HonorableWilson E. Speir Opinion No. M-682

Director, Department of Public Safety 5805North Lamar Blvd. P. 0. Box 4087 Austin, Texas Re: May non-profit, charitable organizations operate a

Dear Colonel Speir: commercial driver-training schoolwithout being licensed as requiredby Article 4413 (29c)Vernon's Civil Statutes? ,' Your request.for an opinion states that several nor!- profit, charitable organka~tions operate driver-trainingprograms. The question presented.iswhether such programsmust be licensed as "commercialdriver-training schools" under theprovisions of Article 4413 (29c),Vernon's Civil Statutes. Article 4413(29c), S2,provides: "Sec. 2. No person, firm association,partnership. or corporation shall operate a commercial driver-training school after January 1. 1968, unless a license,as a commercial driver-training school has been secured from the Texas Deuartment of Public Safety,provided that training or classes conducted.by colleges, universities,high schools, and junior high schools for regularly enrolled students as a part of the normal program for such institutions shall be exempt." fimphasis Supplied:/
Your letter states that the non-profit, charitable organizationshave no connection with colleges, universities, high schools or juniorhigh schoolswhich alone are exempted

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from the Act. Thus, we conclude that theprograms in question are not exempt. While the non-profit, charitable organizations are no doubtperforming a valuable servicewhich should be encouraged, exceptions to this type of statute are strictly construed. 53 Tex. Jur. 2d 308, Statutes, S201. Moreover. in construing a statute, it is not permissible to ergraft an exceptionby implicationmerely because there seems to be a good reason for doing so. Wallace vs. Stevens, Tex., 1889, 12 SW 283;Bradley.vs. Gilliam, Tex.Civ.App., 1924, 260 SW 289.
A remainingquestion is whether the non-profit, charitable organizations are operating a "commercialdrivertraining school"within themeaning of the statute. Article 4413(29c), 51(a), defines a commercial driver-training school as follows:

(a) "Commercialdriver-training school" or "school" means any enterprise conductedby an individual,association,partnership, or corporation, for the education and training of persons, eitherpractically or theoretically, or both, to'operate or drive motor vehicles and charginga consideration or tuition for suchservices.I'LEmphasis Supplied / A Since your letter expressly states that a "nominalcharge" is made for the programs operated by the charitable organizations,we must conclude that the organizationsdo charge a "consideration"or "tuition" for such services. AccordinglY, the driver-trainingprograms in question fitwithin the statutory definition of a commercial driver-training school.

The mere fact that an organization is charitable or non-profitdoes not ipso facto remove it from the field of commerce. "Commerce" intercourse, is uniformly defined as "business

the exchange,,

buying or selling of commodities or services."l/ Commerce is not restricted to activities having financxalprofit as their aim.

Closely analogous questions have arisen in cases

l/ cf. ?aWords and Phrases 454. “Commercef8; cf. zlso Black's Law Dictionary, 4th ed.

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under the "commerce" clause of the United States Constitution. In State of Maryland vs. Wirtz, 269 F.Supp. 826, D.Md., 1967, the court declared that "commerce" is not confined to business activity in a conventional sense, but includes non-business ;;dn;;;;irofat,activities,whether private or governmental

irrespectxve of whether they competewith or may be substituted forby private enterprise./

We therefore conclude that the driver-training programs described in your request fitwithin the statutory definition of a “commercial driver-training school". Since the operators of suchprograms charge a consideration for their services and are not connectedwith a college, university, high school, or juniorhigh school,we must conclude that such organizations are subject to the licensing provisions of Article 4413(29c).

SUMMARY

Under the facts submitted, driver-trainingprograms conductedby non-profit, charitable organizations are subject to the licersing provisions for "commercialdriver-training schools" in accordance with Article 4413(29c),V.C.S.

General of Texas



### 21 The State of Texas intervened along with 24 other states as parties plaintiff arguing inter alia that non-profit activities should not be deemed “commerce”.

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Prepared by Earl S. Hines. AssistantAttorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Robert Giddings Robert C. Flowers Steve Hollahan Ivan Williams
MFADE F. GRIFFIN' Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE First Assistant

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