Untitled Texas Attorney General Opinion ( 1945 )

Hon. W. J. Townrend
County Attorney
Ange lina County
Lufkin, Texas Opinion No. O-6402
Rc: IS It a violation of law regu-
lating motor carriers for a
person to transport own pro-
perty in own motor vehicle
over public highway without
first having obtained a certl-
flCAte or permit from the
Dear Sir: Rallrosd Comml5slon?
We have received your recent request for an opinion and
We quote SALme AS fOhWS:
“I write you for an opinion from your department
covering this situation:
“A party of this section of the state is the owner
of several trucks and has purchased the output of a small
sawmill. He takes ~11 the lumber manufactured by this
concern. He procures A bill of ladtng in his own name
and loads the lumber on hL trucks and transport5 the
same on the state highways. fie has priority rAting5
from the W.P.B. to sell this lumber. He transports
this lumber over the state highways with bill of lading
in his own name, thereafter he sells the same to sun-
dry buyers. He maintains no lumber yard.
“IS this a violation of the state law, involving the
use made of the stat5 hlghway in the transportation of
commodities 7 ”
We assume from your question that you have reference
to a violatlou of the laws regulating motor carriers.
Subsections (g) and (h) of Section 1 of Article 911b, V.A.C.S.,
gives the following definitions:
“(g) The term ‘motor carrier’ means any per-
son, firm, corporation, company, co-partnership, ASSO-
,’
. .
- -
Hou. W. J. Townsend, page 2, Opinion No. O-6402
ciation or joint stock AssOciation, and their lessees,
receiver5 or trustees Appointed by any Court what-
soever owning, controlling, 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 Stak, where in
the course of such transportation A highway between
two or more incorporated cities, towns or villages
is traversed; provided, that the term ‘motor carrier’
as used in this Act shall not include, and this Act
shall not apply to motor vehicles operated exclu-
sively within the incorporated limits of cities or
towns .”
“(h) The term ‘contract carrier’ means any
motor carrier as hereinabove defined transporting
property for compensation or hire over any highway
in this State other than as A common carrier. As
amended Acts 1931, 42nd Leg., p. 480, ch. 277 i 1.”
Subsection (1) of Section la of said Article 91 lb, sets
out certain exemptions, among others, from the foregoing definitions,
AS tOttOWS:
“Sec. la (1) Provided, however, that the term
‘Motor Carrier’ and the term ‘Contract Carrier’ AS
defined in the preceding section shall not be held to
include:
“(a) Any person having A regular, separate,
fixed, and established place of business, other~than
a transportation bucilness, where goods, wares, and
merchandise are kept in stock and are primarily
and regularly bought from the public or sold to the
public or msnufactvred or processed by such person
in the ordinary course of the mercantile, manufac-
turing, or processing business, and who, merely
incidental to the operation of such business, kans-
ports over the highways of this Sk% such goods of
which such person is the bona fide owner by means
of a motor vehicle of which such person is A bona
fide owner.”
Section lb of said Article 911b, provides, in regard to
persons coming within the exemptions set out Ln said subsection (1) of
Section la of said Article, as follows:
“Sec. lb. Any person who transports goods,
Hon. W. J. Townsend, page 3, Opinion No. O-6402
wares, or merchandise under the circumstances
set fort in the foregoing Section la so AS to be
excluded by the terms of said Section from the
definition of ‘motor carrier’ or ‘contract carrier’
shall be deemed to be A private motor vehicle
owner; and such use of the highways by such
private motor vehicle owners, AS herein defined,
shall be construed AS use of the highways for the
. general public and not the use of such highways
for the carrying on the business of transporting
property for compensation or hire. Added Acts
1941, 47th Leg., p. 463, ch. 290, i 1.”
Set;-2 of said Art. 911b, provides as follows:
“No motor carrier, AS defined in the pre-
ceding section, shall operate any motor-propelled
vehicle for the purpose of transportation or car-
riage of property for compensation or hire over
any public highway in the State except in accor-
dance with the provisions of this Act; provided,
however, that nothing in this Act or any provision
thereof shall be construed or held to in any manner
affect, Limit or deprive cities and towns from ex-
ercising any of the powers granted them by Chap-
ter 147, Pages 307 to 318, 1ncIusive of the General
LAWS of the State of Texas, passed by the 33rd~
Legislature, or any amendments thereto. As
amended Acts 1931, 42nd Leg., p. 480, ch. 2?7,
I 2.”
Sec. 3 of said Article 91lb, provides AS follows:
“No motor carrier shall, after this Act goes
into effect, operate as a common carrier without
first having obtained from the Commission, under
the provisions of this Act, a certificate of public
convenience and necessity pursuant to a finding
to the effect that the public convenience and
necessity require such operation. No motor car-
rier shalt. after this Act goes into effect, operate
as a contract carrier without first having ob-
tained from the Commission a permit so to do,
which permit shall not be issued until the appli-
cant shall have in all things complied with the
requirements of this Act. As amended Acts 1931,
42nd Leg., p. 480, ch. 277 13.”
Hon. W. J. Townsend, page 4. Opinion No. O-6402
In the case of New WAY Lumber Co. et al, vs. Smith et al,
96 S. W. (2) 282, involving the Appiicabiiity of Section 1 of said Article
911b to a company carrying their lsmber in trucks to various points in
Texas, for which carrying they made A charge for the expense of delivery,
which was Above the regular price therefor, the Supreme Court of Texas
held AS follows:
“Under the fACtS stAted here the cArrying of
lumber owned by th5 company in its owu trucks
does not exempt 13from the provisions of this law.
This is not A case where the trucks are operated
exclusively within the incorporated limits of a
town or city; nor is it a cAse where the price of
goods delivered is the same AS those undelivered.
On the contrary, it is clearly a case where the
price of the lumber includes a direct charge for
the delivery thereof. The carrying charge is
based directly on the distance traveled And the
weight of the truck. Since the Company receives
compensation for the delivery of the lumber, it
clearly appears thAt the trucks used come under
the definition of a ‘contrrct carrier’, And Are
subject to the provision5 of Article 91 lb.”
After the rendition of the opinion in the above mentioned
case. and because of It, the 47th Legislature of Texas amended said
Article 911b by adding said Sections la And lb, supra, to same. Said
amendment containing the specific exemptions AS above set out.
We believe the solution of your question depends upon
two questions of fact, namely: first whether the price of the lumber
delivered is the same AS that mvered, And if not, then second:
whether the owner of the trucks and lumber in question has a regular,
separate, fixed, And established place of business, etc., so AS to bring
him within the exemption provided in subsection (A) of (l), Section la,
of said Article 9 1 lb.
If the first question is determined in the affirmative,
then under the holding of the Supreme Court the operator in question
would not come within the definition of a “motor carrier” or “con-
tract carrier”. This is of course assuming that no charge at all is
made for such hauling. If, however, the first question is determined
in the negative, And the operator does come within the definition of the
terms “motor carrier” or “contract carrier”, According to said
Supreme Court Opinion, then it must be determined whether or not
such operator comes within the said statutory exemptfon (subsection
(a) of subsection (1) of Section la of Art. 911b, V.A.C.S)
Hon. W. J. Townsend, page 5, Opinion No. O-6402
As said by the Supreme Court of this State in opinions
contained in Vol. 82 S. W. (2) 941, and Vol. 96 S. W. (2) 282, it is A
question of fact, to be determined from all the facts and circum-
stances, as to whether or not the owners operating the trucks are
motor carriers as defined by law, and subject to the provisions
of the Article.
Not having all the facts of your situation before us,
it is impossible to answer your question categorically.
Trusting the foregoing will enable you to solve this
situation, we are
Yours very truly
ATTORNEYGENERALOF TEXAS
By /s/ Robert L. Lattimore, Jr.
Robert L. Lattimore, Jr.
Assistant.
RLL: rt:ps
APPROVED FEB 28, 1945
/s/ G rover Sellers
ATTORNEYGENERALOFTEXAS