              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.




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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.



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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




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