Untitled Texas Attorney General Opinion ( 1970 )

Honorable Wilson E. Speir Opinion No. M-682
Director, Department of
Public Safety
5805 North Lamar Blvd.
P. 0. Box 4087
Austin, Texas Re: May non-profit, charitable
organizations operate a
commercial driver-training
school without being li-
censed as required by Ar-
ticle 4413 (29c) Vernon's
Dear Colonel Speir: Civil Statutes?
,'
Your request.for an opinion states that several nor!-
profit, charitable organka~tions operate driver-training pro-
grams. The question presented.is whether such programs must
be licensed as "commercial driver-training schools" under
the provisions of Article 4413 (29c), Vernon's Civil Statutes.
Article 4413(29c), S2, provides:
"Sec. 2. No person, firm association, partner-
ship. 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
organizations have no connection with colleges, universities,
high schools or junior high schools which alone are exempted
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Honorable Wilson E. Speir, Page 2 (M- 682 )
from the Act. Thus, we conclude that the programs in question
are not exempt. While the non-profit, charitable organiza-
tions are no doubt performing a valuable service which 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 exception by implication merely 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 remaining question is whether the non-profit,
charitable organizations are operating a "commercial driver-
training school" within the meaning of the statute. Article
4413(29c), 51(a), defines a commercial driver-training
school as follows:
(a) "Commercial driver-training school" or
"school" means any enterprise conducted by an
individual, association, partnership, or cor-
poration, for the education and training of
persons, either practically or theoretically,
or both, to'operate or drive motor vehicles and
charging a consideration or tuition for such-
services.I' LEmphasis SuppliedA /
Since your letter expressly states that a "nominal charge"
is made for the programs operated by the charitable organi-
zations, we must conclude that the organizations do charge
a "consideration" or "tuition" for such services. According-
lY, the driver-training programs in question fit within the
statutory definition of a commercial driver-training school.
The mere fact that an organization is charitable
or non-profit does not ipso facto remove it from the field of
commerce. "Commerce" is uniformly defined as "business
intercourse, the exchange,,buying or selling of commodities
or services."l/ Commerce is not restricted to activities
having financxal profit as their aim.
Closely analogous questions have arisen in cases
l/ cf. ?a Words and Phrases 454. “Commercef8; cf.
zlso Black's Law Dictionary, 4th ed.
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Honorable Wilson E. Speir, Page 3 (M- 682 )
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 compete with or
may be substituted for by private enterprise./
We therefore conclude that the driver-training
programs described in your request fit within the statutory
definition of a “commercial driver-training school". Since
the operators of such programs charge a consideration for
their services and are not connected with a college, univer-
sity, high school, or junior high school, we must conclude
that such organizations are subject to the licensing pro-
visions of Article 4413(29c).
SUMMARY
Under the facts submitted, driver-training pro-
grams conducted by non-profit, charitable organ-
izations are subject to the licersing provisions
for "commercial driver-training schools" in ac-
cordance 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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Honorable Wilson E. Speir, Page 4 (~-682 )
Prepared by Earl S. Hines.
Assistant Attorney 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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