Untitled Texas Attorney General Opinion ( 1999 )

OFFICE OP THE ATTORNEY GENERilL STIITE
OF TEXIIS
JOHN CORNYN
July 14, 1999
The Honorable Florence Shapiro Opinion K-0077
Chair, Committee on State Affairs
Texas State Senate Re: Whether a van-access aisle adjacent to a van-
P.O. Box 12068 accessible parking space is an “architectural
Austin. Texas 78711 improvement designed to aid persons with
disabilities” for purposes of section 68 1.Ol l(c) of,
the Transportation Code (RQ-1228)
Dear Senator Shapiro:
Under section 681 .Ol l(c) of the Transportation Code, a person who parks a vehicle so as to
obstruct “an architectural improvement designed to aid persons with disabilities” commits a
misdemeanor. See also TEX. TRANSP. CODE ANN. 4 681.01 l(g)-(k) (Vernon 1999) (prescribing
penalties). You ask whether a van-access aisle adjacent to a van-accessible parking space is an
“architectural improvement designed to aid persons with disabilities” in the context of section
681.01 l(c). We believe it is.
UndertheAmericanswithDisabilitiesAct,42U.S.C. $5 12101-12205 (1995 &Supp. 1999)
the United States Department of Justice has promulgated minimum standards, designed to improve
access for the disabled, for new or altered public parking lots. Among other things, the Department
of Justice requires that one in every eight accessible parking spaces be served by a van-access aisle:
“One in every eight accessible spaces, but not less than one, shall be served by an access aisle 96
[inches] . . wide minimum and shall be designated ‘van accessible. . .“’ 28 C.F.R. pt. 36, app. A
5 4.1.2(5)(b) (1998); see also id. $ 4.6.4 (providing for signage). The Texas Department of
Licensing and Regulation has adopted substantially identical requirements in accordance with the
Texas Architectural Barriers Act, TEX. REV. CIV. STAT. ANN. art. 9102 (Vernon Supp. 1998). See
TEX. DEP’T OF LICENSING & REGULATION, TEXAS ACCESSIBILITY STANDARDS 5 4.1.2(5)(a), (b)
(1994).
Section 681 ,011 ofthe Texas Transportation Code establishes several offenses related to the
unauthorized use or misuse of disabled parking spaces or privileges. For example, under section
681.01 l(a), a person who parks a vehicle with specially designed, disabled license plates or a
disabled parking placard in a designated disabled parking space commits an offense if the driver is
not disabled or is not transporting a disabled person. A person without disabled license plates or a
disabled parking placard on his or her vehicle commits an offense under section 681.01 l(b) if the
person parks in a designated disabled parking space. Under section 68 1.Ol l(d), a person commits
The Honorable Florence Shapiro - Page 2 (X-0077)
an offense if he or she lends a disabled parking placard to another person who uses the placard in
contravention of section 681 ,011. And, under section 681 .Ol l(c), a person commits an offense if
the person “parks a vehicle so that the vehicle blocks an architectural improvement designed to aid
persons with disabilities, including an access or curb ramp.”
You ask whether a van-access aisle adjacent to a van-accessible parking space qualities as
an “architectural improvement designed to aid persons with disabilities” for purposes of section
681 .Ol l(c) of the Transportation Code. We find no statutory definition or judicial construction of
the phrase “architectural improvement designed to aid persons with disabilities.” Because section
681.01 l(c) is a statute that creates a criminal offense for parking in a way that obstructs an
“architectural improvement designed to aid persons with disabilities,” however, the phrase must be
strictly construed. A statute imposing a criminal penalty must be construed narrowly to, in part,
fairly notify persons subject to the statute so that they may act as the statute requires and avoid the
criminal penalty. See Agey Y. American Liberty Pipe Line Co., 172 S.W.2d 972,974 (Tex. 1943);
State v. International G.N. Ry. Co., 179 S.W. 867,868 (Tex. 1915); Howell Y. Mauzy, 899 S.W.2d
690,704 (Tex. App.-Austin 1994, writ denied).
Moreover, the statute tells us that an architectural improvement designed to aid persons with
disabilities includes items like access ramps and curb ramps. TEX. TRANSP. CODEANN. 5 68 1.Ol l(c)
(Vernon 1999). The term “including” is a term of enlargement, not a term denoting exclusivity.
TEX. GOV’T CODE ANN. 5 3 11.005(13) (Vernon 1998). To determine whether a van-access aisle
should be “included” within the set of architectural improvements designed to aid persons with
disabilities, we consider whether a van-access aisle bears significant similarities to an access ramp
or a curb ramp. We believe it does.
Both an access ramp and a curb ramp are features specially designed to facilitate access by
a person with a mobility disability. Generally, both enable a person with such a disability to
navigate from the parking-lot or street level to a sidewalk or building entrance. Without an access
or curb ramp, a person with a mobility disability would be severely hampered in any attempt to
access a building from the parking lot. Additionally, both are mandated by federal law, see 28
C.F.R. pt. 36, app. A $5 4.7,4.8 (1998), and federal law sets out precise specifications for each, see
id. For example, an access ramp generally shall have a slope of 1: 12 with a maximum rise of thirty
inches, see id. 5 4.8.2, shall have a minimum clear width of thirty-six inches, see id. 5 4.8.3, shall
have level landings, see id. 5 4.8.4, and shall have handrails in certain circumstances, see id. 5 4.8.5.
Similarly, a curb ramp “shall be provided wherever an accessible route crosses a curb,” see id.
5 4.7.1, shall have amaximum slope of 1:12, see id. $5 4.7.2,4.8.2, shall be at least thirty-six inches
wide, see id. 5 4.7.3, and generally shall have flared sides, see id. 5 4.7.5.
A van-access aisle is similar in function and purpose to a ramp and is also similarly required
by law. A van-access aisle is specially designed to facilitate access by a person with a mobility
disability by providing sufficient space adjacent to a parking space for such a person to exit a van
and access the access or curb ramp, and from there, the building served by the parking lot. The
ability of a person with a mobility disability to leave a vehicle and approach a building from the
The Honorable Florence Shapiro - Page 3 (JC-0077)
parking lot would be hampered without a van-access aisle. In addition, federal law requires that a
specific proportion of total parking spaces in every public parking lot must be served by a van-access
aisle. See id. $4.1.2(5)(b). The dimensions of the van-accessible parking space are regulated by
federal law, see id. $5 4.1.2(5)(b), 4.6.3 & fig. 9, and may not slope more than a certain percentage,
see id. 5 4.6.3. Van-accessible parking spaces must be designated with special signs. See id. 5 4.6.4.
Given these numerous and significant similarities, we conclude a van-access aisle is an
architectural improvement designed to aid persons with disabilities for purposes of section
68 1,011 (c) of the Transportation Code. Moreover, we can surmise no reason for concluding that
obstructing an access or curb ramp is an offense under section 681.011(c) of the Transportation
Code, but obstructing a van-access aisle, which has the same purpose and function as a ramp, is not
an offense. Particularly in light of the fact that section 681 ,011 as a whole appears to cover any
wrongful use of a disabled parking space, we believe that no person could fail to be on notice that
obstructing a van-access aisle is an offense. Thus, our conclusion comports with our duty to strictly
construe this criminal statute. See Agey, 172 S.W.2d at 974; International G.N. Ry. Co., 179 S.W.
at 868; Howell, 899 S.W.2d at 704.
Accordingly, parking a vehicle so as to block a van-access aisle is an offense under section
681.01 l(c) of the Transportation Code and is punishable under section 681.011(g)-(k).
The Honorable Florence Shapiro - Page 4 (X-0077)
SUMMARY
Parking a vehicle so as to block a van-access aisle is an
offense under section 681.01 l(c) of the Texas Transportation Code.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Prepared by Kymberly K. Oltrogge
Assistant Attorney General