Untitled Texas Attorney General Opinion ( 1995 )

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DAN MORALES
ATTORNEY
CENERAL November 9, 1995
Honorable Rick Perry Opiion No. DM-365
Commissioner
Texas Department of Agriculture Re: Whether V.T.C.S. article 8613, which
P.O. Box 12847 regulates the sale of motor vehicle tire1 to
Austin, Texas 78711 disabled persons, is. applicable to any
vehicle that displays an appropriate “special
device” or “disabled person” identification
card (RQ-623)
Dear Commissioner Peny:
You ask about the proper construction of a Texas statute that governs retbeling
services for disabled persons. You are concerned that the provisions of the statute seem
to require that the driver of a vehicle must actually be disabled and must display the
disabled person placard. Furthermore, you question whether the provision implies that a
service station operator has the authority or the duty to determine whether the driver is
actually disabled or whether the person to whom the disabled placard was issued is in fact
disabled, Specitically, you ask the following:
1. Is there any permissible means by which the operator of a
gasoline service station may inquire as to whether the driver
is disabled, or is the placard or license plate sufficient proof
of disability?
2. Is it an offense for a person who is not disabled to obtain
refueling services under [article] 8613 through the use of
another person’s disabled placard or license plate?
Article 8613 of the Revised Civil Statutes governs the provision of refueling
services to disabled persons.’ It states:
(a) Each person, firm, partnership, association, ttustee, or
corporation that operates a gasoline service station or other facility
that offers gasoline or other motor vehicle fuel for sale to the public
from the facility shall provide, on request, retirering service to a
disabled driver of a vehicle that displays a special device or disabled
person identification card authorized by Chapter 338, Acts of the
‘The term“mkling service”is ddined as the serviceof punping motorvehiclefacl into the fuel
tankofamotorvehicle. V.T.C.S.art. 8613,P 1.
HonorableRickPeny - Page 2
64th Legislature, Regular Session, 1975 (Article 6675a-5e.1,
Vernon’s Texas Civil Statutes).*
(b) The price charged for the motor vehicle tire1 provided under
Subsection (a) of this section may not be greater than the price the
facility otherwise would charge the public generally to purchase.
motor vehicle tieI without refueling service.
V.T.C.S. art. 8613, 5 2 (footnote added). Thus, article 8613 obligates operators of
gasoline stations with both “full-serve” and “self-serve” facilities to provide reiueling
services at “self-serve” prices to those disabled drivers who display a special license plate
issued pursuant to motion 502.253 of the Transportation Code. Further, refueling
services must also be provided to those individuals displaying a disabled parking placard as
authorized by chapter 681 of the Transportation Code.3 Article 8613, section 4(b)
provides that the Texas Department of Transportation shah provide notice of available
refueling services to “each disabled person who is issued a special device or disabled
person identification card under Chapter 681, Transportation Code.” Act of May 1, 1995,
74th Leg., RS., ch. 165, 5 22(20), 1995 Tex. Sess. Law Serv. 1025, 1856 (amending
V.T.C.S. art. 8613, § 4(b)).
Transportation Code section 502.253 provides for the issuance. and the require-
ments for issuance of a specially designed license plate for persons with disabiities. The
relevant language states:
(a) The department shall provide for the issuance of specially
designed license plates for [motor vehicles] regularly operated for
ll%c Seventy-fourthLegislaturerepealedarticle 6675a-5e.1, V.T.C.S. Act of May 1, 1995, 74th
Leg., RS., ch. 165, 5 1, 1995 Tex. Scs. Serv. 1025, 1031. TIE previsions of article 6675a-k.1,
V.T.C.S., are now codiriedin the Transportation&de at chapters502 and 681. Id. 8 1, at 1505, 1780.
The coditicationof article6675a-k. 1 in the TmnsportationC& is a notlsubstantivcrevision. Id. 8 1, at
1031; 5 25, at 1871. For the purposeof this opinionwe will referto the TransportationCode.
3Theprevisionsof the act do not applyto
(1) a gasoline service station or other facility offering gasoline or other
motorvehicle fuel for sale to the publicfrom the facility:
(A) if the station or other facility has only remotelycontrolledpumps and
wver providespumpisland service;or
(EI) during regularly scheduled hours in which, for security reasons, a
station or h5My that ordinarilyprovidespmnp island wvice does not provide
that semia; or
(2) refueling service to provide liquetied gas, ss that term is d&ted by
Section 153.001, Tax code.
V.T.C.S. art. 8613,§ 3.
Honorable Rick Perry - Page 3
noncommercial use by or for the transportation of a person with a
permanent disability.
(b) A person has a disability ifthe person the person has:
(1) mobility problems that substantially impair the
person’s ability to ambulate;
(2) visual acuity of 20/200 or less in the better eye with
corrtiing lenses; or
(3) visual acuity of more than 20% 6’/~ but with a limited
field of vision in which the widest diameter of the visual field
subtends an angle of 20 degrees or less.
(c) An owner of a motor vehicle regularly operated by or for
the transportation of a person described by Subsection (b) may apply
to the department for registration under this section.
In addition, the department shall provide a removable disabled parking placard to a person
with a disability. Tramp. Code $681.002. Siiily, the owner of a motor vehicle used
primarily for the transportation of a person with a disabiity may apply for a disabled
parking placard. Id.$661.003(a). The initial application must be accompanied by
acceptable medical proof that the operator or regularly transported passenger actually has
a disabiity. However, a written statement from a physician is not required in limited
cirwmstances. Id.8 661.003(c).
Thus the provisions of article 8613 only apply to those disabled drivers displaying
a placard such as a removable windshield identification card or a device such as a specially
designed license plate as provided for by sections 502.253 and 681.002 of the
Transportation Code. In the absence of authority to the contrary, we therefore conclude
that article 8613, section (2) provides the sole authority for determining disability with
regard to retieling se.rvice.s,that is, by reference to a special device or disabled person
identification card.
Further, our research of the relevant legislative history of article 8613 indicates
that the intent of the legislature was to “require refueling service by gasorme service
facilities for the disabled without an additional charge”; and more specifically, to provide
refueling services “to a disabled driver if the driver’s vehicle displays a special device or
disabled person identification card. .” House Comm. on State Athairs, Bill Analysis,
H.B. 182,7lst Leg., R.S. (1989). During a hearing before the committee, Representative
Htny, the sponsor of the bill in the House, testified that
[a] disabled person, properly being identified, if he should pull, or if
she should pull into a lit11service facility-that person should be able
to enjoy the Ml service facility, but at a self-service price. And if the
bill doesn’t say that, then I’m not for it.
HonorableRickPerry - Page 4
Hearings on H.B. 182 Before the House Comm. on State Ai%irs, 71st Leg.
(Apr. 24,1989) (statement of Representative Htny) (tape available from House
Video/Audio Services). Accordingly, we tbrther conclude that there is no statutory basis
upon which to opine that a service station operator has the express or implied authority, or
duty, to inquire or determine whether the driver of a vehicle or the person to whom the
specially designed license plate or disabled placard was issued, is actually disabled.
However, we are not cognizant of any prohibition against merely inquiring whether a
driver is in fact disabled. Nevertheless, we caution that failure to provide relitehng
services to a person who displays a special device or disabled person identitication card
authorized by section 502.253 and 681.002 of the transportation code may subject a
managing individual or employee to criminal prosecution. Article 8613, section S(a)
provides:
A person who is a responsible managing individual setting
service policy of a station or facility covered by this Act or is an
employee acting independently against established service policy and
who violates Section 2 of this Act commits an offenx4 [Footnote
added.]
With regard to your second inquiry, section 681 .Ol 1 of the Transportation Code
sets forth the punishable offenses relevant to the disabled parking placard. However, this
section does not address the procurement or the use of the placard in conjunction with
refueling services. Moreover, the enumerated offenses are only applicable to the abuse or
misuse of parking privileges for the disabled. See Tramp. Code 5 681.011. Chapter 502,
Subchapter H sets forth the offenses and penalties associated with the use of speciahy
designed license plates. Siilarly, this chapter makes no rekence. to the procurement or
the use of the license plate in conjunction with refbeling services, Accordingly, we
conclude that these particular statutes do not provide a basis for recogking an offbnse
where a person who is not disabled obtains refueling services pursuant to the provisions of
article 8613. However, an individual who fraudulently receives such services may be
subject to criminal prosecution. See Penal Code ch. 3 1.
SUMMARY
With few exceptions, V.T.C.S. article 8613, section 2(a) and (b)
obligates operators of gasoline stations with “~1-serve” and “self-
serve” facilities to provide refueling services at “self-serve” prices to
those disabled drivers who display a special license plate or
‘An offense mdcr this s&ion is a class C misdemr. V.T.C.S. art. 8613, 0 5(b); see penal
code 5 12.23.
Honorable KckPerry - Page 5
identification card issued pursuant to sections 502.253 and 681.002
of the Transportation Code.
We have found no statutory basis upon which to opine that a
service station operator has the express or implied authority. or duty,
to inquire or determine whether the driver of a vehicle or the person
to whom the disabled identiScation card or license plate was issued is
actually disabled. However, we am not co&ant of any prohibition
a@nstmereiyiDquiringwhetheradriverisinfkctdisabled.
V.T.C.S. article 8613, section (2) provides the sole authority for
detaminingdisabiiwithregardtotheuseofadisabledplacardor
license plate to receive reiiteling sewices. Chapter 502, subchapter
H and section 681 .Ol 1 of the Transportation Code do not provide a
basis for recognizhq an offense where a person who is not disabled
obtains mfueUng services through the fraudulent use of another%
diaahkd placard or license plate. However, fkilure to provide
refuelinSservicestoapersonwhodisplaysadisabledparkiqplacard
or q&ally designed license plate authorized by sections 502.253
and 681.002 of the Transportation Code may subject a mana@
individual or employee to crimir& prosecution. V.T.C.S. art. 8613.
B5.
DAN MORALES
Attomey General of Texas
JORGE VEGA
First Assistant Attorney Genera)
SARAH J. SHIRLEY
Chair, opinion Committee
Prepared by Toya Cirica Cook
Assistant Attorney General