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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*8Amotated 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 employeesto operate motor vehiales, Includingriremen. All of these employeesare at times going beyond the alty limits In carrying out the functions of'

the aity~

government;

the prinaipal funation is in aormeatlon tith 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 employees 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 operation of motor vehicleswithin 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 operates 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 nahauffeurss

be llaensed in the followinglanguage: *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 application

has been licensed as an operator or ahauffeurby the departmentunder the provisionsof this Act.* Seotion 3 designatesthose personswho are expayment of ahaufreur'slioenses. The employeesof a olty are not exempt from a ahauffeur'slicense by the provisionsof seaartiale 6687a.

_ Auy personwho operates a motor vehiale for any purpose,whole or in part time as an employeeof a aity, whether **paid** in salary or oosm&sion, falls within the statutorydefinitionof "chauffeur"after Raying a ohaufreur's liaense.

The statutorydefinition, in the absenoe of exaeption, appliesto any.WemployeeW regardlessof whether the employer is private or governmental.

But in the case of governmentalemployer,the distinction

between offioers and employeesmust be kept constantlyin mind. 30 TEXAS JURI8TRUDENCE 204 "There is a well recognized distinction between officersand employees of municipal corporations. And the relation of master and servant may exist between a city and its employeeswho are engaged in.3 proprietary workHon. Charles S. McMillan,May 10, 1939, Page 3

as distinguished

from 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 charterand the statutes. ihere the eleative and appointiveofficersare absolutelynamed and fixed by the charter, all others connected with the city governmentmust be 6%nployees, agents, or servants. Suoh a oharter alnsaifiaation aaunot be ohhanged by the.aity aommiseion, as by inareasing

the number of eleativeor appointive offioes, or by meking those designated as employeesappintive officers, unless the oharter so provides. As used in some charters the term *sny offiaer' inoludes only'suahpersons in the servioe of the oity who have to a0 with the ereoution or administration of the laws, and does not.embraaealdermen. Wznnbers of the polioe foroe of a munioipat aorporatian

are generally alaseed as officers, and ususll.y

are state offioers;but under sorm ohsrtersmembers 0r the.poliaeana fire aepartments are olasawied as employees. A superintendent of publlu utilitieshas been held to be en employee,and not en offiaer. Under some chartersmsmbers of the board of eduaatfonof the aity are oity, aab not aounty, offleers.*

It is our opinion that the faat that the employer aity does*not exempt aity employees,otherwiseaovered is a by the statutorydefinition of WohauffeurW~, from proaurlng a chauffeur'slicense and psying the proper fee therefor, as requiredby ertiole 6607a, Vernon's Annotated Civil Statutes. 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 manager and firemen of San Augustine are employees. aiai$
must be determinedfromthe special faats in each case, the provisions'of

the city charter,and the statutes.Hon. Charles S. Mc?1illan, kay 10, 1939, Page 4

Your attention.

is respectfullycalled to the followingopinions on related questions rendered by this department:

1. OFMION NO. O-03, January 5, 1939, holding that a county commissioneris a publie officer and not an employee, servant, agent or independentcontractoras these terms are used in the definitionof a chauffeur in article 6687a and that a county oommisaioner while driving an automobilebelongingto the oounty and on county busin8es is not a chauffeur within the meaning of artiale 6607a, that he does not have to obtain a ohauffeur'slicense. 2. OPINIONNO, O-146, January 24, 1939, holding that a person who owns and operatesa bottlingplant, who owns his own truak rsglstered for.8,800pounds under the registration law and who drives **and** operates his truak in making deliveries is not "6x1 eniplopee, servant, agent or independentcontractor?, and therefore does not come within the-firstpart of the definitionapplied to a "ahauffeurnin paragraph (g) of section 1 of artiale 66S7a, Revised Oivii Statutes,'and

does not come within the last part of the definitionbeoause,nohiring or leasing is involved;therefore, the person is not required to obtain a ohauffeurls lioense. 3.. OPINION No. O-470, April 13, 1939, holding that persons employed by A & M College whose duties.inolude operating 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, departmenthead, and power salesmen,who are employees of a gas utility company,operating company-owned motor vehicles in the Course of the performanceof their duties are "Chauffeur"

within the scope of the definition 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