Untitled Texas Attorney General Opinion ( 1968 )

Ron. Robert 0. Smith Opinion No. M- 247
county Attorney
Travis County Courthouse Re: Whether the Texas Motor
Austin, Texae Carrier Act is violated
when a company picks up
and delivers metal belong-
ing to its customers for
galvanization under the
Dear Mr. Smith: particular facts stated?
Your letter, and brief, of June 12, 1968, requesting
an opinion of this office presents the following question:
"Does a company violate the Texas Motor
Carrier Act when it picks up and delivers
metal belonging to its customers for the
purpose of galvanizing the same when the
follwing facts are shwn to exist, to-wit:
(I) the ccmpany does not have a certificate
of convenience and necessity issued by the
Texas Railroad Comdss~on; (2) the trans-
portation equipment is wned by the colnpany
providing the galvanizing process; (3) s
charge is made by the canpany for the trans-
portation of the metal,to and from the company
plant for the galvanizing process; (4) the
same charge is made for the galvanizing pro-
cess whether the company or the custoarsrtrans-
rts the metal to and~from the COWMY plant;
) the transportation:of such metal by the
company requires the use of a highway between
two or more incorporated cities in the State
of Texas: (6) all of the transportation would
be within the State of Texas." (E3nphasisadded).
No "motor carcierw shail operate any motor-propelled
vehicle for the purpose of transportation or carriage of
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Ron. Robert 0. smith, page 2 (~-247)
property for compensation or hire over any public highway
in the state without having first obtained from the Rail-
road Commission a certificate of public convenience and
necessity or a permit to do so. Seca. 2, 3, 5 & Sa(b),
Art. 911b, V.C.S.
"Motor carrier" is defined by Sec. l(g), Art. 911b
as follows:
"(g) The term 'motor carrier' means any
person, firm, corporation, company, co-partner-
ship, association or joint stock association,
and their lessees, receivers, or trustees ap-
pointed by any court whatsoever Owning, con-
trolling, managing, operating, or causing to
be operated any motor-propelled vehicle used
in transporting property for compensation or
hire over any public highway'in this state,
wze in the course of such transportation a
highway between two or more incorporated cities,
towns, or villages is traversed." (Emphasis
added.)
Applying the foregoing "motor carrier" definition to
the facts submitted, we find that the controlling question
confronting us is whether the company would be transporting
property for compensation or hire.
Since no additional charge is made by the company
for picking up and delivering these materials and the
price paid by the custcxnerfor the galvanizing service
is the same whether the material is transported by the
company or by other means , we agree with your conclusion
that the company is not transporting property for com-
pensation or hire nor otherwise operating as a *motor
carrier" such as would be reaulated bv the Texas Motor
Carrier Act. New Way Lumber Co. v. &ith, 128 Tex. 173,
96 S.W.2d 282 m6); Attorney General's Opinion No.
O-2795 (1940).
SUMMARY
A company picking up and delivering metal
belonging to its customers for galvanization
without additional charge is not transporting
property for compensation or hire in violation
of Article 91lb, Vernon's Civil Statute’s, under
the particular facts stated.
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,
lion.Robert 0. Smith, page 3 (M-247)
truly yours,
Prepared by Monroe Clayton
Aaefst&nt Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
Alvin Zimnerrnan
Bill Allen
Lonny Zwiener
Ralph Rash
EXECUTIVE ASSISTANT
A. J. Carubbf, Jr.
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