- .,_. i e. ..d. ,. 

_” . 

THE A-HTOZZNEY 

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‘OF ‘rExAS 

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GENERAL 

,.. AUSTIN 11. .~WXASI 

Col. Homer Garrison, Jr. 

Director 

Texan Department of Public Safety 

P. 0. Rex 4087 

North Au~tid Station 

Auatin, Texas 

Dear CoI. Garriedn: 

March 23, 1960 

Opinion No. WW 814 

Rs:, Questiona relatiugto authority 

of Department of .Public Safety 

in enforcing,the Texaw Motor 

Carrier. Art an ~to motor 

carriers transporting in intercltatc commerce, over Texas 

highwaya, commoditier which 

are exempt from ICC: reguhtions. 

. 

_’ 

We qaote your lettim of October 27, 1959, in part, as follows: 

“This request for an opinion i# prompted by~Federal 

decision8 in recent years, which appear to restrict the 

authority of Stater to regulate the operation of motor 

vehicles engaged in interntate transportation. (Castle v. 

Havei Freight Linea, Inc., 348 U. S. 61 (1954) ). 

“Purlruant to Article,l690b (V.A.P.C.), am amended 

by the 54th Legiklature, it is the duty of thin Depdirtment~ 

to enforce the Motor Carrier Act (Art. 911b. V. A. C. S.) 

except for rate violations. This Act, of course, included 

a requirement tbat vehicles hauling property for compensation or hire over the public highways of this State haire 

~proper authority from the Railroad Commiseion. This, 

opinion request relate* to the application of the Act to 

vebfclelr performing tranoportation aa private carriers 

or aa “exempt” carrier. under Sections 203 (a) (17) 

land 203 (b). respectively of the Interstate Commerce Act. 
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.,.~’ ._: ,I... :. ‘I’,.. ,, ‘: 

’ ~kol. Homer Harrison, Jr.;> Pago 2 &F-814)” .: 

“For then purpose of thin request, assume that m 

‘!exempt” carrier ha@ obtained tram the Texas Railroad : 

Commission a permit which authoricea the’uae of Tek 

., 

Highways while transporting in interstate commerce corn-.: 

modities which are exempt from regulation by th4 ICC 1. 

pursuant to Sec. 203 (b) (6) of the Int.ersmte Commerce 

Act, as amended by the Tranrportation Act of 1958.. 

Aarume further that such a carrier ia found to be tram: ,_ : ._ 

porting in interstate commercq, over Texai highways, 

commoditiem which 8re not exempt from~ICC regulation. 

(Refer to Comporite C.ommodity Idat. Appendix, to’ ” 

hfotor Carrier Inform8tion Rulletin No. 3; ittachedj. 

Under kzh aesuinptionr, your opinion.‘is respectfully ,,‘., 

requested of the,following: : 

,, 

. 

.’ 

.: : . . ‘. 

.;. 

‘., ~. 

. . . 

9; ~Wouldyour8dsw4ritoanyd.&e ~:.:” ’ .. ‘; 

foregoing queationr be offcited by t&e anawe? ,to. : :. 

~.. 

tbb .dditionaLtpieationNo. 61 If so, ywu 

~. eplnion iLfm+r requelted’of $lie following I’ ‘~ .y : 

qa&tionNo;6.- ~, 

:: 

;“6.. bm &e~Rud Cqjmmi~‘i~of”. 1. ‘~ ::.‘.‘:‘...~~ ..; :‘. ,:: 

*A aP~~~8U&rity tore&&t the Arrier " .: ~.;' .' 

to hiruling, in i,nteratate commerce, commoditier 

Rich 8re exempt fromICC regulat$on? In ‘. ~’ .’ 1~’ 

&+g so, im i$ enoiqh tlqt the permit rimply 

r)cite the rertr,iction, or muat the .CommiWon~ 

bav4 actually made 8 determination th8t the ;~ : 

ldghway affected OIIa the rafety of ti, tr8+Iig I _~ 1 : 

‘WC thereon will not be adverkly sffected? ‘~ ;: ‘.’ “’ 
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Col. Homer Garrison, Jr., Page 3. (WW-814) 

. 

“Based upon existing Fedeial decisions, some Texas 

case law, and statementa contained in such Attorney 

General opinions as Nos. 0- 3973, o-3107, O-1843, O,-3176, 

O-4262, and O-4853, this Department has misgivings as 

to whether it can interfere with an interstate operation 

by a carrier after the Commission has, made a determination that its operation on the highways would not adversely 

affect the highways or the public safety.” 

We will answer your questions in the order aa&ed. 

The answer to question No. 1 is Article 1690b of the Penal Code and Art. 

9llb (V. C. S.). Under the.facts outlined in yours opinion reque,st, the carrier 

has only been authorized by the ICC and the Texas Railroad Commission to 

haul exempt commodities. It follows that if such carrier hauled any other 

i+nd~ of commodity, he would neither have authority from the ICC nor the 

Railroad Commission to haul such commodity. ,*i~ ~‘. . 

. . . . ! 

In.our opixiion the caae~ that you cite’ (Castle v. Hayer Freight 

Iinee, inc.. 348 U. S. 61 ) ) involved the quemtion of the right of a 

state to “bar interstatemotor carrierm from ~the use of atate roads 8# 

puniabment for repeated violations of state, highway regulationb.” .In thia~ 

case, Illfnois sought to.bar Hayes, a carrier with a cartificate from the. .’ 

Interstate Commerce Commission, from the uee of Illinois highways on the 

grounds that Hayes was a repeated violator of’I.llinois weight laws. The 

Suprake Court’of the United States held that the State of Illinois had no 

right to bar this, certified interstate motor carrier from using’,the highways 

.of the state. The Supreme Court of Texas reached a similar result in 

RailroadCanmission of Teda v. Querner, 242 S. W. 2d 166 (1951). Also 

see Soathweatern.Greyhound Lines v. Texas Railroad Commission, Sup. 

Ct. &Ten. 1936, 99 S. W. 2d 263; 109 A. L. R. 1235. 

TLC carrier in the question presented has neither ICC authority nor 

authority fran the Texas Railroad Commission for. the specific commodities 

hauled. -An examination of the Acts of Congress discloses no provision, 

exprees Q implied, by which there is withheld from the State ita ordinary 

police power to conserve the highways in the interest of .the public and to 

prescribe snch reasonable regulations for their use as may be wise to prevent iajary and damage to them.!’ Morris v. Duby,~. 274 U. S. 135. Ex Parte 

Truloch, Tex. Ct. Crim. App. 1940, 140 S.’ W. td 167~. Also see h&Donald 

305 U. S. 263; Maurer v. Hamilton, 309 U. ,S. 598; Eichhols 

v. P&lie &vice Commission of Missouri, 306 U. S. 268. 

-answer to your question No. 2 is “Yes”. The first sentence of 
_L . ‘.. .- - 

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Cal. Homer Garrison, Jr., Page 4. (WW-814) 

Section (.d) of 16~90b reads as follows: 

!‘Any License and Weight Inspectors or other peace 

officer of the Department of Public Safety shall have 

the power and authority to make ariecrta without warrant for any violation of this.Act except rate violations.i’ 

In answer to your question No. 3, the following are suggested forms 

of complaints (omitting formal parts) : 

* 

COMMON CARRIER COMPLAINT 

That on or about~ the &YOf 196, ,’ 

in the County of , State of Texas, John Doe..was 

then and there a motor ,carrier, and he, the said John Doe 

did. t+P. and there unlawfully operate a motor propelled,. 

vehicle as 8 common carrier and did’then and tberc transport property for compensation or hire upon a public high- I:. 

way. of said County and State, and in the course of transporting said property did traverse said highway between 

the incorporated citie6 of and 

without having first obtained from the Railroad Commissioi 

of the State ~of Texas, a permit of public convenience and 

necesiity to operate aaid motor vehicle upon the public highwaye ofthis state as a common carrier, against the~peace .. 

and dignity of the State. . 

C&TRACT CARkIER COkfPLAINT 

That on or about ,the day of 196 : ‘8 

in the County of , State of Texas, John Doe, was 

then 9pd there a motor carrier, and he, the said John Doe ‘. 

did then and there unlawfully operate a motor propelled 

vehicle as a contract carrier and did then.and there transport 

property for compensation or hire upon a public highway of 

said Cmnty and State, and in the course of transporting 

said nronertv did traverse said highway between the cities ’ 

of and without having first 

obtaiacd fro& the Railroad Commission of the State of i 

Texas a permit to operate said motor vehicle upon the 

publichighways of this State as a contract carrier, against 
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Col. Homer Garrison, Jr., Page 5. (WW-814) 

the peace and dignity of the State. 

‘In answer to your question Nd. 4, .the follohng are the elements which 

must be proved by the State in such case: 

Elements: (common Carrier) .~ 

1. Venue. (Art. 1690b, P. C. ) -.. 

2. All elements constituting a person to be 8 

“motor carrier.*’ (Art. 9llb V. C. S., 

sec. 1 (g) 1. 

3.’ That the defendant is a common carrier. * 

4. That at such time and place, John Doe bad 

not first obtained a certificate of public 

convenience and necessity from the Railroad Commission. (Sec. 3, Art. 9llb, V.C.S.), 

Elements: (Contract Carrier) 

1. Venue. (Art. 1690b, P. C.) 

2. AU elements con~stituting a person to be a 

. 

, 

, “motor carrier.‘! (Art. 9Ilb, V. C. S., Sec. “. 

. . 

1 (g) 1. 

3. Elements constituting a contract carrier. 

(Art. 9llb, Sec. 1, (h), V. C. S.) 

4. That at such time and pIace John Dot had 

not first obtained a permit’from the Railroad Commission to Operate as 8 contract 

carrier. (Art. 9lIb, Sec. 6, -V. C. S.) 

The answer to your question No. ~5 is “No”. 

In.answering your question No. 6, we quote from Ex Psrte Sterling, 

TexSup. Ct., 122Tex. 108, 53 S. W. (2) 294: 

T’he power to prohibit the use of the highways 

for such purposes necessarily includes the lesser 1 

power to place such restrictions and regulations 

upon the use thereof as may be deemed proper . . . ” . 

In the cases cited herein, the courts recognize the power of the state 

tom regulate the use of its highw8ys in the realm of safety to the traveling 

public and protection of its highways. Consequently the state has the power 

to restrict or limit such grant to the same grant of authority that has been 
.y ,:: : 

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.~. ~;; C.oI. Homer. Garrison, Jr., Page.6. (WW-814) 

made. by ~the Inter~state~ Gomrxierce Commission to any given carrier. ~.in 

other, words* ,the. grant of authority to use Texas highways ,extends .only~ to’ 

the hauling of a particular commodity which has been authorized bye the 

ICC. : It doss not authorise the hauling of any others. In so doing, it is 

~enough that the permit simply recite the restriction. 

:.,. ~.’ ‘. 

-In’.any ‘case ,w++re permission to use the ,highways of Texas for :an 

interstate.carrier .is sought,’ the Railroad Commission, ‘after due notice to x ~., 

all int@rest$ parties;h@s a hearing to determine whether or not, the permiisjqirequested is~oonsonant,with the’safety of the public and protection 

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Ool. Homer Garrison, Jr., Page 7. (WW-814) 

APPROVED: 

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OPINION COMMITTEE: 

W. V. Geppert, Chairman 

Riley Eugene Fletcher 

Gordon C. Cass 

Jack N. Price 

REViEWiD FOR THE ATTQRNEY GENERAL 

BY: 

Leonard Passmore