            THEA                         NEYGENERAL




                                    August   15,1951



Hon. D. C. Greer                              Opinion        No. V-1237
State Highway Engineer
Texas Highway Department                      Re:      Authority of the Highway
Austin, Texas                                          Commission     to authorize
                                                       motor buses to have prior-
                                                       ity over other traffice in
                                                       boarding the Galveston-
Dear      Sir:                                         Bolivar ferry.

                 Your   request   for an opinion    reads:

             ‘Coastal  Coaches,   Incorporated,   has filed with the
       Highway Commission       an application for priority or pref-
       erential use of the Galveston-Bolivar      ferries by its mo-
       tor buses on holidays, week ends and all other times wheti
       traffic using such ferries     is heavy enough to prevent such
       coaches from obtaining space on the first ferry boat leav-
       ing the terminal after the arrival of such bus. Inasmuch
       as the Galveston-Bolivar      ferry is operated as a part of the
       Texas Highway System, the Highway Commission             is doubt-
       ful of its authority to extend a preferential     or priority right
       to the Coastal Coaches,     Incorporated,   to use the ferries  in
       this manner, and has directed ma to request your opinion
       and advice on this question.

            “It will be appreciated  if you will advise me, at your
       early convenience,   if the Highway Commission     has legal
       authority to grant the application of Coastal Coaches,     In-
       corporated,   should it be considered   desirable to do so.”

          The records of the Railroad Commission    of Texas reflect
that Coastal Coaches,  Incorporated,  is a common carrier motor bus
company operating over the highways of Texas for compensation       and
hire pursuant to authority granted it under the provisions  of the Tex-
as Motor Bus Law [Article 911a, V.C.S.].

               The authority of the State Highway Department   to operate
ferries      is contained in Article 6812a, V.C.S., which, in so far as
Hon. D. C. Greer,    Page   2 (V-1237)



pertinent   to your inquiry,    provides:

           “Section 1. The State Highway Department        is
     hereby authorized to acquire by purchase,       and/or to
     construct,    maintain, operate and control ferries,     out
     of the Highway Fund of the State of Texas, over and
     across any bay? arm, channel or salt water lake emp-
     tying into the Gulf of Mexico, or any inlet of the Gulf
     of Mexico,     any river or other navigable waters ofthis
     State where such ferries      connect designated State high-
     ways, and which may be made self-liquidating        or par-
     tially self-liquidating   by the charging of tolls for the
     use thereof.”

           Nothing in the above statute indicates that, in the operation
and control of a ferry, the Commission     may grant preferences    or
priorities  in the use of such ferries.

            The principle applicable to your question      is stated   in 40
C.J.S.   253, Highways, Sec. 233, as follows:

          “The primary and preferred     use of the highways
     of the state is for private purposes   of the public, and
     no one can acquire a right to a special or exceptional
     use of a public highway not common to all the citizens
     of the state except by grant from the sovereign power.”

            The above rule     has been followed in Texas.    City of Dallas
 v. Harris,157S.W.2d    710    (Tex.Cia.App.,  1941, error ref.); Railroad
-ion            of Texas v.     Smith, 57 S.W.2d 290 (Tex. Civ. A-);
Railroad Commiss’ion      of    Texas v. Bradberry,   57 S.W.2d 294 (Tax.
 Civ. App., 1933).

          We are therefore    of the opinion that, in the absence of ex-
press legislative grant, the Highway Commission         does not have
authority to grant priorities   or preferences    in the use of a ferry
under its control to a common carrier       bus line merely to relieve
the carrier from delays caused by the buses waiting their turn 10
board the ferry.

                                 SUMMARY

          The Texas Highway Commission            has no authority
     to grant buses operated by a common          carrier motor
,..   f


          Hon. D. C. Greer,     Page   3 (V-1237)   ‘



              bus line priority over other vehicles during heavy
              traffic in boarding the Galveston-Bolivar  ferry.

                                                        Yours   very truly,

          APPROVED:                                      PRICE DANIEL
                                                        Attorney General
          Everett Hutchinson
          Executive Assistant
                                                        ByQ245iW&
          Charles D. Mathews                                 Ned McDaniel
          First Assistant                                         Assistant

          NMcD :mf
