DAN MORALES 

ATTORNEY GENERAL 

QBffice of ttp !Zlttomep @eneral 

.&date of PCexae 

December 121991 

Lionel Meno, Ph.D. 

Commissioner of Education 

Texas Education Agency 

1701 North 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 accessibility where the school district has obtained a 

waiver under article 7 of the State 

Purchasing and General Services Act 

@Q-W) 

Dear Commissioner Meno: 

You ask whether the City of El 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 is in 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) of that act. Your question, essentially. breaks down into two considerations: 

(1) whether article 7 of the 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 of handicapped accessibility through its building code is inconsistent with 

state legislation in this 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 of buildings that bear on 

accessibility to handicapped people. Article 7 of the State Purchasing and General 

Services Act states its policy as follows: 

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

The provisions of this article are to further the policy of the 

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 use public 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 in whole or in part by the use of the funds of any political subdivision of 

the state. Id 8 7.02(a). Pursuant to article 7, the General Services Commission has 

adopted rules which provide standards for accessibility to buildings covered by 

article 7. See 1 T.A.C. Q 115.51 et seq. Section 7.02(e) of the State Purchasing and 

General Services Act provides that the General Services Commission “shall have 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 of the state into a field of legislation does 

not automatically preempt that field from city regulation. City of Richardson v. 

Responsible Dog Owners of Texas, 794 S.W.2d 17,19 (Tex. 1990). In Responsible Dog 

Owners, the Texas Supreme Court found that a comprehensive municipal animal 

control ordinance was not preempted by sections 1.08 and 42.12 of the Texas Penal 

Code1 despite “a small area of overlap in the provisions of the narrow statute and 

the broader ordinance.” Id. The court further held that section 1.08 of 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 a criminal penalty. 

Section 42.12 of the Penal Code makes it an offense to keep a dog that kas engaged in vicious conduct 

without complying with certain prescribed standards. 

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

Code places no greater restriction on a home-rule city than does article XI, section 

5, of the Texas Constitution. 

Article 7 of the State Purchasing and General Services Act does not expressly 

state an intent to preempt the field of regulation that the act addresses. Certainly, 

the act contains no language such as that found in section 1.08 of the Penal Code 

limiting local enactments. If, as the supreme court teaches, section 1.08 of the Penal 

Code does no more than article XI, section 5, of the constitution in that respect, we 

do not think that an intent to preempt may be found by implication unless no other 

reasonable interpretation is available. Accordingly, we conclude that article 7 of the 

State Purchasing and General Services Act does not preempt the field of regulation 

of handicapped 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 Services Act. 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 will perforce result in noncompliance with the commission’s rules. Moreover, 

the accessibility standards of El Paso’s building code are designed to achieve 

precisely the goal stated in article 7: “to eliminate, insofar as possible, unnecessary 

barriers encountered by aged, handicapped, or disabled persons.” 

It would be anomalous to construe article 7 as limiting the adoption or 

enforcement of vigorous municipal regulations in harmony with the goals that article 

7 was enacted to achieve. The General Services Commission has recognized the 

role of municipal regulation in its rules adopted pursuant to article 7: 

Public officials are encouraged to assist in implementing the 

policy of the state through development and enforcement of local 

b+ilding~ codes and building permit regulations. A building 

owner’s obligation 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 or ordinances. 

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

1 T.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 will be enforced even in jurisdictions whose building 

codes do not require accessibility. It suggests no attempt to override more stringent 

local regulation that is consistent with the purpose of its rules. 

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 of waivers, and its silence on the issue of pre-emption 

of the powers of home rule cities, it is my opinion that Article 7 

of the Act does not pre-empt the [El Paso Building] Code if the 

Commission, pursuant to its authority, has exempted a building 

from architectural barrier compliance. 

We conclude that article 7 of the State Purchasing and General Services Act 

does not preempt the field of regulation with respect to architectural barriers. We 

have no basis for finding that a municipal building code is inconsistent with the rules 

adopted pursuant to article 7 where a reasonable construction, giving effect to both, 

is available. Accordingly, the City of El Paso may enforce the accessibility 

requirements of its building code with respect to buildings under the control of the 

El Paso Independent School District. 

SUMMARY 

The City of El 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 is in compliance with the accessibility 

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

standards and specifications adopted pursuant to article 7 of the 

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) of that act. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

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 by John Steiner 

Assistant Attorney General 

p. 349