Col. Homer Garrison, Jr. Opinion No. C-225 Director Department'of Public Safety Re: Whether, under H. B. 31, Acts Austin, Texas 58th Legislature, a contract carrier's.permitauthorizing the transportationof a c&r- tain chemical used In treat- lng 011 wells, is required OS an Independent contractor, under the stated facts and Dear Col. +rlaon: relat.edquestion. You have recently requested of this oSSiCe an opinion on the following questions: "QueatioqNo; 1: Under the conditions out- lined In situation No. 1, Is a contract carrier's permit authorizing the transportationof the chemi- cal used in treating oll.wells required of the Independent oontractor who has entered an agreement as caretaker of a number of oil wells when such transportationof the chemical for which he Is accountable IS merely Incidental to performance of the total-contract? "Question No. 2: Under the condl&.ons out- lined in situatio'nNo. 2, is a contract carrier's permit authorizing the transportationof the pipe Sittings used in pipe Sitting work required of the contractor who .hasentered an agreement to perform the necessary pipe Sitting work at 011 well or oil storage sites.when such transportationof the Sit- tings for whi'chthe contractor is &countable is merely Incidental to performance of the total contract?" The fact situations you refer to are as Sollows: "Situation No. 1: An individual enters an independent contract with an oil company as care- taker of a number OS oil wells. His responsibilities -1094- Col. Iiomer Garrison, Jr., page 2 (C-225) under such a contract are to see that 011 Is being pumped, gauge storage tanks or divert 011 through pipelines and any other services ordinarilyperformed by a caretaker. One of these services la the requirementthat some or all oil wells for which such caretaker Is responsible be treated at Intervals with a small amount of special chemical. "This chemical Is checked out to the caretaker at the 011 company warehouse or storage dock In a 55 gallon barrel. The caretaker transports this chemical In his pickup along with any tools he might need to the various oil wells he has cdtitractedto service. It Is 0" understandingthat a barrel of t&La chemical Is used In approxl- mately two weeks and that during tNs time the barrel remains on the car&aketi'struck or pickup. This barrel Is refilled or re- placed.at the company warehbuseas needed. The contractor does not purchase the chemical. He Is allowed $15.00 compensationwhich'ls In addition to other aompensatlonSbr each barrel'of chemical used. A very small part of this See may be ldentlSlableas compensa- tion Sor transportationof property for hire over a public highway; however, the major portion.16 compensationwhich would not be subject to regulationbecaurieof off- Nghway travel on private property. "Situation No. 2: A labor contractor enters an agreement with an.011 company to perform the pipe Sitting yrorkand maintenance of such pipelines at completedoil well and oil storage sites. Pipe Sittings such as valves, nipples, elbows, couplings,unions, etc., are secured by the contractorfrom .. local 011 well.supply houses and charged to 'the011 company. As items are used from tN& supply the contractorreplenishes the .stock of Sittings in the same manneti. "Undetithis arrangementthe contractor receives $2.50 per.hour for each pipe Sitter In his crew. In addition he receives . $5.00 -1095- col. Homer Garrison, Jr., page,3..(C-225) an hour for the use of his truck or pickup. This See covers transportationcosts of pipe Sitters and pipe Sittings and covers the time the vehicle Is on the highway a8 well as.tlme spent on the Job site. A portlon,oS this See may bi?ldentlSlable as compensationfor transportptlonof. property over a public highway although -themajor portion would not be subject to regulation because of off-highway use. "Special pipe fitting tools such as visesa welding machines, cutting torches, wrenches, etc., owned by the contractor are mounted or transported on this truck which he owns. These tools are necessary to satisfactorypipe Sitting work." We have carefully considered the fact sltuatlons and the questions you have propounded arising therefrom. We note the Interest In the problem evidenced by briefs submitted by lnterest- ed groups. A study of the briefs and Article glib, Vernon's Civil Statutes, as amended, does not yield any ready answer to the problem. The Motor Carrier Act provides that transportation of commoclltlesfor hire over any public highway In the State under a contract requires a permit Srom:the Railroad Commission. Article glib, Sections 2, 3, and 6, Vernon's Civil Statutes. This office can find no basis In the Texas Motor Carrier Act for the "primary business" doctrine, where no permit Is required if the transportationIs "Incidental" to the primary business of the contractor. As you point out In your situation No. 1, "a very small part of this See 3 be Identifiable as compensation for trans- portation of property for hire over a public highway;" and In situation No. 2, "a portion of this.See ma be ldentlSlable as compensationfor transportationof proper -3 y over a p.ubllc highway. . . ." (Emphasis Added) It Is apparent that the charge for, and transportationof, the dommodltles Is negligible. We, therefore, conclude that, In the specific fact sltua- tlons outlined, a contract carrier's permit authorizing trans- portation of the chemical or pipe Sittings would not be.requlred. It should be noted that this conclusion applies only to the specific fact situations set out and any variance in the facts in the situationsmight easily lead to contrary conclusions. -1096- Col. Homer Garrison, Jr., page 4 (C-225) SUMMARY A contract carrier's permit Issued by the Railroad Commission of Texas Is not required to cover the trzgsportatlonof the commoditiesIn the situations set out. Very truly yours, NVS:aJ APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Gordon,Appleman Joe Trlmble H. Grady Chandler John Reeves APPROVED FOR TRE ATTORNEY GENERAL BY: Howard W. Maya -1097-