Untitled Texas Attorney General Opinion ( 1947 )

Hon. D. D. Williams Oplnlon No. v-234
County Attorney
Throekmorton County Re: Additional Registration
Throckmorton, Texas of Motor Vehicles, Arti-
cle 6679-2, v. c. s=,
and wfthholdlng of ad-
dftlonal wefght receipts
by State Rlgbvag Depart-
men%.
Dear Sir:
Your request for an opfnlon reads in part as
follovs~
o Does an ovner or operator,of a com-
‘“P
mercial vehicle have %o pay additional weight
fees fn the County of the owners residence
when he 1s arrested for overloadfng in a coun-
tg other than that of such owner"8 residence,
or can he proceed to the nearest county seat
and pay such addltfonal weight fees. on %wo
occasions fn the year 1946 duMmg the grain
harvest season, State Hlghwa~ Patrolmen ar-
Bested and brought operators of commercial
vehicles Into the Tax Assessor-Collector of
this county to pay additfoual weigh% fees aft-
er the operators bad paid fines for overload-
ing. In bo%h cases %he operators lived or
resided In counties considerable dls%anc.es
from here and the owners had registered %he
vehicles in such dls%an% counties. The Tax
Assessor-Collector refused to issue such ad-
dftfonal vefght fee receipt or receive the
money therefor.
“2 .
Does the Tax Assessor-Collector of
Throckmor%onCom%y, Texas, have the author-
ftg to Issue addftional veigbt fee recefpts
and receive the money therefor on comer-elal
vehfcles which were no% registered oHgfnally
In this county but which are being operated
in this county during seasonal work, such as
moving the grain crops?
Hon. D. D. Williams - Page 2
“3. Can the State Hlghvay Department,
Motor Vehicle Dlvlslon, limit the Tax Assba-
sor-Collector of Throckmo~r;o~ uoumy, Tbxaal,
to ten (10) additional veight receipts, uhS.&
vi11 only take care of five trucks with their
trailers? There are sixty (60) trucks aud
truck-tractors registered ins this county.
Practically 811 of them will be required to
pay additional weight fees during th6 coning
grain narvest. The motor Vehicle Dltilsion
of theState Highway Department has sent only
ten (10) additional weight fee receipts to-
the Tax Assessor-ColPectoP of this county and
refuses to sena,any mom. It Is definite
that this county iand the Assessor-Collector
vi11 need more than that mmber of receipts."
It is arsuma fop the purpcme of this opinion
that by the use of the vord "operator" as contained in
yatw first o_aes%iannW-w'& pm intend to deskgnate a per-
3on who comet wfthfn ~tbe atatu%org defhitfon of "ovnern
as'deflned la Article 66750-1, Section (L), V%rwmy~
Civil statutes.
Article 6679-2, Vernon's Civil Statutes, pro-
vides In ppt as follows:
"Ever ov ep of a motor vehicle, trail-
er or ZZi??-tra
+ ler used orto be tied upon~
%h% Jwbfal."lo
?ai,#@l%wpof %MS sQil;e _--
&all a -
p& each pep to the ;tete l&g&p Denare
ment thrcmgb the Coum y'Tax Cal ector -- o? the
in which he reaides for the registra-
P-ion of each suchvmovned or contr'ollbd
by him for the ensuing or current caleudy
year or unexpired portion thereof e . .
(mptmml ours)
It has been re atbdlg held by the court& of
thin State that Article f?67p-2, V. C. S., requires an
owner of 8 mcotos we::h%~c,,le
of hfs resfdence.
f2d\ 277 (Tex. Cfv.
Previous oplnlons
of.the Attorney General have been unlfbla in follov-
lug the rule announced in these decisions. See, OJ&-
LOU 0 npyl dated February 14, 1940, and O~lnlon o-2950,
dated-Ha& 18, 1940, enclosed herewith.
Hon. D. D. Wflllams - Page 3
The factual basis for your first question
differs from that presented In each of the above de-
cisions In only one particular. Under the facts stat-
ed by you the vehicle ovner ha3 registered hi8 vehicle
in the county of his residence for the current regls-
tration year, but he Is subsequently arrested In a
county other than that of his residence for operating
said vehicle over the public highways with a ,total
gross weight In excess of that for which %he vehicle
was originally registered. The question $&,,s py3 _,
serlted Is whether, the vehicle owner may apply for an5
c;tain additional registration on his vehicle In the
co~ntg where arrested, and where the vehicle is ac-
tually being operated, or must he obtain such addl-
tP_ona1 registration in the county of his residence.
We ,are unable to see ar-y distinetlsa "x-
tsroen the original reglstratlon of a motor vehicle
by Its owner aad a subsequent registration of the
same reMale for an aaal%l0na~ amo3ct in ,wro3s weight,
~:;icle 66:5a-~, supra, expressly fixes t.56 si35 of
registration as the county In which the owner reslde5<
Ro exception is contained In the Act regarding sub-
sequent and additional regfstrations w:.thin '"hecur-
rent registration gear whereby the gross reglst-tred
carrying capacity of the vehicle is Increased, LS<:-
wise, nothing is contained in the Act authorizing
the owner or operator of a motor vehicle, In case of
arrest for underweight registration, to proc;eed to
the neares% count:y seat and there, regardless of
whether it Is the county of his residence, secure
additional registration on said vehicle.
The reason for fixing the sltus of regls-
tration as the county of the owner'3 resld9nce is
clearly and tersely stated in M:ller v* Foard,, aupra,
wherein %be court said:
"Article 6675, R. C. S., repeeled 'be-
fore the transaction here involved occurred,
permitted the ovner of a motor vehicle to
pay registration fees at 'the office of the
county tax oollector of the county fn vhlch
he resides or in which the vehicle to be
registered 13 being operated.,i
"The omission of the language 'Or In
which the vehicle to be registered la being
operated' from article 6675a-2 . . . to-,
gether with the provision of article 6@5a-1O
Eon, D. D. Williams - Page 4
autborfsing each county to retafn all reg-
ietpation See8 collected untfl the amount
fop the eur~en~t year shall have reached me
sum of $50.000. said sum to he deoosited to
the twe~f%~aP its road amI SsrMge-frmcl,
clearly maniSests the fntention of the Leg-
~islature %o direct and monlre su~2tnpeg&
tmtion Pee8 to be collectedl by tbe,t.ax
collector of the county in vhlch the ovner
OS the vehicle lives.
'"ISthem s%a%utes Sal1 to accomplish
sW?h Diii+w88. it fO_llOVs tk4t the PaadS Of
gee county may be received and auuropriatecl
bg another ooun%g." (Emphasis ours) -
The reasoning and holding of ttme tour% fn
%he above quoted portion of Its decls'lon appl9ea with
equal force end effect to subsequent and additional
regietratfons to Increase the amount of the author-
ized registered carrying oapcitg of a pan%icula~ mo-
tor vehicle. It was heretofore held by the Attorney
@llePal illODi~fOQ x0. 0-3645 efELtt?d.~WS 1.4, @kb,
%hg% a commeroial vehicle ,ownGd and regis%ered,bg a
corporation fn the county of its domfofle, but ac-
tuallg operated fn another county, must be registered
for an additional gross weight increase in the couu-
ty of the corporation's domicile rather than in the
county where the vehicle was operated. In this con-
nection it fs fnterest"sng to n5%e %ha% the present
Leglslsture has refused to enact a bill which vould
expressly au%horllze the owner OS a motor vehicle to
apply for and receive addltlonal weight registration
Increases in a county other than that of the owner89
residence. See, House Journal, Fiftieth Legislature,
Regular Session, Ap~ll 1, 1947, pages 1233, X234.
Baaed upon the above authorfties, and Sol-
1ovSng the rule announced in O~inioa Ro. O-3645, storm
are advised that the ovner and oneerator of a'comms~-
olal vehicle must apply for and receive from the ~tax
collector OS the county in which the ovner haa MS
residence any additional registration receipt in-
creasing the gross reglatered carrying capacity of
said vehicle, and this is true regardless of the
place where the vehicle Is actually being, operated.
In anaver to your second question, asd in
connectfon wlthbur discussion thereof, we assume
.
. . -
Hon. D. D. Williams - Page 5
that the legal resldence of the owner of the motor
vehicle was originally registered SOP the current
reglstratlon year. Thls la in each lnsteime some.~
county In this State othevvthaii Throckmorton Couu-
ty. We also assume that-the owner of such motor ve-
hicle would voluntarily pay the additional regls-
tration fees to the Tax Collector of Throclbsorten
County In the event he Is authorized to receive the.
same, and thus thesole question presented in vheth-
er said Taxi Collector has the authority to accept
such registration fees.
This question has been answered in de%all
by the oourt ln~Mllle~ v. Foard, supra. In that
case. one of the issues nscessary to the decision
lwoived the liability of;cer%alk stieties on an
'official bondfor registration fees collected by
ths Tax Collector of Foard County in registering
motpr vehicles belonging to residents In this States
o$Ijer than Foapd County. In deciding this issue
the``court said:
"The Texas authorities recognixe the
rule which dls%lnguls,hes the liability of
a surety for the acts of an officer for
which they are liable and for acts r0r
Which they ape no% Iiablez
.~ .
"'The former a& termed acts done
"vlrtute officil," and the latter "coiore
ofrlcll." The dlstinc%ion Is this: Acts
dotie "virtute oSflcll"'are vhen they are
vithln the authority of the offlCeP, but
when doing it he exercises that authority
improperly, OF abuses the confidence which
the law reposes In him; whilst acts done
n~olore offlcll" axe where they are~of
such nature the office gives hl+ uo au-
thorltg to do them.' Cold v~,Campbell
54 Tex.,Civ. App. 269,; 117 9,.W,. 463, 468.
”. . .
We are not uumlndful of the rule
which holds sureties on official bonds
liable for 113egal taxes VmdiXle~I fees
voluntarily paid, but the registratlou
.fees in controversy were legal fees pay-~
able to the proper counties for their road
Eon. D. D. Williams - Page 6
and bridge funds, and -their collection by
Que R. Miller was a diversion thereof, a&
his acts in so doing wepa. not authorizedor
sanctioned~by lav. Thes were not lllexal
fees voluntarily vsld. bnt were legal fees
unlawfully eolleatqd urde`` the color of of-
rice and not in the nerrormance 0s official
duty. If this conclusion 1s correct, the
appellant in this case was not responsible
for the $5,221.12 Fegiswation fees collect-
ed by Que R. Miller Sromovners of motor ve-
hicles residing in Texas but not living in
Foard county." (Ruphasls ours)
In our opinion the above decision is a full
and complete answer to the question presented, and ve
therefore answer your second question In the negative.
Your third and last question relates to the
power and authority of the State Highway Department to
limit the number of additional weight registration re-
ceipts 1% has delivered to the Tax Collector of Throok-
morton County for the current year. Bathing Is con-
tained In the Pacts submitted by you~lndicating that
the State Highway Department has refused to issue, by
and through the Tax Collector OS Throckmorton County,
an additional weight certificate and receipt to any
actual motop vehicle owner who Is a resident of Throck-
morton County. Therefore , your third question la llm-
ited to a determination of vhether the State Highway
Department OF the county tax collector is to have the
final authority, as betveen the two, In determining
the number of additional weight receipts to be delir-
ered to the tax collector.
Artlole 6675a, Vernon's Clvll Statutes, plac-
es the duty of motor vehicle registration upon the
State Highway Department. When the county tax collec-
tor"acts, either ln the original registration QS a ve-
hicle, or in the issuance of addftional registration
receipts increasing t'heeu%borized gross registration
weight of the vehiole, he acts onPy as the agent of
the State Highway Department.
Article 6675a-2, supra, expressly provides,
in part,as Sollowa:
II
Shall aDDly each year t0 ttlC?
State Rlihvag Department through the county
Hon. D. D. Wllllams - Page 7
tax collector. . . ." (Emphasla ours)
Article 6679-12, V. 0. S., provides, IU
papt, as,followa~
"The DMartment shall iiiae. oi cause
to be issued, to the owner of each vehicle
reglstered.Wder the p~ovfelons of this act
a license receipt which shall Indicate . . ."
~Emphaals ,ours) i
The Act also provides for the application to
be made to the county tax collector who 1s the
one authorfoed to Fecelw the license fees provl ed la
"91z
the Act. (Buphasfa 0``s)
It will be observed froin the abow quoted
p~oo1slons of Artldle ,6675a, aupra, that the appllca-
tion for registration la made to.the State Highway De-
.par%meitt,which Is .to lsaue a license receipt and ll-
tense plates. This Is also true of appllcatloas for
additional registration weight receipts. The Act.plac-
es the 'dizt;r
on f&e State Highway Department to receive
the applications and issue th;e license receipts. It IS
evident throughout the Act that the tax Collector la
merely acting as agent for the State Highway Department
In receiving such appllcatlona and laaulng license re-
ceipts. It,is likewise evident from a reading of the
entire Act that the dut7 of enforcing the provlsloaa
of the Act is islpoaed upon the State Highway Depsrtmeat.
Bowhere ih the Act la it provided whose word
is to be final in case of dispute between ~the taxi col-
lector end the State Highway Department aa to the num-
ber of'addltlonal r8glstratlon weight receipts to be
dellv-eped to a particular county and the number that
meg be needed. It is true that the Act taken as a
whole probably contemplates that the tax collector la
to Issue additional reglatratlon weight receipts upon
applieatlons received by him, but at the same time f%
fs also contemplated that the tax collector will not
fssne such receipt8 to a motor whlcle owner who is
no% a resident of the county, or who does noti other-
wise come within the Pequlrements of the law.
We ape unable to find any authorlity which
authorizes the State Highway Department to refuse to
furnish additional weight receipts, or other fows, to
any county baaed on a supposltlon that the %ax collec-
top of the county will violate the provisions of the
Hon. D,. 9. ,)Jllll~p - Page 8 ‘::.
IUO%OP vehiCl8 P8&4%ra%lOn laWs. On the other hand,
the State Highway Department, being chaPged with the
duty of, proper enfoPcemen%'of OUT reglatra%lon laws,
certainly has the right and ,duty to supervise the work
of,l%a agen,%s In such a manner as to prevent any vlo-
latlons of %h8 law by Its agents. We know that the
Highvay.,DepaP%ment does, as a matter of pPac%lCe, from
time ,%o'time check the registrations of differen,t coun-
ties and suc,h checks In many Instances disclose vio-
1atLona of the law.
Inasmuch as the Act places the duty of the
enforcement of the Act on the State Highway Depart-
men% rather than on %h8 tax c!ollectoP, acting in the
capaCl%y of an agent for the DepaPtment, it Is OUP o-
pinion that.any dispute as between the tax collec%cr
and the Dei:zP%men%, aa to the number of additional
reglstpatfon weight receipts a particular, county Is
to receive, should be &ecld@ by %h8 Department. 1%
was previously decided In ODinion No. 2050, dated
March 10, 1940, that in any dlspU%8 as to the par-
%lculaP classlfiCa%iOn Of a vehicle as between the
tax collector snd the State Highway DepaPt4nen%, the
final authorftg would rest with the Department. The
reasons ateted in that opinion apply with equal foroe
to OUP hoidlng on the instant queetlons. The author-
ity of the State Highway Department la conneotlon
with this question ie aa between the State Highway
Department aud the county tax oollector, and nothlng
herein shall b8 constrmed as prohibiting an appeal to
the courts of this Stat8 by a motor vehicle owner
from a decision of the State Highway Depar%aent re-
fuelng an additional weight receipt.
SIRMARY
1. '
The owner'and operator of a com-
mercial mbtor whlole must register said
vehicle for additional weight lnhreaaes In
gross oarrylng oapaclty in the county of
the owner'a resldenoe ra%her than In the
county where the vehicle Is in actual oper-
ation. (Following Article 6675a-2, V. C. S.)
2. The county tax collector of Throck-
morton County Is no% authorized to Pesceive
registration feee and Issue additional weigh%
registration receipts therefor on commercial
whicles owned by the eeldent of another
.
Hm. D. D. Wllllama - Page 9,
counts, and originally mglatered la th8
countr of the owner'~ residence.
Yours very truly
',A~ORNJ3YGERERAL OF TEXAS
-.
Charles D. Matham
Assistant
Enclcsurea APPROVED:
ii&& 2d
ATTORNEY GENFXAL