## THEATTO~~NEY GENERAL OPTEXAS

Col. Homer Garrison, Jr. Director Opinion No. C-125 Texas Department ofPublic Safety Re : Under the provisions ofS. B. Austin, Texas 451,Acts 58th Leg., amending Art. 911b,V.C.S., ifthe owner ofatruck leases such vehicle without a driver to any person other than acommon carrier, contract carrier or *pecialised motor carrier, will such owner be considered to be transporting property for compensation or Dear Col. Garrison: hire, and related questions.

Inyour recent letter you requested an opinion ofthis office on the recently enacted Senate Bill 451,Acts 58th Legislature, Chapter 451,page 1316,which amended Article 911b,Vernon’s Civil Statutes, by adding paragraph (j) toSection 1. The questions you asked are as follows:

“1. Under this amendment, if the owner ofatruck leares such vehicle without adriver to any person other than a common carrier, contract carrier or specialized motor carrier, will such owner be considered to be transporting property for compensation or hire ?

“2. Ifthe owner ofatruck leases such vehicle to any person other than acommon carrier, contract carrier, or specialized motor carrier and is employed by the lessee as adriver, will such owner be considered to be transporting property for compensation or hire?

“3. Ifthe owner bfatruck leases such vehicle without adriver, but with aprovision that adriver must be secured through the Texas Employment Commission, to any person other than acommon carrier, contract carrier or specialized motor carrier. will such owner be considered to be transporting property for compensation or hire?

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“4. Ifthe lessee ofatruck not being amotor carrier or contract carrier secures adriver for such vehicle through Manpower, Inc., would the lessor be considered to be transporting property for compensation or hire?

“Manpower, Inc., is an organization that has as its primary business the furnishing ofemployees ofdifferent skills or trades to other business organizations upon request. Manpower, Inc., pays these employees and maintains ail payroll records including the withholding 

### oftaxes and social security benefits. The business organization requesting an employee from Manpower, Inc., has complete control ofthe employee except that payment for such employee’s services is made to Manpower, Inc., who withholds acommission or fee for handling the account. In practice, the employee performs his work for the business organization just as any other employee ofsuch organization but draws nosalary except from Manpower, Inc.

“5. In the four preceding questions, what would be your interpretation if the lessee was a common carrier, contract carrier or specialized motor carrier? ” Article 911b,Section 1is the section ofthe Motor Carrier Act which defines the terms used in the Act. Itprovides that:

“When used in this Act unless expressly stated otherwise.” (Then follow the various definitions) Senate Bill 451amended this Section 1by adding aparagraph (j), defining the term “transporting property for compensation or hire” which provides in its material parts as follows:

” ’ (j) The term transporting property for compensation or hire shall include the furnishing during the same period oftime ofequipment.and drivers to persons, firms, copartnerships, associations orjoint-stock associations other than common carriers, contract carriers, or specialized motor carriers for use in their carrier operations whether the equipment and drivers are furnished by the same 

### or separate person, firm, co-partnership, association 

### orjoint-stock association, and their lessees,

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receivers or trustees appointed by any court whatsoever owning, controlling; managing, operating or causing to be operated any motor-propelled vehicle.’ ” The effect ofthis amendment is to make the term (phrase) “transporting property for compensation or hire” where it appears inSection 1(g) and 1(h) and other sections ofthe Motor Carrier Act, include the furnishing during the same period oftime of equipment and drivers to persons, firms, etc.The amendment provides that the transporting ofproperty for compensation or hire shall include the furnishing during the same period oftime the equipment and drivers “whether the equipment and drivers are furnished by the same or separate person, firm, joint-stock association and their lessees
. . , co-partnership, association or owning, controlling, managing, operating or causing to be operated any motor propelled vehicle.” It seems apparent that the Legislature by its language intended to include the furnishing ofthe equipment and the driver within the meaning ofthe term “transporting property for compensation or hire.” The language would be meaningless under any other kind ofan analysis. If both the equipment and drivers are furnished during the same period 

### oftime, even if furnished by “separate person, firm,
.. . ” etc., the transportation would be for compensation or hire under the language ofthe statute. In other words, to be unregulated transportation, within the meaning ofParagraph (j), the person owning the commodity being transported must furnish either the truck sr the driver. Ifboth the equipment and drivers are furnished by the same or separate persons other than the owner ofthe commodity being transported the transportation is for compensation or hire.

It is, therefore, our opinion that an owner of atruck who leases such vehicle without adriver will be considered to be transporting property for compensation or hire as he is furnishing “equipment” in the terms ofthe statute only if the drivers are being furnished by a separate person’or firm other than the lessee. This, of course, does not include the furnishing of equipment and drivers to common carriers, contract carriers or specialized motor carriers for use in their carrier operations. (See answer 

### to question No. 5) In answer to your second question, it is our opinion that aperson leasing a truck to be employed in the transportation of commodities over the highways ofThe State of Texas, and being employed bythe lessee as a driver would be considered to be transporting property for compensation or hire over the highways ofThe State of Texas as he is, in addition to furnish-

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ing the truck, also furnishing the driver (himself). He is furnishing both the “equipment” and “driver” within the terms ofthe statute. Again, this does not include the furnishing ofequipment and drivers to common carriers, contract carriers or specialized motor carriers for use in their carrier operations. Inasmuch as we have answered your first question to the effect that the leasing ofatruck and the furnishing 

### ofdrivers bythe same or separate persons would be considered to be transporting property for compensation or hire, our answer to your third question must be in the negative. Here the drivers would be employed bythe lessee. The fact that the Texas Employment Commission referred such drivers to the lessee would not mean that the Commission was furnishing drivers within the terms ofthe statute. Therefore, all we have here is the lease ofthe equipment, and, 

### as the 

### drivers are not being furnished bythe same or separate persons, the transportation would not be considered for compensation or hire under this statute; Ollr answer to question number four is in the affirmative. The truck being furnished by one person and the drivers furnished by Manpower, Inc., it would follow that both the equipment and drivers are furnished by separate persons which within the terms ofthe statute is considered tobe transporting property for compensation or hire.

By virtue ofthe proviso in Paragraph (j) which reads: “other than common carriers, contract carriers, or specialized motor carriers for use in their carrier operations” if equipment and drivers are furnished to common carriers, contract carriers or specialized motor carriers, the operations described in your first four questions would not be included in the term

“transporting property for compensation or hire” as used in said Paragraph (j), and said four questions would be answered in the negative.

We express no opinion as towhether the furnishing ofsuch equipment and/or drivers to common carriers, contract carriers, or specialized motor carriers is aviolation ofany other section ofArticle 911b,Vernon’s Annotated. Civil ,Statutes.

SUMMARY

The furnishing of both the truck and drivers bythe same or separate persons is considered to be the transporting ofproperty for compensation or hire within the meaning ofArticle 911b,Section l(j), Vernon’s Civil Statutes, only

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in the event such furnishing is to entities other than common carriers, contract carriers, or specialized motor carriers.

Yours very truly, WAGGONER CARR

Norman V. Suarez k / Assistant Attorney Gen ral NVS: nb APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Murray Jordan Gordon Zuber W-0. Shultz Pat Bailey APPROVEDFOR THEATTORNEYGENERAL BY: Albert P. Jones

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