Untitled Texas Attorney General Opinion ( 1975 )

THEA~TBRNEYGENERAL
OP TEXAS
AUSCITIN.TEXAS 78711
April 28, 1975
The Honorable Wilson E. Speir Opinion No. H- 593
Director
Texas Department of Public Safety Re: Whether operating
P. 0. Box 4087 authority from the Rail-
Austin, Texas 78773 road Commission must
be obtained for wreck&s
used by the owner of a
garage which includes a
storage area for automobiles.
Dear Colonel Speir:
You have requested our opinion concerning whether certificates
of convenience and necessity from the Railroad Commission are
required under article 911b, V. T. C. S., for certain activities.
Article 911b provides that “specialized motor carriers” must
obtain a certificate. A “specialIied motor carrier” is defined by
section l(i) in part as one who uses “specialized equipment” such as
hoists, winches, etc. However, section 1 l/4 provides:
The term ‘Specialized Motor Carrier’ and ‘Specialized
Equipment’ shall not include wrecker type vehicles
used incidental to or as an adjunct to the carrying
on of the primary business of buying, selling, ex-
changing, repairing, storing, servicing or wrecking
motor vehicles.
You ask whether the following activities would be within this
exception:
1. The operation of a wrecker type vehicle by the owner
of a garage body shop specializing in body work which
p. 2642
.
The Honorable Wilson E. Speir page 2 (H- 5931
garage has a fenced storage area for automobiles;
2. The operation of a wrecker type vehicle by the owner
of a garage specializing in mechanical work which
garage has a fenced storage area for automobiles; and
3. The operation of a wrecker type vehicle when the
owner has no building. but does have a fenced storage
area for automobiles.
Whether any specific situation would involve activities “incidental
to or as an adjunct to the carrying on of the primary business of”‘one
listed in section 1 l/4 will depend on the characteristics of the individual
circumstances and will necessitate a factual determination. Consequently,
we are unable to rule on the three situations to which you make reference.
However, in Interstate Commerce Commission v. S. C. Wholesale-
Warehouse Company, 312 F. Supp. 542 (D. Idaho 1969), the court construed
a “primary business” test to req uire a determination of whether the
transportation operations are in bona fide furtherance of the primary
business or are conducted as unrelated or secondary enterprises.
In our view, there are several factors which will be involved in
this determination. While this is not an exclusive listing, some of these
factors are:
1. Whether the individual is in the business of buying,
selling, exchanging, repairing, storing, servicing
or wrecking motor vehicles.
2. Whether the transportation performed is in furtherance
of the primary business of buying, selling, exchanging,
repairing, storing, servicing or wrecking motor vehicles.
3. Whether the individual business transports or holds out
to transport for anyone other than itself.
p. 2643
-- .
The Honorable Wilson E. Speir page 3 (H-593)
4. Whether the business advertises itself as being
in a carrier business.
5. Whether its investment in transportation facilities
and equipment is the principal part of its total
business investment.
6. Whether revenues received from transportation
services constitute a substantial portion of the
total revenue of the business.
SUMMARY
Section 1 l/4 of article 911b, V. T. C. S., excepts
those who operate wrecker type vehicles incidental
to or as an adjunct to one of the primary businesses
listed therein from the requirement of a certificate
of convenience and necessity. Whether a particular
situation will be within the exception must be determined
on a case by case basis.
Very truly yours,
HN L. HILL
Attorney General of Texas
APPROVED:
DAVID M. KENDALL. First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
lg
p. 2644