                          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
