DAN MORALES

ATTORNEY GENERAL 

## QBffice

of ttp !Zlttomep@eneral .&date ofPCexae December 121991

Lionel Meno, Ph.D. Commissioner ofEducation Texas Education Agency 1701North Congress Avenue Austin, Texas 78701-1494 opinion No. DM-69

Re: Whether a municipality can refuse to issue building permits or certificates of occupancy to a school district for failing to comply with municipal building code requirements on handicapped accessibilitywhere the school district has obtained a waiver under article 7 of the State Purchasing and General Services Act 

### @Q-W)

Dear Commissioner Meno:

You askwhether the City ofEl Paso may refuse to issue building permits or certificates of occupancy to the El Paso Independent School District for failing to comply with municipal building code requirements on handicapped accessibility if the school district isin compliance with the accessibility standards and specifications adopted pursuant to article 7 of the State Purchasing and General Services Act, V.T.C.S. art. 601b. or has received a waiver from such compliance under section 7.02(e) ofthat act. Your question, essentially. breaks down into two considerations: (1)whether article 7ofthe State Purchasing and General Services Act preempts the field of handicapped accessibility to buildings, and (2) if article 7 of the State Purchasing and General Services Act does not preempt the field, whether El Paso’s regulation ofhandicapped accessibility through itsbuilding code isinconsistent with state legislation inthis area.
El Paso is a home-rule city existing and operating under article XI, section 5 of the Texas Constitution. Under its building code all new construction, with enumerated exceptions, must meet accessibility standards that include requirements for doors, surfaces, slopes, steps, and other similar features ofbuildings that bear on accessibility to handicapped people. Article 7 ofthe State Purchasing and General Services Act states itspolicy asfollows:

p. 345Lionel Meno, Ph.D. -Page 2 (DM-69)

The provisions ofthis article are to further the policy ofthe State of Texas to encourage and promote the rehabilitation of handicapped or disabled citizens and to eliminate, insofar as possible, unnecessary barriers encountered by aged, handicapped, or disabled persons, whose ability to engage in gainful occupations or to achieve maximum personal independence is needlessly restricted when such persons cannot readily usepublic buildings.

V.T.C.S. art. 6Olb, 8 7.01. Article 7 of the State Purchasing and General Services Act applies to, inter a&z, all buildings and facilities used by the public which are constructed inwhole or inpart bythe use ofthe funds ofany political subdivision of the state. Id 87.02(a). Pursuant to article 7,the General Services Commission has adopted rules which provide standards for accessibility to buildings covered by article 7. See 1T.A.C. Q115.51etseq. Section 7.02(e) ofthe State Purchasing and General Services Actprovides that the General Services Commission “shallhave the authority to waive or modify accessibility standards and specifications when application of such standards and specifications is considered by the commission to be irrelevant to the nature, use, or function of a building or facility covered by this article.” The El Paso Independent School District sought and obtained such a waiver for certain buildings under its control.

A home-rule city may not enact an ordinance inconsistent with state legislation. Tex. Const. art. XI, 5 5. However, within that limitation, a home-rule city enjoys broad discretion, and the entry ofthe state into a field oflegislation does not automatically preempt that field from city regulation. City of Richardson v. Responsible Dog Owners ofTexas, 794 S.W.2d17,19 (Tex. 1990). InResponsible Dog Owners,the Texas Supreme Court found that a comprehensive municipal animal control ordinance was not preempted by sections 1.08and 42.12ofthe Texas Penal Code1 despite “asmall area of overlap in the provisions of the narrow statute and the broader ordinance.” Id. The court further held that section 1.08of the Penal

‘Section 1.0s of the Penal Code provides:

No govemmental subdivision or agency may enact or enforce a law that makes any conduct covered by this code an offense subject to acriminal penalty.
Section 42.12 of the Penal Code makes it anoffense to keep a dog that kas engaged in vicious conduct without complying with certain prescribed standards.

p. 346Lionel Meno, Ph.D. -Page 3 (DM-69)

Code places no greater restriction on a home-rule city than does article XI, section 5,ofthe Texas Constitution.
Article 7ofthe State Purchasing and General Services Act does not expressly state an intent to preempt the field ofregulation that the act addresses. Certainly, the act contains no language such as that found in section 1.08ofthe Penal Code limiting local enactments. If,as the supreme court teaches, section 1.08ofthe Penal Code does no more than article XI, section 5, ofthe constitution in that respect, we do not think that an intent to preempt may be found by implication unless no other reasonable interpretation isavailable. Accordingly, weconclude that article 7 ofthe State Purchasing and General Services Act does not preempt the field ofregulation ofhandicapped accessibility.

Nor is municipal regulation of architectural barriers through a city building code necessarily inconsistent with the rules adopted pursuant to article 7 of the State Purchasing and General ServicesAct. The supreme court has held that a state law and a city ordinance will not be held repugnant to each other if a reasonable construction leaving both in effect can be reached. Responsible Dog Owners, supra. As it is possible to comply with both the State Purchasing and General Services Commission’s rules and El Paso’s building code, the two are not in inherent conflict. While the building code may require more of a building owner, and may not provide for waivers, it has not been suggested that compliance with the building code willperforce result in noncompliance with the commission’srules. Moreover, the accessibility standards of El Paso’s building code are designed to achieve precisely the goal stated in article 7: “toeliminate, insofar as possible, unnecessary barriers encountered byaged, handicapped, or disabled persons.”

It would be anomalous to construe article 7 as limiting the adoption or enforcement ofvigorous municipal regulations inharmony with the goals that article 7 was enacted to achieve. The General Services Commission has recognized the role ofmunicipal regulation initsrules adopted pursuant to article 7:

Public officials are encouraged to assist in implementing the policy ofthe state throughdevelopment and enforcement of local b+ilding~codes and building permit regulations. A building
owner’sobligation to comply with the provisions of the Act and the rules and regulations set out in these sections may not be satisjied by a simple showing of compliance with local building codes orordinances.

P. 347Lionel Meno, Ph.D. -Page 4 (DM-69)

1T.A.C. 5 115.51(emphases added). This provision makes clear that the General Services Commission sees the standards adopted by its rules as establishing a floor which ensures that state policy willbe enforced even injurisdictions whose building codes do not require accessibility. It suggestsno attempt to override more stringent local regulation that isconsistent withthe purpose ofitsrules. Finally, we note that the General Services Commission has taken the position that a waiver granted pursuant to section 7.02(e) of the State’Purchasing and General Services Act does not preempt enforcement of a local building code. In a letter dated July 10, 1991,to the El Paso City Attorney’s Office, the legal counsel to the commission states:

However, in light of the State’s express policy regarding architectural barriers, the limitations it has placed on the granting ofwaivers, and its silence on the issue of pre-emption ofthe powers ofhome rule cities, it is my opinion that Article 7 ofthe Act does not pre-empt the [El Paso Building] Code ifthe Commission, pursuant to its authority, has exempted a building from architectural barrier compliance.

We conclude that article 7 ofthe State Purchasing and General Services Act does not preempt the field ofregulation with respect to architectural barriers. We have no basis forfinding that amunicipal building code isinconsistent with the rules adopted pursuant to article 7where a reasonable construction, givingeffect to both, is available. Accordingly, the City of El Paso may enforce the accessibility requirements ofits building code with respect to buildings under the control of the El Paso Independent School District.

SUMMARY
The City ofEl Paso may refuse to issue a building permit or certificate of occupancy to the El Paso Independent School District for failing to comply with municipal building code requirements on handicapped accessibility, notwithstanding the fact that the school district isin compliance with the accessibility

P- 348Lionel Meno, Ph.D. -Page 5 (DM-69)

standards and specifications adopted pursuant to article 7ofthe State Purchasing and General Services Act, V.T.C.S. art. 601b,
or has obtained a waiver from such compliance under section 7.02(e) ofthat act.

DAN MORALES Attorney General ofTexas

WILLPRYOR First Assistant Attorney General

MARY KELLER Deputy Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

MADELEINE JOHNSON Chair, Opinion Committee Prepared byJohn Steiner Assistant Attorney General

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