### DAN MORALES

ATTORNEY CENERAL 

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6eneral &date of Qexarr

Honorable Rick Perry Commissioner Texas Department of Agriculture P.O. Box 12847 Austin, Texas 78711 November 9, 1995 Opiion No. DM-365

Re: Whether V.T.C.S. article 8613, which regulates the sale of motor vehicle tire1to disabled persons, is. applicable to any vehicle that displays an appropriate “special device” or “disabled person” identification card (RQ-623)

Dear Commissioner Peny:

You ask about the proper construction of a Texas statute that governs retbeling services for disabled persons. You are concerned that the provisions of the statute seem to require that the driver of a vehicle must actually be disabled and must display the disabled person placard. Furthermore, you question whether the provision implies that a service station operator has the authority or the duty to determine whether the driver is actually disabled or whether the person to whom the disabled placard was issued is in fact disabled, Specitically, you ask the following:

1. Is there any permissible means by which the operator of a gasoline service station may inquire asto whether the driver is disabled, or is the placard or license plate sufficient proof of disability?
2. Is it an offense for a person who is not disabled to obtain refueling services under [article] 8613 through the use of another person’s disabled placard or license plate? Article 8613 of the Revised Civil Statutes governs the provision of refueling services to disabled persons.’ It states:

(a) Each person, firm, partnership, association, ttustee, or corporation that operates a gasoline service station or other facility that offers gasoline or other motor vehicle fuel for sale to the public from the facility shall provide, on request, retirering service to a disabled driver of a vehicle that displays a special device or disabled person identification card authorized by Chapter 338, Acts of the

‘Theterm“mkling service” isddinedastheservice

ofpunpingmotor

vehiclefaclintothefuel tankofamotorvehicle. V.T.C.S.art.8613,P 1.HonorableRickPeny - Page 2

64th Legislature, Regular Session, 1975 (Article 6675a-5e.1, Vernon’s Texas Civil Statutes).* (b) The price charged for the motor vehicle tire1provided under Subsection (a) of this section may not be greater than the price the facility otherwise would charge the public generally to purchase. motor vehicle tieI without refueling service. V.T.C.S. art. 8613, 5 2 (footnote added). Thus, article 8613 obligates operators of gasoline stations with both “full-serve” and “self-serve” facilities to provide reiueling services at “self-serve” prices to those disabled drivers who display a special license plate issued pursuant to motion 502.253 of the Transportation Code. Further, refueling services must also be provided to those individuals displaying a disabled parking placard as authorized by chapter 681 of the Transportation Code.3 Article 8613, section 4(b) provides that the Texas Department of Transportation shah provide notice of available refueling services to “each disabled person who is issued a special device or disabled person identification card under Chapter 681, Transportation Code.” Act of May 1, 1995, 74th Leg., RS., ch. 165, 522(20), 1995 Tex. Sess. Law Serv. 1025, 1856 (amending V.T.C.S. art. 8613, §4(b)). Transportation Code section 502.253 provides for the issuance. and the requirements for issuance of a specially designed license plate for persons with disabiities. The relevant language states:

(a) The department shall provide for the issuance of specially designed license plates for [motor vehicles] regularly operated for

ll%c Seventy-fourth

Legislature

repealed article6675a-5e.1,V.T.C.S. ActofMay 1, 1995,74th Leg., RS., ch. 165, 5 1, 1995 Tex. Scs. Serv. 1025, 1031. TIE previsionsof article 6675a-k.1, V.T.C.S.,arenowcodiried intheTransportation

&de atchapters

502 and681. Id. 8 1,at 1505, 1780. Thecoditication

ofarticle 6675a-k. 1intheTmnsportation C& is a notlsubstantivc

revision. Id. 8 1,at 1031;525,at 1871. Forthepurpose ofthisopinionwewillrefertotheTransportation Code.
3Theprevisions

oftheactdonotapplyto (1) a gasolineservicestationor otherfacilityofferinggasoline or other motor vehiclefuelforsaletothepublic fromthefacility: (A) ifthe stationorotherfacilityhasonlyremotely controlled

pumpsand wver provides

pumpislandservice;

or (EI) during regularlyscheduledhours in which, for securityreasons,a stationorh5My thatordinarily provides pmnpislandwvice doesnotprovide thatsemia; or (2) refuelingserviceto provideliquetiedgas,ss that term is d&ted by Section153.001,Taxcode. V.T.C.S.art.8613,§ 3.Honorable Rick Perry - Page 3

noncommercial use by or for the transportation of a person with a permanent disability. (b) A person has a disability ifthe person the person has: (1) mobility problems that substantially impair the person’s ability to ambulate; (2) visual acuity of 20/200 or less in the better eye with corrtiing lenses; or (3) visual acuity of more than 20% 6’/~ but with a limited field of 

### vision in which the widest diameter of the visual field subtends an angle of 20 degrees or less. (c) An owner of a motor vehicle regularly operated by or for the transportation of a person described by Subsection (b) may apply to the department for registration under this section.
In addition, the department shall provide a removable disabled parking placard to a person with a disability. Tramp. Code $681.002. Siiily, the owner of a motor vehicle used primarily for the transportation of a person with a disabiity may apply for a disabled parking placard. 

### Id.

$661.003(a). The initial application must be accompanied by acceptable medical proof that the operator or regularly transported passenger actually has
a disabiity. However, a written statement from a physician is not required in limited 

### cirwmstances.

Id. 8661.003(c).
Thus the provisions of article 8613 only apply to those disabled drivers displaying
a placard such as a removable windshield identification card or a device such as a specially designed license plate as provided for by sections 502.253 and 681.002 of the Transportation Code. In the absence of authority to the contrary, we therefore conclude that article 8613, section (2) provides the sole authority for determining disability with regard to retieling se.rvice.s,that is, by reference to a special device or disabled person identification card.
Further, our research of the relevant legislative history of article 8613 indicates that the intent of the legislature was to “require refueling service by gasorme service facilities for the disabled without an additional charge”; and more specifically, to provide refueling services “to a disabled driver if the driver’s vehicle displays a special device or disabled person identification card.

.” House Comm. on State Athairs, Bill Analysis, H.B. 182,7lst Leg., R.S. (1989). During a hearing before the committee, Representative Htny, the sponsor ofthe bill in the House, testified that

[a] disabled person, properly being identified, if he should pull, or if she should pull into a lit11 service facility-that person should be able to enjoy the Ml service facility, but at a self-service price. And ifthe bill doesn’t say that, then I’m not for it.HonorableRickPerry - Page 4

Hearings on H.B. 182 Before the House Comm. on State Ai%irs, 71st Leg. (Apr. 24,1989) (statement of Representative Htny) (tape available from House Video/Audio Services). Accordingly, we tbrther conclude that there is no statutory basis upon which to opine that a service station operator has the express or implied authority, or duty, to inquire or determine whether the driver of a vehicle or the person to whom the specially designed license plate or disabled placard was issued, is actually disabled. However, we are not cognizant of any prohibition against merely inquiring whether a driver is in fact disabled. Nevertheless, we caution that failure to provide relitehng services to a person who displays a special device or disabled person identitication card authorized by section 502.253 and 681.002 of the transportation code may subject a managing individual or employee to criminal prosecution. Article 8613, section S(a) provides:
A person who is a responsible managing individual setting

service policy of a station or facility covered by this Act or is an employee acting independently against established service policy and who violates Section 2 of this Act commits an offenx4 [Footnote added.] With regard to your second inquiry, section 681.Ol1 of the Transportation Code sets forth the punishable offenses relevant to the disabled parking placard. However, this section does not address the procurement or the use of the placard in conjunction with refueling services. Moreover, the enumerated offenses are only applicable to the abuse or misuse of parking privileges for the disabled. See Tramp. Code 5 681.011. Chapter 502, Subchapter H sets forth the offenses and penalties associated with the use of speciahy designed license plates. Siilarly, this chapter makes no rekence. to the procurement or the use of the license plate in conjunction with refbeling services, Accordingly, we conclude that these particular statutes do not provide a basis for recogking an offbnse where a person who is not disabled obtains refueling services pursuant to the provisions of article 8613. However, an individual who fraudulently receives such services may be subject to criminal prosecution. See Penal Code ch. 31.

SUMMARY
With few exceptions, V.T.C.S. article 8613, section 2(a) and (b) obligates operators of gasoline stations with “~1-serve” and “selfserve” facilities to provide refueling services at “self-serve” prices to those disabled drivers who display a special license plate or

‘An offensemdcr this s&ion is a class Cmisdemr. V.T.C.S.art.8613, 05(b);see penal code 5 12.23.Honorable KckPerry - Page 5

identification card issued pursuant to sections 502.253 and 681.002 of the Transportation Code.

We have found no statutory basis upon which to opine that a service station operator has the express or implied authority. or duty, to inquire or determine whether the driver of a vehicle or the person to whom the disabled identiScation card or license plate was issued is actually disabled. However, we am not co&ant of any prohibition a@nstmereiyiDquiringwhetheradriverisinfkctdisabled.

V.T.C.S. article 8613, section (2) provides the sole authority for detaminingdisabiiwithregardtotheuseofadisabledplacardor license plate to receive reiiteling sewices. Chapter 502, subchapter H and section 681.Ol1 of the Transportation Code do not provide a basis for recognizhq an offense where a person who is not disabled obtains mfueUng services through the fraudulent use of another% diaahkd placard or license plate. However, fkilure to provide refuelinSservicestoapersonwhodisplaysadisabledparkiqplacard
or q&ally designed license plate authorized by sections 502.253 and 681.002 of the Transportation Code may subject a mana@ individual or employee to crimir& prosecution. V.T.C.S. art. 8613. B5.

DAN MORALES Attomey General of Texas

JORGE VEGA First Assistant Attorney Genera)
SARAH J. SHIRLEY Chair, opinion Committee Prepared by Toya Cirica Cook Assistant Attorney General