Untitled Texas Attorney General Opinion ( 1985 )

The Att0rne.y General of Texas
JIM MATTOX September 25, 1985
Attorney General
Supreme Court Building Eonorable Neal Birmingham Opinion No. ``-354
P. 0. Box 12546 District Attorney
Austin, TX. 76711. 2546 P. 0. Box 555 Re: Whether the exception of section
5121475-2501 Linden, Texas 75563 56). article 6701d-11, V.T.C.S.,
Telex 9101674-1367
Telecopier 51214750266
applies to pulpwood or logs being
transported to a mill
714 Jackson, Suite 700 Dear Mr. Birmingham:
Dallas, TX. 75202.4506
2141742.6944
You request an interpretation of the statutory provision which
creates a forestry exception in article 6701d-11, section 5(b),
4624 Alberta Ave., Suite 160 V.T.C.S. Specificztlly,you ask whether the exception applies to the
El Paso, TX. 79905.2793 hauling of logs or pulpwood from a wood yard to a lumber mill or to a
9151533364 paper mill. Section 5(e) of article 6701d-11 makes it unlawful to
operate on the public highways a commercial motor vehicle, truck-
1001 Texas. Suite 700
tractor, trailer, or semitrailer having a weight in excess of the
Houston, TX. 77002-3111 specified weight l:imitations. In 1983, the legislature added section
713/223-5666 5(b), which further,provides that
(b) No person shall load, or cause to be
606 Broadway. Suite 312
Lubbock, TX. 794013479
loaded, a vehicle for operation on the public
6W747-5236 highways of this state with the intent to violate
the weight: limitations in Subsection (a) of this
section. Intent to violate those limitations is
4309 N. Tenth. Suite 6
presumed if the loaded vehicle exceeds the applic-
McAllen, TX. 76501-1685
5121662-4547
able groE,svehicular *eight limit by 15 percent or
more. This subsection does not apply to the
loading ;? causing to be loaded of an agricultural
200 Main Plaza. Suite 400
or a forestry commodity prior to the processing of
Ssn Antonio, TX. 76205-2797
the commc`` (Emphasis added).
512lUM191
Your question is not whether the operator of an overloaded truck
An Equal OppOrtUnityI violates article 6701d-11, but whether the owner or operator of a vood
Affirmative Action Employer yard has loaded or caused to be loaded a vehicle for operation on the
public highways in violation of section 5(b).
You advise us that wood, after being cut in the forest, is first
transported to a wood yard and then transported from the wood yard to
a mill. The wood may be transported to a mill on the same truck that
hauled it to the wood yard without being unloaded and reloaded at the
wood yard. It may be unloaded, stacked, and subsequently reloaded for
p. 1618
Honorable Neal Birmingham - P;age2 (JM-354)
hauling to the mill. It my be unloaded, stacked, and subsequently,
at the option of the wood yard, sold to a saw mill for lumber or cut
into lengths suitable for pll:lpwoodand hauled to a paper mill. Even
when there is no provable c.l.teration of the wood itself at the wood
yard. there may be a change:of ownership. The issue in question is
whether the logs or pulpwood leaving a wood yard have been processed
within the meaning of the statute so that the forestry exception no
longer applies, or whether i:heyremain "a forestry commodity prior to
the processing of the commodity," in which case the owner or operator
of the wood yard is protected from criminal charges under section 5(b)
of article 6701d-11. We conclude that the legislature did not intend
the forestry exception to apljlyto a vehicle hauling logs or pulpwood
from a wood yard to a lumber,mill or paper mill.
What constitutes "processing" is a complex question. See
Commonwealth v. Babcock Lumbser Company, 272 A.2 522, 526 (Pa. 1971).
The Texas Legislature did &t define "processing," and we have not
found it defined by a court i:nthis context. It is well settled that
an ambiguous statute must be construed consistent with legislative
intent. Newsom v. State, 3":!S.W.2d 681, 683 (Tex. Crim. App. 1963).
We assume that the legislature intends words used in a statute to be
understood in their ordinary sense except where they are given a
different meaning in the act:. See Markowsky v. Newman, 136 S.W.2d 808
(Tex. 1940); Attorney Genera1 Opinion JM-106 (1983). There are times
when it is necessary to ,:onsult a dictionary to ascertain the
appropriate meaning of a word in a statute. See Board of Insurance
Commissioners v. Duncan, L‘14 S.W.2d 326, 328(Tex. Civ. App. -
Amarillo 1943, writ ref'd); Attorney General Opinion E-1277 (1978).
According to Black's L.arDictionary at page 1084 (5th ed. 1979),
one meaning of process is "to prepare for market or to convert into
marketable form." Supreme courts in other states have frequently
found the term, in analogous contexts in other statutes, to mean the
preparation of a product for market or conversion of a product into
marketable form. In --
Moore v. Farmers Mutual Mfg. & Ginning Co., 77
P.2d 209, 211 (Aria. 1938). the Supreme Court of Arizona stated the
following:
The word 'process' is given several definitions
by Webster's New International Dictionary, the
standard authority for the meaning of the words of
the English langu;sge. The one which obviously
applies to an opezrttionlike the ginning of cotton
is as follows: 'to subject (especially raw
material) to a process of manufacturing, develop-
ment, preparation for the market, etc.; to convert
into marketable form, es livestock by slaugh-
tering, grain by mjllling,cotton by spinning, milk
by pasteurizing, fruits and vegetables by sorting
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Ronorable Neal Birmingham - Page 3 (JM-354)
and repacking.' It will be seeu that the
essential portion c'fthe definition is to 'prepare
raw material . . , for the market. . . .'
See also State v. Four States Drilling Co., 177 So. 2d 828, 831 (Ala.
--(quoting the same definition from Webster's New International
Dictionary); Employment Sf:curity Commission of Arizona v. Bruce
Church, Inc., 507 P.2d 108,111 (Ariz. 1973) (cooling of lettuce is
incident to preparation fcr market though it does not change its
nature or form); Bay Boti:!LedGas Co. v. Michigan Department of
Revenue, 74 N.W.2d 37, 4(7 (Mich. 1955) (processing is refining,
development, preparation, or converting of material, especially in a
raw state, into marketable form); Southern Natural Gas Co. v. State,
73 So. 2d 731, 735 (Ala. 1953) (process is synonymous with preparation
for market and conversion l.ntomarketable form); Colbert Mill & Feed
co, v. Oklahoma Tax Comm:~l~, 109 P.2d 504, 506 (Okla. 1941)
(definition of process quested from Webster's New International
Dictionary shows it is synoilymouswith preparation for the market).
Your inquiry relates to logs and pulpwood leaving a wood yard.
Logs and pulpwood do not have fixed definitions in the law, but
clearly they are forestry commodities. Decisions of the supreme
courts of other states have found that a log is the trunk of a tree,
cut down and stripped of it!;branches. or the trunk of a tree cut into
different lengths-: See Bishop v. DiBose. 113 S.E.2d 309, 313 (N.C.
1960); State v. Addiagtx; 27 S.E. 988, 990 (N.C. 1897). Other
decisions have described pulpwood as wood logs, peeled or unpeeled,
usually cut in lengths suL,table for manufacturina into wood oulo.
which coumonlv is used in mskiun paper. Dead Rive< Co. v. Assesso&
of Houlton, 103 A.2d 123, 129 &.' i953). Cf. State v. International
163 So.2d ,507 (Ala. 1964)(wood chips not same as
You indicate thst the pulpwood in question is a tree that
has been cut down, trimmed: and cut into five to seven foot lengths.
Even if wood is transported to a mill on the same truck without its
being unloaded, it has been visually inspected and sorted and
determined to be in suitable condition for transportation to a mill.
Recently, a Texas Court of Appeals determined the meaning of
timber as used in a motoc carrier certificate of convenience and
necessity issued by the Tecas Railroad Commission. The court stated
that
We hold that the word 'timber', as used in
appellant's certificate . . . includes only trees
not worked upon 'beyond their being felled and
subjected to such other processing as may be
reasonably neces&y to facilitate their transpor-
tation by mOtor carrier, for example, removing
limbs from the faL:Lentrees and sawing the logs to
p. 1620
Bonosable Neal Birmingham - Page 4 (JM-354)
lengths suitable for transport by motor carrier.
(Emphasis added).
Kinner Transp. 8 Enterprises, Inc. v. State, 644 S.W.2d 69, 70 (Tex.
APP. - Austin 1982, writ rei'd n.r.e.). The court found that "timber"
as used in the certificate has a meaning virtually synonymous with
logs.
By the time logs anil pulpwood leave a wood yard, they are
products that have been prepared for market or converted into market-
able form by the trimming of:branches, by sorting, by reloading, or by
cutting into appropriate lt.ngths,and may already have entered into
channels of commerce.
It is an established ri:Leof construction that an exemption from
the general terms of a stab&e is strictly construed. See Attorney
General Opinion M-507 (1969:. It is our opinion that, inthe event of
a judicial interpretation of the exception for a forestry commodity
prior to the processing of the commodity, the exception would not be
extended to the hauling of l.ogsor pulpwood from a wood yard under the
facts presented to us.
In addition, it is cur opinion that if the legislature had
intended motor vehicles loathedwith logs or pulpwood to be exempt from
the provlsions of article 6701d-11, section S(b), the legislature
would have expressly so provided as it did in article 6701d-11,
section 6(b), when it exeqlted motor vehicles loaded with timber or
pulpwood from the provisions1of subdivision 1 of section 6 of the same
statute. The latter provi;xLon requires the operator or owner of a
motor vehicle to unload the vehicle to the extent necessary to reduce
its weight to the lawful ,maximum before further operation of an
overweight vehicle on the public road, unless the load consists of
livestock. Subdivision 6 oE section 6 was enacted six years prior to
the enactment of section 5(h) and provides that
Notwithstanding:Subdivision 1 of Section 6 of
this Act. the ooa:cator or the owner of a motor
vehicle loaded with timber or pulp wood or agri-
cultural products-in their natural state being
transported from rhe place of production to the
place of market or first processing, the operator
or owner of a vehicle crossing a highway as
provided by Section 5-l/3 of this Act, or the
operator or owner ,of a vehicle crossing a highway
as provided by Section 5-213 of this Act, is not
required to unload any portion of his load.
(Emphasis added).
p. 1621
Eonorable Neal Birmingham - 'Page5 (JM-354)
Unlike the exception in sect:LonS(b). the exemption to subdivision 1
of section 6 expressly applLes to a vehicle loaded with timber or
pulpwood prior to any processing of the timber or pulpwood.
This opinion is lim:.t:edto your request for a statutory
interpretation and does not address any additional issues.
,SUMMARY
The statutory exception in section 5(b) of
article 6701d-11, V.T.C.S., for a forestry com-
modity prior to 1:be processing of the commodity
does not apply t,D a vehicle hauling logs or
pulpwood from a ,alDodyard to a lumber mill or
paper mill.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Nancy Sutton
Sarah Woelk
p. 1622