Untitled Texas Attorney General Opinion ( 1995 )

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DAN MORALES August 25, 1995
ATTORNEY
GENERAL
Mr. Michael A. Moses Opinion No. DM-362
Commissioner of Education
Texas Education Agency Re: Whether a school district may
1701 North Congress Avenue purchase, lease, rent, or use for the
Austin, Texas 78701-1494 transportation of students to and from
school or school activities a motor vehicle
that does not meet federal and state
school bus safety standards and related
questions (RQ-781)
Dear Commissioner Moses:
Your predecessor in office asked several questions about federal and state statutes
regarding school bus safety. First, he asked about provisions of the National Traflic and
Motor Vehicle Safety Act of 1966, 15 U.S.C. $$ 1381 - 1431.’ This federal statute
requires the secretary of the United States Department of Transportation to promulgate
federal vehicle safety standards for school buses and school bus equipment. Id.
5 1392(i)(l)(A), (B); see also 49 C.F.R. part 571 (federal motor vehicle safety standards
promulgated by the National Highway Traffic Safety Administration of United States
Department of Transportation). The term “school bus” in the National Traffic and Motor
Vehicle Safety Act is defined as
a passenger motor vehicle which is designed to cany more than 10
passengers in addition to the driver, and which the Secretary [of the
United Stated Department of Transportation] determines is likely to
be significantly used for the purpose of transporting primary,
preprimary, or secondary school students to or from such schools or
events related to such schools.
15 U.K. $ 1391(14).2 Federal law fUrth& provides that no person shall “manufacture
for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce,
‘Thetwo provisionsin the NationalTraffic and Motor Vehicle Safety Act pertaining particularly
to school buses, 15 USC. g 1391(14), (15) and 15 U.S.C. 5 1392(i), were added to the act in 1974. See
Act ofOct. 27, 1974, Pub. L. No. 93-492, $5 201-202, 1974 U.S.C.C.A.N. (88 Stat.) 1705~35.
*The federal regulations define the term “school bus” somewhat differently: “School bus means
a bus that is sold, or introducedin interstatecommerce,for purposesthat includecarrying studentsto and
from school or related events, but does not include a bus designed and sold for operation as a common
carrier in urban transportation.” 49 C.F.R 5 571.3@). “Bus means a motor vehicle with motive power,
except a trailer, designed for carrying more than 10 persons.” Id.
Mr. Michael A. Moses - Page 2 (DM-362)
or import into the United States, any motor vehicle unless it is in conformity with [any
applicable federal motor vehicle safety standard].” 15 U.S.C. 5 1397(a)(l).
Your predecessor asked whether these federal provisions prohibit a school district
from purchasing, leasing, renting or using any motor vehicle that does not meet the federal
motor vehicle safety standards for school buses. Specifically, he asked:
May a school district purchase, lease, rent, or use for the
transportation of students to and from school or school activities a
motor vehicle that does not meet federal school bus safety standards
promulgated under 15 U.S.C.A. 1392(i), regardless of the vehicle’s
rated seating capacity, the actual number of students being
transported, or the purpose of the transportation service (daily route
versus special purpose transportation).
The federal provisions described above prohibit only certain activities, i.e., the
manufacture, sale, introduction or delivery for introduction in interstate commerce, or
importation of school buses. While these federal provisions apply to manufacturers,
sellers, and importers of school buses, they do not appear to apply to purchasers, lessees,
renters or users of school buses or other motor vehicles used to transport students., C’
Rauh Y. Jensen, 507 P.2d 520, 522 (Mont, 1973) (National Tragic and Motor Vehicle
Safety Act is designed to protect general public from misdesign by automobile
manufacturers, distributors, or dealers; it does not place duty on automobile owners to
protect others).3 As discussed below, however, state statutes impose school bus safety
standards on school districts.
Your predecessor asked about two Texas statutes, article 6687b and article 6701d,
V.T.C.S., which contain several provisions relating to school buses.4 Section 124(b) of
article 6701d, for example, provides that “[elvery school bus. shall be equipped
with signal lamps” according to certain specifications. See also V.T.C.S. art. 6701d,
$5 105(c) (requiring every school bus to be equipped with convex mirrors), 107 (requiring
every school bus to be equipped with fire extinguisher). A violation of a provision of
article 6701d constitutes a misdemeanor “unless such violation is by [that article] or other
law of this State declared to be a felony.” Id. 5 143(a). Section 5 of article 6687b
imposes special licensing restrictions on any person who drives “any motor vehicle while
in use as a school bus for the transportation of pupils to or from school.” As with article
6701b, violation of a provision of article 6687b constitutes a misdemeanor “unless such
3Schooldistrictsshouldkeep in mind the possibility,however,that federal motor vehicle safety
standardsfor school buses and school bus equipment might be used as henclunsrks in liability cases
againstschooldistrictsinvolvingschoolbus accidents.
4As of September1, 1995,both article 668% and article 6701d till be repealed and their
provisionsreorganizedand recoditiedin the newly-enactedTnmsportstionCode. See Act of May 1, 1995,
74th Leg., RS., ch. 165, $5 24 (repealer),27 (effectivedate), 1995Tex. SW.. Law Serv. 1025, 1870-71.
The TransportationCodeis a nonsubstantiverevisionof the law. See id. 5 25, at 1871.
p. 1947
Mr. Michael A. Moses - Page 3 (DM-362)
violation is by [that article] or other laws of this State declared to be a felony.” V.T.C.S.
art. 6687b, 3 44(a).
Section 2(e) of article 6701d defines the term “school bus” as follows:
every motor vehicle that complies with the color and identification
requirements set forth in the most recent edition of standards as
produced and sponsored by the National Commission on Safety
Education of the National Education Association, Washington, D.C.,
and is being used to transport children to or from school or in
connection with school activities, but not including buses operated by
common carriers in urban transportation of school children.
We will refer to the standards referred to in this definition as the “NEA standards.” Your
predecessor stated that “[i]t is unclear exactly what vehicles are [subject to article 6701d
as school buses] because the commission referred to in the definition of ‘school bus’ has
not been in existence for some period of time and the requirements established by it are
unknown.” He also pointed out that article 6687b does not define the term “school bus.”
We note, however, that it does provide as follows:
Words and phrases not defined in this Act but which are defined in
the Uniform Act Regulating Traffic on Highways (Article 6701d,
Vernon’s Texas Civil Statutes) shall have the meanings respectively
ascribed to them in that Act. Words and phrases which are defined
neither in this Act nor in the Uniform Act Regulating Traffic on
Highways shall be read in context and construed according to the
rules of grammar and common usage. Words and phrases that have
acquired a technical or particular meaning, whether by legislative
definition or otherwise, shall be construed accordingly.
V.T.C.S. art. 6687b, 9 1
The definition of the term “school bus” in section 2(e) of article 6701d refers in
part to “the most recent edition of standards” of a private entity. In Dudding v. Automatic
Gas Co., 193 S.W.2d 517 (Tex. 1946) the Texas Supreme Court suggested that a statute
that prospectively adopts the future rules of an unofficial agency would violate article III,
section 1 of the Texas Constitution. s In Attorney General Opinion DM-159 (1992) this
office concluded that a provision of the Health and Safety Code that referred to outdoor
shooting range “standards that are at least as stringent as the standards printed in the
National Rifle Association range manual,” and failed to refer to a particular edition of the
range manual, violated article III, section 1 for the reasons stated in Dudding. Like the
statute at issue in Attorney General Opinion DM-159, section 2(e) of article 6701d
5ArticleIII, section 1 of the Texas Constitution providesas follows: “The Legislative power of
this State shall be vested in a Senate and House of Representatives, which together shall be styled ‘The
Legislature of the State of Texas.“’
p. 1948
Mr. Michael A. Moses - Page 4 @M-362)
prospectively adopts the mture rules of an unofficial agency. For this reason, we conclude
that the reference to the NEA standards in the definition of the term “school bus” in
section 2(e) of article 6701d is unconstitutional.
Section 2(e) was amended to its present form in 1971. See Act approved
April 27, 1971, 62d Leg., R.S., ch. 83, $ 1, 1971 Tex. Gen. Laws 722, 723. The bill
enacting this amendment contains a severability clause that applies if “any provision of this
Act or the application thereof to any person or circumstances is held invalid.” Id. 5 104,
at 773. We conclude that only the reference to the NEA standards in section 2(e) is
invalid and that the remaining language remains in effect. See Ohio Oil Co. v. Giles, 235
S.W.2d 630, 637 (Tex. 195 1) (where statute contains words or provisions that are legal
and others that are not, effect may be given to legal words or provisions by separating
them from the illegal ones). Therefore, we construe section 2(e) of article 6701d to define
the term “school bus” as follows:
every motor vehicle that is being used to transport children to or
from school or in connection with school activities, but not including
buses operated by common carriers in urban transportation of school
children6
We believe this definition embraces both school buses owned and operated by school
districts and, with the exception of “buses operated by common carriers in urban
transportation of school children,” school buses that are privately owned and operated
pursuant to a contract with a school district. See also infra note 13. We also believe it
embraces passenger cars used for the transportation of students to and from school or in
connection with school activities as provided by newly enacted section 34.003 of the
Education Code, which was substantially revised by the Seventy-fourth Legislature in
Senate Bill No. 1. See Act of May 27, 1995, 74th Leg., R.S., ch. 260, $ 1, 2207, 235 1 (to
be codified as Educ. Code 5 34.003). See also infia note 12.
With respect to article 6701d, your predecessor asked the following:
May a school district purchase, lease, rent, or use for the
transportation of students to and from school or school activities a
motor vehicle that does not meet state school bus safety standards
under [alrticle 6701d, Revised Statutes, regardless of the vehicle’s
rated seating capacity, the actual number of students being
transported, or the purpose of the transportation service?
6We dissgrcc with the contention made in a brief submitted to this office that the definition of the
term “school bus” in section 2(e) of article 6701d is meaningless. We also disagreewith the contention
that section 108A of article 6701d requires that the Texas definition of the term “school bus” must mirror
the federaldefinition. Section108Amerelyauthorizesthe Texas Department of Public Safetyto establish
vehicle equipment standards that are consistent with federal standards. The legislature, in enacting
section 2(e), clearly intended to provide a separate, state law definition of the term “school bus.”
p. 1949
Mr. Michael A. Moses - Page 5 (DM-362)
The application of the article 6701d school bus safety standards to which you refer, see
V.T.C.S. art. 6701d, $5 105(c) (requiring every school bus to be equipped with convex
mirrors), 107 (requiring every school bus to be equipped with fire extinguisher), 124(b)
(requiring every school bus to be equipped with signal lamps), does not depend upon the
rated seating capacity of a motor vehicle or the actual number of students being
transported in the motor vehicle. Rather, the application of these provisions to a motor
vehicle depends upon the purpose for which the motor vehicle is used. It is apparent from
the article 6701d definition of “school bus” that these provisions apply to any motor
vehicle used by a school district “to transport children to or from school or in connection
with school activities.” See id. 5 2(e). Thus, it would appear that school districts are
precluded from transporting students to or from school or in connection with school
activities in motor vehicles that do not comply with the aforementioned standards.’ See
also inta note 9.
We lkther note that while the provisions of article 6701d at issue merely require
that school buses be equipped with convex mirrors, V.T.C.S. art. 6701d, 5 105(c), fire
extinguishers, id. $ 107, and signal lamps, id. 5 124@), section 105(a) of article 6701d, as
amended by Senate Bill No. 1, authorizes the General Services Commission and the
Department of Public Safety to promulgate comprehensive safety regulations for all school
buses for the transportation of school children owned and operated by any school district
or privately owned and operated under contract with a school district.8 Section 34.002(b)
‘You do not ask and we do not address whether or to what extent federal law pre-empts these
state school bus safety standards. See in@ note 8 (quoting 15 U.S.C. § 1392(d)).
%ection 105(a),as amended by Senate Bill No. 1, provides as follows:
The General Services Commission, by and with the advice of the
Departmentof Public Safety, shall have joint and complete responsibility to adopt
and enforce regulations governing the design, color, lighting and other
equipment, construction, and operation of all school buses for the transportation
of school children when owned and operated by any school district or privately
owned and operated under contract with any school district in this State, and
such regulations shall by reference be made a part of any such contract with a
school district. Every school district, its officers, employees, and every person
employed under contract by a school district shall be subject to these reguIations.
Act of May 27, 1995,74th Leg., RS., ch. 260,s 56, 1995 Tex. Sess. Law Serv. 2207,249s.
The National Traffic and Motor Vehicle Safety Act of 1966 contains the following provision:
Whenever a Federal motor vehicle safety standard established under this
subchapter is in effect, no State or political subdivision of a State shall have any
authority either to establish, or to continue in effect, with respect to any motor
vehicle or item of motor vehicle equipment any safety standard applicable to the
same aspect of performance of such vehicle or item of equipment which is not
identical to the Federal standard. Nothing in this section shall be constmed as
preventing any State from enforcing any safety standard which is identical to a
Federal safety standard. Nothing in this s&ion shall be construed to prevent the
Federal Government or the government of any State or political subdivision
p, 1950
Mr. Michael A. Moses - Page 6 @M-362)
of the Education Code, as enacted by Senate Bill No. 1, provides that “[elach school
district shall comply with [these] safety standards.” See Act of May 27, 1995, 74th Leg.,
R.S., ch. 260, 5 1, 1995 Tex. Sess. Law Serv. 2207, 2351 (to be codified as Educ. Code
§ 34.002(b)). A school district that fails to do so is ineligible to receive certain fimds. See
id. (to be codified as Educ. Code 5 34.002(c)). Such safety standards also apply to school
buses leased by a school district, see id. (to be codified as Educ. Code § 34.009(b)), or
operated by a transit authority or commercial transportation company under contract With
a school district, see id. at 2352 (to be codified as Educ. Code 5 34.008(a)(2)).9
(footnote continued)
thereof from establishing a safety reqnirement applicable to motor vehicles or
motor vehicle equipment proonred for its own use if such requirement imposes a
higher standard of performance than that reqnired to comply with the otherwise
applicable Federal standard.
15 U.S.C. 5 1392(d).
The General Services Commission and the Department of Public Safety do not appear to have
promulgated comprehensive school bus safety standards pursuant to section 105(a) of article 6701d. We
have obtained a copy of a publication entitled Specifications, prepared jointly by the General Services
Commission, the Texas Education Agency, and the Department of Public Safety, which contains
minimum reqnirements for the wnstrnction of school buses purchased and used by Texas public schools
participating in the Foundation School Program.
9R~Uy enacted section 34.003 of the Education Code states in pertinent part:
(a) School buses shall be used for the transportation of students to and from
schools on school bus routes having 10 or more students
@) To transport students in conneztion with school activities other than on
school bus routes to and from school:
(1) only school buses, buses chartered from motor bus companies, or
district-omed buses meeting the safety standordsprescribedfor vehicles used by
motor bus cornponies may be wed to transport 10 or more students in any one
vehicle.
Act of May 27, 1995,74th Leg., RS., ch. 260,s 1, 1995 Tex. Sess. Law Serv. 2207,235l (to be eodiied
as Ednc. code 5 34.003) (emphasis added). Given that section 34.003 was enacted in the same legislation
that enacted section 34.002 of the Education Code and rwised section 105(a) of article 6701d pertaining
to safety standards applicable to “every motor vehicle used to transport children to or from school or in
eonneetion with school activities,” we do not read the language italicized above to prescribe different
safety standards for district-owned buses used to transport students in connection with school activities
other than on school bus routes to and from school. Rather, we constme this language to require such
vehicles to comply both with generally applicable safety standards and “safety standards prescribed for
vehicles used by motor bus companies.”
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Mr. Michael A. Moses - Page 7 @M-362)
With respect to article 6687b, your predecessor in office asked:
If a school district may transport students to and from school or
school activities in a motor vehicle that does not meet federal or state
school bus safety standards, must the driver satisfy the requirements
for a driver of a “motor vehicle while in use as a school bus” under
[section 5 of article 6687b] regardless of the vehicle’s rated seating
capacity, the actual number of students being transported, or the
purpose of the transportation service?
Because we have concluded that a school district may not transport students to and from
school or school activities in a motor vehicle that does not meet state school bus safety
standards under article 6701d, it does not appear necessary for us to answer this question.
We do note that the term “school bus” in section 5 of article 6687b, which governs the
licensing of those who drive “any motor vehicle while in use as a school bus for the
transportation of pupils to or from school,” has the same meaning as it does in article
6701d.‘O
Your predecessor also asked about section 4.18 of the Education Code which
provided in pertinent part as follows:
(a) All vehicles used for the transportation of pupils to and/or
from any school or college shall have a sign on the front and rear and
on each side of the vehicle, showing the words “School Bus” and
such words shall be plainly readable in letters not less than eight
inches in height. It shall be the duty of the operator of any school
bus to see that the signs are displayed, but if a school bus is being
operated on a highway for any purpose other than the transportation
of pupils, the markings indicating “School Bus” shall be covered or
concealed.
(b) Any person who violates the provisions of this section shall
be guilty of a misdemeanor unless such violation is by other law of
this state declared to be a felony.
This provision was repealed by Senate Bill No. 1. Act of May 27, 1995, 74th Leg., R.S.,
ch. 260, 5 58, 1995 Tex. Sess. Law Serv. 2207, 2495. Its substantive provisions do not
appear to have been reenacted.11 Therefore, this question is moot.
toWe further note that the Department of public Safety is authorized to promulgate rules
regarding school bus drivers. See V.T.C.S. art. 6687b, 5 5(a), as amended by Act of May 27, 1995, 74th
Leg., RS., ch. 260, 5 55, 1995 Tex. Sess. Law Serv. 2207,2497-98.
‘YOU, predecessor asked if a “vehicle [must] be identified as a school bus in compliance with
[section 4.18 of the Education Code] regardless of the vehicle’s rated seating capacity, the actoal
numberof studentsbeing transported,or the purpose of the transportationservice?” In addition, your
predecessor asked the following questions about section 4.18: “Is the driver subject to criminal penalty for
p. 1952
Mr. Michael A. Moses - Page 8 (DM-362)
Finally, your predecessor asked the following series of questions:
May a school district require or allow students to be transported
in the personal vehicles of school district employees or other
persons? If so, do any of the above federal or state requirements
apply to those vehicles or the drivers of those vehicles,
regardless of the vehicle’s rated seating capacity, the actual
number of students being transported, or the purpose of the
transportation service?
While we are not aware of a statute or regulation which prohibits a school district from
requiring or allowing students to be transported in the personal vehicles of school district
employees or other persons, nor are we aware of a statute or regulation which expressly
permits it. I2 As discussed above, the federal provisions about which your predecessor
inquired apply only to the manufacture for sale, sale, offer for sale, or introduction or
delivery for introduction in interstate commerce, or importation of school buses, and do
not apply to the use of school buses. The school bus safety standards in article 6687b and
article 6701d do not appear to be intended to apply to privately owned vehicles which are
operated by private individuals for private purposes. I3 Thus, these provisions do not
(footnotecontinued)
failure to amply 7 Are any other school district employees or officers subject to criminal penalty for
the failure to comply ?”
t*Recently enacted section 34.003 of the Education Code authorizes a school district to require or
allow students to be transported in passenger cars. That pro&on states in pertinent part:
(a) School buses shall be used for the transportation of students to and from
schools on school bus routes having 10 or more students. On those school bus
routes having fewer than 10 students, passenger cars may be used for the
transportation of students to and from school.
(b) To transport students in connection with school activities other than on
school bus routes to and from school:
(2)passengercars maybe used to transportfewerthan 10 students.
(c) In all circumstances in which passenger cars are used to transport
students, the operator of the vehicle shall ensure that the number of passengers in
the vehicle does not exceed the designed capacity of the vehicle and that each
passenger is secured by a safety belt.
Act of May 27, 1995,74th Leg., RX, ch. 260, 5 1, 1995 Tex. Sess. Law Serv. 2207,235l (to be codified
as Educ. code 5 34.003). We do not construe this provision to address whether or not school districts are
authorized to transport students in passenger cars owned by persons or entities other than the school
dktriet.
t3We believe that interpreting the school bus safety provisions in articles 66871, and 6701d to
apply to privately owned vehicles operatedby private individualsfor private purposes,such as driving
family membersto and from school,wouldlead to absurd,unreasonableresults. Thus, we concludethat
theseprovisionsshouldbe interpretedmore narrowly. See Gov’tCode 5 311.02l(3), (4) (“In enacting a
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Mr. Michael A. Moses - Page 9 @M-362)
appear to prohibit a school district from merely permitting students to be transported in
the personal vehicles of school district employees or other personsL4 We caution,
however, that these state statutory school bus safety standards could be construed to
apply to personal vehicles of school employees or other persons used to transport students
to or from school or school activities when required by a school district. The definition of
“school bus” in section 2(e) of article 6701d, the operative definition for both that article
and section 5 of article 6687b, is not limited to just those motor vehicles owned or
operated by a school district or privately owned and operated under contract with a school
district. Compare V.T.C.S. art. 6701d, $2(e) (defining the term “school bus” as “every
motor vehicle that is being used to transport children to or from school or in
connection with school activities, but not including buses operated by common caxiers in
urban transportation of school children”) with id. § 105(a) (referring to “all school buses
for the transportation of school children when owned and operated by any school district
or privately owned and operated under contract with any school district in this state”).
Therefore, it is entirely possible that a court could construe these provisions to apply to
motor vehicles that are operated at the behest of a school district but that are neither
owned and operated by a skhool district nor operated under a contract with a school
district.
SUMMARY
Federal statutes requiring the secretary of the United States
Department of Transportation to promulgate federal vehicle safety
standards for school buses and school bus equipment, I5 U.S.C.
3 1392(i)(l)(A), (B), and prohibiting the manufacture for sale, sale,
offer for sale, or introduction or delivery for introduction in interstate
commerce, or importation into the United States of any motor
vehicle unless it is in conformity with any applicable federal vehicle
safety standards, id. 5 1397(a)(l), do not appear to apply to
purchasers, lessees, renters or users of school buses or other motor
vehicles used to transport school children.
This office construes section 2(e) of V.T.C.S. article 6701d to
define the term “school bus” to mean “every motor vehicle that is
being used to transport children to or from school or in connection
(footnote continued)
statute, it is presumed that: (3) a just and reasonable result is intended; (4) a result feasible of
execution is intended .“).
“%hile we are not aware of a statote or regulation which prohibits a school district from
allowing students to be transported in the personal vehicles of school district employees or other persons,
we believe that every school district should evaluate the wisdom of doing so, specifically with their legal
WUW21.
p. 1954
Mr. Michael A. Moses - Page 10 (DM-362)
with school activities, but not including buses operated by common
carriers in urban transportation of school children.” Therefore,
school districts are precluded from transporting students to or from
school or in connection with school activities in motor vehicles that
do not comply with school bus safety standards in that article. See
V.T.C.S. art. 6701d, $5 105(c) (requiring every school bus to be
equipped with convex mirrors), 107 (requiring every school bus to be
equipped with fire extinguisher), 124(b) (requiring every school bus
to be equipped with signal lamps). V.T.C.S. article 6687b, which
imposes special licensing restrictions on any person who drives “any
motor vehicle while in use as a school bus for the transportation of
pupils to or from school,” see id. art. 6687b, $ 5, and the afore-
mentioned school bus safety standards in article 6701d could be
construed to apply to personal vehicles of school employees or other
persons used to transport students to or from school or school
activities when required by a school district.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney General
P. 1955