# THEA NEYGENERAL

August 15,1951

Hon. D. C. Greer State Highway Engineer Texas Highway Department Austin, Texas

Dear Sir: Opinion No. V-1237 Re: Authority ofthe Highway Commission to authorize motor buses to have priority over other traffice in boarding the GalvestonBolivar ferry. Your request for an opinion reads:

‘Coastal Coaches, Incorporated, has filed with the Highway Commission an application for priority or preferential use ofthe Galveston-Bolivar ferries by its motor buses on holidays, week ends and all other times wheti traffic using such ferries is heavy enough to prevent such coaches from obtaining space onthe first ferry boat leaving the terminal after the arrival ofsuch bus. Inasmuch as the Galveston-Bolivar ferry is operated as apart ofthe Texas Highway System, the Highway Commission is doubtful ofits authority to extend apreferential or priority right to the Coastal Coaches, Incorporated, touse the ferries in this manner, and has directed ma to request your opinion and advice onthis question.

“Itwill be appreciated ifyou will advise me, atyour early convenience, ifthe Highway Commission has legal authority to grant the application of Coastal Coaches, Incorporated, should it be considered desirable to do so.” The records ofthe Railroad Commission of Texas reflect that Coastal Coaches, Incorporated, is acommon carrier motor bus company operating over the highways of Texas for compensation and hire pursuant to authority granted it under the provisions ofthe Texas Motor Bus Law [Article 911a, V.C.S.].

The authority ofthe State Highway Department to operate ferries is contained inArticle 6812a, V.C.S., which, in so far asHon. D. C. Greer, Page 2 (V-1237) pertinent toyour 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 ofthe Highway Fund ofthe State of Texas, over and across any bay? arm, channel or salt water lake emptying into the Gulf ofMexico, or any inlet ofthe Gulf ofMexico, any river or other navigable waters ofthis State where such ferries connect designated State highways, andwhich may be made self-liquidating or partially self-liquidating by the charging oftolls for the use thereof.” Nothing inthe **above** statute indicates that, inthe operation and control of aferry, the Commission may grant preferences or priorities inthe use of such ferries.

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

“The primary **and** preferred use ofthe highways ofthe state is for private purposes ofthe public, and no one can acquire a right to a special or exceptional use of apublic highway not common to all the citizens ofthe state except by grant from the sovereign power.” The above rule has been followed in Texas. **City** ofDallas v.Harris,157S.W.2d 710 (Tex.Cia.App., 1941, error ref.); Railroad -ion of Texas v. Smith, 57S.W.2d 290 (Tex. Civ. A-); Railroad Commiss’ion ofTexas v. Bradberry, 57 S.W.2d 294 (Tax. Civ. App., 1933).

We are therefore ofthe opinion that, inthe absence of express legislative grant, the Highway Commission does not have authority to grant priorities or preferences inthe use of aferry under its control to acommon 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 acommon carrier motor,.. f Hon. D. C. Greer, Page 3 (V-1237) ‘

bus line priority over other vehicles during heavy traffic inboarding the Galveston-Bolivar ferry. Yours very truly, APPROVED: Everett Hutchinson Executive Assistant Charles D. Mathews First Assistant PRICE DANIEL Attorney General ByQ245iW& Ned McDaniel Assistant NMcD :mf