                                        GENERAIL




                           June 2, 194g

    HOn, ~HemerGarrison,Jr., Direater
    Department of Public Safety
    Austin, Texae            Opinion NOi va5gs.
                                R0: The applicability  of the
                                    chauffeur’slicense re-
                                     uirements af Article
                                    2wb,    v* c, S,.,te one
                                    employed a8 a general
                                    laborer and ywd man.who
                                      oc~aslenallydriveahis
                                      qploper’ a car carrying
                                      passongora.
    Dear’Colonel Garrison:
                Xe quote from’your   request-fer an’epinian     as
    follows,   in part:
                ”     would a.person employed as a
          yard &‘a&4 general laborer who occasion-
          ally drives his cmnloyer?s car with the em-
          ployer and/or his family as passengers be
          a ohauffeurn/rithlnthe definition ef Art.,
          66$7b, Sec. 1 (o)~,V. C, S,)? (Parkthat-
          ical addition ours)
             Turning to Article 6687b V, C, S. .bei   Acts
    1941 47th Le Mature    page 245 dhapter 173, we%nd
    in S&ion 1 701, the kollewing defin$tion:
                 Chauffeur’ 6 Every per&on who i8
               fl*                                            ,1,
          the driver for wages compensation or
                           , oh a motor vehi&e
          hire, or for far.e
          transportingpa638,engefd.v
                Section 2 of the foregoing Act reads a8 fel-
    lows:
.              “No person, except those hereinafter
          expressly exempted, shall drive any motor
          vehicle upen a highway in this State unless
          such,personhas a valid license a8 an oper-
          ator, a commerclnl operator,
                                     5 or a chauffeur
Hon. Homer Garrison,Jr*, Page 2, V-593.
                                                           -   .



    under the provisionsof this Acten
          The question presented,then, is whether the
statute requires a person to secure a cbuffeurta li-
cense who drives a motor vehicle for his employer carry-
ing parsengersas an incident to the performance'ofhis
regular duties for which he is employed a'nd~
                                            compensated.
          In order to resolve this issue we deem it ap
propriateto note the legislativehistory ef the lieens-
ing statute in so far a8 it is applicable to "chauffeur*,
as the statutory definstionhas .undergonesubstantial
changes,
          When first passed in 1917 as Acts 35th Legis-
lature cha ter 207 page 475 codified in VemonQi An-
notate4 C&vP1 Statuies as Article ,6687,a Wchauffeurn
was defined as:
          11    one whose business er ocs,m--
    tion ii ipiratinga mo%io*vehicle ?ZFZm-
    FatSon,    wages or hire. o o n (Emphasis
    suppliedthroughoutthis opinion)
          This statute was inte,rpreted by the Court of
Criminal Appeals in Matthewst. State, 85 Tex:Cr$m+ Rep.
469,'214 S. Ws 339 (19191,'as~ns2.requfriag a~~chauffeur(8
license of one who drive8 a car as fan in&dent to his prin-
cipal duties or occupation.
          This requirementwas carried foruard in Acts
1935; l+&thhLegislature,~2ndCalled Session page 1785,
chapter 466, wherein a nchauffei@ Wa8:deflned,as:
         *Every person who'is employed~for the
     rinci al purpose of operating a motor vehi-
    b&r      every person who drives a motor
    vehicle while in use fer hire,"
          However that definition,wasradicallythan ad
in 1937,bpActs 45th Legislature,page 752, cheater 3%9,
to define a "chauffeur"as:
          "Anv nerson who 'oneratesa motor rehi-
     ~kee$&%%~wh$%?               %r%~~~~d%
     contractor,'whetherbid in'salary or commis-
     sion; and every person who operates,a 'aotor
     vehicle while such vehicle is ifinosefor hire
     or lease,"
Hon. Homer Garrison,Jr., Page 3, V-593;


          Under the last definition sat out above, this
Department held by former Opinion No. 0-586, that an
employee who drives hi8 employer’s car as au incident
to his employment for which he is compensated,is re-
quired to obtain a chauffeur’slicense.
          This opinion wa8 quoted.fromat length in
Maryland Casualty Co. v. Cronholm, 32 F. Supp.~371,ti
the Federal District Court for the Southern District
of Texas, opinion by Judge AMred. It was them said:
         “There are no Texas decis~ionsconstru-
    ing this.part of the statute as to whether
    a .person,employed a8 was Brinkley, is a
    1chauffeur’. The statutory definition is,
    however, .verybroad. The.test 8eem8 to be:
    (1) Did such person operate the motor vehi-
    cle in whole or part time employment; (2)
    was,he at such time an employee, servant
    agent, or independentcontractor;and ($1
    was he paid for such service?
                                 ,
         “As applied to Brinkley, each of these
    question's must be answered in the afflrma-
    tive. He .operatedthe,truck; he was, at
    such time, the employee and servant of the
    insured; and he received pay for it. The
    fact that Ino Dart of the salarY.Daidto
    him was apportioned or allocated.as compen-
    sation for such occasionaland incidental
    operation of said truck’ &es not necessar-
    ily mean that  he was notepaid for such serv-
    ice; only that a ortion of his pay was not
    allocated expressPy for the service. He
          id nevertheloes..Nor would the fact
    wP8
    thatYi-
          8 only &ova the truck toccasionally
    and incidentallyt,averaging not morethan
    one hour per day, prevent hi8 coming within
    the broad terms of the statute”. (Emphasis
    by the Court)
          In 1941, the presbnt definition of Wumffour*
became effective,and we are no% coufrontedwith the prob-
lea of whether it includes within'its scope an employee
who engages in incidental or casual duties as a chkffeur
for hi8 emplover. as WI8 Indimv       the 1937 amendment;
or whether'it-rejuiresthat the emplbyee's d&es as a'.'
chauffeur be hi8 incipal duties or occupation, as wa$i,:j
true under the 1    Act and the 1935 Act.
                                                           .-   -
.   .                                                                      _ .._




         Ron+ Homer Uarriaon, Jr.,    ?age 4,   V-593.


                     It will be observed that u&or the resent
         definition   we have neither the clear-cut requ I rement
         that the o rator must have iOr his prinainal purpose
         tho.eperat r en o? a motor vehicle for hire nor do we
         have the atntitheti~.-requirement in the, de#inition that
         an operator who’oparates a motor vehicle for w pur-
         poemas an emplo ee or servant for cem naatlon or hire
         is included.     *s the prosoat statute !L icatos is that
         a chuffour    ‘is a udriver f*r wages, cemponsation or
         hlro, ‘or for fare, of a motor vehicle transperting pa8-
         eengers” .
                     Wo think ‘a mview of the decisions in other
         jurladiotions,.~hav      statutory definitfons of a ~ahauf-
         four” which lro simi?a r to that   of the T-s   ~atatut.0,
         will prove enlightening.
                       Ia state v, Wimmr 117 W. Va. &U’.lt6      S.E.
          133 West Virginia Su~ome’C&t        .it ?a8 held that a
          ,fieid superintendent ef an oil &any      at a stated sal-
        ‘vary, who operated his omplb r!8 car tb tako him areuad
          to variotis leases operated Fp his ample er gnd who.ec-
           chsionallp hidled    things in such cart L t ‘,uere needed
           enthe.~various j&s, wa8 net a Chiioifeurwbe-needed a-:‘,-
           iSiati6urt8 license withiiiii    neaning lf a statute which
           defined.‘*ohPutfeurn~as including ‘an ,wrsen who, o rates ‘: ’
           for hire, er who recoires pay direct 3:y or indirect r.y te
           operate, any motor vehicle or tractor,    or who operates
           a motor vehicle for the transportation of persons or
           property ‘or both, for compensation, upon’the public high-   ,.
           wPg8”. ‘fhe Court spid:
                     WStatutes of the kind under considera-
               tion must be strictly     cobtrued,      and not ax:
               ten&d    by im lication to parsoqs not coming
               clearly with % their terms. A practical con-
               struction of~the.statutory      deflaitien    o? the
               word !chauffeur~,     . . . la piew of the penal-
             .ty for operating without such a license.
               would include those who actually operatet$
               the highways of the state an automobile, or
               tractor,    in which they have an interest,      for    :
               hire or who are employed to ~operate the auto-
               moblie of aaether,      As indicated in the defi-
               nition,.the    fact that the rehicle~ is ~operated
               pr;lr    in comtemplatien of compensation ,con-
                      . . .    ”    ,~”
Hon. Homer Garrison,Jr., Page 5, T-593.


          *If it had been the desire of the law-
     making body to require all who operate an
     automobile, as an incident to their regular
     employmentto first secure a .chauffrurlsli-
     tense It should have so wrovided". (Emphasis
     supplied1
          InDes Moines Rug Cleaning Co. v. Automobile
Underwriters,215 Iowa 246, 245 B. W. 215, an action
on an insurance policy involved an interpretationof
a definition of "chauffeur"which said:
         "Any person who operates an iutomobile
    in the transportationof persons or.freight,
    and who receives any compensationfor such
    services in wages, commission,or otherwise,
    paid directly or indirectly,or who as owner
    or employee operates an automobile carrying
    passengers or freight for hire, including
    driirersof hearses, ambulances, passenger
    cars,,trucks, light delivery, and similar
    conwyances?i
          $he Court held:
          ”
              . the term 'dhauffeurr,as used in
    the s&;te means a paid operator'or employee,
    that-is, a person who'is'employedand paid by
    the owner of a motor vehicle to drive and at-
    tend to the car* and does not include operators
    who are not employed and paid for operating the
    motor vehicle, and therefore does not include.
    an employee who receives his compensationfor
    services rendered other than the operation of
    motor vehicles, although in performing;.
                                           such ser-
    vices he may incidentallyoperate a motor vehi-
    cle?.
          Of similar import; we cite the following cases:
State v. Depew ,175 &Id. 274, 1 A (2d) 627; Day P. Bush
18 La:App. 68i 139 So. 42; Comm. v. Cooper 19 Pai $st.
R. 271, 37 Pa. ho. Ct. 277; 42 C. J. 743     119;
r7cellent annotation on the subj,ectfad    !!n105 A. ii It.
  .
          We have reached the conclusionthat the deter-
mination of whether anemployee is a *chauffeur*within
the definition set out in Article 6687b, Section 1 (01,
is a question of fact. The.elements include:
Hon. Homer Garrison, Jr., Page 6,         V-593,


           (1) Was the employee driving the motor vehi-
cle?
           (2) Was the employee transportingpassengers?
          (3)  Was the employeeacting within the scope
of his employment,which contemplatedthat the duty of
driving the motor vehicle be paid for by the employer
through wages or compensationfor such duty?
          Upon the last element, we add that the ques-
tion must be determinedby thenfacts in each individual
case, which precludesus from enunciatinga general stilt
that will govern all cases.
                     SUMMARY
            Article 66d?b, V. C. S., applies to re-
       quire anv erson to possess a chauffeur'sli-
       oense who P1) drives a motor vehicle, ~(2)is
       transportingpassengers,land (3) 1s~acting
       within the scope of his employment,which con-
       templates that the duty of driving the motor
       vehicle be paid for by the          through
       wages or compensationfor Sue
          - These.'elements
                          involve fact questions
       to be determinedby the circumstancesof each
       individual case. -'
                           Very   truly     yours,


                       ATTORNEY GENERAL OF TEXAS




                       .E>d
                       ATTORNEY GENERAL.
DJC:jmc
