Untitled Texas Attorney General Opinion ( 1939 )

0 -7B May 10, 1939 Hon. Charles S. Mc‘lllillsn County Attorney San Augustine County San Augustine, Texas Dear Sir: Opinion No. O-723 Re: Does the fact that the employer Is a-aity make city employee8exempt from proaurlng a chauffeur*8license and paying the proper fee thereior under artiale'0687a.Vernon*8 Amo- tated Civil Statutes? We are in reoeipt of your letter of April 27, '1939,In whiah you request sn opinion on the .folloting questions: "The aity of Se&Augustine has a City Mansger, and various employees to operate motor vehiales, Including riremen. All of these employees are at times going beyond the alty limits In carrying out the func- tions of'the aity~government;the prinaipal funation is in aormeatlontith the City Light and Water Department,*&ah includes reading meters, testing power lines, and varfous other fun&ions. n * * * QUESTIOIU:(1)‘ Does the fast that the employer is a aity make suah em- ployees exempt from proaurlng a chaurreur% lfO8nSS and paying the proper fee therefor, as required by law? (2) "If the aity employees are exempt does this exemption extend only to the oper- ation of motor vehicles within the city limits?" The word Rahauffeurwis defined in paragraph (g) of seotion 1 oi artiale 6687a, Vernon's Annotated Civil Statutes, as follows: Hon. Charles S. KcXillan, May 10, 1935, Face 2 *(g) Chauffeur. Any parson who oper- ates a motor vehicle for any purpose, whole or part time, as an employee, servant, agent, or independentaontractor,whether paid in salary or commission;and every person who oRerates a motor vehicle while such vehicle is in use for hire or lease." Section 2 of artiale 6687a requires that all nahauffeurssbe llaensed in the following language: *On and after April 1, 1936, no person exoept those expresslyexempt under this Aot, shall drive any motor vehicle upon a highway is this state unless such person upon applicationhas been licensed as an oper- ator or ahauffeurby the departmentunder the provisionsof this Act.* Seotion 3 designatesthose persons who are ex- payment of ahaufreur'slioenses. The employees of a olty are not exempt from a ahauffeur'slicense by the provisionsof sea- artiale 6687a. _ Auy person who operates a motor vehiale for any purpose, whole or in part time as an employee of a aity, whether paid in salary or oosm&sion, falls within the statutory definitionof "chauffeur"after Raying a ohauf- reur's liaense. The statutorydefinition, in the absenoe of ex- aeption, applies to any.WemployeeWregardlessof whether the employer is private or governmental. But in the case of governmental employer,the distinctionbetween offioers and employees must be kept constantly in mind. 30 TEXAS JURI8TRUDENCE204 "There is a well recognized distinction between officers and employees of municipal corporations. And the relation of master and servant may exist between a city and its em- ployeeswho are engaged in.3 proprietarywork Hon. Charles S. McMillan, May 10, 1939, Page 3 as distinguishedfrom officers and employees engaged in public service in a governmental capacity. "Who are officers and who are employees is to be determinedby the revisions of the charter and the statutes. ihere the eleative and appointive officers are absolutely named and fixed by the charter, all others connect- ed with the city governmentmust be 6%nployees, agents, or servants. Suoh a oharter alnsaifi- aation aaunot be ohhangedby the.aity aommiseion, as by inareasingthe number of eleative or ap- pointive offioes, or by meking those designated as employees appintive officers, unless the oharter so provides. As used in some charters the term *sny offiaer' inoludes only'suahper- sons in the servioe of the oity who have to a0 with the ereoution or administrationof the laws, and does not.embraaealdermen. Wznnbers of the polioe foroe of a munioi- pat aorporatianare generally alaseed as officers, and ususll.yare state offioers; but under sorm ohsrters members 0r the.poliae ana fire aepart- ments are olasawied as employees. A superin- tendent of publlu utilities has been held to be en employee,and not en offiaer. Under some charters msmbers of the board of eduaatfon of the aity are oity, aab not aounty, offleers.* It is our opinion that the faat that the employer is a aity does*not exempt aity employees, otherwise aovered by the statutorydefinition of WohauffeurW~, from proaurlng a chauffeur'slicense and psying the proper fee therefor, as required by ertiole 6607a, Vernon's Annotated Civil Sta- tutes. Since it is our holding that city employeesare not exempt, your seoond quest1on.M not material, We wish to,point out that we are not king in this opinion upon the question of whether or not the aiai$ manager and firemen of San Augustine are employees. must be determinedfromthe special faats in each case, the provisions'ofthe city charter, and the statutes. Hon. Charles S. Mc?1illan,kay 10, 1939, Page 4 Your attention.is respectfullycalled to the following opinions on related questions rendered by this department: 1. OFMION NO. O-03, January 5, 1939, holding that a county commissioneris a pub- lie officer and not an employee, servant, agent or independentcontractoras these terms are used in the definition of a chauffeur in article 6687a and that a county oommisaioner while driving an automobilebelonging to the oounty and on county busin8es is not a chauf- feur within the meaning of artiale 6607a, that he does not have to obtain a ohauffeur'slicense. 2. OPINION NO, O-146, January 24, 1939, holding that a person who owns and operates a bottling plant, who owns his own truak rsgls- tered for.8,800 pounds under the registration law and who drives and operates his truak in making deliveries is not "6x1eniplopee, servant, agent or independent contractor?,and there- fore does not come within the-first part of the definitionapplied to a "ahauffeurnin paragraph (g) of section 1 of artiale 66S7a, Revised Oi- vii Statutes,'anddoes not come within the last part of the definition beoause,nohiring or leasing is involved;therefore, the person is not required to obtain a ohauffeurlslioense. 3.. OPINION No. O-470, April 13, 1939, holding that persons employed by A & M College whose duties.inoludeoperating college owned truaks should obtain chauffeur'slicense under article 6687a, Vernon's Annotated Civil Statutes. 4. OPINION NO. O-580, April 14, 1939, holding that linesmen, troublemen,meter readers, meter testers, a collector, a looal manager, an en&neer, a meahanio, department head, and power salesmen, who are employees of a gas utility company, operating company-ownedmotor vehicles in the Course of the performance of their duties are "Chauffeur"within the scope of the defini- tion contained in article 6687a, section 1 (e), Vernon's Annotated Civil Statutes, as amended, Hon. Charles S. McMillan, May 10, 1939, Page 5 and that they are required under the law to obtain chauffeur*slicense. !!kUStin&; that the abOv8 fully answers the inqUirie8 COntain8d in your letter, we are Yours very truly