Untitled Texas Attorney General Opinion ( 1987 )

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