Untitled Texas Attorney General Opinion ( 1974 )

THEA-ITORNEYGENERAL
OF TEXAS
AUSTIN. TRxAS 78711
October 11, 1974
The Honorable Laurence R. Melton Opinion No. H- 420
Chairman, The Governor’s Committee
for Employment of the Handicapped Re: Whether architectural
TEC Building barriers to use of
Austin, Texas 78778 facilities by physically
handicapped persons
constitute discrimin-
ation under Article 4419e.
Dear Mr. Melton: V. T. C. S.
You have requested an interpretation of Article 4419e, Sec. 3, V. T. C. S.
This Article concerns the use by physically handicapped persons of public
facilities. Section 3 proscribes discrimination affecting such use. You
ask specifically whether architectural barriers created by curbs, steps,
narrow doorways, etc., constitute discrimination as defined in the Section.
We begin with a comparative examination of Articles 4419e and 678g,
V. T. C. S., which were enacted contemporaneously by the 6lst Legislature.
Article 6788 requires publicly-financed build@ and facilities to be
constructed so as to make them accessible to the physically handicapped.
The statute establishes detailed design criteria and makes the State
Building Commission primarily responsible for administration and enforce-
ment of the Act. It establishes an affirmative program to remove architec-
tural barriers in publicly-financed facilities.
In contrast, Article 4419e makes it a misdemeanor offense to
discriminate against physically handicapped persons. It proscribes
discrimination such as a refusal to accept a handicapped person as a
passenger on a common carrier, or a charge of additional fare for his
mobility aids, such as a dog guide or wheel chair [Sec. 3(b)], or a denial
of admission to a public facility by a handicapped person because of his
handicap [Sec. 3(c)]. Section 3(d) of the Article further defines discrimi-
nation to include:
pe 1956
The Honorable Laurence Melton, page 2 (H-420)
. . . an open and obvious refusal to allow a
handicapped person to use or be admitted to
any public facility, as well as discrimination
based upon a ruse or subterfuge calculated to
prevent or discourage a handicapped person
from using or being admitted to a public faci-
lity.. . .
Article 4419e does not purport to remove physical barriers to public
facilities, but seeks to eliminate discriminatory policies, rules or regu-
lations. It regulates conduct, not construction.
While the discriminatory conduct proscribed by Article 4419e could
involve the intentional erection of architectural or other physical barriers
to prevent access by the physically handicapped, we do not believe that
the mere existence of such barriers or the failure to remove them could
serve as a basis for prosecution under that Section.
SUMMARY
Article 4419e does not, per se. prohibit architectural
designs which may amount to a barrier to a handicapped
person’s use of a public facility unless such design is
intentionally formulated to prevent or discourage such use.
Very truly yours,
da
OHN L. HILL
Attorney General of Texas
P
VED:
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&$Eznt
DAVID M. KENDALL, Chairman
Opinion Committee
.p. 1957