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AUSTIN,TEXAR 78711

CRAWFORD C.MARTIN AlTORNEY GENERAL. December 8, 1971

Hon. J. W.Edgar Opinion No.M-1011 Commissioner of Education Texas Education Agency Re: Are flight schools 201 East Eleventh Street covered by the Texas Austin, Texas 

### 78701 Proprietary School Act (Acts 62nd Deg., R.S., Dear Dr. Edgar: 1971, ch. 620, p. 

### 2006). Youask our opinion whether flight echoolfi comewithin the scope of the Texas Proprietary School Act. These schools offer varying courses of Instruction which enable aperson to qualify for the varying ty es of pilot licenses granted by the Federal Aviation Agency. Eg,U.S.C. Sec. 1341 et seq. Ouropinion Is that flight schools are subject to the Act. Schools covered by the Act are defined In its Section 

### 32.11(1) as follows,

"(1) 'Proprietary School,' referred to as 'school,' meansany business enterprise operated for aprofit, or on anonprofit basis, which malntalns aplace of business within the State of Texas, or solicits business within the State of Texas, and which is not specifically exempted bythe provisions of this Chapter and; "(A) which offers or maintains acourse or courses of instruction or study; or "(B) at which place of business such acourse or courses of inetruction or study is available through classroom Instruction or bycorrespondence, or both, to aperson or persons for the purpose of training or preparing the person for afield of en-

+Acts 62nd Deg., R.S., 1971, ch. 

### 620,p.2006,H.B. 

### 333, codified byVernon as Sec. 32.01, et seq., Texas Education Code.

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deavor in abusiness, trade, technical, or industrial occupation, or for avocation or personal improvement, except as hereinafter excluded.” Section 32.12 of the Act specifies certain schools or educational institutions which are specifically exempt from all provisions of the Act. None of these exemptions cover aflight school; no claim is madeto us that any does. Therelevant law Is stated in 52Texas Jurisprudence 2d 209, Statutes, Section 

### 143,as follows:

I,

. The fact that anact contains one or more ekeptions discloses an intention on the part of the legislature that there should be noother exception and that the act should apply in all cases not excepted.

. . .‘I In our opinion the mere fact that some of the procedural or other sections of the Act are not feasible or amenable to literal compliance byaproprietary school does not serve~to exempt it from the Act. Asubstantial compliance with the Act would suffice in such instances. Furthermore, the fact that certain qualifications are requd,red for instructors, chief pilots and school owners byFederal Aviation Regulations, does not result In apre-emption by the federal government so as to deprive the state of the power to regulate flight schools under the Texas Proprietary School Act. Solong as the state regulations are caused to conform to, and. are InterDreted to be. consistent with the federal law or regulations; both state-and federal law are applicable. See Kelly v. Washington, 

### 302U.S. 1, lo, 

### 58S.Ct. 

### 87(1927), holding that:

“There is no constitutional rule which compels Congress to occupy the whole field. Congress may circumscribe its regulation andoccupy only alimited field. WhenIt does so, state regulation outside the limited field and otherwise admissible Is not forbidden or displaced. ’ See also, Antieu’s Modern Constitutional Law, Volume 2, Section 10.24, pp. 49-51, and authorities there cited. Wehold that the police power of the state to regulate flight schools has not been superseded byany federal act, and that

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Hon. J. W.Edgar, page 

### 3 (M-1011)

there has been no attempt the whole field, and that bythe federal government to occupy the Texas Act does not conflict with the Federal statutes or regulation as to flight schools. There is no exemption in the statute for aschool otherwise regulated and aproved pursuant to afederal law, but under Section 32.12(a P

### (7)anexemption is recognized for "a school which is otherwise regulated andapproved under and pursuant to any other law of the State." 'Flight schools are not regulated andapproved under or pursuant to any other law of the state. SUMMARY

Flight schools are subject to the provisions of the Texas Proprietary School Act. Acte 62nd Leg., R.S., 1971, ch. 620; p.~2006, H.B. 

### 333, codified by Vernon as Sec. 32.01, et seq., Texas Education Code.

Prepared byW.E. Allen Assistant Attorney General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman Lewis Jones Gordon Cass Brandon Bickett S. J. Aronson SAMMCDANIEL Staff Legal Assistant ALFREDWALKER Executive Assistant NOLAWZITE First Assistant -4936-