Honorable Harry J. Schulz 

Cotinty.'.Attorney 

Live Oak County 

George West, Texas 

Dear Sir: Opinion NO. 0-1611 

Re: Is it necessary that over-weight 

and over-size motor vehicles be 

registered and licensed under-eartitle 6675a-2, Vernon's Annotated 

Revised Civil Statutes, in a base 

where the Highway Department has 

granted a special permit for the 

movement of such vehicles as provided In Section 2, Chapter 282; 

Acts of the Forty-second Leglslature? 

Your letter addressed to the Attorney General whereln 

you requested an opinion of this department on the question as 

substantially stated above has been received and given very 

careful consLderatLon. In order that the particular question 

submitted by you may be made evidence In this opinion, we 

herewith copy so much of your letter as is pertinent, to-wit: 

"A is the owner of two old Army Mack trucks. 

On one of them he has built a portable, collapsable metal tower to be used In building constructlon work. The tower and all equipment 

thereon is welded thereon and cannot be readily 

dismantled. On the other he has buLlt and 

erected a metal concrete mixer which Is welded 

to the vehicle supported by guides and braces. 

This vehicle Is also to be used in building 

construction work. Both vehicles are moved upon 

the public highways by their own motor power. 

"Both of the vehicles the way they are 

equipped are more than 96 inches in width. They 

are also over-length, over-height and overweight as set out in Art. 827a, Penal Code. The 

vehicles themselves without the equipment thereon are not more than 96 inches.wlde. In fact as 

you may know, these old Army Mack trucks are 
Honorable Harry J. Schulz, page 2, o-1611 

about the same size of some present trucks SO 

far as width is concerned. 

"Neither of these vehicles have any registration license plates as Is required by Art. 6675a-2, 

Vernon's Civil Statutes, and Art. 807b, Sec. 5, 

Penal Code. A, the owner of the trucks, applied to 

and received from the State Highway Department 

permits to move said trucks as equipped from San 

Antonio to Brownsville through Live Oak County, 

the permits being Issued under Art. 6701a, Vernon's Civil Statutes, in spite of the fact that 

the trucks have no registration license plates. 

"A says that the tax collector of Bexar County, 

the county of his residence, refuses to issue him 

license plates for said vehicles because of Art. 

6675a-8b, Vernon's Civil Statutes, which stipulates that no motor vehicle shall be reglstered 

and licensed which has a total outside width, including any load thereon, of more than ninetysix inches, A having applied for such license 

plates after he built such equipment on the trucks 

and after the State Highway Department had issued 

him permits under Art. 6701a. 

"The county highway patrolman arrested the 

drivers of these trucks in Live Oak County for 

,operating commercial motor vehicles on a public 

highway thereln without registration license 

plates. The arrests were made under valid warrants 

of arrest issued prior to such arrests by a justice of the peace of Live Oak County upon complaints filed with such justice before such warrants of arrests were Issued, the county highway 

patrolman and justice acting under my advice. 

The drivers were taken ~mmedlately before the 

justice, had the amounts of their bonds fixed, 

and a date agreeable to such drivers was set for 

trial, the drivers pleadIng not guilty. The 

trucks were not seized nor lnterferred with in 

any way except, of course the drlvers had been 

arrested. The drivers were told that if they 

‘again attempted to operate such trucks without 

licenses they would agafn be arrested on a similar charge. At all times the trucks were free 

to-be mov&, except the drlvers and A~ were told 

that any movement of the trucks or operation 

thereon would result in an arrest of the drivers 

in such movement or operation was in violation 
Honorable Harry J. Schulz, page 3 o-1611 

of the Penal Code. 

"The questions I wish to ask you are these: 

Does the Illegal width of these trucks and the 

issuance of the permits by the State Highway Department excuse these trucks from the provisions 

of Art. 807b, Sec. 5, Penal Code, and Art. 6675a-2, 

which require commercial motor vehicles- such as 

these to be licensed? In other words, are the 

drivers of these trucks guilty of operating commercial motor vehicles without license plates. 

It is my contention that the drivers are guilty 

of such offense and that the trucks must be 

licensed or kept off the highways until they are 

remodeled or reconstructed so that they can be 

licensed, and that the inability of A to get 

these trucks licensed under~ the present facts 

is no defense to the criminal prosecutions." 

We have given particular attention to the various 

statutes and acts mentioned in your letter, from which it appears that the only question to be determined Is as to whether 

or not the owner of the Army Mack trucks has violated the 

criminal law of the state by operating the' same under the 

special permit granted to him by the Highway Department. 

Article 807b, Vernon's Annotated Penal Code, is a~codification of Section 2, Chapter 282, Acts of the Forty-second 

Legislature, which provides in part as follows: 

"Section 2. It shall be unlawful and constitute a misdemeanor for any person to drive, 

operate or move, or for the owner to cause or 

permit to be driven, operated, or moved on any 

highway, any vehicle or vehicles of a size or 

weight exceeding the limitations stated in this 

act or any vehicle or vehicles which are not 

constructed or equipped as required in this act, 

or to transport thereon any load or loads exceeding the dimensions or weight prescribed in this 

act; provided the Department, acting directly or 

through its agent or agents designated in each 

county shall have and is hereby granted authority 

to grant permits limited to periods of ninety 

(90) days or less for the transportation over 

State highways of such overweight or oversize 

or overlength commodities as cannot be reasonably dismantled or for the operation over State 

highways of super-heavy and oversize equipment 

for the transportation of such oversize or over- 
Honorable Harry J. Schulz, page 4 o-1611 

weight or overlength commodities as cannot be 

reasonably dismantled; provlded, that any haul or 

hauls made under such permits shall be made by 

the shortest practicable route; . . . . . . . .'I 

We note from the brief submitted by you, which we have 

also carefully considered, and for which we thank you, that 

it is your contention that Article 6701a, Vernon's Annotated 

Texas Civil Statutes, applies only to those motor vehicles 

that have already been, or can be licensed under the provisions of the registration laws; and that the permit from the 

State Highway Department did not excuse the owner of these 

trucks from registering the same and obtaining license plates 

as provided in Article 6675a of the same statutes. In other 

words, it Is your contention that the owner of these trucks 

is subject to prosecution under the provisions of the law as 

shown in Article 807b of Vernon's Annotated Penal Code. 

We disagree with your conclusion as to the application 

to be given to these various statutory provisions with respect 

to the fact.situation stated in your letter. 'On the contrary, 

this department is of the opinion that the owner of these 

trucks did not violate any penal law of this state while operating such trucks under the conditions stated in your letter. 

The provisions of the above Article 6701a and the substantial provisions of Section 2, Chapter 282, Acts of the 

Forty-second Legislature, were first enacted as Chapter 41 of 

the Acts of the Forty-first Legislature, Second Called Session. 

This law in substance provide8 that when any person, firm or 

corporation shall desire to operate over a state highway superheavy or oversize equipment for the transportation of such commodities as cannot be reasonably dismantled, and where the 

gross weight or size exceeds the limit allowed by law to be 

transported over a state highway, the State Rlghway Department 

may upon application, issue a permit for the movement of 

such equipment upon some designated highway when the department is of the opinion that this may be done without material 

damage to the highway. 

Section 3 of said act provides in substance that before 

the issuance of any such permit the applicant for the same 

shall file with the State HIghway Department a bond in an amount to be set and approved by the department, payable to the 

department, and conditioned that the applicant will pay to 

said department any damage that might be sustained to the highways by virtue of the operation of the e uipment, 

accompany the application with a fee of 1 

and shall 

5.00 payable to the 

Highway Department to be deposited in the Treasury of the 

State of Texas to the credit of the Hlghway Maintenance Fund. 
. 

Honorable Harry J. Schulz, page 5 o-1611 

Section 4 of said Act provides In substance that such 

EE;itfbjhen issued, shall show: (a) The na;eof the applithe date of the application, (c) s nature of the 

Stat; Highway Engineer or Division Engineer, the kind of 

equipment to be transported over the highway, together with 

the weight and dimensions of the same, and that it shall 

state the highways and distance over which the same is to be 

transported. 

Section 5 of, said act is as follows: 

"Sec. 5. The fact that the conditions often 

require the transportation of heavy and large commodlties over some highways creates an emergency 

and imperative public necessity and that the constltutlonal rule requiring bills to be read on 

three several days be SUSpended, and the same is 

hereby suspended, and that this Act take effect 

and be in force from and after its PaSSage, and 

it Is so enacted." 

Inasmuch as you state that the owner of the trucks in 

question was in possession of a permit issued by the State 

Highway Department, which authorized him to move said trucks 

over the specified route or highway, it is to be presumed 

that the department did its duty and followed the law in issuing Said perUIft. 

It is thought, also, thatthe registration and licensing 

law respecting motor vehicles, as shown by the various sections 

of Article 66758 1 - 8b aforesaid, has no direct application. 

According to the plain provisions of this article, these trucks, 

equipped as they are shown to be, were not subject to registration In that they could not be registered because they were 

oversize and overweight. Consequently, if they can be moved 

upon any highway of this state, it must be by virtue of the 

special permit granted to the owner by the Highway Department; 

for if the trucks were subject to be registered, there could 

have been no occasion or excuse for the Issuance of the special 

permit by that department. 

It Is to be noted that the fees to be charged and the 

licenses provided for by ,virtue of Article 6675a l-8b, Vernon's 

Annotated Texas Civil Statutes, are predicated upon an annual 

basis; that is, the owner of a vehicle which has been registered under such law is given a license or prlvllege to operate 

his motor vehicle upon any highway of the State, unless otherwfse specifically designated, at any and all times during the 

year for which the license Is Issued. No such right is conferred upon the holder of a special permit granted in the terms 
Honorable Harry J. Schulz, page 6 o-1611 

of law by the Highway Department. The very words of the 

statute which authorizes the issuance of such permit, dispel 

any such idea. But the law out of constitutional regard for 

the use of one’s property in such way as not to work a confiscation of the same, authorizes the Highway Department to 

permit the movement of such-motor vehicles as the trucks in 

question for a limited time, and over specially designated 

routes and under rigid police regulations. 

It is believed that the language of the Circuit Court 

of Appeals in the case of Sproles vs. Blnford, 52 F. (2d) 

730, 736, in its discussion of this "permit", is specially 

applicable. That court, after quotin Section 2, Chapter 282, 

Acts of the Forty-second Legislature 7 Article 807b, Section 

5, Vernon's Penal Code) said, at page 736: 

"The plain purpose is to permit and make provision for the transportation over the highways of 

these commodltles, extraordinary in length, weight 

or size whi.ch (and the equipment upon which they 

are handled).cannot be reasonably dismantled, and 

which are not everyday, but are unusual, loads, 

and which, but for thls or some similar provision, 

could not pass over the highways at all. The authority given by this section to the highway department and Its agents in each county is not to 

suspend the laws, as was the power conferred, or 

attempted to be conferred, upon the highway department In Ex parte Falson, 93 Tex. Cr. R. 403, 248 

3. W. 343, but Is of a fact-finding and administrative nature. Trimmier v. Carlton, 116 Tex. 591, 

296 3. W. 1070, and cases there cited. Texas Jurisprudence, vol. 9, section 70, and cases cited ,in 

footnotes. 

and 179." 

Ruling Case Law, vol. 6, Sections 175 

(Italics ours) 

The same Legislature that enacted Senate Bill No. 10, 

Chapter 41, Second Called Session of the Forty-first Legislature, which is the act providing for permit8 to operate oversize and overweight equipment upon the limitations discussed, 

also enacted House Bill No. 6, which is Chapter 88 of the 

Acts of said Legislature, and which, among other things, pro-' 

vided for the registration and licensing of motor vehicles. 

This later act expressly repealed a number of Statute8 and 

prior acts of the Legislature, and provided generally that 

all of the laws in conflict therewith were repealed; but 

Chapter 41 was not mentioned among the statutes and acts that 

were expressly repealed. 

It is the conclusion of this department that these two 
. - 

Honorable Harry J. Schulz, page 7 o-1611 

acts of the same Legislature do not necessarily conflict and 

are not repugnant the one to the other, when construed as 

this department has construed them, in that the first enactment must be construed as a limitation or exception to the 

provisions of the later act. Thls conclusion is in record 

with well established principles of law. 

prudence, page 146, it is satd: 

In 39 Texas Jurls- 

"The Legislature is supposed to be governed by 

one spirit and policy during a session, and nothing short of a direct repeal in express terms, 

or such irreconcilable repugnancy as that both 

acts,cannot stand together, will justify a court 

In holding an act is repealed by another act passed at the same session . . . . . . . . 

"A liberal construction Is permissible for the 

purpose of sustaining an act as against an implication' of its repeal by another act passed at the 

same session. The two acts ~111 be construed together, regarded as one statute, and if possible 

they will be so construed that both may stand. as 

one embodiment of the legislative will. For this 

purpose, the former act may be regarded as an exception to the provisions of the later." 

Numerous cases are cited in the footnotes. See especially Cain vs. Texas, 20 Tex. 355; Gillam vs. Matthews, 122 S.W. 

(26) 348. 

It is therefore the opinion of the Attorney General 

that the answer to your question must be that the issuance of 

the permit by the Highway Department Was legal authority for 

the owner of these trucks to operate or move the same over that 

highway, particularly designated by the Highway Department in 

its permit, and In the manner as therein specifically set out 

by the department. 

Yours very truly 

ATTORNEY GRNRRAL OF TEXAS 

WFM:FG :wc 

APPROW FNR 24, 1940 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

By sfi. F. Moore 

W. F. Moore 

First Assistant 

This Oplnlon Considered And Approved In Llmlted Conference