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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). 

You ask our opinion whether flight echoolfi come within 

the scope of the Texas Proprietary School Act. These schools 

offer varying courses of Instruction which enable a person to 

qualify for the varying ty es of pilot licenses granted by the 

Federal Aviation Agency. Eg, U.S.C. Sec. 1341 et seq. 

Our opinion 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,' means any business enterprise operated 

for a profit, or on a nonprofit basis, which malntalns a place of business within the State of Texas, 

or solicits business within the State of Texas, and 

which is not specifically exempted by the provisions 

of this Chapter and; 

"(A) which offers or maintains a course or 

courses of instruction or study; or 

"(B) at which place of business such a course 

or courses of inetruction or study is available 

through classroom Instruction or by correspondence, 

or both, to a person or persons for the purpose of 

training or preparing the person for a field of en- 

+ 

Acts 62nd Deg., R.S., 1971, ch. 620, p. 2006, H.B. 333, 

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

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Hon. J. W. Edgar, page 2 (M-1011) 

deavor in a business, 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 

a flight school; no claim is made to us that any does. 

The relevant law Is stated in 52 Texas Jurisprudence 2d 

209, Statutes, Section 143, as follows: 

I, 

. The fact that an act contains one or 

more ekeptions discloses an intention on the part 

of the legislature that there should be no other 

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 by a proprietary school does not serve~to 

exempt it from the Act. A substantial 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 by Federal Aviation Regulations, does not result In a pre-emption by the federal 

government so as to deprive the state of the power to regulate flight schools under the Texas Proprietary School Act. 

So long 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, 302 U.S. 1, lo, 58 S.Ct. 87 (1927), 

holding that: 

“There is no constitutional rule which compels 

Congress to occupy the whole field. Congress may 

circumscribe its regulation and occupy only a limited 

field. When It 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. 

We hold that the police power of the state to regulate flight 

schools has not been superseded by any federal act, and that 

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I . 

Hon. J. W. Edgar, page 3 (M-1011) 

there has been no attempt 

the whole field, and that 

by the 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 a school otherwise regulated and ap roved pursuant to a federal law, but 

under Section 32.12(a P (7) an exemption is recognized for "a 

school which is otherwise regulated and approved under and 

pursuant to any other law of the State." 'Flight schools are 

not regulated and approved 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 by W. E. Allen 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

Lewis Jones 

Gordon Cass 

Brandon Bickett 

S. J. Aronson 

SAM MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WZITE 

First Assistant 

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