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GERALD C. MANN AUST,U~ 111. -rExAn 

Honorable James E. Kilday, Director 

Motor Transportation Division, 

Railroad Commission of Texas, 

Austin, Texas 

Dear Sir: 

Opinion No. O-1518 

Re: Whether a person can hold a 

certificate of public convenience and necessity, and at 

the same time hold a special 

commodity permit. 

We received your letter of September 29, 1939, requesting our 

opinion of the following question: 

“Whether, under the Motor Carrier Laws of Texas, 

a person may hold a certificate of public convenience and 

necessity authorizing common carrier truck service, and, 

at the same time, a special commodity permit authorizing 

transportation of certain specified commodities by truck?” 

Article 911b, Vernon’s Annotated Civil Statutes, being H. B. No. 

335, Ch. 277, p. 480, Acts 42d Legislature, as amended; reads in part 

as follows : 

“Section 1. Definitions. -- When used in this act unless expressly stated otherwise: . . . 

“(e) The term ‘certificate’ means certificate of public conven.ience and necessity issued under this act. 

“(f) The term ‘permit’ means the permit issued to 

contract carriers under the terms of this act. 

“(g) The term ‘motor carrier’ means any person, 

firm, eorpotation, company, co-partnership, association 
. ” 

Hon. James E. Kilday, Page 2, O-1518 

or joint stock association, and their lessees, receivers or 

trustees appointed by any court whatsoever 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 State, 

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 exclusively within the incorporated 

limits of cities or towns.” 

Section 6(d), as amended in ~1937, reads in part as follows: 

“The Railroad Commission is hereby given authority to 

,issue upon application to those persons who desire to engage 

in the business of transporting for hire over the highways of 

this State livestock, mohair, wool, milk, livestock feedstuffs, 

households goods., oil field equipment, used office furniture 

and equipment, timber when in its natural state, farmmachinery and grain special permits upon such terms, conditions 

and restrictions as the Ra~ilroad Commission may deem proper,, 

and to make rules and regulations governing such operations 

keeping in mind the protection of the iighways and the safety 

of the traveling public * * *.” 

We call your attention to Section 6(d) which gives the Railroad 

Commission authority to issue special commodity permits “upon such 

terms, conditions and restrictions as the Railroad Commission may deem 

proper”. This section is followed by Section b(bb) which reads as follows: 

“No application for permit to operate as a contract carrier shall be granted by the Commission to any person operating as a common carrier and holding a certificate of convenience and necessity, nor shall any application for certificate of convenience and necessity be granted by the Commission to any person operating as a contract carrier nor shall 

any vehicle be operated by any motor carrier with both a permit and a certificate.,” 

- 
. I 

Hon. James E. Kilday, Page 3, O-1518 

Section b(bb) prohibits a common carrier from holding a contract permit and prohibits a contract carrier from holding-a certificate 

of public convenience and necessity. Section 6(bb) then provides “nor 

shall any vehicle be operated by any motor carrier with both a permit 

and a certificate.” We reach the conclusion that a special commodity 

permit is a permit as that term is used in Section 6(bb). 

On July 16, 1931, Hon. T. S. Christopher, Assistant Attorney 

General, rendered an opinion to the Railroad Commission of Texas on 

the following question: 

“Please advise whether under your construction of 

Sections 6d and 6bb of H. B. No. 335, Acts of the Regular 

Session of the Forty-first Legislature (Forty-second Legislature), a person can hold a Common Carrier Certificate or 

Contract Carrier Permit, and also a Special Permit authorizing the transportation of the articles named in such Section 

6d.” 

The opinion, in part, reads as follows: 

,“You are advised that under the provisions of the Act, 

as referred to, the holder of a certificate of convenience and 

necessity is not permitted to hold, in addition thereto, a contract carrier permit nor a special commodity permit.” 

We are unable to agree with Mr. Christopher’s contention 

~that his opinion was dicta in so far as it discusses the question raised 

inyour letter. We wish to point out that the same specific question was. 

raised in the above-quoted opinion and is answered in Mr, Ch$.topber’s 

oprmn. 

Sections 6(d) and b(bb), Art. 911b, became effective on June 6, 

1931. Shortly thereafter, to be exact, July 16, 1931, the Attorney General’s 

department rendered an opinion to the effect that a common carrier could 

not hold a special commodity permit. The Railroad Commission has consistently followed the construction set out by the above opinion. Since the 

enactment into law of the special commod,ity clause in 1931, the Railroad 

Com,mission has never construed Section 6(d) and b(bb) to permit a common carrier to hold a special commodity permit. The Legislature has 
Hon. James E. Kilday, Page 4, O-1518 

never seen fit to change the verbiage to show a contrary intention. It is 

reasonable to presume that the correct construction was placed on Sections 6(d) and 6(bb). 

We might say that we are unable to find any language in the 

Motor Carrier Act which would permit a common carrier to hold a special commodity permit. To the contrary, the evident intention of the Legislature was to prohibit a common carrier from operating in another field. 

Since the Motor Carrier Act prohibits the operation of any motor vehicle by any motor carrier with both a permit.and a certificate, it 

follows, for reasons herein stated, that a holder of a certificate of public 

convenience and necessity cannot at the same time hold a special commodity permit. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

Glenn R. Lewis 

Assistant 

By Gz2/ 4+-wLee Shoptaw 

LS-MR 

APPROVED NOV 8, 1939 

ATTORNEY GENERALOF TEXAS 

APPROVED 

OPINION 

COMMITTEE 

By B. W. B. 

Chairman