Untitled Texas Attorney General Opinion ( 1985 )

The Attormy General of Texas
JIM MAlTOX thy 28, 1985
Attorney General
Supramo Ca~tl Building YhmorablaDavid CaI'm Opinion Do. m-320
P. 0. Box l254S Chairman
Austin. TX. 78711-2548
51214752501
Committeeon Transportation Re: Authority of the Texas Parks
Telex 9101874-1357 Texas Eouse of Repmsentatives and Wildlife Department under
Telecopier 51214750266 P. 0. Box 2910 sedon 31.073 of the Texas Parks
Austin,Texas 787'69 and Wildlife Code, the Water
714 .J1dcso”, Suite 700
Safety Act. to issue citationsto
08llaa. TX. 75202.4505 AonorableCarlo6 Vsldez person6 using sailboards
2l41742.W44 Nueces County Attorney
Courthouse.Room 2Omb
Corpus Christi,Texas 78401
4824 Alterta Ave., Suite 160
El Paw. TX. 799052793
91Y533.3484 Gentlemen:
You seek cla,c:lficationof the Texas Parka and Wildlife Depart-
1001 Texas. Suite 700 ment's authorityto issue citationspursuant to section 31.073 of the
HOUSIO~. TX. 77002-3111 Texas Parks and Wildlife Code. #pecifically.you vish to knov whether
713/2235886
the departmentmay issue citation6to persons using sailboardswho do
not have on board a Coast Guard approved lifesavingdevice.
806 Broadway. Suite 312
Lubbock. TX. 79401-3479 Section 31.073 of the code provide6 that
SOen47.5238
All canoes, punts, rowboats, sailboats, and
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4309 N. Tenth. Suile B rubber rafts when paddled, poled, oared, or wind-
MCAlkm, TX. 78501.1685 blown are exempt from all the required safety
5121552-4547 equipment except the follwing:
200 Main Plaza. Suite 400 (1) one Coas$ Guard approved lifesavingdevice
San Antonio, TX. 782052797 for each peryn aboard; and
51212254191
(2) the light6 prescribedfor class A vessels
in Se'ction31.064 of this code. (Emphasis
An Equal Opportunity/
Affirmative Action Employer
added).
Your request requires a determtnation of vhether the legislature
intended section 31.073 to include sailboards. If not, then sail-
boards are exempt from the safety equipmentrequirement6of subchapter
C of chapter 31 of the code; no one contends that sailboards are
subject to more stringent safety equipment regulations than those
applicable toil:boats. Therefore,we need not directly determine
whether a sailboardis a "vessel"under section31.003.
p. 1463
DoaorablaDavid Cain
?lonorable
CarloaValdu
Page 2 (J&320)
The fundamentalrule grrerningthe interpretationof statute6 is
to give effect to the intentionof the legislature. City of Sherman
v. Public Utility Colmmisstx~. 643 S.U.Zd 681, 684 (Tex. 1983). To
determinethe legislature't~~ntentand the purpose for a particular
provision,it is proper to considerthe history of the subject matter
involved,the problem to be remedied, and the ultimate purposes to be
accomplished. Id. The corstructionof the scope and meaning of the
law bv
~~. admfnist~ive agenciesand officers should be considered,but
is not binding on courie. Big Lake Oil Co. v. Reagan Count& 217
S.U.Zd 171, 173 (Tex. Civ. ,4pp.- El Paso 1948,writ ref'd).
In this instance,the Texas Parks and WildlifeDepartment,citing
Webster's New Collegiate Dictionary, contends that sailboards are
"sailboats." This dictionary definition of sailboards is "a Small
flat sailboat.. . ." Web6ter's New CollegiateDictionary 1037 (9th
ed. 1983). In contrast, the Texas Secretary of State registered a
particular sailboard under class 28. the "toys and sporting goods"
classification,rather than under class 12. the classificationwhich
includes sailboats. When statutory terms are not defined in the
applicablestatutes, they aust be given their ordinary and popular
meaning. See, e.g., Sanfordv. State, 492 S.W.Zd 581 (Tex. Grim. App.
1973). Nevertheless,the &m "sailboat"must be interpertedin the
contextof section 31.073.
The Texas Parks and Wl.J.dlife
Depart&t maintains that exempting
sailboards from having or board a personal flotation device will
result in loss of life. Consequently.numerous citations have been
issued by the peace officers charged with enforcement of the act.
With regard to the maxim DE deferring to "agency expertise," it is
significantthat person6 chargedwith enforcingthis provision include
"[a]11 peace officersof this state and it6 politicalSubdiViSiOnSand
game management officers.' Tex. Parks 8 Wildlife Code 831.121(a).
The cases which generated1:herule of deferenceto an agency's deter-
minationusually involve a specializedregulatoryscheme with enforce-
ment by officialswho are trained in the specific matter of regula-
tion, rather than in general law qnforcement. Further. most of the
ca6es involved statutes 6:atiug that agency action is committed to
agency discretionby lav. See Adam0 Wrecking Co. v. United States,
434 U.S. 275 (1978);--Johnson~ Robison, 415 U.S. 361 (1974); Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967); 688 generally B.
Schwartz,AdministrativeLznc$147 (1976).
Moreover.the trial courts in TeXaS have had occasion to rule on
the matter. The decision of the courts outweighsagency interpreta-
tion. Convictions occurrj.ngin the justice courts are appealed to
county courts, where they are tried de novo. The few conviction6
which have been appealed have been overturned. See, e.g., State of
Texas v. Brannan,Cause No 210-637.County Court at Law No. 3, Travis
County, Texas (June 30, 1982) (defendantacquitted: court ruled that
windsurferis not a "sailboclt"under section31.073).
p. 1464
itonorable David Caio
.j J, HonorableCarlorValder
Page 3 (.lM-320)
The existence of this controversyand the phyrical nature of
sailboardsdemonstratethat it is not at all clear that the legisla-
ture intended"sailboat"la ciection 31.073 to includesailboards. The
overall purpose of chapter 31 of the code is to promote recreational
water safety for persons aud property in connectionwith the use of
all recreationalvater facilitiesin the state. See 531.002. The
purpose of the requirement:lnsection31.073 of an approvedlifesaving
device is to protect againcitloss of life from drowning. It is also
significantthat the reasor,for enacting section 31.073 in the first
place was a recognitionthat some water vessels shouldbe exempt from
all the safety equipment requirements except for the two items
specified in section 31.0?3. The Iegislature singled out Certain
vessels which, because of their physical characteristics,deserved
differenttreatment.
The question before ~1%is not one of pure law, and this office
cannot resolve disputed f;lctualissues in the opinion process.
Nevertheless, certain fac0 are subject to judicial notice. For
example,a hypotheticaldete~rminationthat the term "motor vehicle" in
a statute dealing with s;r:iety belts was not intended to include
motorcyclescould be decided on the basis of judiciallynoticed facts
about motorcycle6and safetybelts. As will be seen, the facts before
us demonstratethat the sallboardis clearly differentfrom the type
of water vessel listed in section31.073. Moreover, facts about the
nature of a sailboard indic:r.te
that the o6erall purpose of chapter 31
of the code would not bc enhanced by interpreting"sailboat" in
section31.073 to include sailboards. Accordingly,we conclude that a
sailboardis not a "sailboat"for purposes of section31.073.
The factual data upnl which our opinion relies stems from
finding6reported in the FederalRegister. The descriptionto follow
of a boardsail,and the sa,[ety factors involvedwere all mentioned in
proposed rulemaking notice!. Significant data also appears in the
original finding6 with rc!gardto the 1973 Coast Guard Exemption.
Althoughthe exemptionwas withdrawn,it was not withdrawnbecause the
facts had changed; rather, it was withdrawn becauseno need was seen
for federal regulation. Th.efact& finding6 remained the same. We
note that "[tlhe contents #x!the F'ederalRegistershall be judicially
noticed. . . ." (Emphasis.ndded). 44 U.S.C. J11507.This provision
applies to state courts. ---
See Cresap v. Pacific InlandNavigationCo..
Inc., 478 P.2d 223 (Wash. 1970).
The facts before us indicate that a sailboard,known by many
persons as a "windsurfer."#differsfrom the commonlyaccepted concept
of a sailboatin a variety of ways. See 46 Fed. Reg. 42288-89 (1981).
A sailboardis basically a surfboardxh a detachablemast and sail.
See Id
-2 The mast and sail of a sailboard comprisea freesail unit
whjch is attachedby a eviv~?luniversaljoint and is not supportedby
stays. See 45 Fed. Reg. 117877(1980) "freesailsystem."as the name
suggests,111 drop In the water when the operator release6 it. See
Zd. Consequently,the sal.lboard does not "sai1" unless the opera=
..
- -
nonombl~lkvid Cain
EonorablrC~rloaValdac .
Pago 4 (~~320)
is standingon the board ar,dholding up the freesailsystem. --
See Id.
If the operator falls off the sailboard.the board loses its pro-
pulsion mechanism vhilc tho sail fills vlth water and acts as a sea
anchor. --
See Id.
Thus, a sailboarddoes uot have the characteristics of a sailboat
which create the safety hazard that the life preserver required by
section 31.073 was Intended by the leglslstureto remedy. Unlike a
sailboat,a sailboardcannot sail away vhen its operator falls off.
Further,because the board :Ltselfis filledwith 8 closed cell foam,
it csnnot sink, even if broken apart. In fact, .s sailboard itself
functions as a personal fLotation device. See 45 Fed. Reg. 47876
(1980) (proposedJuly 17, 1980); see also 33.P.R. 5175.23 (1984)
(compare sailboardwith type IV personal floatationdevice). Nore-
over. sailboardingis a water sport, such as surfing or water skiing,
in which the enthusiastis physicallyand emotionallyprepared to be
in the water -- at least some of the time. 45 Fed. Reg. at 47817
(1980).
As a practicalmatter, there is uo place to secure a lifesaving
device “on board.” As with the hypotheticalof whether a motorcycle
should be required to have a seatbeltwithin the meaning of a statute
which requiresseatbeltsin ;nllmotor vehicles.this could bring about
absurd results. If the sailboarder is required to wear a life
preserverto comply with the law a greategsafetyhazard could result.
See Id. at 47877. At the ve’ryleast, the activityrequiredto operate
--
a sailboardwould be handicapped by vearlng a lifepreserver. Id.
Windsurfingenthusiastsma~.ntaiothat, in the surf, wearing a life-
preserverwould likely prevent a fallen sailboarderfrom being able to
dive below the waves to es,:apebeing battered by the force of the
waves and by his fallingeqtrfpment.-Id.
The unique characteristicsof sallboardsled the United States
Coast Guard to determine recently “that sailboards should not be
subject to Federal regulstLon.” 46 Fed. Reg. at 42289. When sail-
boards first appeared about ten years ago. the Coast Guard granted an
exemption t0 Windsurfing Internalional, Inc., from the federal
requirementthat sailing vessels Wave a personal flotationdevice on
board for each person aboard. In re petitionof Exemption issued to
WindsurferInternational,In,c.for an Exemptionfrom Section 175.15 of
Title 33, Code of Federal RFgulations. CGD 73-29. Feb. 18, 1973. The
Coast Guard has now withdr& the exemptionand determinedthat “there
was never a clearly establjshedneed for its involvement.. . .‘I See
46 Fed. Reg. at 42289. Ne!vertheless, the Coast Guard preservedthe
opportunity for regulation of sellboards at the state level by
exempting states from the federal preemptionprovisionpursuant to 46
U.S.C. sections 1458. 1459 (1982). See 46 Fed. Reg. at 42289. Thus,
the state may regulate In ,:hearea ofthe use of safety equipmenton
sailboards.
p. 1466
ICIC, .
b UonorableDavid Calm
.
gonorablaCerlor Valdec
d .', Page 5 m-320)
The action,or inaction,of the federalgovernmentis significant
in another uay OS well. The Coast Guard’s inaction emphasizesthat
sailboards do not at present foil within existing categories of
vessels which must complywith the personalfloatationdevice require-
ments; they must be brought affirmativelyInto regulatoryprovisions.
See 46 Fed. Reg. ot 42289. The situation at hand with regard to
Ztion 31.073 is analogous.particularlyin light of the fact that
sailboards did not exist at the time the provision uos originally
enacted. If the legislat,xrewishes to regulate sailboards. the
federal governmentvi11 not prevent it from expresslyaddressingthe
unique problemspresented. We concludethat the provisIonsof section
31.073 of the Parks and Wildlife Code do not presently cover
sailboards. Sailboardsprer:ent unique problems.
SUMMARY
The Texas Park!;and WildlifeDeportmentmay not
issue citations,pursuant to section31.073of the
Texas Parks and W:ildlifeCode, to persons using
sailboardswho do not have on board a Coast Guard
approvedlifesaviu8device.
r_rlA-Ah
Ver truly yours
f l
JIM NATTOX
AttorneyGeneral of Texas
TOM GREEN
First AssistantAttorneyGswral
DAVID R. RICHARDS
ExecutiveAssistantAttorneyGeneral
ROBERT GRAY 8
Specisl AssistantAttorneyGenerat
RICK GILPTN
Chairman,Opinion Committee
Preparedby JenniferRiggs
AssistantAttorneyGeneral
p. 1467
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.a -
\
\
ilonorebla
David Cain
BonorabloCarlorValder
,. -. Page 6 (D&320)
APPROVED:
OPINIONCOtMITTEE
Rick Gilpin,Choirman
Jon Bible
Sussn Garrison
Tony Guillory
Jim Moellinnger
JenniferRiggs
Nancy Sutton
,
I
p. 1468