ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

June 17,2005 

The Honorable Kerry Spears 

Milam County and District Attorney 

The Blake Building 

204 North Central 

Cameron, Texas 76520 

Opinion No. GA-033 1 

Re: Whether federal law preempts Transportation 

Code section 471.007, which imposes a criminal 

penalty against a railway company if its train 

blocks a railroad crossing for more than ten 

minutes (RQ-0299-GA) 

Dear Ms. Spears: 

You ask whether federal law preempts section 471.007 of the Transportation Code, which 

imposes a criminal penalty against a railway company if its train blocks a railroad crossing for more 

than ten minutes. See TEX. TRANSP. CODE ANN. 6 47 1.007 (Vernon Supi. 2004-05). * In particular, 

you ask about the federal Interstate Commerce Commission Termination Act of 1995 (ICCTA), the 

Federal Railroad Safety Act (FRSA), and the Commerce Clause of the United States Constitution. 

See Brief, supra note 1, at 1. You submit this query not only on your own behalf but also on behalf 

of the county attorneys of Williamson County and Maverick County. See Request Letter, supra note 

1, at 1. 

I. The State Statute and its Enforcement 

Section 471.007 of the Transportation Code provides that “[a] railway company commits an 

offense if a train of the railway company obstructs for more than 10 minutes a street, railroad 

crossing, or public highway.” TEX. TRANSP. CODE ANN. 9 471.007(a) (Vernon Supp. 2004-05). It 

requires a peace officer charging a railway company for an offense to “prepare in duplicate a citation 

to appear in court and attach one copy of the citation to the train or deliver the copy to an employee 

or other agent of the railway company.” Id. 0 47 1.007(c).’ “The hearing must be before a magistrate 

who has jurisdiction of the offense in the municipality or county in which the offense is alleged to 

have been committed.” Id. $47 1.007(e). It is a defense to prosecution under section 47 1.007 that 

‘See Letter and Brief (Exhibit “D”) from Honorable Kerry Spears, Milam County and District Attorney, to 

Honorable Greg Abbott, Texas Attorney General (Dec. 7, 2004) (on tile with Opinion Committee, also available at 

http://www.oag.state.tx.us) [hereinafter Request Letter and Brief respectively]. 

‘Section 471.007(c) further states that “[t]he citation must show: (1) the name of the railway company; (2) the 

offense charged; and (3) the time and place that a representative of the railway company is to appear in court.” TEX. 

TRANSP. CODE ANN. $471.007(c) (Vernon Supp. 2004-05). 
The Honorable Kerry Spears - Page 2 (GA-033 1) 

the train obstructed “the street, railroad crossing, or public highway because of an act of God or 

breakdown of the train.” Id. 0 471.007(d). An offense under section 471.007 is a misdemeanor 

punishable by a fine of not less than $100 or more than $300. See id. 3 471.007(b). 

You explain that in the past few years Milam County law enforcement officers have issued 

numerous citations to railway companies for obstructing a railroad crossing. See Request Letter, 

supra note 1, at 1. The railway companies have responded to prosecutions of the citations by filing 

motions to quash based on preemption of the state statute by federal law, See id. The courts in your 

county before which the citations are pending have issued orders holding the cases in abeyance while 

your office obtains an attorney general opinion on whether federal law preempts section 471 .007.3 

II. Analysis: Whether Federal Law PreemDts the State Statute 

Under the Supremacy Clause of the United States Constitution, the laws of the United States 

are “the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the 

Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2. If a state law conflicts with federal law, it 

is preempted and has no effect. Maryland v. Louisiana, 451 U.S. 725,747 (1981); Am. Cyanamid 

Co. v. Geye, 79 S.W.3d 21,23 (Tex. 2002). 

There are three ways that a federal statute may preempt a state law. See Great Dane Trailers, 

Inc. v. Estate of VeZZs, 52 S.W.3d 737, 743 (Tex. 2001). First, “[a] federal law may expressly 

preempt state law.” Id. (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504,5 16 (1992)). Second, 

“federal law or regulations may impliedly preempt state law or regulations if the statute’s scope 

indicates that Congress intended federal law or regulations to occupy the field exclusively.” Id. 

(citing Freightliner Corp. v. Myrick, 5 14 U.S. 280,287 (1995)). Finally, state law is also impliedly 

preempted if it actually conflicts with federal law or regulations, because “( 1) it is impossible for a 

private party to comply with both state and federal requirements; or (2) state law obstructs 

accomplishing and executing Congress’ full purposes and objectives.” Id. (citations omitted). 

A. The Interstate Commerce Commission Termination Act of 1995 

The ICCTA, which became effective on January 1, 1996, abolished the Interstate 

Commerce Commission and created the Surface Transportation Board (“SD”). Section 10501 (b) 

of the ICCTA provides that jurisdiction of the STB over 

(1) transportation by rail carriers, and the remedies provided 

in this part with respect to rates, classifications, rules (including car 

service, interchange, and other operating rules), practices, routes, 

services, and facilities of such carriers; and 

(2) the construction, acquisition, operation, abandonment, or 

discontinuance of spur, industrial, team, switching, or side tracks, or 

‘See Letter from Dan Cervenka, Assistant Milam County and District Attorney, to Nancy S. Fuller, Chair, 

Opinion Committee, Office of Attorney General (Feb. 28,2005) (on file with Opinion Committee). 
The Honorable Kerry Spears - Page 3 (GA-033 1) 

facilities, even if the tracks are located, or intended to be located, 

entirely in one State, 

is exclusive. Except as otherwiseprovided in thispart, the remedies 

provided under this part with respect to regulation of rail 

transportation are exclusive and preempt the remedies provided 

under Federal or State law. 

49 U.S.C. 0 10501(b) (2000) (emphasis added). 

The United States Court of Appeals for the Fifth Circuit recently concluded on the basis of 

this language that the ICCTA expressly preempted section 47 1.007 of the Transportation Code. See 

Friberg v. Kansas City S. Ry. Co., 267 F.3d 439,444 (5th Cir. 2001). In that case, business owners 

sued a railway company for blocking the road to their nursery alleging negligence and negligence 

per se. See id. at 441. The district court had denied the railway company’s motion for summary 

judgment, which contended that the ICCTA preempted the plaintiffs’ claims. See id. At the time 

of the events at issue, section 471.007 had prohibited railroad officers, agents, servants or receivers 

from wilfully allowing a standing train to obstruct a crossing for more than five minutes. See id. at 

441 n.2. The Texas Legislature amended section 471.007 to its present form, extending the time 

limit to ten minutes and deleting the “‘standing train’ limitation,” in 1999. See id. ; see also Act of 

May 26, 1999, 76th Leg., R.S., ch. 1023, 9 1, 1999 Tex. Gen. Laws 3812 (amending section 

471.007). 

The Friberg court stated that the ICCTA’s premption provision, see 49 U.S.C. $ 10501(b) 

(2000), “could not be more precise, and it is beyond peradventure that regulation of. . . train 

operations, as well as the construction and operation of . . . side tracks, is under the exclusive 

jurisdiction ofthe STB unless some other provision in the ICCTAprovides otherwise.” Friberg, 267 

F.3d at 443. Noting that “[nlothing in the ICCTA otherwise provides authority for a state to impose 

operating limitations on a railroad like those imposed by the Texas Anti-Blocking Statute,” the court 

held that “the Texas Anti-Blocking Statute . . . [is] preempted by the ICCTA.” Id. at 444. 

A brief submitted with your request notes that the Fifth Circuit stated in a footnote that it did 

not decide “what impact the ICCTA would have upon a state provision pertaining strictly to such 

traditionally state-controlled safety issues as local law enforcement and emergency vehicle access.” 

Id. at 444 n. 18.4 But Friberg clearly holds that the ICCTA preempts the state statute as well as the 

plaintiffs’ claims. See id. at 444. Contrary to the brief’s assertion, the footnoted aside is not a 

suggestion that section 47 1.007, if applied only in circumstances involving law enforcement and 

emergency vehicle access, would not be preempted. Rather, the aside acknowledges the possibility 

that the Texas Legislature might be able to craft a statute regulating blocking to the extent it 

interferes with state and local law enforcement or emergency response that is not preempted. But 

such a statute has not been enacted. Moreover, though the Texas Legislature amended section 

4See Brief, supra note 1, at 2 (“The Fifth Circuit states that if an issue between the Texas Anti-Blocking statute 

and safety arises, preemption of state law under the ICCTA may be decided differently.“). 
The Honorable Kerry Spears - Page 4 (GA-033 1) 

47 1.007 in 1999, the current statute now prohibits blocking under any circumstances, except when 

proven to be due to “an act of God or breakdown of the train.“5 Indeed, the current statute, which 

prohibits blocking by a standing or moving train, criminalizes a broader range of railroad operations. 

In its present state, the statute may not be said to “pertain[J strictly to such traditionally 

state-controlled safety issues as local law enforcement and emergency vehicle access.” Id. at 444 

n.18. 

The brief also suggests that the Friberg case, which considered the Texas statute in the 

context of common-law negligence claims, is distinguishable and would not apply in the criminal 

enforcement context because the court’s ultimate holding was based on the concern that the 

plaintiffs’ state law claims imposed economic regulation.6 However, the court expressly stated that 

criminal enforcement of the statute would amount to economic regulation: 

We cannot accept the trial court’s reasoning that the Texas 

Anti-Blocking Statute is a criminal provision that does not reach into 

the area of economic regulation of railroads. Regulating the time a 

train can occupy a rail crossing impacts, in such areas as train speed, 

length and scheduling, the way a railroad operates its trains, with 

concomitant economic ramifications that are not obviated or lessened 

merely because the provision carries a criminal penalty. 

Id. at 443. 

Moreover, a Michigan federal district court held that the ICCTA preempted the criminal 

enforcement of a similar anti-blocking statute7 on the basis that the statute’s enforcement would 

impose an economic burden. See CSX Transp., Inc. v. City of Plymouth, 92 F. Supp. 2d 643,655 

(E.D. Mich. 2000). After receiving numerous citations for violating the law, a railroad company 

filed an action seeking a declaratory judgment that the Michigan statute prohibiting a railroad from 

blocking vehicular traffic at an intersection for longer than five minutes was preempted by the 

FRSA, the ICCTA, and the Commerce Clause. See id. at 645. With respect to the ICCTA, the 

federal court concluded that 

‘TEx. TRANSP. CODE ANN. p 471.007(d) (V emon Supp. 2004-05) (providing a defense to prosecution). 

6See Brief, supra note 1, at 2-3. 

‘The statute at issued provided: 

(1) A railroad shall not permit a train to obstruct vehicular traffic on a public street or highway for 

longer than 5 minutes at any 1 time, except the obstruction shall not be considered a violation under 

the following circumstances: 

(a) If the train is continuously moving in the same direction at not less than 10 miles 

per hour for not longer than 7 minutes. 

(b) If the railroad can show that the incident occurred as a result of a verifiable 

accident, mechanical failure, or unsafe condition. 

CSX Transp., Inc. v. City ofPlymouth, 283 F.3d 812, 817 (6th Cir. 2002). 
The Honorable Kerry Spears - Page 5 (GA-033 1) 

the statute could also be fairly characterized as requiring the railroad 

to make substantial capital improvements to upgrade its class of track 

or relocate its yards. Viewed in this way, the law does not affect 

speed, length, or air brake tests, but rather requires the railroad to 

undergo substantial renovations at the state’s command. To the 

extent the state law is viewed as having the effect of requiring the 

railroad to undergo substantial capital improvements, the Court finds 

that the law is preempted [by the ICCTA]. 

Id. at 658. The court ultimately concluded that any limitation on the time that a train may block a 

crossing must come from the federal government and granted the railroad’s motion for summary 

judgment. See id. at 663. 

Based on the Fifth Circuit’s very broad holding in Friberg and the district court’s reasoning 

in Plymouth, a criminal enforcement case, we have no doubt that a court would conclude that the 

ICCTA preempts the criminal enforcement of section 471.007. While we believe that the Fifth 

Circuit’s holding is dispositive, we also consider whether the FRSA preempts section 471.007, given 

your apparent concern that Friberg arose in the civil context and addressed a slightly different 

version of the statute. 

B. The Federal Railroad Safety Act 

Congress enacted the FRSA in 1970 to “promote safety in every area of railroad 

operations and reduce railroad-related accidents and incidents.” 49 U.S.C. 4 20101 (2000). The 

FRSA gives the Secretary of Transportation the power to “prescribe regulations and issue orders for 

every area ofrailroad safety.” Id. 9 20103(a). In order to promote the national uniformity ofrailroad 

regulation, Congress included an express preemption provision. The FRSA provides in pertinent 

part: 

Laws, regulations, and orders related to railroad safety and laws, 

regulations, and orders related to railroad security shall be nationally 

uniform to the extent practicable. A State may adopt or continue in 

force a law, regulation, or order related to railroad safety or security 

until the Secretary of Transportation (with respect to railroad safety 

matters), or the Secretary of Homeland Security (with respect to 

railroad security matters), prescribes a regulation or issues an order 

covering the subject matter of the State requirement. A State may 

adopt or continue in force an additional or more stringent law, 

regulation, or order related to railroad safety or security when the law, 

regulation, or order- 

(1) is necessary to eliminate or reduce an essentially local safety or 

security hazard; 
The Honorable Kerry Spears - Page 6 (GA-033 1) 

(2) is not incompatible with a law, regulation, or order of the 

United States Government; and 

(3) does not unreasonably burden interstate commerce. 

Id. 3 20106. 

Applying this language, the Michigan federal district court in Plymouth concluded that the 

FRSA expressly preempted the Michigan anti-blocking statute. See Plymouth, 92 F. Supp. 2d at 

649-58. The United States Court of Appeals for the Sixth Circuit subsequently upheld the district 

court’s holding. See CSX T’ransp., Inc. v. City OfPZymouth, 283 F.3d 812 (6th Cir. 2002).* As the 

Sixth Circuit explained, 49 U.S.C. $20106 

permits state regulation related to railroad safety only if: 

(1) the Secretary of Transportation has not yet regulated the 

subject matter of the state regulation (the first savings clause), or 

(2) the regulation (a) is necessary to eliminate an essentially 

local hazard, (b) does not conflict with federal law, and 

, (c) does not unreasonably burden interstate commerce (the 

second savings clause). 

Id. at 815. 

With respect to the second savings clause, the district court had held that because the 

Michigan law is applicable to the entire state, the statute is not concerned with “eliminat[ingJ an 

essentially local hazard,” and the parties did not appeal that holding. See id. at 8 15. However, the 

parties did appeal the district court’s holding with respect to the first savings clause that the state law 

regulated conduct already regulated by federal law. Noting that “the amount of time a moving train 

spends at a grade crossing is mathematically a function of the length of the train and the speed at 

which the train is traveling,” the Sixth Circuit agreed with the district court that the Michigan statute 

would require the railroad “to mod@ either the speed at which its trains travel or their length, and 

would also restrict [its] performance of federally mandated air brake tests.” Id. at 817. The court 

continued: 

To the extent that the Michigan statute would force CSXT to 

modify the length of its trains, the Supreme Court long ago held that 

*Given its conclusion that the statute was preempted by the FRSA, the Sixth Circuit did not consider whether 

the statute was preempted by the ICCTA. See Plymouth, 283 F.3d at 817 (“Because we have concluded that the district 

court did not err in holding that the Michigan statute is preempted by the FRSA, we decline to address the question of 

whether the state law is also preempted by the ICCTA.“). 
The Honorable Kerry Spears - Page 7 (GA-033 1) 

state regulation of train length violates the Commerce Clause. S. Pac. 

Co. v. Arizona, 325 U.S. 761,65 S.Ct. 1515, 89 L.Ed. 1915 (1945) 

(holding that the safety benefits of limiting the length of trains is 

outweighed by the resultant burden upon interstate commerce); see 

also R.J. Corman R.R. Co. v. Palmore, 999 F.2d 149, 153 (6th Cir. 

1993) (holding that a state statute can be preempted by a federal 

statute even if there is no federal regulation directly addressing the 

subject matter of the state statute). There are also numerous federal 

regulations that cover the speed at which trains may travel and the 

stops that trains must make to test their air brakes. The Supreme 

Court, for example, has held that the speed limits set by 49 C.F.R. 

$2 13.9 “should be understood as covering the subject matter of train 

speed with respect to the track conditions, including the conditions 

posed by grade crossings.” Easter-wood, 507 U.S. at 675 (emphasis 

added). These federal regulations thus “substantially subsume the 

subject matter of the relevant state law.” Id. at 664. 

Id. The court concluded that “because the Secretary of Transportation has already prescribed 

regulations covering the subject matter of the state statute, the first savings clause of the FRSA’s 

express preemption provision does not apply to the Michigan statute,” and affirmed the district 

court’s holding that the Michigan statute is preempted by the FRSA. Id. 

In addition, several courts have concluded that FRSA preempts local ordinances prohibiting 

or regulating blocking and have enjoined their enforcement or dismissed citations for their violation.’ 

‘See CSX Transp., Inc. v. City ofPlymouth, 86 F.3d 626,630 (6th Cir. 1996) (holding that the FRSA preempted 

a city ordinance that imposed a five minute blocking limit) (affig district court order permanently enjoining 

ordinance’s enforcement); Notilk & W. Ry. Co. v. City of Oregon, No. 3:96CV7695 (N.D. Ohio May 26, 1997) 

(unpublished), affd, 210 F.3d 372 (6th Cir. 2000) (unpublished) (affirming district court order permanently enjoining 

city from enforcing municipal anti-blocking ordinance); City of Seattle v. Burlington N. R. R. Co., 4 1 P.3d 1169, 1174 

(Wa. 2002) (holding that the FRSA preempted city ordinances regulating street blockages for periods over four minutes 

because they affected “the speed at which trains travel, train length, and trains in physical motion,” areas regulated by 

the FRSA) (affirming appellate court decision dismissing citations); see also Rotter v. Union Pac. R.R. Co., 4 F. Supp. 

2d 872, 874 (E.D. MO. 1998) (holding that the FRSA preempted a municipal ordinance prohibiting a railroad from 

blocking a crossing for more than five minutes) (dismissing plaintiffs claim that railroad was negligent per se because 

it violated a municipal ordinance by blocking street crossing for more than five minutes). 

A federal district court in Indiana determined that the FRSA preempts an Indiana statute making it unlawful for 

a railroad corporation to obstruct public travel at a railroad crossing for more than ten minutes. See CSX Transp., Inc. 

v. City of Mitchell, 105 F. Supp. 2d 949,95 l-52 (S.D. Ind. 1999). However, the district court’s order permitted officials 

to enforce the statute if they first established that the blocking did not occur due to an operation required by federal law. 

See id. at 952-53. Only one other court has cited this case, and it did so only for the proposition that an anti-blocking 

provision conflicts with federal law and is preempted by the FRSA. See Burlington N. R.R. Co., 41 P.3d at 1174. We 

are not aware of any other case considering an anti-blocking statute or ordinance that has held the provision preempted 

and also permitted enforcement. 
The Honorable Kerry Spears - Page 8 (GA-033 1) 

Two attorney general opinions from other states have also concluded that the FRSA preempts local 

anti-blocking provisions.” 

Like the Michigan statute, the Texas statute prohibiting blocking for more than ten minutes 

necessarily regulates train speed and length, matters regulated by federal law. See id. Based on the 

Sixth Circuit’s analysis in the Plymouth case and the other cases addressing anti-blocking 

ordinances, we believe a court considering the Texas statute would conclude that it is preempted by 

the FRSA. 

Because we believe a court would conclude that both the ICCTA and the FRSA preempt 

section 47 1.007, we need not reach the constitutional question regarding whether section 47 1.007 

violates the Commerce Clause. See, e.g., Friberg, 267 F.3d at 444 n. 18 (“Because of today’s holding 

we need not and do not decide whether the Fribergs’ claims are also preempted by. . . the Commerce 

Clause . . . .” ); PlymoutJr, 86 F.3d at 630 (“In light of CSXT’s entitlement to judgment based on 

FRSA preemption, we need not rule on CSXT’s Commerce Clause and discriminatory taxation 

claims.“). 

“See Op. Kan. Att’y Gen. 2000-65 (2000) at 3 (advising that “local legislation that imposes time restrictions 

on trains obstructing traffic . . . may be preempted by the [FRSA]“); Op. La. Att’y Gen. 96-228A (1997) at 3 (concluding 

that a “parish ordinance attempting to limit blocking public roads is ‘related to railroad safety’ and this is expressly 

preempted by the FRSA”). 
The Honorable Kerry Spears - Page 9 (GA-033 1) 

SUMMARY 

Section 47 1.007 of the Transportation Code, which imposes 

a criminal penalty against a railway company if its train blocks a 

railroad crossing for more than ten minutes, is preempted by the 

federal Interstate Commerce Commission Termination Act of 1995 

and the Federal Railroad Safety Act. 

Very truly yours, 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Mary R. Crouter 

Assistant Attorney General, Opinion Committee