                                 The Attormy           General      of Texas

JIM MAlTOX                                           thy 28, 1985
Attorney General


Supramo Ca~tl Building         YhmorablaDavid CaI'm                  Opinion Do. m-320
P. 0. Box l254S                Chairman
Austin. TX. 78711-2548
51214752501
                               Committeeon Transportation            Re: Authority  of the Texas Parks
Telex 9101874-1357             Texas Eouse of Repmsentatives         and Wildlife Department under
Telecopier 51214750266         P. 0. Box 2910                        sedon 31.073 of the Texas Parks
                               Austin,Texas 787'69                   and Wildlife Code, the Water
714 .J1dcso”, Suite 700
                                                                     Safety Act. to issue citationsto
08llaa. TX. 75202.4505         AonorableCarlo6 Vsldez                person6 using sailboards
2l41742.W44                    Nueces County Attorney
                               Courthouse.Room 2Omb
                               Corpus Christi,Texas 78401
4824 Alterta Ave., Suite 160
El Paw. TX. 799052793
91Y533.3484                    Gentlemen:

                                    You seek cla,c:lficationof the Texas Parka and Wildlife Depart-
1001 Texas. Suite 700          ment's authorityto issue citationspursuant to section 31.073 of the
HOUSIO~. TX. 77002-3111        Texas Parks and Wildlife Code. #pecifically.you vish to knov whether
713/2235886
                               the departmentmay issue citation6to persons using sailboardswho do
                               not have on board a Coast Guard approved lifesavingdevice.
806 Broadway. Suite 312
Lubbock. TX. 79401-3479             Section 31.073   of the code provide6 that
SOen47.5238
                                            All canoes, punts, rowboats, sailboats, and
                                            --
4309 N. Tenth. Suile B                   rubber rafts when paddled, poled, oared, or wind-
MCAlkm, TX. 78501.1685                   blown are exempt from all the required safety
5121552-4547                             equipment except the follwing:

200 Main Plaza. Suite 400                    (1) one Coas$ Guard approved lifesavingdevice
San Antonio, TX. 782052797                   for each peryn aboard; and
51212254191
                                            (2) the light6 prescribedfor class A vessels
                                            in Se'ction31.064 of this code. (Emphasis
An Equal Opportunity/
Affirmative Action Employer
                                            added).

                               Your request requires a determtnation of vhether the legislature
                               intended section 31.073 to include sailboards. If not, then sail-
                               boards are exempt from the safety equipmentrequirement6of subchapter
                               C of chapter  31 of the code; no one contends that sailboards are
                               subject to more stringent safety equipment regulations than those
                               applicable toil:boats.     Therefore,we need not directly determine
                               whether a sailboardis a "vessel"under section31.003.




                                                          p. 1463
DoaorablaDavid Cain
?lonorable
         CarloaValdu
Page 2   (J&320)




     The fundamentalrule grrerningthe interpretationof statute6 is
to give effect to the intentionof the legislature. City of Sherman
v. Public Utility Colmmisstx~. 643 S.U.Zd 681, 684 (Tex. 1983). To
determinethe legislature't~~ntentand the purpose for a particular
provision,it is proper to considerthe history of the subject matter
involved,the problem to be remedied, and the ultimate purposes to be
accomplished. Id. The corstructionof the scope and meaning of the
law bv
    ~~. admfnist~ive agenciesand officers should be considered,but
is not binding on courie. Big Lake Oil Co. v. Reagan Count&      217
S.U.Zd 171, 173 (Tex. Civ. ,4pp.- El Paso 1948,writ ref'd).

     In this instance,the Texas Parks and WildlifeDepartment,citing
Webster's New Collegiate Dictionary, contends that sailboards are
"sailboats." This dictionary definition of sailboards is "a Small
flat sailboat.. . ." Web6ter's New CollegiateDictionary 1037 (9th
ed. 1983). In contrast, the Texas Secretary of State registered a
particular sailboard under class 28. the "toys and sporting goods"
classification,rather than under class 12. the classificationwhich
includes sailboats. When statutory terms are not defined in the
applicablestatutes, they aust be given their ordinary and popular
meaning. See, e.g., Sanfordv. State, 492 S.W.Zd 581 (Tex. Grim. App.
1973). Nevertheless,the &m    "sailboat"must be interpertedin the
contextof section 31.073.

     The Texas Parks and Wl.J.dlife
                                 Depart&t maintains that exempting
sailboards from having or board a personal flotation device will
result in loss of life. Consequently.numerous citations have been
issued by the peace officers charged with enforcement of the act.
With regard to the maxim DE deferring to "agency expertise," it is
significantthat person6 chargedwith enforcingthis provision include
"[a]11 peace officersof this state and it6 politicalSubdiViSiOnSand
game management officers.' Tex. Parks 8 Wildlife Code 831.121(a).
The cases which generated1:herule of deferenceto an agency's deter-
minationusually involve a specializedregulatoryscheme with enforce-
ment by officialswho are trained in the specific matter of regula-
tion, rather than in general law qnforcement. Further. most of the
ca6es involved statutes 6:atiug that agency action is committed to
agency discretionby lav. See Adam0 Wrecking Co. v. United States,
434 U.S. 275 (1978);--Johnson~ Robison, 415 U.S. 361 (1974); Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967); 688 generally B.
Schwartz,AdministrativeLznc$147 (1976).

     Moreover.the trial courts in TeXaS have had occasion to rule on
the matter. The decision of the courts outweighsagency interpreta-
tion. Convictions occurrj.ngin the justice courts are appealed to
county courts, where they are tried de novo. The few conviction6
which have been appealed have been overturned. See, e.g., State of
Texas v. Brannan,Cause No 210-637.County Court at Law No. 3, Travis
County, Texas (June 30, 1982) (defendantacquitted: court ruled that
windsurferis not a "sailboclt"under section31.073).



                             p. 1464
          itonorable David Caio
.j   J,   HonorableCarlorValder
          Page 3   (.lM-320)




               The existence of this controversyand the phyrical nature of
          sailboardsdemonstratethat it is not at all clear that the legisla-
          ture intended"sailboat"la ciection 31.073 to includesailboards. The
          overall purpose of chapter 31 of the code is to promote recreational
          water safety for persons aud property in connectionwith the use of
          all recreationalvater facilitiesin the state. See 531.002. The
          purpose of the requirement:lnsection31.073 of an approvedlifesaving
          device is to protect againcitloss of life from drowning. It is also
          significantthat the reasor,for enacting section 31.073 in the first
          place was a recognitionthat some water vessels shouldbe exempt from
          all the safety equipment requirements except for the two items
          specified in section 31.0?3. The Iegislature singled out Certain
          vessels which, because of their physical characteristics,deserved
          differenttreatment.

              The question before ~1%is not one of pure law, and this office
          cannot resolve disputed f;lctualissues in the opinion process.
          Nevertheless, certain fac0 are subject to judicial notice. For
          example,a hypotheticaldete~rminationthat the term "motor vehicle" in
          a statute dealing with s;r:iety belts was not intended to include
          motorcyclescould be decided on the basis of judiciallynoticed facts
          about motorcycle6and safetybelts. As will be seen, the facts before
          us demonstratethat the sallboardis clearly differentfrom the type
          of water vessel listed in section31.073. Moreover, facts about the
          nature of a sailboard indic:r.te
                                        that the o6erall purpose of chapter 31
          of the code would not bc enhanced by interpreting"sailboat" in
          section31.073 to include sailboards. Accordingly,we conclude that a
          sailboardis not a "sailboat"for purposes of section31.073.

                The factual data upnl which our opinion relies stems from
           finding6reported in the FederalRegister. The descriptionto follow
           of a boardsail,and the sa,[ety factors involvedwere all mentioned in
           proposed rulemaking notice!. Significant data also appears in the
           original finding6 with rc!gardto the 1973 Coast Guard Exemption.
           Althoughthe exemptionwas withdrawn,it was not withdrawnbecause the
           facts had changed; rather, it was withdrawn becauseno need was seen
           for federal regulation. Th.efact& finding6 remained the same. We
           note that "[tlhe contents #x!the F'ederalRegistershall be judicially
           noticed. . . ." (Emphasis.ndded). 44 U.S.C. J11507.This provision
           applies to state courts. ---
                                     See Cresap v. Pacific InlandNavigationCo..
           Inc., 478 P.2d 223 (Wash. 1970).

                The facts before us indicate that a sailboard,known by many
           persons as a "windsurfer."#differsfrom the commonlyaccepted concept
           of a sailboatin a variety of ways. See 46 Fed. Reg. 42288-89 (1981).
           A sailboardis basically a surfboardxh a detachablemast and sail.
           See Id
           -2       The mast and sail of a sailboard comprisea freesail unit
           whjch is attachedby a eviv~?luniversaljoint and is not supportedby
           stays. See 45 Fed. Reg. 117877(1980) "freesailsystem."as the name
           suggests,111 drop In the water when the operator release6 it. See
           Zd. Consequently,the sal.lboard  does not "sai1" unless the opera=
                                                                   ..
      -                                                                 -



nonombl~lkvid Cain
EonorablrC~rloaValdac                                                       .
Pago 4 (~~320)




is standingon the board ar,dholding up the freesailsystem. --
                                                            See Id.
If the operator falls off the sailboard.the board loses its pro-
pulsion mechanism vhilc tho sail fills vlth water and acts as a sea
anchor. --
         See Id.

    Thus, a sailboarddoes uot have the characteristics of a sailboat
which create the safety hazard that the life preserver required by
section 31.073 was Intended by the leglslstureto remedy. Unlike a
sailboat,a sailboardcannot sail away vhen its operator falls off.
Further,because the board :Ltselfis filledwith 8 closed cell foam,
it csnnot sink, even if broken apart. In fact, .s sailboard itself
functions as a personal fLotation device. See 45 Fed. Reg. 47876
(1980) (proposedJuly 17, 1980); see also 33.P.R.      5175.23 (1984)
(compare sailboardwith type IV personal floatationdevice). Nore-
over. sailboardingis a water sport, such as surfing or water skiing,
in which the enthusiastis physicallyand emotionallyprepared to be
in the water -- at least some of the time. 45 Fed. Reg. at 47817
(1980).

     As a practicalmatter, there is uo place to secure a lifesaving
device “on board.” As with the hypotheticalof whether a motorcycle
should be required to have a seatbeltwithin the meaning of a statute
which requiresseatbeltsin ;nllmotor vehicles.this could bring about
absurd results. If the sailboarder is required to wear a life
preserverto comply with the law a greategsafetyhazard could result.
See Id. at 47877. At the ve’ryleast, the activityrequiredto operate
--
a sailboardwould be handicapped by vearlng a lifepreserver. Id.
Windsurfingenthusiastsma~.ntaiothat, in the surf, wearing a life-
preserverwould likely prevent a fallen sailboarderfrom being able to
dive below the waves to es,:apebeing battered by the force of the
waves and by his fallingeqtrfpment.-Id.

     The unique characteristicsof sallboardsled the United States
Coast Guard to determine recently “that sailboards should not be
subject to Federal regulstLon.” 46 Fed. Reg. at 42289. When sail-
boards first appeared about ten years ago. the Coast Guard granted an
exemption t0   Windsurfing Internalional, Inc., from the      federal
requirementthat sailing vessels Wave a personal flotationdevice on
board for each person aboard. In re petitionof Exemption issued to
WindsurferInternational,In,c.for an Exemptionfrom Section 175.15 of
Title 33, Code of Federal RFgulations. CGD 73-29. Feb. 18, 1973. The
Coast Guard has now withdr& the exemptionand determinedthat “there
was never a clearly establjshedneed for its involvement.. . .‘I See
46 Fed. Reg. at 42289. Ne!vertheless,  the Coast Guard preservedthe
opportunity for regulation of sellboards at the state level by
exempting states from the federal preemptionprovisionpursuant to 46
U.S.C. sections 1458. 1459 (1982). See 46 Fed. Reg. at 42289. Thus,
the state may regulate In ,:hearea ofthe use of safety equipmenton
sailboards.



                              p. 1466
ICIC, .
      b       UonorableDavid Calm
    .
              gonorablaCerlor Valdec
  d     .',   Page 5 m-320)




                  The action,or inaction,of the federalgovernmentis significant
              in another uay OS well. The Coast Guard’s inaction emphasizesthat
              sailboards do not at present foil within existing categories of
              vessels which must complywith the personalfloatationdevice require-
              ments; they must be brought affirmativelyInto regulatoryprovisions.
              See 46 Fed. Reg. ot 42289. The situation at hand with regard to
              Ztion    31.073 is analogous.particularlyin light of the fact that
              sailboards did not exist at the time the provision uos originally
              enacted. If the legislat,xrewishes to regulate sailboards. the
              federal governmentvi11 not prevent it from expresslyaddressingthe
              unique problemspresented. We concludethat the provisIonsof section
              31.073 of the Parks and Wildlife Code do not presently cover
              sailboards. Sailboardsprer:ent unique problems.

                                            SUMMARY

                           The Texas Park!;and WildlifeDeportmentmay not
                        issue citations,pursuant to section31.073of the
                        Texas Parks and W:ildlifeCode, to persons using
                        sailboardswho do not have on board a Coast Guard
                        approvedlifesaviu8device.




                                                      r_rlA-Ah
                                                       Ver truly yours
                                                        f    l




                                                       JIM    NATTOX
                                                       AttorneyGeneral of Texas

               TOM GREEN
               First AssistantAttorneyGswral

               DAVID R. RICHARDS
               ExecutiveAssistantAttorneyGeneral

               ROBERT GRAY                     8
               Specisl AssistantAttorneyGenerat

               RICK GILPTN
               Chairman,Opinion Committee

               Preparedby JenniferRiggs
               AssistantAttorneyGeneral




                                             p. 1467
                                            -       -

        .a   -

    \

\
                 ilonorebla
                          David Cain
                 BonorabloCarlorValder
,. -.            Page 6   (D&320)




                 APPROVED:
                 OPINIONCOtMITTEE

                 Rick Gilpin,Choirman
                 Jon Bible
                 Sussn Garrison
                 Tony Guillory
                 Jim Moellinnger
                 JenniferRiggs
                 Nancy Sutton




                                                ,

                                            I




                                         p. 1468
