                THEA-ITORNEYGENERAL
                        OF TEXAS
                            AUSTIN.      TRxAS         78711




                                   October     11,   1974


The Honorable  Laurence R. Melton                        Opinion   No.   H-   420
Chairman,  The Governor’s   Committee
for Employment  of the Handicapped                       Re:   Whether architectural
TEC Building                                                   barriers    to use of
Austin, Texas 78778                                            facilities  by physically
                                                               handicapped persons
                                                               constitute discrimin-
                                                               ation under Article 4419e.
Dear Mr.     Melton:                                           V. T. C. S.

     You have requested an interpretation       of Article 4419e, Sec. 3, V. T. C. S.
This Article    concerns the use by physically      handicapped persons of public
facilities.  Section 3 proscribes     discrimination     affecting such use.    You
ask specifically   whether architectural     barriers   created by curbs,    steps,
narrow doorways,      etc., constitute discrimination       as defined in the Section.

    We begin with a comparative           examination  of Articles  4419e and 678g,
V. T. C. S., which were enacted          contemporaneously     by the 6lst Legislature.

    Article  6788 requires publicly-financed           build@     and facilities   to be
constructed    so as to make them accessible           to the physically    handicapped.
The statute establishes      detailed design criteria         and makes the State
Building Commission       primarily     responsible      for administration      and enforce-
ment of the Act.     It establishes    an affirmative       program to remove architec-
tural barriers    in publicly-financed     facilities.

         In contrast,     Article 4419e makes it a misdemeanor       offense to
discriminate    against physically     handicapped persons.     It proscribes
discrimination     such as a refusal to accept a handicapped person as a
passenger    on a common carrier,        or a charge of additional fare for his
mobility aids, such as a dog guide or wheel chair [Sec. 3(b)], or a denial
of admission    to a public facility by a handicapped person because          of his
handicap [Sec.     3(c)].    Section 3(d) of the Article further defines discrimi-
nation to include:




                                             pe 1956
     The Honorable         Laurence    Melton,       page    2    (H-420)




              .    .   . an open  and obvious refusal to allow a
              handicapped       person to use or be admitted to
              any public      facility, as well as discrimination
              based upon       a ruse or subterfuge calculated    to
              prevent or      discourage   a handicapped person
              from using       or being admitted to a public faci-
              lity..  . .

          Article 4419e does not purport to remove physical barriers    to public
     facilities,   but seeks to eliminate discriminatory policies, rules or regu-
     lations.    It regulates conduct, not construction.

         While the discriminatory    conduct proscribed    by Article 4419e could
     involve the intentional erection of architectural    or other physical barriers
     to prevent access    by the physically  handicapped,   we do not believe that
     the mere existence    of such barriers  or the failure to remove them could
     serve as a basis for prosecution     under that Section.

                                      SUMMARY

                  Article 4419e does not, per se. prohibit architectural
              designs which may       amount to a barrier to a handicapped
              person’s   use of a public facility unless such design is
              intentionally  formulated  to prevent or discourage   such use.

                                                            Very truly yours,



                                                                 da
                                                          OHN L. HILL
                                                         Attorney General       of Texas
                                                 P
                  VED:
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&$Eznt




     DAVID M. KENDALL,                Chairman
     Opinion Committee



                                                     .p. 1957
