Untitled Texas Attorney General Opinion ( 1948 )

0 .
Hon. Homer Garrison,Jr., Director
Departmentof Public Safety
Austin,Texas OpinionNo. V-580.
Ile: Interpretation of Article1,
Subdivision1, Section2 (a),
of the UniformAct Regulating
Dear Sir: Traffic on Highways.
You have requestedof this office an interpretation
of Article 1, Subdivision1, Section2 (a) of the UniformAct
RegulatingTrafficon Highways,which reads as follows:
"AuthorizedEmergencyVehicles. Vehiclesof
the fire department(firepatrol),police vehicles,
and such ambulancesand emergencyvehiclesof munic-
ipal departmentsor public servicecorporationsas
are deeignatedor authorizedby the police commis-
sioneror the chief of police of an incorporated
city."
Before a consideration
of the specificquestionsare
undertaken,it shouldbe specifically pointedout that that por-
tion of the above articleinsofaras it appliesto public serv-
ice corporationsis unconstitutional.In the case of Walsh v.
Dallas Railwayand TerminalCompany,167 S.w.213.1018, the very
same languagewas in questionin the form of a city ordinanceof
the City of Dallas. In placinghis interpretationupon the or-
dinance,Chief JusticeAlexandersaid:
"It will be noted, however,that while the or-
dinanceattemptsto grant permissionto the chief
of police to designatewhat vehiclesshall have the
privilegeof an 'authorized emergencyvehicle',and
thus be exemptedfrom many of the provisionsof the
ordinancesregulatingothers,it sets up no stand-
ard by which the chief of police is to be guided in
making such a designation. It is left to his uubrid-
led discretionto say to whom the law shall be appli-
cable,and to whom it shall not be applicable. For
that reason,Section1 of said ordinance,insofaras
it appliesto public servicecorporationsto be des-
ignatedby the chief of police is invalid. crossman
Hon. Homer Garrison,Jr., Page 2, v-580.
v. City of Galveston,112 Tex. 303, 247 S.W. 810,
Spann v. City of Dallas,111 Tex. 350, 235 S.W.
513; ContinentalOil Co. v. City of WichitaFalls,
Tex.Com.App.,42 S.W. (2d) 236; 30 Tex.Jur.117,
n. 18; 37 ~m.~ur.,page 778, sec. SO; annotations
in 54 A.L,R. 1104."
There can be no doubt but that the reasons
invalidat-
ing the city ordinancein turn invalidatethat portionof the
act herein in question. Under its savingclause,however,the
remainingportionof the sectionunder considerationis consti-
tutional;and all questionshere answeredare viewed in light
of this interpretation.
(1) Are vehicleswhich are recognizedas po-
lice vehiclesrequiredto be design&ed
as authorizedemergencyvehiclesin order
to make emergencyruns under the state
highwaylaws?
(2) Are automobilesoperatedby the United
States ImmigrationBorder Patrol recog-
nized as or consideredto be police ve-
hicles?
(3) If automobilesoperatedby the United
States Immigrationi?order Patrol are rec-
ognizedas police vehiclesunder the state
law, would they stillbe requiredto be
designdtedas authorizedemergencyvehic-
les by a police commissioneror a chief of
police in order to make emergency runs with-
in the limits of an incorporatedcity?
Question1 is answeredin the negative. The clear
importof the statuteis that authorizedemergencyvehiclesin-
clude police vehicles. Had the Legislatureintendedthat the
Police Commissioneror Chief of Police place his authorization
upon policevehicles,it would have so declared. As the statute
now reads,the authorization and designationare applicableonly
to ambulancesand emergencyvehiclesof municipaldepartments.
By the same token, it is inconceivablethat our State Legislature
intendedonly State and local peace officersto enjoy this spe-
cial sanctionin attemptingto keep the peace and enforcethe law
of the land. For State or local authoritiesto interferewith
the Federal arm of justicewould be to overridea principlere-
garded as establishedsinceMcCullochv. Maryland,17 U.S. 316.
By any standard,Federal law enforcementofficersoperatepolice
vehiclesand, as in question1, local authorizationis not
Ho& Homer Garrison,Jr., Page 3, V-580.
'1. ,.y.~. ~_ ,,,
requiredsince the statutedeclaresthe authorization to sxist.
Therefore,question2 is answeredin the affirmativeand ques-
tion 3 in the negative.
(4) What is a policevehiclefi6hl.athe mean-
ing of the UniformAct RegulatingTraff$o
on Highways?
In the absenceof a statutorydefinitionas to what
is a police vehicle,we must look to the intentof the Legisla-
ture to arrive at a properunderstandingof the term. In this
regard,it is reasonableto supposethat the intentof the Leg-
isUtum was that a policevehicleshould includeany official
vehdcleused to dischargefunctionsvitally connectedwith pub-
lit safety, It cannotbe conceivedthat the Legislaturein-
tended solelythose vehiclesused in enforcingtrafficlaws.
City of RochesterV. Lindner,4 N.Y.S. (2d) 4; State v. Gorhsm,
188 P. 457; Edbergv. Johnson,184 N.W. 12. On the other hand,
officialnecessityis not to be mistakenfor personalprivilege,
nor authorityfor impeccability.The true test seemsto be pub-
lic safety or other matter of vital importanceto the public.
Title and ownershipto the vehiclesare, of course,evldentiary.
(5) What is a vehicleof the fire department
or fire patrol vehiclewithin the meaning
of the UniformAct RegulatingTraffic?
The commonmeaningof the wording of the statuteaan
have no other interpretationthan that the'vehiclemust belong
to the fire departmentor be under its control. Title and own-
ership,perhaps,are not absolutelynecessary;but, the element
of absolutecontrolis essential.
(6) Is every policevehicleand fire depart-
ment or fire patrol vehiclean "authorized
emergencyvehicle"within the meaningof
the UniformAct RegulatingTrafficwithout
being so designatedby khe Police Commis-
sioneror Chief of Police7
Question6 is answeredby question1 insofaras it per-
tains to policevehicles. And, in addition,the same reasoning
would apply to vehiclesof the fire department,in that, the ,
statutein questiondoes not requirean act of designationby
the Pol.i,oe
Commissioneror Chief of Police.
(7) Would a privatevehicleused by a volun-
teer firemanbe a vehiclemf a fire depart-
ment within the meanlugof the UniformAct
RegulatingTraffic?,
Hon. Homer Garrison,Jr., Page 4, V-580.
Question7 is answeredin the negativeby the answer
to question5. These vehiclesdo not belong to the fire depart-
ment and are not under its control.
(8) If you have answeredquestionnumber 7
in the negative,could it be made one
by being so designatedby the police
commissioneror the chief of police?
The statutereads that the Chief of Police or the Po-
lice Commissionercan designateas an authorizedemergencyve-
hicle only those ambulancesand emergencyvehiclesthat belong
to a municipaldepartment.It follows,therefore,that such
officialscannotmake a privatelyowned vehiclean authorized
emergencyvehicle. Walsh v. DallasRailwayand TermincalCom-
pany, supra.
(9) Is a privatelyowned ambulance,such as
is ordinarilyowned and operatedby an
individualfuneralhome, an ."authorized
emergencyvehicle",and is it necessary
that such ambulancebe designatedan "au-
thorizedemergencyvehicle"by the police
commissioneror the chief of police?
(10) What is a,publicservicecorporationwith-
in the meaningof the UniformAct Regulat-
ing Traffic?
These questionshave been answeredpreviously,follow-
ing the case of Walsh v. DallasRailwayand TerminalCompany.
As to these vehicles,the statuteis unconstitutional;and hence
inapplicable.
(11) When a vehiclehas been legallydesignated
an authorizedemergencyvehicleby the po-
lice commissioneror the chief of police.,
does such vehiclecontinueto be an author-
ized emergencyvehiclewhen operatedbeyond
the limits of a corporatecity or town of
the police commissioneror chief of police
making,thedesignation?
The statute,of course,does not set out the limits
wherein an authorizedemergencyvehiclemay operate. The purpose
of the Legislaturewas to definewhat was "an authorizedemer-
gency vehicle." Followingsuch officialact of designation,the
vehicleremainsin such status,dependent,of course,upon its
use> The Legislaturedid not intendthat an ambulanceacting in
Hon. Homer Garrison,Jr., Page 5, V-580.
an emergency shouldbe strippedof its cl.asslflcat%on
as it
passed the city limits. The statuteis the standardfor defin-
iq what is an "authorizedemergencyvehlal.e",Bld such desig-
nation is not Limitedto the limitl of a p*)pcl*pecity.
ArttcLe1, Subdivision1, Secticm2 (a), of the
Uniformliigbway Act insofaras it perteinsto public
servicecorporat5onsis unconstitutionall. Police ve-
hicles are determinedby their use, and vehioLesof
the fire departmentmust be under the controlof such
departmentto be classifiedas authorizedemergency
vehicles, No sot of the Police Casmi88ion8ror Chief
of Police is m&i&ml for such cla88ifiaation.The
same is true of pollae vahiole8operatedby Federal
law enforcement offlaars since the authorizationis
declaredto exist b;voperationof the statute. The
Ch8S%fftaatiCX& aoPierIWdupon VehiCk3 Of municipal
departmants~.in not limitedto the Unit8 of a corpori
ate city.
By /B/ Joe H. Reynolds
Joe &: .Reyp~Ldi
A88%8t8&It
APPROVED:
/8/ Fagan Dlak8on
FXRSTA@SZSTAN!C
ATroFmY OEPIERAL.