OF TEXAS

Honorable W.J, County Attorney Angellna County Lufkin, Texas Dear Sir: Townsend

Opinion NO.o-6571 Re: Whether aperson transporting a 'load of steel by truck of which he is the bona fide owner is exemp,tfrom regulation of Motor Carrier Act.by reason of Sec. la(l) (a) and Set, lb of Art. glib, V.A,C,S,, under the facts stated. Wehave your opinion request reading as follows: "I write your department for an opinion, covering this situation:

"Aperson.owning and operating his own motor vehicle, "%owit: atruck, purchases steel at Port Arthur, Texas, on abasis of $50.00 per ton, when he transports tie'same over the highways of the State of Texas and resells such steel wherever he is able to do so at an advanead price, to say, about $78.30 per to:., the profit in the transaction being his compensation for the service rendered, This party claims to own ajunk yara at Longview, and mayclaim to carry such products transpord'i,ed by himto his junk yard located at Longview for resale.

"This par~ticular load of steel, here referred to, is apparently r:either junk or scrap steel o"I enclose you herewikh for your information copy of said party's invoice, as well as ruport of the inspector of the Railroaa Commission, relating to this s\tuation,

"(a) Is the cam;gf:?g of such steel by this party without apermit from the Railroad Commission of Texas unlawful?Hon, W.J, zToz!send, page 2 

### o-6571

“(b) Is the profit in the resales of this steel at an advanced pric’e, such compensation as to maket.heuse of the highways of Texas unlawful by such party in transporting the sam,ewithout apermit?”

Under the facts stated the person inoulred about is subject to the Motor Carrier Act and must have apermit from’tr,e Railroad Commission unless he is exempt by’Section la(l) (a) a:& Section lb of Art. 911, V.A.C.S., which reads as follows:

“Sec. la(l) Provided, however, that the term

‘Motor Carrier’ and the term ‘Contract Carriers as defined in the preceding section shall not be held to include:

“(a), Anyperson having a regular, separate, fixed and established place of business, other t,han atransportation business, where goods, wares, and merchandise are kept in stock and are primarily and regularly bought from the public or sold to the public or manufactured or processed by such~‘person in the ordinary course of the mercantile, manufacturing, or processing business, andwho, merely incidental to the operation of such business, transports over the’ highways of this State such goods of which such person is the bona fide owner by meansof amotor vehicle of which such person-is the bona fide owner; . D

. D

.
“Sec. lb, Anyperson whotransports goods, wares9or merchandise under the circumstances set forth 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 aprivate motor vehicle owner; and such use of the highways by such private motor vehicle owners, as herein defined, shall be constn%ed as use of tne highways for the general public and not the use of such highways for the carrying on the business of transporting property for compensation for hire.”

This article is part of House Bill No, 25, ch. 29G, Acts of the 

### 47t.hLegislature (1941) p* 

### 463.

The Invoice which you enclosed recites that the steel was sold. on terms of net cash. However, the Inspection report by Mr. J-J, Ray, Jr, states that the steel was paid for after it was resold o Wewill assume, however, that this was not a,consignment to an agent for sale but that a sale was madeof t’he load of steel by ,the Port Iron &SUpply Company, Inc, at Port Arthur,Hon. W.J. Townsend, page 

### 3 o-6571

Texas, to the person inquired about whoreceived it in his own truck. Ouranswer to your question'wlll also depend on whether the person Inquired about has a "regular, separate, fixed and established place of business" for sale at retail of the steel which hewas hauling. His 'junk yard" at Longvlew mayor maynbt be.such an established business. This would depend on the facts and you have not given us enough information in.'your Ietterfor us to determine this point. However, wewill assume as abasis of this bpinion that the person inquired about does have a "junk yard" at Longview where he sells steel to the public. Under the foregoing assumptions, our answer to your inquiry Is that the person inquired about does comewithin the terms of the statute above quoted and is not required to have apermit from the Railroad Commission. The fact that he'makes a profit on the steel after hegets it to Longview over and above what hebought it for, OPthat one particular load was resold.by himat retail without actually carrying it to Longview and redelivering it from that point, does not alter our answer~to'your question. From~thefacts'stated in your letter It is apparent that the person inquired'about is enga iness for himself (other than transportation business ked In busand Is hauling his ownmerchandise in his owntrucks.

Trusting that the foregoing answers your inquiry, we are Yours very truly ATTORNEYGENERAL OFTEXAS By s/%'agan Dickson Fagan Dickson Assistant FD:BT:wc

APPROVED

MAY23, 1945 s/Grover Sellers ATTORNEY

GENERALOFTEXAS Approved Opinion Committee Bys/GWBChairman