Untitled Texas Attorney General Opinion

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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 maln-
talns 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 in-
dustrial occupation, or for avocation or per-
sonal 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 Regula-
tions, does not result In a pre-emption by the federal
government so as to deprive the state of the power to regu-
late 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 for-
bidden 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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Hon. J. W. Edgar, page 3 (M-1011)

there has been no attempt by the federal government to occupy
the whole field, and that 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 other-
wise 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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