four of the rehabilitation act require a service program or activity of a public entity plaintiffs fail to state a valid title to claim or section five for rehab a claim and they also lack standing bring those claims because their injuries are not fairly traceable to the t s a but are instead traceable to the driving schools themselves and their injuries are not redress of all in this lawsuit against the t v commissioner now this service program or activity of a public entity issue is important in this case not only because of our view of the issue is corrected it resolves the case in our favor but it's also important to the state and to the a t f and section five before someone can get a driver's license so how are these duck children ever going to get a certificate if they can't if they can't understand what's being taught and their reading skills are or are you relying on just the parent component that they can get a certificate if the parent teaches them to drive them to pass the test and know we know we're not and we understand that the plaintiffs by definition can't don't qualify for the parent taught course and so that that aspect of you says she was is is not at issue here what what and we're not unsympathetic to the plight of these children either but what they can do and what they have done in this in this proceeding is they can pursue an action under title three against the driving schools those doughs driving schools have an obligation under title three to provide reasonable accommodation to these disabled students and indeed when the plaintiffs in this case pursued an action in the earlier iterations of this case they named a couple of driving schools and there's an affidavit in the record from one of the driving school owners in which he says i'm sorry i didn't really to in effect on the quoting for being here i'm sorry i didn't realize i had this obligation it seems if i became available of it seems i became aware of it i realized that i need to comply with it and i will always provide reasonable accommodation in the future now that's not the most efficient remedy for plaintiffs i understand they would prefer a statewide remedy but the problem with that is there are very far reaching and serious implications for that rent that you need and when you say that any aggrieved person because they cannot out and in force federal legal obligations compliance with the a b a by private third parties that's going on how would an individual who is being discriminated against on based ability be better off  title to the remedy that they're seeking or as opposed to title three remedy which permits them to fall into your claims how would that individual be better off an individual would not be better off your honor i don't i think all of the individuals be better off because you're a statewide amber alert and it's like a class action you don't have to take each one each driving school i think you've articulated plaintiff's position and likely their motivation for styling this not only as a class action but also attorney general regulations that dress this topic but the parties kind of are speak speak past each other about the import of those regulations and we can say that that we can say and do say that the regulations make clear that if you're a licensing or regulating entity then you are not responsible for the eighty violations of a private party that you merely license or regulate and their response is well it's your program so you are so you are so really that the regulations and d o j technical assistance manual in a sense kind of refer back to the same core issue which is how do we figure out what is a service program or activity of a public entity so i would in exploring proposed solution and some of the repercussions of it so first we if we look at things that are that are not state programs at least that other courts of have found to be not state programs we see things like comprehensive regulatory scheme covering private taxicabs but because the taxi cabs are owned and operated privately notwithstanding the massive amount of regulation very persuasive pervasive and covering all kinds of different different and new topics with regard to how these taxes operate that is not a public service program activity of a public entity same with licensing regulation of of liquor store liquor sales and restaurants that's the tyler case that the tax cab cases or the knoll and basket cases we cite in our opening brief and then interestingly there's the reese case from colorado in which we have basically public transportation busses going to and from privately run get gambling in ski resorts but the buses are privately owned and operated and so again a not a  public entity service program or activity and so the the the concepts that we can glean from these cases are the following it's not the amount of regulation that matters not the volume or how thick the regulations are if you print him out and stack them up and it's not whether there are inspections or involvement have involvement by the agency because there are inspections and and pretty pretty extensive involvement by the regulator agency  these cases what you really see is that it's licensing and regulation of sometimes preexisting private party enterprises or activities distinguishable wholly examples you  anybody in this new huge in the state of texas to not be able to drive a car between eighteen and twenty four is highly distinguishable from taking a bus to a gambling police or even catch an attack well i'm vita court to i do this couple days go on westlaw on these electronic you know research research services you can call up the texas occupations code and you sort of expand it and click on it and there are list i don't know how many court quite a few of over a screenful of different occupations that have licensing and education requirements so one example in our brief is beauty school so if you want to be a cosmetologist in texas you have to go and get a license to be a cosmetologist and to do that you have to perform certain or achieve certain educational certification and that requires you to go to a school that's also licensed to give you that education you have to get what amounts to is a course completion certificate right so now if plaintiff's view of this case were true then every one of those agencies has a state mandated licensing requirement that affects somebodies ability to make a living and do all these things that driver's licenses also do but but yet every single one of those agencies that's in charge of that licensing would now have an independent obligation to go out and again as i said identify adjudicate and eradicate eighty eight violations at those schools now plaintiffs say wait a second you know we're not we're not necessarily saying that we're requiring this commandeering of the state regulatory mechanism we're not saying that you have to pass this you know twenty four inch thick binder full of regulations about compliance with the problem that th point is that what plants are trying to do is a sort of the nose of the camel under the tent once we have a duty then in like in this case we voluntarily has a little line on a on a on an affidavit for an application for one of these schools and it requires the affiant to attest that they're going to tried their best to comply with federal law but now that is not good enough that that that step to be a sort of undertook voluntarily is not good enough so if there is an independent duty then there's can be a lawsuit to say well you need to do more you need to adopt further regulations and then this task the t s a a state regulatory entity that develops curriculum for schools now has to be able to know ok somebody has complained about maybe a violation of section five for violations are they really disabled is that a disability that they're that they're complaining about and it was the reason the accommodation can there can one be made and what sort of regulations should be passed to make sure that those accommodations occur and you know how do we police that how much how often do we have to inspect what sort of  you know fines or mechanisms can we put in place and the simple fact is couldn't do that all of these other agencies in the texas occupations code couldn't do that just as a as a practical matter and more fundamentally a has not been charged by the legislature to do that we don't have a mandate from the legislature to go out there and do this and without that mandate for good reason we don't do it now we can voluntarily try to do some things like we've done but difference between putting that in and then being required or order to put that in and then enforce it and that's really what's at issue here is whether the t s a must put that in it's  supervised regulate enforce and relations on all of these other things that it requires how can it say but we're not going to do anything about the hearing impaired well i invite your honor to look at the  statutes governing these other professionals the cosmetology statute for instance it's very similar is going to have before us we're today will be that we were talking about the driver's license which have already distinguished from all these  my name is joe sanders and i represent the plaintiffs in this case who are themselves representatives of classes of individuals who are discriminated against based on their disability in texas by this lawsuit the plaintiff penalties are seeking who are profoundly deaf yet fully capable of driving a car in compliance with the laws of texas however they cannot get a driver's license because they have been denied access to the only program available to anyone  like them to obtain the necessary course completion certificate and the preceding education that the legislature requires they must get to get a license what kind of reform with the schools have to engage in to make this accommodation very modest that there are examples that exist in other states for example new mexico has a very similar statutory grant to its agency it very good very simply if it is here and disabled person shows up to the school they give fourteen days notice and interpreters provided there's even an example in texas the procedure and for a driver for a driver's license issuance in texas is if you're under twenty five seeking a first driver's license you have to go to school you have to hearing impaired person i'm not saying that in fact we're not seeking any specific form of relief what we're seeking is first a declaration that the agency itself has an independent obligation as someone who administers designs administers  program service or activity or confers and then it goes from there in other words if we decide that down it is a program service or activity then you have them just as you would have anyone else under the complete umbrella of the haiti and they would be obligated to provide affirmative relief and make it come commendations in public agency would option is an interpreter that's precisely what the d p s provides once you show up with your course completion certificate and you take your driver exam to get a license you could also be a technological advancement it could be an online course that's offered that is interpreted in american sign language and captions it can also be further advise with technology there exists an app on my phone that i can buy for four dollars and ninety nine cents when i type into it it will give me sign language there's also an app on my phone that when i dictate to it it will turn it into written words if you put those two things together you have the ability to speak and have on a monitor sitting over there someone signing so the accommodations that could be implemented here are quite modest so  had your phone with the app on it why couldn't they pass that because it's not my client's responsibility to ensure that the program is excessively using that's a question of not or you were responsible for providing phones but if they had this out would they be able capable without a real life interpreter to listen to the course and there was certainly be able to listen to the course if this test if by test you mean the test at the end of the driver education course if that test is written in english and you can't understand it or if it has you said there was an app that would translate add the fine language to the english right if if if i said if that person had the completely new department within the agency that leads to the driver's education program trying to implement eighty eight regulations they have no expertise for you a license i'm going to come to your premises i'm going to inspect your space i'm going to inspect your instructional materials i'm going to ensure that you're compliant that's precisely what they do now in fact before licenses issued today someone from the t s a physically goes to the premises and makes sure that they are doing what you want if they're doing today what you would have them do on to a court order where is the injury they're not doing anything to ensure that the hearing disabled my hearing several clients  accommodated they might be doing something to ensure that a wheelchair bound person is being accommodated for example they may be going to the premises to ensure that the school itself has ramps so that someone who is will chair bound can get in and get the instruction but they are by their own admission not doing anything suggest even teaching in fact if it is determined that the driver education program is a program service or activity of the agency then that explicitly triggers a regulation under thirty five one sixty that says you've got to provide auxiliary aides and that  school precisely and we're not just also told me and tell you that because as a judge i have a responsibility to try to understand the unintended consequences to know whether something is reasonable one reason is there a physical driving physically drive the t e a would have to ensure that the program in its entirety is accessible to that person that may not mean that every single outpost of a driving school has a car equipped for that purpose it could mean that one in a certain per capita population area see that that's the issue and that's really a distinction between the title to responsibility of an agency in the title three responsibility of providence to operate in public companies and as we view the program in its entirety in respect to title two we don't mandate that every single outpost be in compliance under title two not now but later you can't guarantee that later that would be the consequence of any kind of rule in what you declared th to be  rights organizations and agencies of the federal government to have every state agency impose its own i mean in create its own inforced one mechanism for race discrimination sex discrimination e p a i'm all the myriad laws out there in the federal government yes i think there's two standards one is is the person seeking a relationship with the school seeking access to the program and let me make this distinction suppose in their brief it's mention that well now we'll have to start policing the federal employee the employment practices against against federal law if someone applies to become a receptionist or in structure or employee of a driving school and has in that employment being discriminated against because of their race or sex or national origin that person is seeking private employment that person is not seeking access to a government program and so under our theory no that person that those laws would not need to be enforced and make sure that they're in compliance with what if someone is seeking access to the program because ultimately have the end the day the requirement for this certificate started with the texas legislature and the state of texas is saying they have no obligation to make the certificate accessible to here because someone has it she's going to i'm sort of keeping it was declared to be a service activity or program there is no way exists a template for this i mean that the the lottery i think provides the best example or the most analogous situation here here you have a state created system the lottery system and a portion of that program is farmed out to private businesses you know retail locations grocery stores and things like that the purpose of the purpose they serve in the program is to actually conduct the transaction ok so that they are licensed they must make application they must pass a background check all the things that taxi cab companies and liquor stores must do but what distinguishes the lottery example and our example from those cases are three things one the participation is mandatory know what there is no law that says you must play the lottery there is no law that says you must patronize a liquor store there is no law that says you must ride in a taxicab there is in texas a law that says if you're under twenty five and you're seeking a first driver's license you must go to these schools river but again the template exists not only because the participation is mandatory but also because the transaction involves the state if you show up to a seven eleven to buy a lottery ticket you are there to york again the same distinctions apply one no one is required to take a taxi like they are required to just pay a driver education to when i step into a taxi cab i'm there for a ride i'm not there to get a government record that i must present in order to get so exercise a right that i'm entitle to and three the taxi licensing company is only issuing licenses and i think that's important in all the pure licensing examples whether the regulations  it's extensive or modest the only thing that the agency issues at the end of the day is a license in this example not only are the driving schools issued a license they're also given curriculum they're also given instructional materials they're also given this due course completion certificates just like in the lottery example the retailers are given the lottery machines the paper to print the tickets on the tickets themselves which again culminate in a transaction with the state and  management of those records the course completion certificate is much like you would expect for a lottery ticket it is they are tracked to a tee they are uniquely numbered if if someone is found to be distributing the course completion certificates  they can be subject to a five year felony sentence excuse me if the driving school discovers that one has gone missing they must immediately reported to the t s a conduct an investigation and report the findings investigation and tell the t s a why it won't happen again so the driving schools themselves are administering at least the issuance of the course completion certificate which is really all that matters the transportation bill doesn't say you must attend driver education school the transportation code says you must obtain a course completion certificate so you are ok you have to go to the course you have to go to the course you have to do the course but what i'm suggesting is the issuance of the certificate itself is on behalf of the t s a the t s a issues its the driving schools that uniquely numbered extract is monitored just like you might expect a lottery ticket is handed out by the driving schools but the t a s regulations themselves call it a government record  e the state decides we're not doing this anymore we're not going to be found way too much administrative so forget the certificate you don't get it you don't have to go to a school like here you can go to driver's other key parents or driver's license what if you can't educate yourself enough to show up to the t p s and pass the exam you will it's not unlike what you have to pay for the interpreter you know to do all the things that you would still have to do i were still required to pay for your interpreter you know you could but that that is unequal treatment to someone who's disabled and that's not permitted by law see the i think the better analogy is if we normalize an education many of the students in this room have recently taken a law school admissions exam something some of the people in this room have read recently taken a bar exam for both of those exams there exist private education programs the bar review the princeton review those kinds of things those are not programs activities or services  are eligible for the for the bars when they go out if they were going to law school how would they pass the bar exam i don't know it could be that there's the scheme exist just like the d p s in texas right now once if i have the course completion certificate in my hand and i'm deaf r doctors precisely but not for barbers but not for a course for that for a preparatory course so you look like i'm saying there exists in the market private businesses that just they're open for business to teach students the material they need to learn to ultimately pass the test that's that's sort of my bar review example my all set review example participation in those is completely voluntary it's not mandatory when i show up to take my bar of you course on their teachers try to learn so that when i sit for the bar exam i can pass but may i finish but i'm certainly not there to get a required government record and so i think in those instances if if an agency were to regulate the bar of you course and do nothing more than issue a license then i don't think they have any independent title to rehabilitation obligation but i think for the reasons i stated here are ours is different and for those reasons we have asked that the district cour so if you're required to have a certificate of graduation from an accredited law school in order to get a bar license then we're right back where we just were that the judge show you're exactly right what we can we can parse the cases and we've done our best both both sides done our best in our in our briefing and we can distinguish them we can distinguish the lottery cases because the lottery is a money generator and because these lottery outlets are acting under a contractual or an agent relationship there's an actual legal connection between people providing the lottery tickets to the public and the state agency that makes them different that also distinguishes a lot of these other cases that pla  and their amica cite in their brief for things like prison benefits you know other kinds of public benefits car you know public sidewalks where there's a hired contractor who isn't doesn't that distinction answered your question about the unforeseen consequences they're all distinguishable this is a unique thing that the ability of someone to obtain a driver's license  can't pursue a living you can't pursue a living as a lawyer unless you go through the the you know the licensing the a lawyer you can senators and lawyers in the country to the percentages of drivers well if if if we take that that principle to to tweak or adjust the text of the a t f and the rehabilitation act then what we're what we're introducing is a flood of unintended consequences work we're introducing a flood of ok here we have very fairly modest reforms will that that that counsels against a remarkable and unprecedented decision from this court establishing a new duty under the eighty eight it counsels in favor of of resolving this in different ways outside the courtroom maybe or creatively thinking but once we've established a duty you have to comply with the duty and that means in for a nickel in for a dollar so we  we provide some regulations and then somebody comes along those regulations don't go far enough for my disability my disability is whatever severe migraines are my disability then we've got to figure out is that a disability what we have to do to comply with that then we then all the sudden maybe we're facing lawsuits from public school student parents or public school students are saying what are you doing with all of your money you're taking all of your money that you're supposed to be spending developing curriculum for public schools and you're spending it on eighty eight compliance and private businesses across the state of texas  definition of service program merit here that there isn't in the a t f there's an unhelpful sort of circular definition in section five zero four of the rehab act which just says it's all of the operations of the agency but that begs the question are these the operations of the agency or the the operations of the third party and so that's why the the statutes some of the cases from this court even and bank cases that address this topic really don't don't hit on this kind of unique issue here in this case and and why consequences of of of what a decision adopting a duty like this like a plane is hard because unintended consequences would be very far reaching and would have a significant intrusion into into state sovereignty