Do double-decker tour buses have to follow Texas axle weight limits on interstate highways?

Plain-English summary

The Director of the Texas Department of Public Safety asked the AG whether over-the-road buses, the kind with an elevated passenger deck over a baggage compartment, are subject to Texas's tandem axle weight limit when they travel on interstate highways. The practical concern was double-decker buses with two passenger levels, which often run heavier than the limit. Texas Transportation Code section 621.101(a)(2) bars operating a vehicle on a public highway if its tandem axle weight tops 34,000 pounds, including enforcement tolerances. A bus operator argued that a federal exception preempted that state rule.

The federal weight scheme lives in 23 U.S.C. section 127. Subsection 127(a) tells states they cannot get full federal highway funding unless they permit interstate use by vehicles up to a 34,000-pound tandem axle weight, and it also caps the maximum a state may allow at the same figure. A statutory note then carves out over-the-road buses, saying the federal maximum (the second sentence of section 127) "shall not apply" to them. The question was whether that carve-out preempted the Texas limit.

The AG walked through the three recognized kinds of preemption. Express preemption requires Congress to state its intent to displace state law explicitly; the note does no such thing, it only lifts the federal ceiling for these buses without creating any federal right to exceed a state ceiling, and a statute's silence is not an explicit statement of preemptive intent. Field preemption applies when federal law so thoroughly occupies a field that no room is left for states; here the opposite is true, because section 127 is built around and in fact requires state regulation of vehicle weight. Conflict preemption applies when complying with both laws is impossible or state law obstructs federal objectives; since the federal note simply removes these buses from federal regulation and takes no position on state rules, there is no conflict. With no preemption of any kind, the AG concluded over-the-road buses on Texas interstates remain subject to the state's 34,000-pound tandem axle limit.

In a footnote, the AG addressed a separate argument: that because Texas is said to be the only state enforcing such limits on these buses, the state law unconstitutionally burdens interstate commerce, and the federal note should be read to avoid that result. The AG declined that path, explaining the constitutional-avoidance canon applies only when a statute is ambiguous, that a court faced with an unconstitutional burden would strike the state law rather than rewrite the federal note, and that whether an even-handed highway safety regulation unduly burdens commerce is a fact-intensive balancing question outside the scope of an AG opinion.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

What the opinion meant for those who asked

For the Department of Public Safety, the opinion confirmed it could enforce the state tandem axle weight limit against over-the-road buses on interstate highways; the federal exemption did not take that authority away. For bus operators running double-decker coaches in Texas at the time, the reading was that they had to meet the 34,000-pound tandem axle limit, and that the federal carve-out gave them relief only from federal regulation, not a shield against the state cap. The AG did not resolve the operators' broader argument that the Texas rule unconstitutionally burdens interstate commerce. It expressly left that question open, noting it would require a factual balancing of safety against commercial hardship that an AG opinion does not undertake, so a bus operator wanting to press that theory would have had to take it to court.

Common questions

Q: Does a federal exemption let over-the-road buses ignore Texas axle weight limits?
A: No. The AG concluded the federal statutory note only removes these buses from the federal maximum; it does not create a federal right to exceed a state limit, so it does not preempt Texas Transportation Code section 621.101(a)(2).

Q: What is the Texas tandem axle weight limit?
A: 34,000 pounds, including enforcement tolerances, under Transportation Code section 621.101(a)(2). "Tandem axle weight" is the total weight transmitted to the road by two or more consecutive axles meeting specified measurements.

Q: Why doesn't the federal carve-out preempt the state rule?
A: The AG found none of the three preemption types applied. The note says nothing express about state law, federal law does not occupy the field (it is built around state regulation), and there is no conflict because the note takes no position on state limits.

Q: Did the AG decide whether the Texas limit unfairly burdens interstate commerce?
A: No. The AG explained that question turns on a fact-intensive balancing of safety benefits against commercial burdens, which is beyond the scope of an attorney general opinion. A court, not the AG, would resolve it.

Background and statutory framework

The request came from the Texas Department of Public Safety and turned on the interaction between Texas Transportation Code section 621.101(a)(2) (with the definition in section 621.001(11)) and the federal interstate weight scheme in 23 U.S.C. section 127, including the statutory note exempting over-the-road buses (defined at 42 U.S.C. section 12181(5); see also 23 C.F.R. section 658.5). The AG applied the three-part preemption framework from Simmons v. Sabine River Auth. La. and Am. Cyanamid Co. v. Geye, the congressional-intent starting point from Morales v. Trans World Airlines, Inc., the express-preemption standard from United States v. Zadeh, the field-preemption standard from Cipollone v. Liggett Grp., Inc. (with Ruiz v. Comm'r of Dept. of Transp. on states' contemplated role under section 127), and noted that a statutory note is still law under Aldana v. Del Monte Fresh Produce, N.A., Inc. On the constitutional-avoidance footnote, the AG cited Nielsen v. Preap, United States v. Emerson, Mid-Atl. Bldg. Sys. Council v. Frankel, and Kassel v. Consol. Freightways Corp. of Del., and declined the fact-intensive commerce-clause inquiry per its own prior opinion KP-0198.

Citations and references

Statutory and regulatory provisions:

• Tex. Transp. Code § 621.101 (axle weight limits); § 621.001 (definitions)
• 23 U.S.C. § 127 (interstate vehicle weight regulations) and § 127 note (Over-the-Road Buses and Public Transit Vehicles)
• 42 U.S.C. § 12181(5) (over-the-road bus); 23 C.F.R. § 658.5

Cases:

• Simmons v. Sabine River Auth. La., 732 F.3d 469 (5th Cir. 2013)
• Am. Cyanamid Co. v. Geye, 79 S.W.3d 21 (Tex. 2002)
• Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)
• United States v. Zadeh, 820 F.3d 746 (5th Cir. 2016)
• Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (1992)
• Ruiz v. Comm'r of Dept. of Transp., 679 F. Supp. 341 (S.D.N.Y. 1988), aff'd, 858 F.2d 898 (2d Cir. 1988)
• Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005)
• Nielsen v. Preap, 139 S. Ct. 954 (2019)
• United States v. Emerson, 270 F.3d 203 (5th Cir. 2001)
• Mid-Atl. Bldg. Sys. Council v. Frankel, 17 F.3d 50 (2d Cir. 1994)
• Kassel v. Consol. Freightways Corp. of Del., 450 U.S. 662 (1981)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0313
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-03132.pdf

Original opinion text

June 10, 2020

Mr. Steven C. McCraw
Director
Texas Department of Public Safety
Post Office Box 4087
Austin, Texas 78773-0001

Opinion No. KP-0313

Re: Whether over-the-road buses traveling on interstate highways in Texas are subject to the tandem axle weight limitations established in Transportation Code subsection 621.101(a)(2) (RQ-0320-KP)

Dear Mr. McCraw:

You ask whether over-the-road buses traveling on interstate highways in Texas are subject to the tandem axle weight limitations established in Transportation Code subsection 621.101(a)(2).[1] That subsection prohibits operation of a vehicle over or on a public highway if the vehicle has "a tandem axle weight[2] heavier than 34,000 pounds, including all enforcement tolerances." TEX. TRANSP. CODE § 621.101(a)(2) (footnote added). Federal law defines an "over-the-road bus" as "a bus characterized by an elevated passenger deck located over a baggage compartment." 42 U.S.C. § 12181(5); see also 23 C.F.R. § 658.5. You inform us that enforcement of the tandem axle weight limitation particularly concerns operators of double-decker buses having two-level passenger compartments because those buses often exceed the weight limit. Request Letter at 1 n.2. You tell us that an operator of over-the-road buses asserts that federal law, an exception to 23 U.S.C. § 127(a), preempts the State overweight prohibition in subsection 621.101(a)(2). Id. at 1.

Section 127 of title 23 of the United States Code contains weight regulations for vehicles using the federal interstate system. See 23 U.S.C. § 127. Subsection 127(a) provides in pertinent part:

(a) In general. –
(1) The Secretary [of Transportation] shall withhold [a portion of a State's share of federal funds under the statute] in any fiscal year in which the State does not permit the use of The Dwight D. Eisenhower System of Interstate and Defense Highways within its boundaries by vehicles . . . with a tandem axle weight of thirty-four thousand pounds, including enforcement tolerances . . . .
(2) However, the maximum gross weight to be allowed by any State for vehicles using The Dwight D. Eisenhower System of Interstate and Defense Highways shall be . . . a tandem axle weight of thirty-four thousand pounds . . . .

Id. § 127(a)(1), (2). Thus, subsection 127(a) generally establishes the lowest and highest limitations on tandem axle weight for vehicles that a state may allow to use on interstate highways without impacting funding.

However, a statutory note to subsection 127 states in part:

"(1) Exemption. --The second sentence of section 127 of title 23, United States Code [23 U.S.C. § 127(a)(2)], relating to axle weight limitations for vehicles using the Dwight D. Eisenhower System of Interstate and Defense Highways, shall not apply to--
(A) any over-the-road bus (as defined in section 301 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181)).

23 U.S.C. § 127 note (2019) (Over-the-Road Buses and Public Transit Vehicles).[3] Therefore, the issue becomes whether the statutory note's exemption from the federal axle weight limitation preempts the state limitation in Transportation Code subsection 621.101(a)(2).

Courts recognize three types of federal preemption: "(1) express preemption, (2) field preemption, and (3) conflict preemption." Simmons v. Sabine River Auth. La., 732 F.3d 469, 473 (5th Cir. 2013); Am. Cyanamid Co. v. Geye, 79 S.W.3d 21, 24 (Tex. 2002). Preemption of any type relies on congressional intent, and courts "begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (quotation marks omitted). The first type, express preemption, "requires Congress to explicitly state its intent to preempt relevant state laws." United States v. Zadeh, 820 F.3d 746, 751 (5th Cir. 2016). Subsection 127(a)(2) establishes a federal maximum tandem axle weight limit by prohibiting states from allowing vehicles exceeding the federal maximum tandem axle weight to use interstate highways. 23 U.S.C. § 127(a)(2). The statutory note states only that subsection 127(a)(2) does not apply to over-the-road buses. Id. note (2019) (Over-the-Road Buses and Public Transit Vehicles). Thus, the statutory note exempts over-the-road buses from the federal maximum tandem axle weight limitation but does not go further and affirmatively create a federal right to use interstate highways for such buses that exceed the maximum. Id. Moreover, the statutory note does not restrict or otherwise address state maximum limitations. A federal statute's silence does not "explicitly state [congressional] intent to preempt relevant state laws." Zadeh, 820 F.3d at 751. Accordingly, the statutory note does not expressly preempt state law.

The second type of federal preemption, field preemption, occurs when "federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it." Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (quotation marks omitted). Rather than thoroughly occupying the field, subsection 127(a) is premised on and designed around the states' regulation of vehicle weight. Id. § 127(a); Ruiz v. Comm'r of Dept. of Transp., 679 F. Supp. 341, 359 (S.D.N.Y. 1988) (stating that under section 127(a) "local regulations are expressly contemplated, and in fact required by the federal statute"), aff'd, 858 F.2d 898 (2d Cir. 1988). Thus, implied field preemption does not apply to your question. Finally, conflict preemption may occur "when compliance with both state and federal law is impossible" or "when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Zadeh, 820 F.3d at 751 (quotation marks omitted). Because of the statutory note exemption, federal law does not regulate the maximum tandem axle weight of over-the-road buses and takes no position on state regulation. Therefore, conflict preemption also has no application. Because the exception stated in 23 U.S.C. subsection 127(a), statutory note, does not preempt state law, over-the-road buses traveling on interstate highways in Texas are subject to the tandem axle weight limitations in Texas Transportation Code section 621.101(a)(2).[4]

[1] See Letter from Mr. Steven C. McCraw, Dir., Tex. Dep't of Pub. Safety, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (Dec. 13, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] "Tandem axle weight" is "the total weight transmitted to the road by two or more consecutive axles" having specified measurements. TEX. TRANSP. CODE § 621.001(11).

[3] An enactment of Congress published in the Statutes at Large, but appearing in the United States Code only as a statutory note, is nevertheless "the law of the land." Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1251 (11th Cir. 2005). The language in the statutory note derives from the Statutes at Large and was originally a temporary exemption applicable to public transit vehicles. See Dep't of Transp. & Related Agencies Appropriations Act, 1993, Pub. L. No. 102-388, § 341, 106 Stat. 1520 (amending the Intermodal Surface Transp. Efficiency Act of 1991, Pub. L. No. 102-240, § 1023, 105 Stat. 1914 by adding subsection (h) to section 1023 and providing for a temporary exemption). In 2003 the note was amended to add "over-the-road buses." See Consol. Appropriations Res., 2003, Pub. L. 108-7, § 347, 117 Stat. 11. The most recent amendment in 2012 deleted the "temporary" language. See Moving Ahead for Progress in the 21st Century Act, Pub. L. 112-141, § 1522, 126 Stat. 405, (2012).

[4] We received briefing asserting that Texas is the only state that enforces maximum weight limits on over-the-road buses. See Brief from David H. Coburn, Counsel to Megabus Southwest, LLC at 6-7 (Jan. 15, 2020). For that reason, the brief argues, subsection 621.101(a)(2) unconstitutionally burdens interstate commerce and the statutory note should be construed to avoid that unconstitutional burden. Id. However, the constitutional-avoidance canon of construction "has no application absent ambiguity." Nielsen v. Preap, 139 S. Ct. 954, 972 (2019). If subsection 621.101(a)(2) unconstitutionally burdens interstate commerce a court would strike it down on that basis, not rewrite the statutory note to avoid the question. See United States v. Emerson, 270 F.3d 203, 213 (5th Cir. 2001) (stating that the courts' "duty to avoid constitutional questions is not a license to rewrite the statute"). Moreover, determining whether a State's even-handed highway regulation unduly burdens interstate commerce requires a fact-intensive inquiry balancing commercial hardships against health and safety benefits. Mid-Atl. Bldg. Sys. Council, a Div. of Pa. Builders Ass'n, Inc. v. Frankel, 17 F.3d 50, 52 (2d Cir. 1994); see generally Kassel v. Consol. Freightways Corp. of Del., 450 U.S. 662, 671-78 (1981) (reviewing the evidence supporting the district court's findings about safety relative to burden). Such a factual analysis is beyond the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. KP-0198 (2018) at 2 n.5.

S U M M A R Y

Transportation Code subsection 621.101(a)(2) prohibits operation of a vehicle over or on a public highway if the vehicle has a tandem axle weight heavier than 34,000 pounds, consistent with the provision in 23 U.S.C. § 127(a)(2) also limiting the tandem axle weight of vehicles allowed to use interstate highways to 34,000 pounds. The exemption from the federal law for over-the-road buses does not preempt a state law imposing a 34,000-pound restriction otherwise applicable to those buses. Thus, over-the-road buses traveling on interstate highways in Texas are subject to the tandem axle weight limitations in Texas Transportation Code subsection 621.101(a)(2).

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee