QBffice of tly Elttornep @eneral 

DAN MORALES 

ATTORNEY GENERAL 

&tate of Qkxae 

July 29, 1996 

The Honorable Clyde Alexander 

Chair, Committee on Transportation 

Texas House of Representatives 

P.O. Box 2910 

Austin Texas 787682910 

Dear Representative Alexander: 

Qpiion No. DM-403 

Re: Whether V.T.C.S. article 9030, section 2, which limits the liabiity of an 

excursion train operator to $5,000,000 per 

occurrence, violates Texas Constitution article J, section 13 (RQ-878) 

Article 9030, section 2, V.T.C.S., limits the liabiity of an excursion train operator 

to $5 million per occurrence. Article J, section 13 of the Texas Constitution prohibits the 

legislature from taking an injured person’s right to a legal remedy. We consider whether 

V.T.C.S. article 9030, section 2 contravenes article J, section 13 of the constitution. Although we are unable to detinitively answer your question, we believe a court probably 

would conclude that V.T.C.S. article 9030, section 2 is unconstitutional. 

The legislature enacted the whole of article 9030 in 1995.’ Under the article, the 

comptroller may certify the owner of a passenger train as the operator of an excursion 

train if the train is used primarily for tourism or public service and promotes the state’s 

tourist industty.2 Jn addition, to be certified, the passenger train owner must be insured 

against liability resulting from injury to persons or property damage in the amount of at 

least %5,OOO,OOO.s Any person who is certified is, according to section 2(a), “not liable for 

injury or damages over $5,000,000 resulting fiorn a single occurrence.” Moreover, this 

limitation of liabiity extends to the operator of the excursion train the owner of equip 

ment the train uses, the owner of the track the train uses (which you call the “trackage”), 

and the host carrier.4 The statute does not limit liabiity, however, if the injury or damages 

arise t?om “intentional, malicious, or grossly negligent conduct.“s 

‘See Act ofMay 21,1995,74th Leg., RS., ch 910,1995 Tcx. Sess. Law Serv. 4448.4448-49. 

2V.T.C.S. art. 9030,s l(a). 

‘Id. 0 l(b). 

‘Id. 0 Z(b). An excursion train operator must noti@ pasengm of the Iimitation on lisbility in 

two ways. First, the operator must print, on each passenger’s ticket, in 12-paint boldthce type: “THE 

OPERATOR OF THIS TRAlN IS NOT LIABLE FOR PERSONAL INJURY OR WRONGFUL. DEATH 
The Honorable Clyde Alexander - Page 2 (DM-403) 

In enacting article 9030, the legislature apparently was motivated by a desire to 

make excursion train tickets affordable and thereby provide economic benefit to the communities at which the trains stop.6 Prior to 1995, excursion train operators were 

governed, with reference to the amount of liability insurance they must carry, by the rules 

of the commercial train operators that own the trackage.’ Thus, if a commercial train operator required an excursion train operating on its trackage to carry liability insurance in 

the amount of $25 million, the excursion train would have to comply.* The legislature believed this requirement reduced the chances that an excursion train operation would be 

viable and consequently reduced the economic benefit towns at which the train stops 

would receive: 

[This requirement that excursion tram operators must carry liability 

insurance in the amount of $25 million] places a hardship on excursion train operators because they are operating for the sole purpose 

of transporting tourists on scenic routes, and their traveling speed 

does not exceed 40 m.p.h. at any given time. [It] makes it necessary 

for excursion train operators to increase the ticket prices for their 

trips to an excessive amount in an attempt to recover the cost of the 

liabiity insurance. The excessive amount of the tickets greatly reduces the demand for the trips offered by the excursion train 

operators, and is detrimental to the economic benefit provided by the 

passengers to the small towns where the train stops along the route.g 

(footnote continued) 

IN AN AMOUNT IN EXCESS OF $5,ooO,OW.Id. ” 5 4(l). Second, the operator must print an identical 

disclaimer, in letters at least two inches high, and post it near a passenger boarding area. Id. 8 4(2). 

51d. 5 2(c). Article 9030, section 2(a), V.T.C.S., does not limit an excorsion train operator’s liability if, at the time of the injory or damages, the operator failed to maintain liability insuran c-0 in the 

rqoisite amount or if the operator carried freight (other than personal luggage), commuters, or passengers 

tmveliug solely for business or commercial reasons. See also id. 8 5. 

%See House Tramp. Comm., Bill Analysis, H.B. 1208,74th Leg. (1995). 

*Id. Howe Bill 1208’s bill analysis ststes that federal law requires a commercial train operator to 

maintain liability i usunmce in the amount of $25 million per occunaee. Id. We were onable to find that 

federal law, however. If the law exists, it preempts state law to the extent of any contlict. See Attorney 

General Opinion DM-154 (1992) at 4 (stating that, under United States constitution article Vl, clause 2, 

state law that contlicts with federal law is preempted) (citing English Y. General Elm. Co., 4% U.S. 72, 

79 (1990)). 

%Ioose Tramp. Comm., Bill Analysis, H.B. 1208,74th Leg. (1995). 

p. 2212 
The Honorable Clyde Alexander - Page 3 (DM-403) 

You indicate that, despite the new statutory limitation on liability, a commercial 

train operator, Union Pacific Rail Corporation, requires excursion train operators that use 

its trackage to carry liability insurance in a minimum amount of $25 million per occurrence. Union Pacific, you state, believes that the new law is unconstitutional. You 

therefore ask about the constitutionality of V.T.C.S. article 9030, section 2(a) and (b). 

You do not indicate which constitutional provision or provisions you are concerned about. 

We believe, however, that article I, section 13 of the Texas Constitution is the relevant 

provision. 

Article I, section 13 of the Texas Constitution mandates that all courts be open and 

that every person whose real or personal property, body, or reputation is injured have a 

remedy by due course of law.rs Article I, section 13 guarantees not only access to the 

courts, but meunin@id access.rr As one court has said, article I, section 13 guarantees a 

plait&f the right “to obtain 6111 redress for injuries caused by another’s wrongtirl conduct.“t2 The Texas Supreme Court has interpreted this “open courts” provision to forbid 

the legislature to deny a citizen the right to seek through the courts a remedy for an intentional injury.13 In addition, the court has applied the open courts provision in cases 

involving negligent injury.r4 

In our opinion, the Texas Supreme Court’s decision in Lucus v. United .St~fes~~ 

controls how we must analyze your question. In that case, the court addressed the constitutionality of the statutory limitation on damages a plaintiff can receive in a medicalmalpractice action.16 Specifically, V.T.C.S. article 459Oi, section 11.02(a) limits a physician’s or health-care provider’s civil liability in a medical malpractice action to $500,000.r7 

This liitation does not apply to medical, hospital, and custodial-care expenses, how- 

%ee generally 1 GFDRGE D. BRADEN ET AL., THE CONSTITUTION OF THE STATE OF TFXA% AN 

ANNOTATED AND COMPARATIVE ANALYSIS 47,50-51 (1977). 

‘&x.s v. UnitedStofes, 757 S.W.Zd 687,690 flex. 1988) (emphasis added). 

%e?ar Hosp., Inc. Y. Estrada, 694 S.W.2d 359, 366 (Tex. App.-Corpus Christi 1985, no tit). 

13Middleton v. Texas Power & Light Co., 185 SW. 556, 561 (Tex. 1916). See generally 

Joseph P. Witherspoon, ConstihMonalily ofthe Texas Stab& Limiting Liabilityfir Medical Mdpractice, 

10 TFX TECH. L. REV. 419.424-26 (1979). 

“See Lucas, 757 S.W.2d at 688, 690; Sax v. Votteler, 648 S.W.Zd 661. 664, 665 (Tex. 1983); 

see also Detar Hosp., Inc., 694 S.W.2d at 361, 365-66. 

15757 S.W.2d 687 (Tex. 1988). 

161d. at 687. 

171d. at 688-89 (quoting V.T.C.S. art. 45901, 5 11.020)). 

p. 2213 
The Honorable Clyde Alexander - Page 4 W-403) 

ever. I8 In the event section 11.02(a) is found unconstitutional, section 11.03 provides au 

alternative limitation on damages: a physician or health-care provider’s civil liability in a 

medical malpractice action is limited to $150,000 for all past and future noneconomic 

losses.‘g 

The Lucus court analyzed the constitutionality of sections 11.02 and 11.03 using a 

two-pronged approach.20 Fist, to find a statute unconstitutional under article I, section 

13 of the Texas Constitution, a court must find that the statute restricts a “cognizable 

common[-]law cause of action.“21 Second, the court must find that, when balanced 

against the purpose and basis of the statute, the statute unreasonably or arbitrarily restricts 

the right to redress.** 

The court found that a victim of medical negligence has an undisputed, welldetined common-law right of action.23 The court therefore proceeded to consider 

whether, given the purpose of the statute, the statutory limit on damages unreasonably or 

arbitrarily restricts that right.*’ The legislature articulated the purposes of V.T.C.S. article 

4590i in section 1.02, and they are, primarily, to reduce the fresuency and severity of 

health-care liability claims, to decrease the costs of these claims and ensure that awards 

are rationally related to actual damages, and to make available to health-care providers 

liability insurance at “reasonably affordable rates.” The court found that the legislature did 

not intend to strike only at frivolous medical malpractice lawsuits, but at all medical malpractice lawsuits.25 The court tbrther found that legislature itself was unsure whether the 

limitation on damages would lower liability insurance rates.26 

The stated purposes, the court concluded, did not support the restriction on redress.*’ Significantly, the legislature failed to provide sn adequate substitute through 

‘*Id. at 689 (quotingV.T.C.S. art. 459Oi, 5 11.02(b)). 

lgId. (quoting V.T.C.S. art. 45901, § 11.03) 

2oSee id. at 690 (quoting Szx v. Votteler, 648 S.W.2d 661,666 (Tex. 1983)). 

l’Id. (quoting Sax, 648 S.W.2d at 666). 

**Id. (quoting Sac, 648 S.W.2d at 666). 

231d. 

*‘Id. at 690-92 

151d. at 691 

261d. (quoting V.T.C.S. art. 45901, 5 l.O2(a)(12)) 

*‘See id. 
The Honorable Clyde Alexander - Page 5 (DM-403) 

which a medical-malpractice plaintiff may obtain redress for his or her injuries.28 As an 

example of an adequate substitute, the court pointed to similar statutes in two other states 

in which the legislature limited a health-care provider’s liability but also established a patient-compensation fund.29 Presumably, a medical-malpractice plaintiff who is not fblly 

compensated for his or her injuries by the physician or health-care provider may seek additional recompense from this fbnd. The court noted that alleged benefits to society 

generally are insufficient to uphold a statute against attack under Texas Constitution article I. section 13.M 

In addition, the court found that the legislature unreasonably limited the recovery 

available to persons who were catastrophically injured by medical malpractice because the 

legislature desired to conduct a “speculative experiment” to determine whether medicalmalpractice liability insurance rates would decrease.31 Furthermore, the legislature’s 

stated purpose to ensure that awards are rationally related to actual damages intruded 

upon the province of the courts.32 In any event, the court concluded, the legislature unreasonably and arbitrarily determined “that arbitrary damages caps, applicable to all 

claimants no matter how seriously injured,” assured “a rational relationship between actual 

damages and amounts awarded.“” 

We consider now V.T.C.S. article 9030, section 2(a), the statute you cite. Using 

the two-pronged analysis set forth in Lucq we must decide first whether article 9030, 

section 2(a) restricts a cognizable common-law cause of action. Second, we must analyze 

whether the statute unreasonably or arbitrarily restricts the cause of action given the purpose and basis of the statute. 

We find a well-established, cognizable, common-law cause of action for victims of 

common-carrier negligence.34 The issue thus becomes whether article 9030, section 2(a) 

=“Id. at 690. 

lgId. at 691. 

Mid. at 690 (citing Wright v. Central Du Page Hosp. Ass’n, 347 N.E.Zd 736,742 (Ill. 1916)). 

3’Id. at 691. 

‘=Id. 

%ee T&on v. PanAmerican World Airways, Inc., 399 F. Supp. 335, 339 (S.D. Tex 1975); 

Jackson v. City of Dallas. 443 S.W.2d 771, 780 (lb. Cii. App.-Dallas 1%9), rev’d on other grounds, 

450 S.W.Zd 62 (1970); Simpson v. Dallas Ry. & Terminal Co., 143 S.W.Zd 416, 418 (Tex. Cii. App.- 

Dallas 1940, wit dism’d); see ah 13 C.J.S. Carriers 5 508, at 458 (1990) (stating that common carrier 

p. 2215 
The Honorable Clyde Alexander - Page 6 cDMm403) 

unreasonably or arbitrarily restricts the cause of action. Ultimately, this is a question of 

fact that is inappropriate to the opinion process. 3J We believe, however, that a court 

would find the restriction unreasonable. 

As we have indicated, the legislative purpose for article 9030, section 2(a)‘s limitation on liability is to reduce the amount of liability insurance an excursion train operator 

must carry. The legislature thereby hoped to reduce the ticket price excursion train operators charge and increase tourism dollars flowing to towns along the trams’ routes. The 

legislature did not estimate the article’s impact on either ticket prices or revenues from 

tourists. 

We note that the statute accomplishes its purposes at the expense of injured passengers, and particularly at the expense of passengers involved in a large accident. Under 

section 2(a), the operator’s liability is limited to SS,OOO,OOO per occurrence. While a 

court may find that the statute provides meaningfid access to the courts for one or two 

persons injured in an excursion train accident, we doubt a court would find the same for a 

train accident involving, for example, fitly passengers. Furthermore, we question whether 

a court would tind that a decrease in ticket prices, the size of which the legislature has not 

estimated, and the increase in tourist dollars, the size of which the legislature has not estimated, justify limiting the damages injured passengers may receive. The purported 

decrease in ticket prices is even more speculative when we note that article 9030, section 

2(a) does not preclude a commercial tram operator such as Union Pacific Rail Corporation 

from attaching any legal condition it desires to a contract with a train that wishes to use 

the commercial train operator’s trackage. Accordingly, nothing prohibits the commercial 

train operator from demanding as much insurance coverage as it wishes. Similar to the 

statute examined in LUUJS, section 2(a) places the burden of (possibly) lower ticket prices 

and (possibly) more tourism dollars “upon those persons who are most severely injured 

and therefore most in need of compensation.“36 Finally, the legislature has not provided 

an alternative source, such as the patient-compensation find mentioned in Lucus, from 

which injured passengers may collect damages above and beyond the %5,000,000 damages 

they may collect under section 2(a). 

(footnote continued) 

is liile for slightest negligence, even if third party’s concurring negligence contributes primarily to accident). 

35See, e.g., Attorney General Opinions DM-98 (1992) at 3, H-56 (1973) at 3, M-187 (1%8) at 3, 

O-2911 (1940) at 2. 

36Lucas v. United States, 757 S.W.2d 687, 692 (Tex 1988) (quoting Carson v. Maurer, 424 

A.2d 825,837 (NH. 1980)). 

p. 2216 
The Honorable Clyde Alexander - Page 7 (DM-403) 

For all of these reasons, we believe a court would find the limitation on liability in 

V.T.C.S. article 9030, section 2(a) contravenes article I, section 13 of the Texas Constitution.37 

SUMMARY 

To determine whether V.T.C.S. article 9030, section 2(a) contravenes article I, section 13 of the Texas Constitution, a court would 

apply a two-pronged analysis. The court would consider first 

whether section 2(a) restricts a cognizable common-law right of action. Next, the court would consider whether, in light of the purpose 

and basis of the statute, the statute unreasonably or arbitrarily restricts that right. A court probably would find that the limitation on 

liability in V.T.C.S. article 9030, section 2(a) contravenes article I, 

section 13 of the Texas Constitution. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Kymberly K. Oltrogge 

Assistant Attorney General 

37A cotut is less likely to conclude that V.T.C.S. article 9030, section 2(a) violates the Due F’mcess or Equal Protection Clauses of the Unites States Constitution. The United States Court of Appeals has 

concluded Ihat the limitation on damages in V.T.C.S. article 45901, section 11.02 (the statute at issue in 

Lucas) was consistent wifh these constitutional provisions. Lucm v. United States, 807 F.2d 414, 417, 

421-22 (5th Cir. 1987). 

The Texas Supreme Court has, on the other hand, suggested that limitation provisions such as 

article 45901, s&ions 11.02 and 11.03, which are similar to the limitation statute about which you ask, 

may violate Texas Constitution article I, section 3 or article III, section 56. See Lucas v. United St&% 

757 S.W.Zd 687,689 n.1 flex. 1988). 

p. 2217