Untitled Texas Attorney General Opinion

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DAN MORALES December 121991
ATTORNEY
GENERAL
Lionel Meno, Ph.D. opinion No. DM-69
Commissioner of Education
Texas Education Agency Re: Whether a municipality can refuse to
1701 North Congress Avenue issue building permits or certificates of
Austin, Texas 78701-1494 occupancy to a school district for failing
to comply with municipal building code
requirements on handicapped accessibili-
ty where the school district has obtained a
waiver under article 7 of the State
Purchasing and General Services Act
@Q-W)
Dear Commissioner Meno:
You ask whether the City of El Paso may refuse to issue building permits or
certificates of occupancy to the El Paso Independent School District for failing to
comply with municipal building code requirements on handicapped accessibility if
the school district is in compliance with the accessibility standards and specifications
adopted pursuant to article 7 of the State Purchasing and General Services Act,
V.T.C.S. art. 601b. or has received a waiver from such compliance under section
7.02(e) of that act. Your question, essentially. breaks down into two considerations:
(1) whether article 7 of the State Purchasing and General Services Act preempts the
field of handicapped accessibility to buildings, and (2) if article 7 of the State
Purchasing and General Services Act does not preempt the field, whether El Paso’s
regulation of handicapped accessibility through its building code is inconsistent with
state legislation in this area.
El Paso is a home-rule city existing and operating under article XI, section 5
of the Texas Constitution. Under its building code all new construction, with
enumerated exceptions, must meet accessibility standards that include requirements
for doors, surfaces, slopes, steps, and other similar features of buildings that bear on
accessibility to handicapped people. Article 7 of the State Purchasing and General
Services Act states its policy as follows:
p. 345
Lionel Meno, Ph.D. - Page 2 (DM-69)
The provisions of this article are to further the policy of the
State of Texas to encourage and promote the rehabilitation of
handicapped or disabled citizens and to eliminate, insofar as
possible, unnecessary barriers encountered by aged,
handicapped, or disabled persons, whose ability to engage in
gainful occupations or to achieve maximum personal
independence is needlessly restricted when such persons cannot
readily use public buildings.
V.T.C.S. art. 6Olb, 8 7.01. Article 7 of the State Purchasing and General Services
Act applies to, inter a&z, all buildings and facilities used by the public which are
constructed in whole or in part by the use of the funds of any political subdivision of
the state. Id 8 7.02(a). Pursuant to article 7, the General Services Commission has
adopted rules which provide standards for accessibility to buildings covered by
article 7. See 1 T.A.C. Q 115.51 et seq. Section 7.02(e) of the State Purchasing and
General Services Act provides that the General Services Commission “shall have the
authority to waive or modify accessibility standards and specifications when
application of such standards and specifications is considered by the commission to
be irrelevant to the nature, use, or function of a building or facility covered by this
article.” The El Paso Independent School District sought and obtained such a
waiver for certain buildings under its control.
A home-rule city may not enact an ordinance inconsistent with state
legislation. Tex. Const. art. XI,
5 5. However, within that limitation, a home-rule
city enjoys broad discretion, and
the entry of the state into a field of legislation does
not automatically preempt that field from city regulation. City of Richardson v.
Responsible Dog Owners of Texas, 794 S.W.2d 17,19 (Tex. 1990). In Responsible Dog
Owners, the Texas Supreme Court found that a comprehensive municipal animal
control ordinance was not preempted by sections 1.08 and 42.12 of the Texas Penal
Code1 despite “a small area of overlap in the provisions of the narrow statute and
the broader ordinance.” Id. The court further held that section 1.08 of the Penal
‘Section 1.0s of the Penal Code provides:
No govemmental subdivision or agency may enact or enforce a
law that makes any conduct covered by this code an offense subject
to a criminal penalty.
Section 42.12 of the Penal Code makes it an offense to keep a dog that kas engaged in vicious conduct
without complying with certain prescribed standards.
p. 346
Lionel Meno, Ph.D. - Page 3 (DM-69)
Code places no greater restriction on a home-rule city than does article XI, section
5, of the Texas Constitution.
Article 7 of the State Purchasing and General Services Act does not expressly
state an intent to preempt the field of regulation that the act addresses. Certainly,
the act contains no language such as that found in section 1.08 of the Penal Code
limiting local enactments. If, as the supreme court teaches, section 1.08 of the Penal
Code does no more than article XI, section 5, of the constitution in that respect, we
do not think that an intent to preempt may be found by implication unless no other
reasonable interpretation is available. Accordingly, we conclude that article 7 of the
State Purchasing and General Services Act does not preempt the field of regulation
of handicapped accessibility.
Nor is municipal regulation of architectural barriers through a city building
code necessarily inconsistent with the rules adopted pursuant to article 7 of the
State Purchasing and General Services Act. The supreme court has held that a state
law and a city ordinance will not be held repugnant to each other if a reasonable
construction leaving both in effect can be reached. Responsible Dog Owners, supra.
As it is possible to comply with both the State Purchasing and General Services
Commission’s rules and El Paso’s building code, the two are not in inherent
conflict. While the building code may require more of a building owner, and may
not provide for waivers, it has not been suggested that compliance with the building
code will perforce result in noncompliance with the commission’s rules. Moreover,
the accessibility standards of El Paso’s building code are designed to achieve
precisely the goal stated in article 7: “to eliminate, insofar as possible, unnecessary
barriers encountered by aged, handicapped, or disabled persons.”
It would be anomalous to construe article 7 as limiting the adoption or
enforcement of vigorous municipal regulations in harmony with the goals that article
7 was enacted to achieve. The General Services Commission has recognized the
role of municipal regulation in its rules adopted pursuant to article 7:
Public officials are encouraged to assist in implementing the
policy of the state through development and enforcement of local
b+ilding~ codes and building permit regulations. A building
owner’s obligation to comply with the provisions of the Act and
the rules and regulations set out in these sections may not be
satisjied by a simple showing of compliance with local building
codes or ordinances.
P. 347
Lionel Meno, Ph.D. - Page 4 (DM-69)
1 T.A.C. 5 115.51 (emphases added). This provision makes clear that the General
Services Commission sees the standards adopted by its rules as establishing a floor
which ensures that state policy will be enforced even in jurisdictions whose building
codes do not require accessibility. It suggests no attempt to override more stringent
local regulation that is consistent with the purpose of its rules.
Finally, we note that the General Services Commission has taken the
position that a waiver granted pursuant to section 7.02(e) of the State’Purchasing
and General Services Act does not preempt enforcement of a local building code.
In a letter dated July 10, 1991, to the El Paso City Attorney’s Office, the legal
counsel to the commission states:
However, in light of the State’s express policy regarding
architectural barriers, the limitations it has placed on the
granting of waivers, and its silence on the issue of pre-emption
of the powers of home rule cities, it is my opinion that Article 7
of the Act does not pre-empt the [El Paso Building] Code if the
Commission, pursuant to its authority, has exempted a building
from architectural barrier compliance.
We conclude that article 7 of the State Purchasing and General Services Act
does not preempt the field of regulation with respect to architectural barriers. We
have no basis for finding that a municipal building code is inconsistent with the rules
adopted pursuant to article 7 where a reasonable construction, giving effect to both,
is available. Accordingly, the City of El Paso may enforce the accessibility
requirements of its building code with respect to buildings under the control of the
El Paso Independent School District.
SUMMARY
The City of El Paso may refuse to issue a building permit or
certificate of occupancy to the El Paso Independent School
District for failing to comply with municipal building code
requirements on handicapped accessibility, notwithstanding the
fact that the school district is in compliance with the accessibility
P- 348
Lionel Meno, Ph.D. - Page 5 (DM-69)
standards and specifications adopted pursuant to article 7 of the
State Purchasing and General Services Act, V.T.C.S. art. 601b,
or has obtained a waiver from such compliance under section
7.02(e) of that act.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE JOHNSON
Chair, Opinion Committee
Prepared by John Steiner
Assistant Attorney General
p. 349