Ron. Robert 0. Smith Opinion No. M- 247



### countyAttorney Travis County Courthouse Re: Whether the Texas Motor Austin, Texae CarrierAct is violated when a company picks up and delivers metal belonging to its customers for galvanization under the Dear Mr. Smith: particular facts stated?
Your letter, and brief, of June 12, 1968, requesting an opinion of this office presents the followingquestion:

"Does

### a company violate the Texas Motor Carrier Act when it picks up and delivers 

### metalbelonging to 

### its customers for the purpose of galvanizing the same when the follwing facts are shwn to exist, to-wit: (I)the ccmpany does not have a certificate of convenience and necessity issuedby the Texas Railroad 

### Comdss~on; (2)the transportation equipment is wned by the colnpany providing the galvanizing process; (3)s charge is made by the canpany for the transportation of the metal,to and from the company plant for the galvanizing process; (4)the same charge is made for the galvanizingprocess whether the company 

### or the custoarsrtrans

### rts the metal to **and~from** the COWMY plant; ) the transportation:of suchmetal by the company requires the use of a highway between two or more incorporated cities in the State **of** Texas: (6)all of the transportationwould be within the State of Texas." (E3nphasis added).
No "motor carcierw shail operate anymotor-propelled vehicle for the purpose **of** transportationor carriage of

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### 0. smith, page 2 (~-247)

property for compensationor hire over any publichighway in the state without having first obtained from the Railroad Commission a certificate of public convenienceand **necessity** or a permit todo so. Seca. 2, 3, 5 & Sa(b), Art. 911b, V.C.S.
"Motor carrier" is defined by Sec. l(g),Art. 911b as follows:

"(g) The term 'motorcarrier' means any person, firm, corporation, company, co-partnership, associationor joint stock association, and their lessees,receivers, or trusteesappointed by any courtwhatsoever Owning, controlling,managing, operating, or causing to be operated any motor-propelled vehicle used in transportingproperty for compensation or hire over any public highway'in this state, wze in the course of such transportationa highway between two or more incorporatedcities, towns, **or** villages is traversed." (Emphasis added.) Applying the foregoing "motor carrier" definition to the facts submitted,we find that the controllingquestion confronting us is whether the company would be transporting property for compensationor hire. Since no additionalcharge is made by the company for picking up and delivering these materials and the price paid by the custcxner **for** the galvanizing service is the same whether thematerial is transportedby the 

### companyor by othermeans,we agree with your conclusion that the company is not transporting property for compensation or hire nor otherwise operating as a ***motor** carrier" such as would be reaulated bv the TexasMotor Carrier Act. New Way Lumber Co. v. &ith, 128 Tex. 173, 96 S.W.2d 282m6); Attorney General's Opinion No. O-2795 (1940).
SUMMARY

A companypicking up and delivering metal belonging to its customers for galvanization without additionalcharge is not transporting property for compensationor hire in violation **of** Article 91lb,Vernon's Civil Statute’s, under the particular facts stated.

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lion. Robert 0. Smith, page 3 (M-247)

truly yours,

Prepared by Monroe Clayton Aaefst&nt Attorney General
APPROVED:
OPINION COMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman Alvin Zimnerrnan Bill Allen Lonny 

### Zwiener Ralph Rash
EXECUTIVE ASSISTANT A. J. Carubbf, Jr.

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