Untitled Texas Attorney General Opinion ( 1947 )


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  • 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
    

Document Info

Docket Number: V-234

Judges: Price Daniel

Filed Date: 7/2/1947

Precedential Status: Precedential

Modified Date: 2/18/2017