Untitled Texas Attorney General Opinion ( 1990 )

THE ATTORNEY GENERAL
OF TEXAS
December 21, 1990
Dr. W. N. Kirby opinion No. JM-1272
Commissioner of Education
Texas Education Agency Re: Meaning of "commercial
1701 North Congress Ave. driver-training schoolu and
Austin, Texas 78701-1494 ndriver-training instructor@*
under article 4413(29c),
V.T.C.S. (RQ-2148)
Dear Dr. Kirby:
You have requested our opinion as to whether the
American Association of Retired Persons [hereafter AARP] may
offer driver safety courses without complying ~. with the
requirements of article 4413(29c), V.T.C.S. Section 2 of
that statute provides:
No person, firm, association, partnership
corporation shall operate commercial
ZEiver-training school unless a cktificate of
approval for the commercial driver-training
school has been secured under the Texas
Proprietary School Act (Chapter 32, Education
Code), provided that training or classes
conducted by colleges, universities, high
schools, and junior high schools for students
as part of the normal program for such insti-
tutions shall be exempt.
Yomnercial driver-training schooln or "school" is defined
in section l(a) as
any enterprise conducted by an individual,
association, partnership, or corporation, for
the education and training of persons, either
practically or theoretically, or both, to
operate or drive motor vehicles and
consideration or tuition for such services.
(Emphasis added).
Before September 1, 1989, the Department of Public
Safety regulated the licensing'of commercial driver-training
schools and instructors. Since that date, the Texas Educa-
tion Agency has been the regulating agency, and section 16
p. 6805
Mr. W. N. Kirby - Page 2 (JM-1272)
provides that any reference in the statute "to the Depart-
ment is a reference to the agency."1
You indicate that the AARP offers a driver safety
course to its members and to other persons over the age of
50, at a charge of $8.00, for the purpose of ticket dismiss-
al and insurance discounts. When the Department of Public
Safety was the regulating agency, it did not require the
AAPP or its instructors to obtain a license. The department
did so despite a 1970 attorney general opinion addressed to
the department stating that driver-training programs con-
ducted by non-profit organizations were subject to the
licensing requirement even if the organization charged only
a nominal fee. Attorney General Opinion M-682 (1970).
The AARP contends that it should retain its exempt
status because 1) it is a non-profit organization: 2) it
charges no "tuition" but only a nominal fee to cover course
costs: and 3) its instructors teach on a non-salaried
volunteer basis, are reimbursed only for the expenses of
mileage, photocopying and telephone calls, and receive a
meal allowance of $5.00 for each of the two days of instruc-
tion.
Those arguments were rejected in Attorney General
Opinion M-682, and we affirm the conclusions of that opin-
ion. The definition of llcommercialdriver-training school,"
S~BIB, is applicable to any entity that charges wa consid-
eration or tuition" for its services. Section 312.002(a) of
the Government Code declares that words in a statute "shall
1. In order to effect the transfer of regulatory
authority, section 4.30 of the 1989 amendatory act provides:
The provider of a driver safety course
approved by the Department of Public Safety
may not continue the course after October 1,
1989, unless the provider files on or before
that date an application for a certificate of
approval under Chapter 32, Education Code. If
the provider files an application on or before
that date, the provider may continue the
course during the period that the application
is pending.
Acts 1989, 71st Lag.,'ch. 813, S 4.30, at 3709.
p. 6806
Mr. W. N. Kirby - Page 3 (JM-1272)
be given their ordinary meaning." Whether AARP makes a
profit on its $8.00 fee is irrelevant for purposes of
whether that charge is deemed %onsideration or tuition."
The fact remains that the AARP imposes the charge, and the
statute contains no exemption for entities that do not make
a profit on the instructional enterprise.
Nor does the construction formerly placed on article
4413(29c) by the Department of Public Safety act to exempt
the AARP from its scope. Although a departmental interpre-
tation of a statute may be useful when the statute is
ambiguous, the interpretation will not be followed when it
is contrary to the plain words of the statute.
#, , 415 S.W.td 394, 397 E
1967); ; I , 527 S.W.2.d175 (Tex.
1975); see also wssioner of as. v. Allstate Ins. Co,
579 S.W.2d 553, 557 (Tax. Civ. App. - Austin 1979, wrii
ref td n.r.e). A clearly erroneous statutory construction by
an administrative agency carries no weight. s & New
oad Co. v. - 284 S.W.ld 402 (Tex. Civ.
APP. - Austin 1955, writ ref’d n1r.e.). This is particular-
ly true when the agency interpretation was contrary to an
attorney general opinion issued to that agency. We conclude
that the AARP is not exempt from the definition of "commer-
cial driver-training school' in section l(a) and thus must
comply with the requirements of section 2 in order to
operate such a school.
You also ask whether an AARP instructor, under the
circumstances described, is subject to the licensing re-
quirement set out in section 5 of article 4413(29c):
No person shall teach give
driver-training for hire or forortuition
either as an individual or in a commerciai
driver-training school, or any phase of
driver-training or education after January 1,
1968, unless a license as a driver-training
instructor or supervisory driver-training
instructor has been secured from the Depart-
ment, provided that instructors in classes
conducted by colleges, universities, high
schools, and junior high schools for regular-
ly enrolled students as a part of the normal
program for such institutions shall be
exempt.
We understand you to ask about a situation in which an
individual pays to receive driver training but the
p. 6807
Mr. W. N. Kirby - Page 4 (JM-1272)
individual who provides the instruction receives no compen-
sation.2 Your question is whether the instructor in that
situation teaches "for hire or for tuition."
In that context, the language "for hire or for tuition"
is susceptible to two interpretations. One is that an
individual who receives no compensation is not teaching for
hire or for tuition. The other interpretation is that as
long as the person receiving instruction has paid for that
instruction, the teacher is teaching for hire or tuition.
The latter interpretation, we think, better serves the
purpose of article 4413(29c).
We think the legislature intended article 4413(29c) to
protect consumers. The act contemplates that a consumer who
pays for driver training will receive a certain standard of
training. Allowing schools that must be licensed to use
unlicensed instructors contravenes that purpose. We con-.
elude, therefore, that an instructor who teaches driver _
training to a person who has paid to receive driver training
teaches "for hire or for tuition" and is subject to licens-
ing under section 5 of article 4413(29c).
SUMMARY
A private, non-profit organization that
charges an $8.00 fee for driver safety in-
struction, and an instructor therefor, fall
within the ambit of "commercial
driver-training school" and "driver-training
instructorlqand thus must comply with the
requirement of article 4413(29c), V.T.C.S.,
which regulates such operations.
JIW MATTOX
Attorney General of Texas
2. On the facts you present, the AARP instructors are
not uncompensated since they receive a meal allowance.
P* 6808
Mr. W. N. Kirby - Page 5 (JM-1272)
MARYKE(ELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin and Sarah Woelk
Assistant Attorneys General
p. 6809