Untitled Texas Attorney General Opinion

The Attormy General of Texas JIM MAlTOX thy 28, 1985 Attorney General Supramo Ca~tl Building YhmorablaDavid CaI'm Opinion Do. m-320 P. 0. Box l254S Chairman Austin. TX. 78711-2548 51214752501 Committeeon Transportation Re: Authority of the Texas Parks Telex 9101874-1357 Texas Eouse of Repmsentatives and Wildlife Department under Telecopier 51214750266 P. 0. Box 2910 sedon 31.073 of the Texas Parks Austin,Texas 787'69 and Wildlife Code, the Water 714 .J1dcso”, Suite 700 Safety Act. to issue citationsto 08llaa. TX. 75202.4505 AonorableCarlo6 Vsldez person6 using sailboards 2l41742.W44 Nueces County Attorney Courthouse.Room 2Omb Corpus Christi,Texas 78401 4824 Alterta Ave., Suite 160 El Paw. TX. 799052793 91Y533.3484 Gentlemen: You seek cla,c:lficationof the Texas Parka and Wildlife Depart- 1001 Texas. Suite 700 ment's authorityto issue citationspursuant to section 31.073 of the HOUSIO~. TX. 77002-3111 Texas Parks and Wildlife Code. #pecifically.you vish to knov whether 713/2235886 the departmentmay issue citation6to persons using sailboardswho do not have on board a Coast Guard approved lifesavingdevice. 806 Broadway. Suite 312 Lubbock. TX. 79401-3479 Section 31.073 of the code provide6 that SOen47.5238 All canoes, punts, rowboats, sailboats, and -- 4309 N. Tenth. Suile B rubber rafts when paddled, poled, oared, or wind- MCAlkm, TX. 78501.1685 blown are exempt from all the required safety 5121552-4547 equipment except the follwing: 200 Main Plaza. Suite 400 (1) one Coas$ Guard approved lifesavingdevice San Antonio, TX. 782052797 for each peryn aboard; and 51212254191 (2) the light6 prescribedfor class A vessels in Se'ction31.064 of this code. (Emphasis An Equal Opportunity/ Affirmative Action Employer added). Your request requires a determtnation of vhether the legislature intended section 31.073 to include sailboards. If not, then sail- boards are exempt from the safety equipmentrequirement6of subchapter C of chapter 31 of the code; no one contends that sailboards are subject to more stringent safety equipment regulations than those applicable toil:boats. Therefore,we need not directly determine whether a sailboardis a "vessel"under section31.003. p. 1463 DoaorablaDavid Cain ?lonorable CarloaValdu Page 2 (J&320) The fundamentalrule grrerningthe interpretationof statute6 is to give effect to the intentionof the legislature. City of Sherman v. Public Utility Colmmisstx~. 643 S.U.Zd 681, 684 (Tex. 1983). To determinethe legislature't~~ntentand the purpose for a particular provision,it is proper to considerthe history of the subject matter involved,the problem to be remedied, and the ultimate purposes to be accomplished. Id. The corstructionof the scope and meaning of the law bv ~~. admfnist~ive agenciesand officers should be considered,but is not binding on courie. Big Lake Oil Co. v. Reagan Count& 217 S.U.Zd 171, 173 (Tex. Civ. ,4pp.- El Paso 1948,writ ref'd). In this instance,the Texas Parks and WildlifeDepartment,citing Webster's New Collegiate Dictionary, contends that sailboards are "sailboats." This dictionary definition of sailboards is "a Small flat sailboat.. . ." Web6ter's New CollegiateDictionary 1037 (9th ed. 1983). In contrast, the Texas Secretary of State registered a particular sailboard under class 28. the "toys and sporting goods" classification,rather than under class 12. the classificationwhich includes sailboats. When statutory terms are not defined in the applicablestatutes, they aust be given their ordinary and popular meaning. See, e.g., Sanfordv. State, 492 S.W.Zd 581 (Tex. Grim. App. 1973). Nevertheless,the &m "sailboat"must be interpertedin the contextof section 31.073. The Texas Parks and Wl.J.dlife Depart&t maintains that exempting sailboards from having or board a personal flotation device will result in loss of life. Consequently.numerous citations have been issued by the peace officers charged with enforcement of the act. With regard to the maxim DE deferring to "agency expertise," it is significantthat person6 chargedwith enforcingthis provision include "[a]11 peace officersof this state and it6 politicalSubdiViSiOnSand game management officers.' Tex. Parks 8 Wildlife Code 831.121(a). The cases which generated1:herule of deferenceto an agency's deter- minationusually involve a specializedregulatoryscheme with enforce- ment by officialswho are trained in the specific matter of regula- tion, rather than in general law qnforcement. Further. most of the ca6es involved statutes 6:atiug that agency action is committed to agency discretionby lav. See Adam0 Wrecking Co. v. United States, 434 U.S. 275 (1978);--Johnson~ Robison, 415 U.S. 361 (1974); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); 688 generally B. Schwartz,AdministrativeLznc$147 (1976). Moreover.the trial courts in TeXaS have had occasion to rule on the matter. The decision of the courts outweighsagency interpreta- tion. Convictions occurrj.ngin the justice courts are appealed to county courts, where they are tried de novo. The few conviction6 which have been appealed have been overturned. See, e.g., State of Texas v. Brannan,Cause No 210-637.County Court at Law No. 3, Travis County, Texas (June 30, 1982) (defendantacquitted: court ruled that windsurferis not a "sailboclt"under section31.073). p. 1464 itonorable David Caio .j J, HonorableCarlorValder Page 3 (.lM-320) The existence of this controversyand the phyrical nature of sailboardsdemonstratethat it is not at all clear that the legisla- ture intended"sailboat"la ciection 31.073 to includesailboards. The overall purpose of chapter 31 of the code is to promote recreational water safety for persons aud property in connectionwith the use of all recreationalvater facilitiesin the state. See 531.002. The purpose of the requirement:lnsection31.073 of an approvedlifesaving device is to protect againcitloss of life from drowning. It is also significantthat the reasor,for enacting section 31.073 in the first place was a recognitionthat some water vessels shouldbe exempt from all the safety equipment requirements except for the two items specified in section 31.0?3. The Iegislature singled out Certain vessels which, because of their physical characteristics,deserved differenttreatment. The question before ~1%is not one of pure law, and this office cannot resolve disputed f;lctualissues in the opinion process. Nevertheless, certain fac0 are subject to judicial notice. For example,a hypotheticaldete~rminationthat the term "motor vehicle" in a statute dealing with s;r:iety belts was not intended to include motorcyclescould be decided on the basis of judiciallynoticed facts about motorcycle6and safetybelts. As will be seen, the facts before us demonstratethat the sallboardis clearly differentfrom the type of water vessel listed in section31.073. Moreover, facts about the nature of a sailboard indic:r.te that the o6erall purpose of chapter 31 of the code would not bc enhanced by interpreting"sailboat" in section31.073 to include sailboards. Accordingly,we conclude that a sailboardis not a "sailboat"for purposes of section31.073. The factual data upnl which our opinion relies stems from finding6reported in the FederalRegister. The descriptionto follow of a boardsail,and the sa,[ety factors involvedwere all mentioned in proposed rulemaking notice!. Significant data also appears in the original finding6 with rc!gardto the 1973 Coast Guard Exemption. Althoughthe exemptionwas withdrawn,it was not withdrawnbecause the facts had changed; rather, it was withdrawn becauseno need was seen for federal regulation. Th.efact& finding6 remained the same. We note that "[tlhe contents #x!the F'ederalRegistershall be judicially noticed. . . ." (Emphasis.ndded). 44 U.S.C. J11507.This provision applies to state courts. --- See Cresap v. Pacific InlandNavigationCo.. Inc., 478 P.2d 223 (Wash. 1970). The facts before us indicate that a sailboard,known by many persons as a "windsurfer."#differsfrom the commonlyaccepted concept of a sailboatin a variety of ways. See 46 Fed. Reg. 42288-89 (1981). A sailboardis basically a surfboardxh a detachablemast and sail. See Id -2 The mast and sail of a sailboard comprisea freesail unit whjch is attachedby a eviv~?luniversaljoint and is not supportedby stays. See 45 Fed. Reg. 117877(1980) "freesailsystem."as the name suggests,111 drop In the water when the operator release6 it. See Zd. Consequently,the sal.lboard does not "sai1" unless the opera= .. - - nonombl~lkvid Cain EonorablrC~rloaValdac . Pago 4 (~~320) is standingon the board ar,dholding up the freesailsystem. -- See Id. If the operator falls off the sailboard.the board loses its pro- pulsion mechanism vhilc tho sail fills vlth water and acts as a sea anchor. -- See Id. Thus, a sailboarddoes uot have the characteristics of a sailboat which create the safety hazard that the life preserver required by section 31.073 was Intended by the leglslstureto remedy. Unlike a sailboat,a sailboardcannot sail away vhen its operator falls off. Further,because the board :Ltselfis filledwith 8 closed cell foam, it csnnot sink, even if broken apart. In fact, .s sailboard itself functions as a personal fLotation device. See 45 Fed. Reg. 47876 (1980) (proposedJuly 17, 1980); see also 33.P.R. 5175.23 (1984) (compare sailboardwith type IV personal floatationdevice). Nore- over. sailboardingis a water sport, such as surfing or water skiing, in which the enthusiastis physicallyand emotionallyprepared to be in the water -- at least some of the time. 45 Fed. Reg. at 47817 (1980). As a practicalmatter, there is uo place to secure a lifesaving device “on board.” As with the hypotheticalof whether a motorcycle should be required to have a seatbeltwithin the meaning of a statute which requiresseatbeltsin ;nllmotor vehicles.this could bring about absurd results. If the sailboarder is required to wear a life preserverto comply with the law a greategsafetyhazard could result. See Id. at 47877. At the ve’ryleast, the activityrequiredto operate -- a sailboardwould be handicapped by vearlng a lifepreserver. Id. Windsurfingenthusiastsma~.ntaiothat, in the surf, wearing a life- preserverwould likely prevent a fallen sailboarderfrom being able to dive below the waves to es,:apebeing battered by the force of the waves and by his fallingeqtrfpment.-Id. The unique characteristicsof sallboardsled the United States Coast Guard to determine recently “that sailboards should not be subject to Federal regulstLon.” 46 Fed. Reg. at 42289. When sail- boards first appeared about ten years ago. the Coast Guard granted an exemption t0 Windsurfing Internalional, Inc., from the federal requirementthat sailing vessels Wave a personal flotationdevice on board for each person aboard. In re petitionof Exemption issued to WindsurferInternational,In,c.for an Exemptionfrom Section 175.15 of Title 33, Code of Federal RFgulations. CGD 73-29. Feb. 18, 1973. The Coast Guard has now withdr& the exemptionand determinedthat “there was never a clearly establjshedneed for its involvement.. . .‘I See 46 Fed. Reg. at 42289. Ne!vertheless, the Coast Guard preservedthe opportunity for regulation of sellboards at the state level by exempting states from the federal preemptionprovisionpursuant to 46 U.S.C. sections 1458. 1459 (1982). See 46 Fed. Reg. at 42289. Thus, the state may regulate In ,:hearea ofthe use of safety equipmenton sailboards. p. 1466 ICIC, . b UonorableDavid Calm . gonorablaCerlor Valdec d .', Page 5 m-320) The action,or inaction,of the federalgovernmentis significant in another uay OS well. The Coast Guard’s inaction emphasizesthat sailboards do not at present foil within existing categories of vessels which must complywith the personalfloatationdevice require- ments; they must be brought affirmativelyInto regulatoryprovisions. See 46 Fed. Reg. ot 42289. The situation at hand with regard to Ztion 31.073 is analogous.particularlyin light of the fact that sailboards did not exist at the time the provision uos originally enacted. If the legislat,xrewishes to regulate sailboards. the federal governmentvi11 not prevent it from expresslyaddressingthe unique problemspresented. We concludethat the provisIonsof section 31.073 of the Parks and Wildlife Code do not presently cover sailboards. Sailboardsprer:ent unique problems. SUMMARY The Texas Park!;and WildlifeDeportmentmay not issue citations,pursuant to section31.073of the Texas Parks and W:ildlifeCode, to persons using sailboardswho do not have on board a Coast Guard approvedlifesaviu8device. r_rlA-Ah Ver truly yours f l JIM NATTOX AttorneyGeneral of Texas TOM GREEN First AssistantAttorneyGswral DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral ROBERT GRAY 8 Specisl AssistantAttorneyGenerat RICK GILPTN Chairman,Opinion Committee Preparedby JenniferRiggs AssistantAttorneyGeneral p. 1467 - - .a - \ \ ilonorebla David Cain BonorabloCarlorValder ,. -. Page 6 (D&320) APPROVED: OPINIONCOtMITTEE Rick Gilpin,Choirman Jon Bible Sussn Garrison Tony Guillory Jim Moellinnger JenniferRiggs Nancy Sutton , I p. 1468