Untitled Texas Attorney General Opinion ( 1969 )

Honorable Wilson E. Speir Opinion No. M- 411
Director
Texas Department of Public Safety Re: Definition of “specialized
5805 North Lamar motor carrier” and “base
Austin, Texas 78751 incorporated municipality”
under Article 911b, V. C. S.
Dear Mr. Speir:
In your recent request concerning the above-captioned matter, you referred
to the amendments of the definition of “motor carrier” in Article 911b. Sec. 1 (g),
Vernon’s Texas Statutes, by Acts, 1965, 59th Legislature, Chapter 290, page 572.
Specifically, you request an answer to the following two questions:
1. Does the term “specialized motor carriers” cover only those
carriers certified by the Railroad Commission as “specialized
motor carriers” or does it include any carrier satisfying the
definition in Art. 911b, Sec. 1 (i)?
2. Does the term “base incorporated municipality” mean (1) the
municipality where the shipment either originates or terminates;
(2) the municipality where the trucker or carrier has his base of
operation; (3) any municipality which is contiguous to both the
municipality where the shipment originates and the municipality
where the shipmentsterminates; or (4) something not covered in
W, (2), or (3)7
Replying to your first question, we must look to Article 911b, Section 1, which
states, in part:
“When used in this Act unless expressly stated otherwise:
***
(i) ‘Specialized motor carrier’ means any person owning, con-
trolling, managing, operating, or causing to be operated any
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Hon. Wilson E. Speir, page 2 (M-411)
motor-propelled vehicle used in transporting, over any public
highway in. this state, over irregular routes on irregular schedules,
for compensation and for the general public with specialized equip-
ment, property requiring specialized equipment in the transportation
and handling thereof; provided, that the term “specialized motor
carrier” as used in this Act shall not apply to motor vehicles oper-
ated exclusively within the incorporated limits of cities or towns;
and, provided further, the term “specialized motor carrier” as
used herein shall include those carriers who engage or desire to
engage exclusively in the transportation of livestock, livestock
feedstuff, agricultural products in their natural state, broom corn,
grain, farm machinery, timber in its natural state, milk, wool,
mohair, or property requiring specialized equipment as that term
is hereinafter defined, or any one, or more, of the foregoing
named commodities. ” [Emphasis added. ]
Where the Legislature has itself defined the term, that definition ,Q con-
trolling and one may not resort to a general meaning, practice, custom, or any
other meaning. Central Power & Light Co. v. State, 165 S.W.2d 920 (Tex,
Civ. App. 1942, error ref. ); Humble Oil & Refining Co. v. State, 158 S. W.‘2d
336 (Tex. Civ. App. 1942, error ref. ) Thus, “specialized motor carrier, ” wherever
that term is used in Article 911b, must carry the statutory definition’contained
in Section l(i), unless expressly stated to mean otherwise. The term “specialized
motor carrier” is not expressly otherwise defined in the statute. Therefore,
the answer to your first question is .that the term “specialized motor carrier”
includes all carriers falling within the statutory definition whether certificated
by the Railroad Commission of Texas or not.
Replying to your second question, we refer you to a most thorough discussion
of the legal meaning of the term “base municipality” as used in Article 911b and
found in State v. Lomeda Corp., Civil Docket Number 67-4559-A, District
Court of Dallas County, 14th Judicial Dist. of Texas, October 24, 1968, by
Judge Clarence Guittard. Because of the importance of Judge Guittard’s opinion
and the fact that the judgment has become final and it is unreported and the only
legal authority on this question in Texas, we will quote at length ‘therefrom, with
modifications necessary for continuity:
. . . The State has brought the action for a declaratory judgment con-
struing the 1965 amendment to Article 911b, Vernon’s Texas Civil
Statutes.~ All parties agree that this amendment was enacted to avoid
at least some of the effects of the decision of the Supreme Court in
State v. Ace1 Delivery Service, Inc., 333 S.W.2d 930 (Tex. S. Ct., 1965).
“One of the principal problems is the meaning of the term ‘base
municipality’ as used in Subparagraph (4) of Section 1 (g) of Article 911b.
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em. Wilson E. Speir, page 3 (M-411)
Under Section 1 (g) the term ‘motor carrier’ does not include vehicles
operating between points:
” l(4) Wholly within the limits of a base incorporated municipality
and any number of incorporated cities, towns and villages which are
immediately contiguous to said base municipality.’
“The term ‘base incorporated municipality’ is not defined in the
statute. The following possible constructions have been suggested:
(1) The city in which the carrier maintains its terminal;
(2) The city in which the particular truck involved in the shipment
is based;
(3) The city where the shipment in question originates . . .
(4) Any city through which a shipment passes . . .
(5) Any principal city around which small municipalities are clustered. . .
(6) Any city about which the Railroad Commission has consmued a
“commercial zone” under authority of the second proviso of this section
of the statute.
“[Apparently] the term ‘base municipality is taken from the field
of Federal motor carrier regulation under Part II of the Interstate
Commerce Act. That act partially exempts from Federal regulation:
*’‘The nansportation of passengers or property in
interstate or foreign commerce wholly within a munici-
pality or between contiguous municipalities or within a
zone adjacent to and commercially a part of any such
municipality or municipalities . . , ’ ” 49 U.S. C. A.
Paragraph 303 (b) (8).
“Pursuant to that act, the Interstate Commerce Commission has,
with respect to various named major cities, defined zones ‘adjacent
to and commercially a part of’ such cities, and has also adopted a
general order, known as ‘MC-37’, the material provisions of ~which
are as follows:
” ‘Paragraph 1048.101. Commercial zones determined
generally, with exceptions. ’ ”
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Hon. Wilson E. Speir. page 4 (M-411)
” ‘The commercial zone of each municipality in the
United States . . . within which the transportation of
passengers or property, in interstate or foreign com-
merce . . . is exempt from all provisions of Part II,
Interstate Commerce Act, . . . shall be deemed to
consist of:
” ‘(a) The municipality itself, hereinafter called the
base municipality;
(b) All municipalities within the United States which are
contiguous to the base municipality;
(c) All other municipalities within the United States and
all unincorporated area within the United States which
are adjacent to the base municipality as follows:
” ‘(1) When the base municipality has a population less than
2,500 all unincorporated areas within two miles of its cor-
porate limits and all of any other municipality any part of
which is within two miles of the corporate limits of the base
municipality,
(2) When the base municipality has a population of 2,500 but
less than 25,000. all unincornorated areas within 3 miles of
its corporate limits and all 0; any other municipality any part
of which is within 3 miles of the corporate limits of the base
municipality.
(3) When the base municipality has a population of 25,000
but less than 100,000, all unincorporated areas within 4
miles of its corporate limits and all of any other munici-
pality any part of which is within 4 miles of the corporate
limits of the base municipality, and
(4) When the base municipality has a population of 100,000
or more, all unincorporated areas within railes of its
corporate limits and all of any other municipality any part
of which is within 5 miles of the corporate limits of the base
municipality, and . . . ’ ”
“The term ‘base municipality’ seems to have originated with
this order. In its opinion delivered in connection with promul-
gation of the order, Ex Parte No. MC-37, Commercial Zones and
Terminal Areas, 46 M. C. C. 665 (1948), ‘at p. 684, the ICC ex-
plains in a footnote:
” ‘The term base municipality will be used hereinafter to des-
ignate the municipality whose commercial zone is under con-
sideration. ’ ”
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Hon. Wilson E. Speir. page 5 (M-411)
“The ICC further explains that the commercial zone of each
municipality is separately determined, and may, therefore over-
lap other commercial zones:
” ‘The result is that the commercial zone of any parti-
cular municipality will overlap to some extent the
zone of each contiguous or closely adjacent munici-
pality. This should, however, cause no confusion.
The statute exempts only purely local operations with-
in any one commercial zone. Where such zones over-
lap, the exemption of local operations within each may
not be tacked or combined to cover operations not con-
fined to a single zone.
” ‘It will also happen in some instances that the com-
mercial zone of a small municipality, as herein deter-
mined, will be completely contained within the com-
mercial zone of some adjacent larger municipality.
When this occurs, the smaller zone becomes unim-
portant and, as a practical matter, may be discharged,
for transportation confined to it will also be per-
formed wholly within the larger encompassing zone. ’ ”
“It thus appears that under MC-37, every municipality has a
‘commercial zone’ with respect to which motor carrier operations
are partially exempt, even though interstate commerce may be
involved, and every municipality is, with respect to such ‘com-
mercial zone’ a ‘base municipality.” Thus under the facts
stipulated here, for purposes of Federal regulation, Dallas is
a ‘base municipality’, which has a ‘commercial zone’ con-
sisting of the area within its corporate limits, all areas within
the corporate limits of immediately contiguous municipalities,
all unincorporated areas within five miles of the Dallas corpor-
ate limits, and all other municipalities any part of which are
within five miles of the Dallas corporate limits. Such a zone
would include Irving, Grand Prairie, and Garland. Likewise,
each of these cities is a ‘base municipality’ under MC-37,
with a commercial’zone similarly defined, except that the
distance factor would be four miles or less instead of five be-
cause of the smaller population. The ‘commercial zone’ of
Irving, under Federal regulation, would include Dallas, Grand
Prairie, Arlington and Fort Worth, but not Garland or Benbrook.
“The 1965 amendment to Article 911b, now under con-
sideration, was evidently drafted with the Federal statute and
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Hon. Wilson E. Speir, page 6 (M-411)
ICC regulations in mind, since it employs the terms ‘base
municipality’ and ‘commercial zone, ’ which had not previously
been used in state legislation. However, we cannot say that
these terms are used in precisely the same sense they are
used in the Federal statutes and regulations. Under the Fed-
eral law each municipality has a ‘commerciai zone’, and the
ICC order merely defines such zone; whereas under Article ollb,
a ‘commercial zone’ exists only where the Railroad Commission,
after notice and public hearing, finds a necessity for such a
zone and prescribes its limits.
“The question is, then, does ‘base municipality’ under
Article 911b mean only a municipality as to which the Com-
mission has by formal order prescribed a ‘commercial zone?’
I do not believe this is what the Legislature intended, for two
reasons. In the first place, the provision concerning ’com-
mercial zones’ expressly excludes ‘operations of carriers of
commodities in bulk in tank vehicles and all specialized motor
carriers. ’ No such exclusion is prescribed with respect to the
area within a ‘base municipality’ and its contiguous municipalities.
In the second place, the provision concerning ‘base municipalities’
is set forth as the principal provision of Subdivision (4) of Sub-
section (g) of Section 1, whereas the provision concerning ‘com-
mercial zones’ is contained in a proviso which follows that prin-
cipal provision. It would be illogical for the meaning of the
language in the principal provision to depend on the proviso, and
I cannot assume that the Legislature so intended.
“I conclude, therefore, that the provision concerning ‘base
municipalities’ must be construed independently of the proviso.
As so construed, with the background of MC-37 in mind, it
seems that ‘base municipality’ probably means any incorporated
municipality in the state, when considered in connection with
the incorporated municipalities fmmediately contiguous to it.
So considered, any such municipality, with its immediately con-
tiguous municipalities, constitute a statutory zone, like the area
defined in the three preceding enumerated subdivisions, within
which property may be transported without regulation. In addition
to these four statutory zones of non-regulation, the second proviso
following Subparagraph (4) authorizes the Railroad Commission
to prescribe zones of wider area, but not applicable to tank vehicles
and specialized carriers.
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Hon. Wilson E. Speir, page 7 (M-411)
“Under this construction of the statute, the ‘base municipality’
is not necessarily the municipality in which the carrier maintains
its terminal, or where the trucks are based, or where the ship-
ment originates, or which is surrounded by smaller municipalities:,
or upon which a ‘commercial zone’ is constructed by the Railroad
Commission. Rather it is any municipality to which other munici-
palities are immediately contiguous. A shipment between points
within the area of such ‘base municipality’ and its immediately con-
tiguous municipalities is exempt from regulation under the 1965
amendment to Article 911b, regardless of whether the shipment
originates in the ‘base municipality’ or one of its contiguous
municipalities. Indeed, the shipment need never actually
pass through the ‘base municipality’ if the point of origin
and point of destination are both within municipalities which are
contiguous to the ‘base municipality. ’ . . .
“Application of this construction to the different fact
situations stipulated in this case results in the following con-
clusion: .I
“A. a, through Fort Worth, to Benbrook. This ship-
ment is exempt because m Worth, ?iie ‘base municipality, ’ is
contiguous to both Irving and Benbrook.
“B. Fort Worth, through Arlington, Grand Prairie and
Dallas, -Garland. This shipment is not exernpms
it is with a ‘commercial zone’ prescribed by the Railroad
Commission, because there is no ‘base municipality’to
which both Fort Worth and Garland are contiguous.
“C. Irving, through Grand Prairie and Arlington, to
Fort Worth. This shipment is exempt because lrvingis
contiguous to Fort Worth, and either may be considered
the ‘base municipality’. The points of origin and destination
are controlling, and the fact that other municipalities may be
traversed is immaterial. (It may be noted thatwhere the
point of origin or destination is in an unincorporatedarea, it
is material under Subparagraph (3) to determine whether
the shipment passes through more than one incorporated
area.)’
“D. m. This shipment is exempt because
the two cities are contiguous and either may be considered the
‘base municipality’.
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Hon. Wilson E. Speir, page 8 (M- 411)
“The question remains as to whether defendant Lomeds may
carry household goods from Benbrook to Garland without regulation.
As noted in example B above, the question depends on whether
such a shipment would be within the ‘commercial zone’ provision
of Article 911b. It is stipulated that the Railroad Commission has
by its General Order No. 45, established a ‘commercial zone’
which includes Irving, Fort Worth, Benbrook, Arlington, Grand
Prairie, Dallas and Garland. Thus the ‘commercial zone’ would
include both the point of origin and the point of destination,
and the question is whether such transportation of household
goods would be the operation of a ‘specialized motor carrier,
which is excepted from the ‘commercial zone’ proviso. This
term is defined in the Subsection (i) of Section 1 as follows:
” ‘Specialized motor carrier’ means any person .’
owning, controlling, managing, operatin or
---+
causing to be operated any motor-prope led
vehicle used in transporting, over any public
highway in this state, over irregular routes on
irregular schedules, for compensation and for
the general nublic with snecialized eouinment.
property requiring specialized equipment in the
transportation and handling thereof; provided,
that the term ‘specialized motor carrier’ as
used in this Act shall not apply to motor vehicles
operated exclusively within the incorporated limits
of cities or towns; and, provided further, the term
‘specialized motor carrier* as used herein shall
include those carriers who engage or desire to engage
exclusively in the transportation of livestock, livestock
feedstuff, agricultural products in their natural state,
broom corn; grain, farm machinery, timber in its
natural state, milk, wool, mohair, or property re-
quiring specialized equipment as that term is here-
inafter defined, or any one, or more of the fore-
going named commodities.
” ‘For the purpose of this Act, the term ‘specialized
equipment’ includes, but is not limited to block
and tackle, hoists, cranes, windlasses, gin poles,
winches, special motor vehicles, and such other
devices as are necessary for the safe and proper
loading or unloading of property requiring specialized
equipment for the transportation and handling thereof.
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Hon. Wilson E. Speir, page 9 (M-411)
” ‘For the purpose of this Act, the term ‘property
requiring specialized equipment’ is limited to (1)
oil field equipment, (2) household goods and used
office furniture and equipment,(3) pipe used in
the construction and maintenance of water lines and
pipelines, and (4) commodities which by reason of
length, width, weight, height, size, or other physical
characteristics require the use of special devices,
facilities, or equipment for their loading, unloading,
and transportation. ’ ”
“Section 5a of the statute provides:
” ‘The Commission is hereby given authority to issue
upon application’and hearing as provided in this
Act, to those persons who desire to engage in the
business of a ‘specialized motor carrier, ’ certi-
ficates of convenience and necessity in the manner and
under the. terms and conditions as provided in this
Act. . . ,’ I’.
” ‘Section 5b. No motor carrier shall transport
oil field equipment, household goods, used office
furniture and equipment, livestock, milk, live-
stock feedstuff, grain, farm machinery, timber
in its natural state, wool or mohair, on any high-
way in this State unless there is in force with
respect to such carrier and such carrier is the
owner or lessee of a certificate of convenience
and necessity issued pursuant to a finding and
containing a declaration that a necessity requires
such operation or a contract carrier permit
issued by the Commission, authorizing the trans-
portation of such commodity or commodities; . . . ’ ”
“It is stipulated that defendant Lomeda is engaged in the
business of transporting household goods and other com-
modities for compensation or hire. It contends, however,
that it is not a ‘specialized carrier’ excepted from the ‘com-
mercial zone’ exempted because it is not a ‘certificated’
specialized carrier. Under Section 5a (b), no ‘motor carrier’
is permitted to transport household goods on zanyhighway
without a certificate. Lomeda his in violation of that pro-
vision if it is within the definition of ‘motor carrier’ in Sub-
section (g) of Sectionl, and it is within that definition unless
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Hon. Wilson E. Speir, page 10 (M-411)
it is excluded by one of the subparagraphs or provisions
of that subsection. When it transports household goods
from Fort Worth to Garland, it is not excluded by the
‘base municipality’ provision in Subparagraph (4), as I
have already found. Neither is it excluded by the ‘com-
mercial zone’ provision, because it is engaged in an
activity, namely, transportation of household goods, for
which a specialized carrier certificate is required by the
other provisions of the statute above quoted.
“Apparently it is Lomeda’s contention that the
reference to ‘specialized motor carrier’ in the ‘com-
mercial zones’ ~provision means ‘that specialized carriers
with certificates to serve a certain territory cannot extend
their operations within ‘commercial zones’ beyond the
territory authorized in their certificates. The proviso would
seem to have this effect, in so far as carriers with certifi-
cates are involved, but I see no basis for holding that the
exclusion is limited to carriers with certificates. So far
as I can tell, it is intended to apply to both regulated and
unregulated carriers which carry property, such as house-
hold goods, requiring special equipment. The fact that the
‘tacking’ proviso immediately preceding the ‘commercial
zones’ proviso applies only to ‘motor carriers authorized to
serve’ the areas exempted does not indicate an intention to
limit the reference to ‘specialized motor carriers’ in the ‘com-
mercial zones’ proviso to carriers which operate under
certificates. The absence of any limiting language indicates
that no special advantage for unregulated carriers was in;
tended. I conclude that no carrier of property, including
household goods requiring specialized equipment, can oper-
ate without a certificate unless its operations fall within one
or more of the other exemptions in the statute.
“To the extent that Lomeda transports goods other than
property requiring specialized equipment, it may operate
throughout the Dallas-Fort Worth ‘commercial zone. ’ Con-
sequently, it may carry such other porperty from Fort
Worth to Garland without a certificate. ” [Emphasis added. ]
While the Lomeda case, supra, is limited to its particular facts, we believe ti
the holding anming is sound. We conclude that “base municipality” is
legally defined as any municipality to which other municipalities are immediately
contiguous.
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Hon. Wilson E. Speir, page 11 (M-411)
SUMMARY
“Specialized motor carrier” means any carrier coming within the
statutory definition contained in Article 911b, Section 1 (i), V. C. S., regardless
of whether certificated by the Railroad Commission.
‘Base municipality” as used in Article 911b, V. C. S., means any municipality
to which other municipalities are immediately contiguous.
era1 of Texas
Prepared by James H. Cowden
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
MONW Clayton
Bill Allen
Houghton Brownlee
Sam McDaniel
W. V. Geppert
Staff Legal Assistant
Hawthorne Phillips
Executive Assistant
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