th cd 1979); WEBSI’ER’S
Ntrmt NEW COUEOIAIEDCIIONARY 415 (1990). If it is nat, of comse, it &             not be px&aUy

                          omdwtcdbysaiadivimual,wwclation,parmarhip,or~forthc
~nodtrpiningofpcrsons,dtbupraaicallyor~~,orbotbtoopaatcm.drivcmotor
vehiclea and char&    a cooaidemtion  or toitiooforsuch celviwa”dofitudthctann~commemlaldrivcr-
nainingschool.” ~~Msy19,1%7,~~.,RS.,cb.332.~l(a),l%7T~Genlrws7~,794
(wdlfied at V.T.C.S. att. 4413(29c), 0 l(a)), umended by Act of May 25, 1991, 72d Leg. RS., ch. 835,
~1.1991Tcx.Ga~Lpwr28.75,2876.          Theori@nlactdidnotdefinethctan~‘drivaabca!kmsclwot.”

        In199lLbekgislaturrdelaedtbcwwd”~fronrthphrerc”drivanainingrcbod”
UbdlmcndcdtbCddhitiOlltOiBClUdC      entaprira03oducdogcomwatndrtvar~~,driving,
  tamctor developettt.See Act oft&y 25.19!21,72dLeg.,RS.. ch.835.5 I, 1991 Tcx. Gcn. Laws
zx75,2876. hl995lhclcgatuc-thnrtutcodcfuw"drivcr-~"~
SChOOlSOffCiiOgdliVUOdOWtiOOcGlrra~thOWOff~dlitingd~WUtWS.                        SeeMof
May 29,1995,74thLag..RS., ch. 1009,~ I, 1995 Tcx &is. Law Serv. 5047.5049 (aalifmd at V.T.C.S.
art. 4413(29c), 0 3(18)).   Otkr changa    to tk    dctinition made by the 1995 am&matt        wue
nozmhah.        Seeid.

        %ctioo 7(c)(5)
                     ofarticle       V.T.C.S., actuatty prwidcs as follows:
                            4413(29c).

                 AdrivcrakationcomxisexemptfromthisAa,cxcqtScction9Aofthis
            Auiritir:


                   (5) aachoolthatiaotkrwkragulatedandappn3wdtmderanyothcrrtatc
            law.


                                               p.   2119
The Honorable Chris Harris - Page 3       (~~-386)




       Section 9A of the act, the only provision of the act to which a public school is
subject, provides as follows:
               Tbe agency &all print and supply to licensed and exempt driver
          education schools serially numbered driver education certikates to
          be used for certi&     completion of an approved driver education
          wttrse for the purposes of Section 7(a), . . . Article 6687b.
          P.T.C.S.]. The agency by rule shall provide for the design and
          diPtn’butionofthecatificat#,iaamsnaerthattotbegrratesrextent
          possible pmvents the unauthorized reproduction or misuse of tbe
          catifiuttes.
Article 6687b. V.T.C.S.. provides for the licensing of drivers, chauffeurs, and wmmercial
operators. Section 7(a) of that article authorizes the Department of Public Safety, see
V.T.C.S. art. 6687b. 8 l(1) (defining “department”), to license as a class c* driver an
individualunder the age of eighteen if, among other things, the individual “has submitted
to the Department a driver education certifkte provided for by Section 9A [of the act],
indicating that the person has completed and passed a driver education course approved
by the Department under Section 7A [of article 6687b] or by the” agency.5 Even if the
Department of Public Safety has not approved a public school’s driver education course,
we wnclude that a student successMy completing such a course is entitled to receive a
certiScate of completion necemary for obtaining a class C license under V.T.C.S. article
4413(29c), section 9A. Our conclusion is premised on a determinanon that a public
school’s driver education course is “approved by” the agency for purposes of section 9A if
the public school’s course adheres to the curricui~ devised by the agency.

        Section 6(b) of the act rquires the wmmissioner of the agency to establish, by
rule, the atrriculum and designate the textbooks that must be used in a driver education
course.6 The act does not otherwise provide for the approval or monitoring of a driver
Tbe Honorable Chris Harris - Page 4             (DM-386)




education c~urse.~ A public school is, of wurse, exempt 6om section 6(b). See V.T.C.S.
art. 4413(29c), $8 3(18). 7(c)(5).

        Section 29902(a) of the Education Code requks the agency to “develop a
program of organi& instruction in driver education and tratlic safety for public school
students.“* In our opinion, because the agency is responsible to organize the program of
instruction in driver education and tratfic safety for public school students, we believe any
public school that offers a course of instruction pursuant to the agency’s guidelines is
approved by the agency for purposes of section 9A of the act. The agency must,
accordingly, supply the cutikates of completion descrii in section 9A to a public
school offering a driver education course in wmpliance with agency directives. The
public school need not comply with any other requirements under the act to which private
driver education courses are subject. Indeed, to require a public school to comply with
sections of the act other than section 9A simply to receive the certhkates of completion
wntravenes the act’s express statement that a public school is exempt from all sections but
section 9A

       With respect to the oversight of a public school’s driver education wurse, the
1995 amendments to the act actually make little change in the law. Prior to the effective
date of the 1995 amendments, a public school’s driver education course was wholly
exempt from the act. Thus, previous law did not require a public school to license its
driver education course, nor was a public school’s driver education wurse subject to

        7Adriverakcationschool~howva,dUinaliceneebmtkPgcrry.                     Seeid.@lO.

        ‘Seotioo 29.902 becarw &ctivc May 30.1995. See Act of May 27, 1995,74th Leg.. RS.. ch.
26O.p 866, 1995 Tcx. Se% Law Serv. 2207.2505. The day before section 29.902 kcame dktive,
May29,1995, the le@slatmc amended hy the ewctmwt of seaate Bii 964, fatioa 21.102 of the
Education Code. Scr Act of May 29, 1995,74th Leg.. RS., ch. 1009. 8 I, 1995 Ta Scss. Law Sav.
5047,504748.     Wi* qsrd to the authority to ‘dewkp a pmgram of orSanbd inmwxion in driver
cducationaadtratficsafctyforplblicrbool~”ScnatcBill964rrtaintdruchputborityinthc
Texas Education A8cncy. See id. at 504748 (ammdiq Educ. Code 0 21.902(a)).

         Inregardtotheagencyauthoridtodaviscadriverdwation-brpahlicwhoolb%udw&
ScnatcBii964diwlycordlicfswithSaatcBiil.            Gaimuy,wbcrroBe&ofthclegirlrturehrr
~~le~tothesameMtutc,“thclate6airldacofewcnnwt                                       pttmils.” wt
Cuk 8 311.025(b); see o&o 82 C.J.S. Statutes 5 9. ti 25 (1953) (Uatiq that during session lcgirlptivc
body’mayQ~nd,Eoruiderandrsonsida,rccdtcnu”itsmemknthinkpropcr~”onlythe
6nalmsultwiUkrc8ard&asthcthingdonc”).          Inthiscasqhowver,SaateBitll@kitlypaovidgto
thewnuary. Scction8lofthcbiiprovidaasfollowr:         ~Actprevaibowanyw~Actoftk
74tbLcgirkturc,RcgularScsEion,1995,thatuncaborrrpcalsapmviriondTitlclor5Education
code,tegads6ofthemla~datcaof             wactmw~tmlwstheothercosltlistingAct~provider
cuhcmiw.” Act ofMay 27,1995,74lh Leg., RS.. ch. 260.0 81.1995 Ta .%ss. Law Serv. 2207.2504.
siisenaleBii964dwaaotcxprrPdyRlpcncdcscwIeBi1,th                     amcdmamtotheaubuwo3of
aatioo 21.102 (now &on        29.902) of tk Education Code in Senate Bii 1 pva%           cj: Act &
May29.1995, 74th Le& RS., ch. 426, 0 33(c), 1995 Tex. Sess. Law Serv. 3084. 3096 @ro~id@
arplicittythatpmvidwsdthatnatuteprevPilovaanyrevidonsmdebyScnMcBilll);MoC
May 10.1995.74lb kg., RS., ch. 141,# 4.1995 Tea. Se.% Law SUV. 989,990 (ramC).



                                               p.   2121
                                              (DM-386)
The Honorable Chris Harris - Page 5




monitoring by the agency. Relevant to the issue you raise, the only substantive change the
amendmentsto the act e&ted is the requirement, in newly enacted section 9A, V.T.C.S.
article 4413(29c), that the agency supply to “lkcnsed and exempt driver education
schools”driver education ccrtitlcates. The 1995 amendmentsfurther require an applicant
for a class C driver’s license to present the certi6cate of completion to the Department of
Public Sdety.9

       We turn now to your second question: whether the wmmissioner of education
(the “wmmissione?) must, afk September 1, 1995, finally approve a driving safety
course that the wmmLssiottes approved “wnditionall~ or Yemporaril~ prior to
September 1. 1995. &e V.T.C.S. art. 4413(29c). §3(16) (defining “approved driving
safety wurse”). Article 4413(29c), section 13(a-I), V.T.C.S., requires the commissioner
to approve the application of a driving safety school if the school meets certain criteria.~O




           ptiortothewwnwnt       ofthl995~a&mhatdy54X@pwple
           ha[q~tothmtificataofw~l~onfor~ralcty~.                           Thiseasy
           -ha9madeadliogthaeb7edcmaforapria,withcmttakiegthe-.
           atltooeomnma
HouseRcsw1chOrg..BiiAwlysk,S5.964,74thLc~.             116(1995). Webdkvewcmsyinferthstthc
kgjdatadmirattoptevent-wholladmtwtttpktaiattPgprovcddriwcdwmioa-
thmugbalicenrtdororanpdrivcrcducatwrcboo]~obtrininga~cuedEompletioqwhich
mntldatabletkindividwltoapplyforadxivdsliwnse.           Ourwnclwionheredownottuukmiwtbat
kgidakde6ire.

         1%    Seventy-fourth Le&latm     added s&section (a-l) to tick   4413(29c), section 13.
V.T.C.S. See Aa ofMay 29, 1995, 74th Lq., RS.. ch 1009, 0 15, 1995 Tcx. Scss. hw Serv. 5047,
5052 (aditkd at V.T.C.S. art. Ul3(29c), 8 13(&l)). The Seventy-fimlh Lc@atum ako amended
a&ion 13(a) to apply only to driver cducaho schwk. &e id.(mdifial      atV.T.C.S. art. Ul3(29c),
0 13(a)). Prior to Scptmbm I, 1995, the act providal tbr tk wmmissionu to approve both types of
dtivar miaiag whools under scotion 13(a). See Act ofMay 25. 1991,726 Leg, RS.. ch 835. 0 I. 1991
Tu. &u Laws 2875, 2879-80 (wdi6aJ at V.T.C.S. art. Ul3(29c), p 13(a)), amended by AU of
May 29.1995.74tb Leg., RS., ch 1009.§ IS. 1995 Ta Set& Law Sav. 5047.5052. Tk amdrmts


                                             p.   2122
The Honorable Chris Harris - Page 6       (DM-386)




Upon approd the driving safety school receives a license from the wmmissionex See
V.T.C.S. art. 4413(29c), Q 13(d)(l); d Act of May 30. 1993, 73d Leg., RS., ch. 954,
0 5, 1993 Tar. Gen. Laws 4071.4073 (codi6ed at V.T.C.S. art. 4413(29c), Q 13(d)(l)),
umenukdby Act of May 29, 1995.74th Leg.. RS., ch. 1009, 5 15, 1995 Tar. Sess. Law
Serv. 5047. 5055. A license may not exceed one year in term. V.T.C.S. art. 4413(29c).
5 WX2).

        Section 13(f) authorizes the commissioner to revoke a driving safety 8chool’8
iicutse or impose reasonable conditions on the license.. The wmmissioner also may
revoke or make wnditional any license if the commissioner has reason to believe the
licwsee violated the act or any rule adopted pursuant to the act. V.T.C.S. art. 4413(29c).
8 13(f)(2). We find no explicit authority for a temporary license.

       Prior to September 1,1995, the act required a driving safety school to submit to
the commissioner an initial license fee of $1,700 plus $850 for each branch location. See
Act of Uay 30, 1993, 73d Leg., RS., ch. 954, 5 5, 1993 Tar. Gen. Laws 4071, 4072
(cod&d at V.T.C.S. art. 4413(29c), Q 13(b)(l)(A)), mergdedby Act of May 29, 1995,
74th Leg., RS.. ch. 1009.~ IS.1995 Tex. Sess. Law Serv. 5047.5054. We do not iind
inthe~cthitacistedpriortoSeptemba1,1995,~yrequiranmt~afwaccompMy
an application for approval of a driving safety course.

        The Sevmty-fourth Legislature amended article 4413(29c), section 13(b)(l)(G), to
require a nonrefbndable fw of $9,000 to accompany an “application for approval of a
driving safety wurse that has not been evshted by the State Board of Education.” See
Act of May 29, 1995.74th Leg., RS.. ch. 1009, 4 15, 1995 Tar. Sess. Law &IV. 5047,
5054. Notwithstanding this section, a driving safety wurse that. the agency approved
prior to September 1, 1995, need not be reapproved, “and no fee is owed in relation to
approval of the course unless the fee became due before” September 1,199s. Id. 5 32(b),
at5065.

        As we understand your question, you are uncertain as to wheth~ a licensee upon
whom the wmmissioner of education imposed w&ions prior to September 1, 1995,
must again apply for a license and submit the $9,000 application fee to regain permanent
liwnsure status after September 1,1995. We note that tbe wmmissioner may impose
wnditions only on a driving safety school. See V.T.C.S. art. 4413(29c). 6 13(f). Gn the
0th~ hand, the $9.000 application fee is to accompany an application for “approval of a
drivingsafetycourse.”Id. 5 13(b)(l)(G) (emphasis addedj. Conseqttently~ we tind
nothing on the face of the act that requires a driving saf* school holding a licen.% dthK
conditional or unconditional, to pay the application fee under section 13(b)(l)(G) unless
the school desires to change the driving safety course it offers.




                                          p.   2123
The Honorable Chris Hatris - Page 7        (DM-386)




       Moreov~, we do not believe that a driving safety school upon whose license the
wnunissioner has imposed wndhions must reapply for a license. Article 4413(29c),
section 13(t) provides the wmmissioner with a choice: either the wmmissioner may
revoke the license of a driving safety school, or the wnunissioner may impose conditions
upon the ticense. Unless a driving safety school’s license is revoked its license rem&s in
e-&t, and the driving safety school need not apply for a new license.

                                  SUMMARY

               Any public school offering the program of otganimd instruction
          in drive education and tra5c safety that the Texas Education
          Agency has adopted purmant to section 29902(a) of the Education
          Code is offering an “approved driver education course” for purposes
          of V.T.C.S. attide 4413(29c), section 9A. The Texas Education
          Agency must, in accordance with article 4413(29c), section 94
          supply such a public school with “serially nmbered driver education
          certiticates to be used for certif& completion”of the course.

              Nothing in article 4413(29c), V.T.C.S., requires a licensed
          driving safety school. upon which license the wmmissioner of
          education has imposed wnditiom purmant to article. 4413(29c),
          section 13(f), to pay an application f# under section 13@)(I)(G)
          unless the school desires to change the driving ssfety course it offers.
          Additionally, a licensed driving s&y school, upon which license the
          wmmissioner has imposed wnditions, need not apply for a new
          liwnse.




                                                     DAN MORALES
                                                     Attorney General of Texas

JORGE VEGA
Pii Assistant Attorney General

SARAH J. SHIRLEY
Cbair,Opiion c0tinc.e

Prepared by Kytnberly K. Oltrogge
hsistant Attorney General




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