                           May 18, 1987




Mr. Vernon M. Arrell                   Opinion No.   m-700
Commissioner
Texas Rehabilitation Commission        FS: Whether al!. disabled per-
118 East Rrvrrside Drive               sons have a righr of access CO
Auscm, Texas 78704                     transporcacu3n supported by
                                       pubiic funds

Dear Mr. Arrell:

     hs Commissioner of the Texas Rehabilitation Commissiun, YOU
requrst an Attorney General Opinion 0‘1 whether thr Hum&n Resources
Code provides to all disabled persons the right of accsss on trans-
portation supported by public funds. In your request, you define
"transportation" to include buses, street cars, trolleys, light rail,
airlines, vehicles provided for governmmt.al workers, and any orhrr
mod& 'of transportation supported with public funds.

     The state's policy regarding participation by the handicapped in
social aud economic activities is codified in chapter 121 of the Human
Resources Code. Section i21.001 of the code provides:~

             The policy of the stats is to encourage and
          enable physically handicapped persons to partxr-
          pats fully in the social and economic life of the
          state, to achieve maximum personiri mdependence,
          to became gainfuliy employed, and to otherwise
          fully enjoy and use all public facilities avail-
          able within thr state.

     Relevant definitions are found In section 121.002:

             (3) 'Public facilities' includes strsscs, high-
          ways 9 sulrwalks, walkways, all common carriers.
          airplanes, motor vehiclrs, railroad trains. motor
          buses, streetcars, boats, or ,any other public
          conveyances or modes of transportation, hotels,
          motels. or other places of lodging, public
          buildings maintained by any unit or subdivision of
          government, buildings ro which the general public
          is invited, college dormitories and other educa-
          rional facilities, restaurants or other places
          where food is offered for salr to the public. and




                             p. 3242
Mr. Vernon N. Arrell - Page 2      (Jk700)




         all other places of public accommodation, amuse-
         ment , convenience, or resort to which the general
         public or any classification of persons from the
         general publxc is regularly, normally, or cue-
         tumarlly invited.

             (4) 'Handicapped person' means a person who has
          a mental c)r physical handicap. includlug mental
          retardation. hardness of hearing. deafness, speech
          impairment, visual handicap, being crippled, or any
          other health impairment which requires special
          ambulatory devices or services. (Emphasis added).

Your term "disabled persons" corresponds with the section i21.002
definition of "handicapped persons."

     To ensure that the above-stared public policy is given aifrct,
the legislature prohibited discrimination against a physicalk; handi-
capped person because of the person's handicap. Section 121.003 of
the Human Resources Code provides, in pertinent part:

            (a) Subject only to limitations and conditions
         established by law and applicable alike to all
         persons. persons who are physically handicapped
         have the same right as the able-bodied to the iull
         use and enjoyment of any public facility in the
         state.

            (b) No common carrier, airplane, railroad
         train, motor bus. streetcar, boat, or other public
         conveyance or mode of transportation operating
         within the state may refuse to accept as a
         passenger a person who is physically handicapped
         solely because of rhe person's handicap, nor may a
         handicapped person be required to pay an addition-
         al fare because of his or her use of a support
         dog, wheelchair. crutches. or other device used to
         assist the handicapped person in-travei.

            (c) No person who is physically handicapped
         may be denied admittance co any public facility ir.
         the state because of the handicapped person‘s use
         of a white cane, support dog, wheelchair, crutch-
         e=. or ocher device of assistance in mobilicy. or
         because the person is handicapped.

             (d) The discrimination prohibited by this
          section includes discrimination through an open
          and obvious refusal to allow a handicapped person
          to use or be admitted to any public facility, as




                                p. 3243
Mr. Vernon M. Arrell   -   Page 3     (JM-700)




           well as discrimination based on a ruse or subter-
           fuge calculated to prevrnr or discourage a handi-
           capped person tram using or being admictaa to a
           public facility. Regulations relating to the use
           of public facilities by any designated class of
           persons from the general pubiic may not prohibit
           the use of particulcr public facilities by
           handicapped persons who, except for chrir handi-
           caps or use of support dogs or other devices for
           assisc.ance in travel, would fall within the
           designated class. Lists containing the names of
           persons who desire to use particular publsc
           facilities may not be composed or manipulated so
           as to deny a handicapped person a fair and equal
           opportunity to use or be admitted to any public
           faciilry. (Emphasis added).

Subsection (a) provides equal access on public transportation to
handicapped persons. Subsection (b) prohibits discrimination based on
physical handicap. Although your inquiry is limited to the right of
access to transportation supported by public funds. the statute makes
no such distinction. Discrimination is prohibited on any mode of
public transportation that operates in Texas. Xc is public use, sot
public funding that controls.

    .Both civil and criminal penalties are prescribea to enforce
the state's policy that all persons "fulfy enjoy and use all public
facilities." Section 121.004 provides:

              (a) A person, firm, association, corporation,
           or other organization. or chr agent of a person,
           firm, association, corporation, or other organi-
           zation who violates section 121.003 of rhis
           chapter is guilty ot a miaaemeanor and on convic-
           cion shall be punished by a fine of nor less then
           $100 nor more than $300.

              Ib) In addition to thti penalty provided in
           subsection (a) of this section, a person. firm,
           association, corporation, or other organization,
           or the agent of a persoli, firm, association.
           corporation, or other organization who violates
           ch+ provisions of section 121.003 of this chapter
           ~8 deemed to have deprived a handicapped person of
           his or her civil llbertirs. The handicapped per-
           son deprived of hls or her civil liberties may
           maintain a cause of action for damages in a court
           of competent jurisdiction, and there is a con-
           clusive presumption of damages in the amount.of at
           least $100 to the handicapped person.




                                    p. 3244
Hr. Vernon M. Arrell - Paje 4        (Jr-l-700)




                              SUMMARY
                              --
                All persons, regardless of any physical
           disability, have the same right of access to
           public transportation facilities thrc operate in
           this scdte. No'physfially handicapped person may
          'ba refused acceptouce as 'a passruger UC auy mode
           of public transportation solely because of his
           handicap.

                                          Very truly your ,
                                                 .

                                         LLk
                                           JIM     MATTOX
                                           Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney   General

u4FLYKELLER
Executive Arsistant Attorney General

JUDGE ZOLLIE STRARLST
Special Assistant Attorney General

RICR GILPIN
Chairman, Opinion Comittee

Prepared by Karen Giudney
Assistant Attorney General




                                p. 3245
