REfLACE s,Drr) 3&Z 

DAN MORALES 

ATTORNEY GENERAL 

@ffice of tlJe Bttornep @eneral 

i%tate of IICexae: 

February 23, 1996 

Mr. Mike Moses 

Commissioner of Education 

Texas Education Agency 

1701 North Congress Avenue 

Austin, Texas 78701-1494 

Opinion No. DM-378 

Re: Construction of the term “school 

bus” for purposes of Senate Bill 1, Act of 

May 27,, 1995, 74th Leg., R.S., ch. 260, 

1995 Tex. Sess. Law Serv. 2207 and 

related questions (RQ-846) 

Dear Commissioner Moses: 

You have asked this office to’ examine certain questions concerning standards for 

transporting school children in the light of Senate Bill 1, and in particular in light of 

section 34.003 of the Education Code enacted therein.’ See Act of May 27, 1995, 74th 

Leg., RS., ch. 260, $ 1, 1995 Tex. Sess. Law Serv. 2207, 2351. You are especially 

interested in whether, for the purposes of section 34.003, a motor vehicle being used to 

transport fewer than ten students may be considered a “passenger car” even if such a 

vehicle has a seating capacity greater than that of a “passenger ca? as defined by section 

541.201 of the Transportation Code. You further wish to know whether a vehicle owned 

by a private person, such as a teacher or parent, is subject to the same safety requirements 

and driver qualification requirements as a school bus when such a vehicle is being used to 

transport fewer than ten students to and from school or school activities. 

The general definition of a school bus is now provided by section 541.201(15) of 

the Transportation @de, which provides: 

“School.~bus” means a motor vehicle, other than a bus used in an 

urban area by a common carrier to transport schoolchildren, that: 

(A) is being used to transport children to or from a school 

or school-related activity; and 

(B) complies with the color and identification requirements 

provided in the most recent edition of standards produced and 

sponsored by the National Education Association’s National 

Commission on Safety Education. 

‘On August 31, 1995, you withdrew your predecessor’s prior opinion request on related 

questions, which was styled by this office RQ-78 1. 
Mr. Mike Moses - Page 2 (DM-378) 

Section 34.003 of the Education Code, enacted as part of Senate Bill 1, provides 

that “school buses” will be used to transport students on bus routes with ten or more 

students, while “passenger cars” may be used on routes with fewer than ten students. 

Educ. Code 5 34.003(a). It further provides that, with respect to transporting students in 

connection with extracurricular activities, ten or more students may only be transported in 

school buses, buses chartered from motor bus companies, or district-owned buses which 

meet the safety standards for vehicles owned by motor bus companies, while fewer than 

ten students may be transported in passenger cars. Id. When students are transported in 

passenger cars, the section provides that the operator must ensure that the number of 

passengers does not exceed the vehicle’s design capacity and that ah passengers are 

wearing safety belts. Id. 5 34.003(c). 

Section 34.003 was offered as a tloor amendment to Senate Bill 1 on 

March 27, 1995, by Senator Bivins, who said in introducing it, “This amendment makes it 

clear that school districts can charter buses and that they also may use passenger vehicles 

to transport ten or fewer students on regular school bus routes, if those 

passenger. [vehicles] are equipped with seat belts and are capable of carrying the 

proper number of people-number of children in that vehicle.” Debate on S.B. I on the 

Floor of the Senate, 74th Leg., R.S. (Mar. 27, 1995) (transcript available from Senate 

Staff Services). 

As you know, this office has previously held that the.portion of the statutory 

definition of “school busy’ in the predecessor to section 541.201(15) of the Transportation 

Code was unconstitutional to the extent it referred to standards set by the National 

Education Association.2 That decision was based on our interpretation of Dudding v. 

Automatic Gus Co., 193 S.W.2d 517 (Tex. 1946). This office has consistently read 

Dudding to stand for the proposition that a statute that prospectively adopts the mture 

rules of an unofficial agency thereby delegates legislative authority in a manner that 

violates article IIJ,+ction 1 of the Texas Constitution. Most recently, in Attorney 

General Opinion DM-159, this office concluded that a provision of the Health and Safety 

Code that required-~outdoor shooting ranges to adhere to standards “at least as stringent as 

the standards printed in the National Rifle Association range manual” without reference to 

a particular edition of the manual violated article III, section 1. Attorney General Opinion 

DM-159 (1992) at 1. The definition here is not legally distinguishable from the standard 

at issue in Attorney General Opinion DM-159, and therefore also improperly delegates 

legislative authority. Id. 

This decision would excise from the statutory definition what is now section 

541.201(15)(B), leaving as the definition section 541,201(15)(A). As a general matter, 

we remain persuaded that that is a proper interpretation, and that for ah purposes save the 

2Former Attorney General Opinion DM-362 (1995) was withdrawn September 8, 1995. 

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Mr. Mike Moses - Page 3 (DM-378) 

concerns of section 34.003 of the Education Code, the definition of “school bus” is that 

contained in section 541,201(15)(A) of the Transportation Code. However, owe are 

persuaded by the remarks of its sponsor in introducing section 34.003 of the Education 

Code that the intent of that legislation was to exempt passenger cars from the safety 

standards and driver qualifications goveming school buses to the limited extent that such 

vehicles were being used to transport fewer than ten students to or from school or 

extracurricular activities, and to permit the use of buses (whether chartered from motor 

bus companies or owned by school districts) which meet the standards for motor buses set 

down in sections 5.201 through 5.249 of title 16 of the Texas Administrative Code to 

transport children to and from extracurricular activities3 We further conclude that 

passenger cars owned by private persons such as parents or teachers are not subject to 

school bus safety standards, nor do we believe that such persons are “school bus drivers” 

subject to 1icensure.4 

You tinther ask “whether a motor vehicle with a seating capacity greater than that 

of a passenger car as defined by Section 541.201, Transportation Code, may be used 

under Section 34.003, Education Code, to transport less than ten students.” We think the 

question as framed may suggest some confusion as to the state of the law. Section 

541.201(15)(A), which defines “school bus,” says that a vehicle “being used to transport 

children to or from a school or school-related activity” is a school bus. Tramp. Code 

§ 541.201. That is to say, any such vehicle must comply with the requirements of sections 

547.607 and 547.701(a) of the Transportation Code, which respectively require school 

buses to be equipped with a fire extinguisher and a convex mirror and signal lamps, unless 

it is exempted Tom such requirements by section 34.003 of the Education Code. Further, 

any person driving such a vehicle, unless the vehicle is exempt, must have a school bus 

‘The standards for motor buses were originally promulgated by the Transportation Division of 

the Texas Railroad Commission pursuant to article 911a, V.T.C.S. Article 911a was repealed by Act of 

May 24, 1995, 74th Leg., P.S., ch. 705, $ 31(a)(3), 1995 Tex. Sess. Law Serv. 3719, 3740. However, 

chapter 705, section.32@) provides that “[a] role adopted by the Railroad Commission of Texas under a 

law re&xaled by S&i&31 of this Act before the effective date of this Ad that is not inconsistent with this 

Ad remains in effect as a role of the Texas Department of Transportation or the Department of public 

Safety until supersede%! by a rule adopted by the appropriate department” Id. $32(b), at 3740. Section 3 

of chapter 705 adds ‘utile 66756 V.T.C.S., which provides that the public safety director has rolemaking authority over “the safe operation of eommerciat motor vehicles” Id. 5 3, at 3729. Accordingly, 

unless and until superseded by roles adopted by the Department of Public Safety sections 5.201 through 

5.249 of title 16 of the Texas Administrative Code remain in full force and effect, 

‘Yom query assumes that a school district is authorized to hanspmt students in privately owned 

vehicles operated by parents or teachers. We find nothing in the Education Code that permits or prohibits 

a school district from doing so, but we believe such authority may be implied. We caution that nothing in 

this opinion, or in section 34.003 of the Education Code, speaks to the standard of care to be exercised by 

drivers of privately owned vehicles. Hence, nothing suggests that such drivers are held to any lower 

standard of care than ordinary drivers of passenger vehicles. Further, we do not consider whether courts 

would consider such drivers agents of an independent school district for pmposcs of liability. On such 

issues, school boards should consult their legal counsel. 

p. 2057 
Mr. Mike Moses - Page 4 (DM-378) 

driver’s license, the requirements for which--that the holder be at least eighteen years of 

age, be enrolled in or have completed~a driver training course in school bus safety, have 

undergone an annual physical examination and a pre-employment driver’s license check by 

the Department of Public Safety--are mandated by section 521.022 of the Transportation 

Code. A vehicle of the sort you describe may be used to transport school children. 

However, unless it is a passenger car or a bus transporting students to -or from 

extracurricular activities which meets the motor bus standards of sections 5.201 through 

5.249 of title 16 of the Texas Administrative Code and therefore subject to the exceptions 

of section 34.003 of the Education Code, such a vehicle must be considered a “school 

bus”; it must therefore have the requisite mirror, fire extinguisher, and signal lamp, and 

must be driven by a licensed school bus driver. 

We do not intend to suggest that the only vehicles which may be used to transport 

school children to school or extra-curricular activities are “school buses” as popularly 

understood--that is, the familiar big yellow school buses. However, if a vehicle being used 

for this purpose is not a “passenger car” or “motor bus” within the terms of the 

exceptions, we reiterate that it must meet the safety standards and operator licensing 

requirements outlined above. 

The school bus standards we have discussed are statutory. We note in addition 

that certain agencies also have regulatory authority in this area. Thus, section 34.002(a) 

of the Education Code provides that “[tlhe General Services Commission, with the advice 

of the Department of Public Safety, shall establish safety standards for school motor 

vehicles.” Further, the Department of Public Safety pursuant to Transportation Code 

section 547.101 has power to adopt standards for vehicle equipment to protect the public 

and enforce United States safety standards, and pursuant to section 547.102 has power to 

adopt supplementary standards for school bus lighting and warning device equipment. 

“‘Passenger car” is defined by section 541.201(12) of the Transportation Code as 

“a motor vehicle,. other than a motorcycle, used to transport persons and designed to 

accommodate 10 ot%ewer passengers.” Tramp. Code 5 541.201(12). The definition, we 

note, stresses the number of passengers the vehicle is designed to carry, rather than the 

number it may act@y carry. Accordingly, we read Education Code section 34.003’s 

“passenger car” exception as limited to vehicles designed to carry ten or fewer passengers, 

which may however under the Education Code be used only to transport fewer than ten 

passengers. This reading includes such vehicles as Suburbarts, for example, which 

transport nine passengers, within the exception, Fit&n passenger vans, on the other 

hand, are not excepted by the “passenger cat” language of section 34.003. While, as we 

have said, such vehicles may be used to transport students to school, they must for that 

purpose meet the safety standards and licensure requirements for school buses. If they are 

transporting ten or more students to or from extracurricular activities, they must meet the 

motor bus standards of sections 5.201 through 5.249 of title 16 of the Texas 

Administrative Code. 

p. 2058 
Mr. Mike Moses - Page 8 (DM-378) 

SUMMARY 

Under section 34.003 of the Education Code, school districts 

may permit the transportation of fewer than ten students to and from 

school and extracurricular activities in passenger vehicles which are 

not subject to the same safety standards and driver qualifications as 

“schools buses” as defined by section 541,201(15)(A) of the 

Transportation Code, so long as such passenger vehicles do not carry 

more passengers than their design capacity permits and the operator 

ensures that all passengers are wearing safety belts. This “passenger 

car” exception does not apply to vehicles with a larger design 

capacity than that of “passenger cars” as defined by section 

541.201(12) of the Transportation Code. In addition, schools may 

transport ten or more students to and from extracurricular activities 

in school buses or buses either chartered from motor bus companies 

or owned by the school district which meet the motor bus standards 

of sections 5.201 through 5.249 of title 16 of the Texas 

Administrative Code. Operators of private passenger vehicles such 

as parents or teachers are not subject to school bus safety standards 

or licensure requirements when transporting fewer than ten students 

to or from school or extracurricular activities in such a passenger 

vehicle. 

JORGE VEGA 

First Assistant Att&ey General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by James E. Tourtelott 

Assistant Attorney General 

DAN MORALES 

Attorney Genera1 of Texas 

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