Untitled Texas Attorney General Opinion ( 1939 )

Honorable Hames E. Kilday
Director Motor TransportationDivision
Railroad Commissionof Texas
Austin, Texas
Dear Sir: Opinion No. O-1430
Re: Irregular motor bus operations
We quote your letter of March 12, 1940, requestingan opinion of
this Department,in full:
"We wish your opinion on the following sets of facts:
"FIRST: CHARTER TRIPS
"At times, schools or organizationsor societies or groups of
different kinds decide to make a trip for sight-seeingor
educationalpurposes, or some such purpose.
"(a) Assuming that a number of persons within such a group con-
templating such a trip, go to a regularly certificatedbus line
and procure the use of a bus for this trip - the driver being
the bus line's driver and the transportationcharges being paid
by the several passengers who are members'of the organization,
to the bus line on a per head basis - Does this busline which
pays all expense of operation,have authority to engage in the
enterprise - assuming that in making the trip, the bus disre-
gards its certificateand goes over routes and roads not
covered by said bus line's Certificates?
"The operation is irregular - that is, it may never occur but
one time and then, again, it may occur again at some unfore-
seeable and indefinitedate.
"(b) Does the bus line have authority to engage in the enter-
prise above described
"(1) Where the bus and driver are hired at so much per day or
so much per mile or so much for the entire trip?
"(2) IVherethe organization,as distinguishedfrom the members
thereof, pay the bus line on a per head basis, per mile basis
or a per trip basis, all expenses of operation in each instance
being paid by the bus line?
. .
Honorable James E. Kilday, page 2 O-1430
“Some of these.tripsCome from withont;theState and some of
them ape entirely intrastate.
"Does the Railroad Commission have any duty, under the,Motor
Bus Laws, in connectionwith either the inter or intra state
movements describedabove?
PARTY THLPS
"SECOND: -v
nAssumingthat no society, organizationor group of any kind
is involved,but some individual interestshis friends in such
a trip, then with respect to this latter set-up, we ask your
opinion with regard to the same questions above enumerated."
By letter of May 29, 1940, you furnished us with the following ad-
ditional information:
"With further reference to our letter of March 12, 1940, re-
questing an opinion regarding chartered bus trips, you are ad-
vised that, in our o inion, the larger certificatedoperators
in Texas make severaP such trips each year, using the same cer-
tificated busses that are operated over the regular routes
authorizedby their certificates."
The operation of motor busses is governed by Article 911a, Vernon's
Civil Statutes.
Sec. l(c) thereof reads as follows:
"Sec. 1 (c) The term 'Motor Bus Company' when used in this Act
(Art. 9lla; P.C. 169Oa) means every corporationor pecsons as
herein defined, their lessees, trustees, receivers, or trus-
tees appointed by any court whatsoever, owning, controlling,
operating,or managing any motor propelled passenger vehicle,
not usually operated on or over rails, and engaged in the bu-
siness of transporting ersons for compensationor hire over
the public highways witRin the State of Texas, whether operat-
ing over fixed routes or fixed schedules or otherwise;provided
further that the term 'Motor Bus Company' as used in this Act
(Art. gila; P.C. 1690a) shall not include corporationsor per-
sons, their lessees, trustees, or receivers, or trustees ap-
pointed by any court whatsoever, insofar as they own, control,
operate, or manage motor propelled passenger vehicles operated
wholly within the limits of any incorporatedtown or city and
the suburbs thereof, whether separately incorporatedor other-
wise.
Section 2 of said Act provides in part:
"Sec. 2. All motor-bus companies, as defined herein, are hereby
declared to be tcommon carriers' and subject.to regulation
Honorable James E. Kilday, page 3 O-1430
by the State of Texas, 2nd shall not operate any motor pro-
pelled passenger vehicle for the regular transportstionof
persons as passengers for compensationor hire over any
public highway in this State except in accordancewith the
provision.ofthis Act..."
Section 4(a) thereof reads:
"Sec. 4. (a) The Commission is hereby vested with power and
authority, and it.is hereby made its duty to superviseand
regulate the public service rendered by every motor bus com-
pany operating over the highways in this %;itc+,to fix or
approve the maximum, or minimum, or maximum and minimum,
fares, rates or charges of, and to prescribe all rules and
regulationsnecessary for the government of, each motor bus
company; to prescribe the routes, schedules,service, and
safety of operations of each such motor bus company; to acquire
the filing-of such annual~or other reports and of such other
data by such motor bus .companyas the Commissionmay deem
necessary."
Section 8 of said Article 911a requires an application to set forth
certain facts including "the desires to operate" and "a proposed
time schedule." However, we do not.believe that this was meant to
require motor bus carriers to operate only with fixed routes and
schedules so as to exclude the characterof operationsdescribed
in your letter. In this connectionattention is drawn to Sec. 1
(c), quoted above, saying that a person or corporation,etc., may
be a "motor bus company" and therefore subject to regulation
"whether operating over fixed routes or fixed schedules, or other-
&g. "
rlenow refer to Sec. 2, providing that motor bus companies l'shall
not operate any motor propelled passenger vehicle for the renul.ar
transportationof persons as passengersfor compensationor hire
over any public highway in this State except in accordancewith the
provision of this Act." Citing this provision the Court of Crimi-
nal Appeals, in Hof!'manvs. State, 20 S.W. (2dj 1057, held that a
single operation by an 'individualdid not constitutehim amotor
bus carrier subject to the statute. This case was followed by the
El Paso Court of Civil Appeals insCommercial Credit Company vs.
Groseclose,66 S.W. (2d) 709. The fact that aperson who does not
make it a business, or hold himself out as being ready or willing
to transport passengers for compensation,occasionallydoes use
his automobile, or one which he has hired, to carry someone for com-
Pensation does not necessarily bring him within the statute as a
common carrier. Such seems reasonableto us and is within the im-
plication of the two cases cited above. On the other hand we do
not believe that a person would necessarilyhave to establish re-
gular schedules over certain routes before coming within the Act,,
Honorable James E. Kilday, page 4 O-1430
We do not think the word t5-egular1t
was used in that sense in Sec.2,
particularlywhen we remember the language used in Sec. 1 (c).
From the opinion of Judge Cobb, in Woolf vs. Del Rio Motor Trans-
port Company, 27 S.W. (2d) 874, wequote:
"The testimony showed the defendentsoperated outside of the
city of Del Rio and in every directionthat they had a chance;
as far as three miles east of the city of Del Rio, and twelve
miles west of said city to Devil's River; that they operated
over the public highways within this state and charged compen-
sation for carryingpassengers;that they held themselvesout
to take passengersanywhere......
"It is clear from a reading of the amendment that it was the
intention of the Legislatureto make the Motor Bus Law apply
to all operators'whouse the public highways for transporting
persons for hire, and it is not necessary that the transporta-
tion be between certain points or that the person transporting
ersons for hire shall be engaged regularly in the business.
!Ais brought within its provisionsthe defendants,even though
they did not operate regularlybut only indiscriminately.n
We note that the busses concerned are the same certificatedbusses
that the carrier uses over the regular routes authorieedby its
certificate. We understandalso that such vehicles are not adapted
to private use but are specially constructedfor uee in the carrier
business. In our opinion, it makes no differencethat the parti-
cular type of operationwhich we are now consideringis irregular
as to routes and has no schedules. It is a part of the carrier's
operations as such and subject to regulationby the Railroad
Commissionunder any and all of the fact situationssubmitted in
your several questions. Such being true, it follows also that a
carrier holding a certificateauthorizingoperation upon certain
routes only cannot lawfully operate such busses regularly or on
such charter trips, over other and different routes without securing
an enlargementof the certificateto authorize the same.
This opinion is written upon the assumption that the motor bus com-
pany retains control of.the bus and its operation and is not intend-
ed to touch upon a situationwhere a bona fide lease is made and
full control of the bus surrendered.
Yours very truly
APPROVED JUNE 7, 1940 ATTORNEY GENERAL OF TEXAS
GROVER SELLERS
FIRST ASSISTANT BY
ATTORNEY GENERAL Glenn R. Lewis
Assistant
GRL:kd;ml