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OEiiALDC. MANN Attorney General OFFICE OF THE ATTORNFX GLNERAL

Honorable L, R. Thompson CountyAuditor Taylor County Abllens, Texas Dear Sir3 Opinion No. O-2535 Ret Can the described deliveriesbe made by the truokwithout heving It registered In Texas? :!;e have received your recent request for the opinion of this Department upon the above stated question. For fsctuelbackground of your request, we quote from your letteras followrl "Amen living In Texhs endhis brother living InArizona are operating under a trade name InArizona,and are delivering fruit IntoTexhs by truckwhioh Is registeredunder en Arisone license. "The oucstion arises: "C&n such deliveriesbe made by this truckwithout having it registered in Texas? "TheArizona concern IQ a partnership,wholesale dealers In fruit end vegatables. "The truck does not make scheduled trips to Texas,but makes from one to four trips per month dslivsrlng fruit end vegetables to their diatrlbuting warehouse In Texas, fromkhlch place It isredistributedby Texas registered truoka tao other pointa." The registrntlon and licensing laws respectinsmotor vehiolss are shown by thevarious sections of Article bh75e, Vernon's Civil Jtetutes. Sections 6, ba, 7 end 8 heve'specifia epplicetlon to commerolelmotor vehicles, truok-trnotors and trailers or semi-trailers. Examination of these sections revealsno exceptionunder which the owne!'or operator of e truck line Is permitted to operate e truck, truok-treotor or trailerwitrioutfirst licensing same under theprovisions of the laws of Texas relating thereto. Article 667sa-2 provides, Inpert: "Every owner of e motorvehicle, trailer or sesi-trailerused or to be used upon the public highways of this state, and er;ch chauffeur, shall apply each year to the SteteHighway Department through the aounty tax collector of the oounty inwhiah he resldss for the registration of each such vehlole oained or controlledby him,

. . .vHonorable L. R. Thompson, Page 2, 

### O-2535

Section (L) of said Article bb75e-l-defines the term 'owner" PI)followsr 

### '(L) (Owner 1 means any person who holds the legal title of a vehicle or who has the legelrlght of possession tnereof,or the legal right of oontrol of said vehicle," We are assuming that the partners In the instantcase have a community of interest as common owners of the property enge-jedIn the business. The first questionw+ioh arises Is whether or not the vehicle In question Is exoepted from the general registration lawsby Article 827b of the Penal Code, which deals with non-resident owners ofmotor vehioles. Under said Article 827b temporary registration certificates may be obtained for out of statevehiclesby non-resident owners, A "non-resident" Is defined in Section 1 of said Article 827b as follows: "'Non-resident'means every resident of e state or country other then the State of Texas,whose sojourn In this State, or WIOOSSoccupation, or place of abode, or business In thin State, if any, covers a total period of not more than one hundred earltwenty-five days in the calendar year." The courts of this State do not recognize a partnershlp aa a legal entity. The Co.mmlsslon

of A.c,peals of Texas, In thee ase of Martin vs. fiemphill, 237 6.U. 5.50,speeklng through Justice Powell stated; "

. . .A partnership, at comrOonlaw, 1snot e legal entity,but only '8 eontrsatuel status." The commission of Appeals of Texas held that tha common law rule applied in Texas In the aase of Allison vs. Campbell, 1 S.W. (26) 866. The court stated es follows~ II

. SC&S. A partnership at oomnon law 1s not e legal entitybut e contractual

Martin vs. Bemphill (Tex.Corn. App.) 237 Y. b. 

### 550, 20 A.L.R. 984; Marshall V. Bennett, 214 Ky. 

### 328, 283 S.vi.

### 1151Schumaker on Partnerships (2d. Ed.) p. 2. Texeohas no statute regulating general partnerships, in the absence of whioh the rules of common law govern the oourts In dealingwith the question of generalpartnerslips." TheFort Xorth Court of Civil Appeals In the case of Beggs v. Brooker, 

### 79 9.3. (26) 6/+2,steted as followsr "A partnersniphas no legal entity. It exists only as Its individual membe's exist." The Federal District Court for the 7th District of Ohio In the case of E. 1. Depont De Nemours Powder Co. v. JonesBras., 200 Fed. Rep. 

### 638, stated es follows: "Residence cannotbe predicated of a partnership.'.

fionorableL. R. Thompson, Pam 3. O-2535

The Supreme Court of Ohio 117, etsted aa follows: in the%aae of Byerava. schlupe, 38 Ii.E.

“ A partnerkhlp is not, in our judgment,a lc~,al ertltp,having, aa such, a domicile or resldenoe separate and dlatlnot from that of the lndlvfcualswho constitute It." The above holding of the Ohio court8 Is the law in this atate, because said case8 are predloated upon the idea that a partnership is not a aeparete la-al entity aside and dletlnct from the Individualpartners. Therefore, the residenoe of a partnershipmust be oonsldared the same aa that of the individualsoomprlslng thepartnership. It follows that the >artnershIp in question,by vfrtue of one of Itsmem'tere being a resident of this btate, Is a domeatlogartnershlp and as such Is a resident of the Stete of Texas. The fsot that one of the partnera resides InArizona, an3 though theArizona Laws may construe this partnership a resident of that state, thepartnership, nevertheless, Is a resldsnt of Texsa under the MotorVohlcle Reglstratlon Law. Under the foregoing authoritfes,you are reapeotfully advised that it 1s the opinion of thlr Department that Article 827b of the Yenal Code would have no a?plIcatIon to the vehicle in question and that the vehicle shouldbe registered In Texas under our general reglatered In Texas under our general registration laws. Truetlng that this aatlsfaotorilydisposes of y'3urinquiry,we remain Yours very truly ATTORIUKY

OtlWiAL OF TlXAS a/ D. Burla iravIae

DBDzBIE/og .BY D, Burle DavIsr Aaalatant

APYROVE~ ;NLY 29, 1440 Olenn R. Lsrlr AT'I'ORhTEY

CILNZRAL3F TEXAS Approved Opinion- Committee By BS3, Chairman