### THE /i RNEW GENEKAL OF TEXAS

Honorable Ned Granger Opinion No. M-l 145 County Attorney Travis County Courthouse Re: Driver Age Requirements Austin, Texas 78701 for Transportation Enterprises, Inc., under Article 66874 Dear Mr. Granger: v. c. s. You request our opinion on the following:

“1. Are drivers of buses utilized ina local shuttle bus operation conducted byTransportation Enterprises, Inc., pursuant toa contract entered into by and between the University ofTexas Board of Regents and the company furnishing the shuttle bus service classified as operators of a ‘public or common carrier’ as those classifications are used in Art. 66874 Section 5, V.T.A. S. 1

“2. Ifthe answer to (1) above is inthe negative, then must the drivers of such buses have reached twenty-one years of age toqualify as lawful operators of such buses under any other applicable statute?” The facts in this case are:

“The shuttle bus services are presently being rendered pursuant to a contract entered into by and between the University ofTexas Board of Regents and Transportation Enterprises, Inc.

“A contract requires Transportation Enterprises, Inc., to transport only students, faculty, and staff of th,eUniversity ofTexas atAustin, and dependents of students enrolled inthe University of Texas atAustin.

“Transportation Enterprises, Inc., is compensated only by the University of Texas predicated upon mi,les operated and not upon the number of persons transported. No individual fares or tickets are sold.

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1,

. . .

“The contract entered into by and between the University ofTexas Board of Regents and Transportation Enterprises, Inc., initially required drivers to be at least twenty-one years of age.

“By modification of the contract, entered between the University of Texas Board ofRegents an,dTransportation Enterprises, Inc., the age requirement of drivers was reduced to eighteen years.” You have also stated that Transportation, Enterprises, Inc., operates exclusively within the city limits and s:lburbs of the City of Austin. We note that Section 5 (a) of Article 6687b, Vernon’s Civil Statutes, permits seventeen year old drivers of school children’s buses and conclude that the Legislature has taken due regard for the safety aspects of such drivers inpassing all of theprovi.sions in Section 5 ofArticle 668733. The only Texas opinions found dealing with an analogous police power statute1 are in Cedziwoda v. Crane--Langley Funeral Chapel, 273 S.W.2d 455 (Tex. Civ. App., 1954), rev”d on other grounds, loo ‘I’ex. 99, 283 S.W.2d 217 (1955). Inthat case the Court of Civil Appeals held thatan ambulance was not a public carrier on the ground that:

“Where one. . . does not hold himself out as ready to carry all persons who m,aychoose to employ him, but agrees,y way of special undertaking, to transport persons for hire.
. . he is not a common carrier, but is a special or private carrier. Such is the test applied inTexas ~

” [Emphasis added. ] Inthe Supreme Court’s opinion reversing the Court of Civil Appeals on other grounds, Judge Calvert in his dissent stated:

“Having decided toreverse andremand the case on the theory expressed inthe opinion the majority did not

1 Article 6701b, V. C. S.

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reach plaintiff

’s second point. It is thatdefendant is a public carrier under the provisions of Sec. 2 of Art. 6701b and therefore does not enjoy the exemption provided in Sec. 1. Since this matter is not discussed by the majority I see no need todwell on it at length. Suffice it to say that in my opinion the term ‘public carrier’ as used in Sec. 2 ofArticle 6701b is synonymous with the term ‘common carrier’ and does not embrace motor vehicles which are operating under private or individual contracts, of hire. ” Itappears thatpassenger transportation, regardless of mode, will be classified as those of a common carrier only ifthe service is available to all members of the public who request it. Transportation Enterprises’ transportation services are limited, according toyour letter, to students, students’ dependents, faculty and staff of the University of Texas atAustin. Therefore, it is our opinion that Transportation Enterprises’ passenger transportation pursuant to its contract with the University ofTexas cannot be classified as those of a common carrier under Section 5 (b) ofArticle 668713,which prohibits drivers under twenty-one from operating common carrier vehicles. Inreply toyour second question, we know of no other statute which would require private or special carriers’ drivers to be twenty-one years or older. We expressly do not pass on the tort liability standard of care for Transportation Enterprises, Inc., or any si,mi.lar passenger transportation service. SUMMARY

Passenger transportation by a carrier not holding out its services to all members of thepublic is not a common carrier as thatterm is used in Section 5 (b), Article 6687b, V. C. S., and the drivers of thevehicles may be less than twenty-one years old.Honorable Ned Granger, Page 4 (M-1145)

Prepared by James H. Cowden Assistant Attorney General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman W. Dyer Moore, Jr. Ralph Rash Gordon Cass JohnReeves SAMUEL D. MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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