HonorableHames E. Kilday

DirectorMotor Transportation Division Railroad Commissionof Texas Austin, Texas
Dear Sir: Opinion No. O-1430 Re: Irregularmotor bus operations
We quote your letter of March 12, 1940, requestingan opinion of this Department,in full:
"We wish your opinion on the following sets of facts:

"FIRST: CHARTER TRIPS
"At times, schools or organizations or societiesor groups of differentkinds decide to make a trip for sight-seeing or educational

purposes, or some such purpose. "(a) Assuming that a number of persons within such a group contemplating such a trip, go to a regularly certificated bus line and procure the use of a bus for this trip - the driver being the bus line's driver and the transportationchargesbeing paid by the severalpassengerswho are members'of the organization, to the bus line on a per head basis - Does this busline which pays all expense of operation,have authority to engage in the enterprise- assuming that in making the trip, the bus disregards its certificate and goes over routes and roads not covered by said bus line's Certificates? "The operation is irregular - that is, it may never occur but one time and then, again, it may occur again at some unforeseeable and indefinitedate. "(b) Does the bus line have authority to engage in the enterprise above described "(1) Where the bus and driver are hired at so much per day or so much per mile or so much for the entire trip? "(2) IVhere

the organization,

as distinguishedfrom the members thereof,pay the bus line on a per head basis, per mile basis or a per trip basis, all expenses of operation in each instance being paid by the bus line?. .

HonorableJames E. Kilday, page 2 O-1430

“Some of these.tripsCome from withont;theState and some of them ape entirely intrastate.
"Does the Railroad Commissionhave any duty, under the,Motor Bus Laws, in connection with either the inter or intra state movementsdescribedabove?

"SECOND: PARTY THLPS

-v nAssumingthat no society,organizationor group of any kind is involved,but some individual interests his friends in such a trip, then with respect to this latter set-up,we ask your opinionwith regard to the same questionsabove enumerated." By letter of May 29, 1940, you furnishedus with the followingadditional information: "With further referenceto our letter of March 12, 1940, requestingan opinion regarding charteredbus trips, you are advised that, in our o inion, the larger certificated operators in Texas make severa P such trips each year, using the same certificatedbusses that are operated over the regular routes authorizedby their certificates." The operationof motor busses is governed by Article 911a, Vernon's Civil Statutes. Sec. l(c) thereof reads as follows:
"Sec. 1 (c) The term 'MotorBus Company'when used in this Act (Art. 9lla; P.C. 169Oa) means every corporation or pecsons as herein defined, their lessees, trustees, receivers,or trustees appointedby any court whatsoever,owning, controlling, operating,or managing any motor propelledpassengervehicle, not usually operated on or over rails, and engaged in the business of transporting the public highwayswit Rersons for compensation or hire over in the State of Texas, whether operating over fixed routes or fixed schedulesor otherwise;provided further that the term 'MotorBus Company' as used in this Act (Art. gila; P.C. 1690a) shall not include corporations or persons, their lessees, trustees, or receivers,or trustees appointed by any court whatsoever, insofar as they own, control, operate, or managemotor propelledpassengervehicles operated wholly within the limits of any incorporated town or city and the suburbs thereof,whether separatelyincorporated or otherwise. Section 2 of said Act provides in part: "Sec. 2. All motor-bus companies,as definedherein, are hereby declared to be tcommon carriers'and subject.toregulationHonorable James E. Kilday, page 3 O-1430

by the State of Texas, 2nd shall not operate any motor propelled passengervehicle for the regular transportstion of persons as passengersfor compensation or hire over any public highway in this State except in accordancewith the provision.ofthis Act..." Section 4(a) thereof reads: "Sec. 4. (a) The Commission is hereby vested with power and authority,and it.is hereby made its duty to superviseand regulate the public service renderedby every motor bus company operatingover the highways in this %;itc+, to fix or approve the maximum, or minimum, or maximum and minimum, fares, rates or charges of, and to prescribeall rules and regulations

necessary for the governmentof, each motor bus company; to prescribe the routes, schedules, service, and safety of operationsof each such motor bus company; to acquire the filing-of such annual~or other reports and of such other data by such motor bus .company as the Commissionmay deem necessary." Section 8 of said Article 911a requiresan applicationto set forth certain facts including "the desires to operate" and "a proposed time schedule." However,we do not. believe that this was meant to require motor bus carriers to operate only with fixed routes and schedules so as to exclude the characterof operationsdescribed in your letter. In this connection attention is drawn to Sec. 1 (c), quoted above, saying that a person or corporation, etc., may be a "motor bus company" and therefore subject to regulation "whether operating over fixed routes or fixed schedules,or other- &g. " rle now refer to Sec. 2, providing that motor bus companies l'shall not operate any motor propelledpassengervehicle for the renul.ar transportation

of persons as passengersfor compensation or hire over any public highway in this State except in accordancewith the provisionof this Act." Citing this provision the Court of Criminal Appeals, in Hof!'man vs. State, 20 S.W. (2dj 1057, held that a single operationby an 'individual did not constitutehim amotor bus carrier subject to the statute. This case was followedby the El Paso Court of Civil Appeals ins CommercialCredit Company vs. Groseclose,66 S.W. (2d) 709. The fact that aperson who does not make it a business, or hold himself out as being ready or willing to transportpassengers for compensation, occasionallydoes use his automobile,or one which he has hired, to carry someone for comPensationdoes not necessarilybring him within the statute as a common carrier. Such seems reasonableto us and is within the implicationof the two cases cited above. On the other hand we do not believe that a person would necessarilyhave to establish regular schedulesover certain routes before coming within the Act,,HonorableJames E. Kilday, page 4 O-1430

We do not think the word t5-egular1t was used in that sense in Sec.2, particularly

when we remember the languageused in Sec. 1 (c). From the opinion of Judge Cobb, in Woolf vs. Del Rio Motor Transport Company, 27 S.W. (2d) 874, wequote: "The testimony showed the defendentsoperated outside of the city of Del Rio and in every directionthat they had a chance; as far as three miles east of the city of Del Rio, and twelve miles west of said city to Devil's River; that they operated over the public highwayswithin this state and charged compensation for carryingpassengers;that they held themselvesout to take passengersanywhere......
"It is clear from a reading of the amendmentthat it was the intentionof the Legislatureto make the Motor Bus Law apply to all operators'who use the public highways for transporting persons for hire, and it is not necessarythat the transportation be between certainpoints or that the person transporting ersons for hire shall be engaged regularly in the business. !Ais brought within its provisionsthe defendants,even though they did not operate regularlybut only indiscriminately.n
We note that the busses concerned are the same certificated busses that the carrier uses over the regular routes authorieed by its certificate. We understandalso that such vehicles are not adapted to private use but are specially constructedfor uee in the carrier business. In our opinion, it makes no differencethat the particular type of operation which we are now consideringis irregular as to routes and has no schedules. It is a part of the carrier's operationsas such and subject to regulationby the Railroad Commissionunder any and all of the fact situationssubmittedin your several questions. Such being true, it follows also that a carrierholding a certificate authorizingoperationupon certain routes only cannot lawfully operate such busses regularly or on such charter trips, over other and differentroutes without securing an enlargementof the certificateto authorize the same. This opinion is written upon the assumptionthat the motor bus company retains control of.the bus and its operationand is not intended to touch upon a situation where a bona fide lease is made and full control of the bus surrendered.
Yours very truly
APPROVED JUNE 7, 1940 GROVER SELLERS FIRST ASSISTANT ATTORNEY GENERAL ATTORNEY GENERAL OF TEXAS

BY Glenn R. Lewis

Assistant GRL:kd;ml