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OFFICE OF THE ATTORNEY GENERAL OF TEXAS **AUSTIN**

Honorable Joe G. Fender County Attorney Fisher County Roby. Texas Dear Sir: Opinion No. O-1497 Re: Proof required to constitute acarrier a "motor carrier" under the terms of Article 911b. Vernon's Texas Civil Statutes, 1925 We are in receipt of your letter of September 23, 1939, in which you present the following facts: "Defendant was arrested on a state highway between the incorporated cities of Roby andAnson, Texas. Proof was made in theJustice Court that defendant was hauling sheep forhire with his truckwithout apermit from the Railroad Commission as required by Revised Civil Statutes 911b. The defendant contended itwas necessary that the State prove aspart of its case that thedefendant actually drove through at lease two incorporated cities with his load. Defendant appealed froma judgment of conviction in the Justice Court." You desire a ruling upon the question of "whether or not it is necessary for the State toprove that the defendant actually went through two ormore incorporated townswith his load," in establishing that defendant unlawfully operated amotor carrier without apermit or certificate of convenience and necessity. The question presented inyour letter of request isonewhich has caused mush confusion and uncertainty in attempting to apply themotor carrier act, Article 911b. Vernon's Texas CivilL

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. Honorable Joe G. Fender, Page 2

Statutes, Article 1690b, Vernon's Texas Penal Code, being **Acts** 1929, 41st Legislature, p. 698, Ch. 314, as amended, Acts 1931, 42nd Legislature, p. 480, Ch. 277, Ii.B.No. 335. This department, in its opinion Wo. 0-1592, in response to questions submitted by the Railroad Commission of Texas, has carefully considered theproper construction of Section 1 (g)of this statute, and attempted tomake a comptehhnsive: analysis of the issues controlling your question. **A** copy of said opinion isenclosed herewith. We concluded in that opinion that the Legislature indefining a "motor carrier" intended to include within the terms of theAct carriers forhire by motor vehicle over anypublic highway in this statewhere in the course of the transportation the operator travels between 

### or through two ormore incorporated cities, towns or villages. In the case you present, if the only evidence produced was that defendant was arrested on ahighway which was situated or located between two incorporated towns without any reference to origin or destination of the load or the seruice rendered we do not think aviolation of theMotor Carrier Acthas been proved. Based upon the reasoning set out inour Opinion No. O-1592, enclosed herewith, we are of the opinion that inorder to show that adefendant operated a "motor carrier'*forhire as defined in ?I.B. No. 335, Acts 42nd Legislature, (Acts, 911b, Vernon's Texas Civil Statutes and 1690bVernon's Texas Penal Code, 1925) it isnecessary toprove that the defendant, in the course of his transportation, traveled fromone incorporated town to another with this load,however, it isnot necessary toprove thatmunicipal corporations wbce the tennini of the transportation. We are not tobe understood as suggesting however, that an operator may evade the regulations of amotor carrier forhire where his service is in fact that of a "motor carrier", by merely driving around or skirting theboundary lines of incorporated towns along his route or some similar subterfuge. The foregoing represents the considered opinion of this Department.- Honorable Joe G. Fender, Qage 3

Yours very truly ATTORNEY GBNBRAL OF TEXAS s/Cecil C. Cammack By Cecil C. Cammack

Assistant CCC:BBB/cge ENCLOSURB APPROVED: Opinion Connnittee, By RWL, Chairman APPROVED DEC. 16, 1939 a/Gerald C. Mann ATTORNEY GENERAL OF TEXAS