Untitled Texas Attorney General Opinion ( 1972 )


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  •               THE       /i        RNEW         GENEKAL
    OF    TEXAS
    Honorable Ned Granger                  Opinion No. M-l 145
    County Attorney
    Travis County Courthouse               Re: Driver Age Requirements
    Austin, Texas 78701                        for Transportation Enterprises,
    Inc., under Article 66874
    Dear Mr. Granger:                          v. c. s.
    You request our opinion on the following:
    “1. Are drivers of buses utilized in a local shuttle bus operation
    conducted by Transportation Enterprises,   Inc., pursuant to a contract
    entered into by and between the University of Texas Board of Regents and
    the company furnishing the shuttle bus service classified as operators of
    a ‘public or common carrier’ as those classifications   are used in
    Art. 66874 Section 5, V.T.A. S. 1
    “2. If the answer to (1) above is in the negative, then must the
    drivers of such buses have reached twenty-one years of age to qualify as
    lawful operators of such buses under any other applicable statute?”
    The facts in this case are:
    “The shuttle bus services are presently being rendered pursuant to
    a contract entered into by and between the University of Texas Board of
    Regents and Transportation Enterprises,    Inc.
    “A contract requires Transportation Enterprises,     Inc., to transport
    only students, faculty, and staff of th,e University of Texas at Austin, and
    dependents of students enrolled in the University of Texas at Austin.
    “Transportation Enterprises,   Inc., is compensated only by the Uni-
    versity of Texas predicated upon mi,les operated and not upon the number of
    persons transported.   No individual fares or tickets are sold.
    -5577-.
    Honorable Ned Granger,           Page 2   (M-1145)
    1,
    .   .   .
    “The contract entered into by and between the University of Texas
    Board of Regents and Transportation Enterprises,   Inc., initially required
    drivers to be at least twenty-one years of age.
    “By modification of the contract, entered between the University
    of Texas Board of Regents an,d Transportation Enterprises,   Inc., the age
    requirement   of drivers was reduced to eighteen years.”
    You have also stated that Transportation, Enterprises,    Inc., operates
    exclusively within the city limits and s:lburbs of the City of Austin.
    We note that Section 5 (a) of Article 6687b, Vernon’s Civil Statutes,
    permits seventeen year old drivers of school children’s buses and conclude
    that the Legislature has taken due regard for the safety aspects of such
    drivers in passing all of the provi.sions in Section 5 of Article 668733.
    The only Texas opinions found dealing with an analogous police power
    statute1 are in Cedziwoda v. Crane--Langley Funeral Chapel, 
    273 S.W.2d 455
    (Tex. Civ. App., 1954), rev”d on other grounds, loo ‘I’ex. 99, 
    283 S.W.2d 217
    (1955). In that case the Court of Civil Appeals held that an
    ambulance was not a public carrier on the ground that:
    “Where one. . . does not hold himself out as ready to
    carry all persons who m,ay choose to employ him, but
    agrees,y     way of special undertaking, to transport
    persons for hire. . . he is not a common carrier, but
    is a special or private carrier.   Such is the test applied
    in Texas ~” [Emphasis added. ]
    In the Supreme Court’s opinion reversing the Court of Civil Appeals on
    other grounds, Judge Calvert in his dissent stated:
    “Having decided to reverse and remand the case on the
    theory expressed in the opinion the majority did not
    1   Article         6701b, V. C. S.
    -5578-
    Honorable Ned Granger,   Page 3   (M-1149
    reach plaintiff’s second point. It is that defendant is
    a public carrier under the provisions of Sec. 2 of
    Art. 6701b and therefore does not enjoy the exemption
    provided in Sec. 1. Since this matter is not discussed
    by the majority I see no need to dwell on it at length.
    Suffice it to say that in my opinion the term ‘public
    carrier’ as used in Sec. 2 of Article 6701b is synony-
    mous with the term ‘common carrier’ and does not
    embrace motor vehicles which are operating under
    private or individual contracts, of hire. ”
    It appears that passenger transportation, regardless of mode, will be
    classified as those of a common carrier only if the service is available
    to all members of the public who request it. Transportation Enterprises’
    transportation services are limited, according to your letter, to students,
    students’ dependents, faculty and staff of the University of Texas at Austin.
    Therefore,   it is our opinion that Transportation Enterprises’ passenger
    transportation pursuant to its contract with the University of Texas cannot
    be classified as those of a common carrier under Section 5 (b) of Article
    668713, which prohibits drivers under twenty-one from operating common
    carrier vehicles.
    In reply to your second question, we know of no other statute which
    would require private or special carriers’ drivers to be twenty-one years
    or older.
    We expressly do not pass on the tort liability standard of care for
    Transportation Enterprises,  Inc., or any si,mi.lar passenger transportation
    service.
    SUMMARY
    Passenger transportation by a carrier not holding out
    its services to all members of the public is not a common
    carrier as that term is used in Section 5 (b), Article 6687b,
    V. C. S., and the drivers of the vehicles may be less than
    twenty-one years old.
    Honorable Ned Granger,   Page 4 (M-1145)
    Prepared by James H. Cowden
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    W. Dyer Moore,    Jr.
    Ralph Rash
    Gordon Cass
    John Reeves
    SAMUEL D. MCDANIEL
    Staff Legal Assistant
    ALFRED WALKER
    Executive Assistant
    NOLA WHITE
    First Assistant
    -5580-
    

Document Info

Docket Number: M-1145

Judges: Crawford Martin

Filed Date: 7/2/1972

Precedential Status: Precedential

Modified Date: 2/18/2017