### THE A~~~OKNEY GENEKAI, OP TEXAS

Honorable Jos. h. Dart County Attorney Kendall County Boerne, Texas Dear 8ir: Opinion 

### NO.o-3964 Re: Nbcessity 

### for certificate or permit for operation as amotor carrier, ~Construc- ;ir of Article qllb, V.T.

. . _ Weare In receipt of your-recent 'request for an opinion in which you submit the following questions:

"The highway between San Antonio and:.Kerrville is Intersected by first, Leon Sprin:s, L. unicccrporated town, then by Boerne, an Incorporated city, then by Comfort, anunincorporated town, finally winding up in Kerrvllle, an incorporated city. In ycur opinion would the fact that the unincorporated towns lie between two or more incorporated cities, towns and~vlllages' to the extent that the carrier could operate anywhere along this route just SC long as he kept anunincorporated town between himself and one of the Incorporated cities, or is the fact that the unincorporated towns lie between the incorporated cities merely incidental and has no besring on the ,stotus of the highway 8s between two or **more**incorvcratsd cities, towns or villages?" "Paragraph (h)'of Art. qllb, R.C.S., reads: 'The term "contract carrier" means anymotor carrier PShereinabo-e defined transporting property for compensation or hire ever anyhighway in this State other than as a commoncarrier.'. ..

Honorable Joa. B. Dart, page 2O-3964

“I would take this varagraph to mean amotor carrier opernting over no.&ixed route and with no fixed schedule and not holding himself out as a carrier for the general public but taking certain jobs cf hauling here and there as opportunity offers, being under no obligation to haul except whenhe felt like and for whomhe pleased; apriv8te carrier as distinguished from a ‘common carrler. *

‘%y interpret8tion of this paragraph would be that this sort of a carrier would have apermit to operate on any public highway, and that suah perma would entitle him to operate when andwhere he pleased.”

We believe your first uestlon is answered by our a opinion0 No. O-1592, O-1497, t&,53?, O-3449 

### and0-3449-A, oagies of which are encl,osed hereilth.

Section 1 (g) of ArticIe glib, V.T.C.S., (H.B. 335, Aet.61931) defines a “motor carrier” 88

### followa~,

“(g) The term t&or oarrierl means any person, firm, corpc,ratlon, 

### company, oo-pmtnerrhip, 

### rssocioti **on**

### orjoln#atock usoclatlon, and their losses, receivers or trusteea 8ppointed by any court whatsoever, owning, controlling, m8n8ging, operating or causing to be operated any motor propelled vehicle used in transporting property for compensation or hire over anypublic h1,ghway in this State, where **in** the course of such transportation 8highway between two or more Incorporated citl.es,..towns or villages is traversed; provided, that the term ‘motor carrier’ as used in this Act shall not include, and this Act shall not apply to motor vehicles operated exclusively within the lncorpor8ted limits of cities .or towns.” A&lying this statutory definition to the facts presented in your second question Ft will, be noted that It does not depend upon whether the operation i# over afixed route, or with fixed schedules or whether the carrier holds himself out to haul for the public at large. The operator Is a “motor carrier” whenHonorable Jcsfil8. Dart, psge 3O-3964

(1) property is transported, (2) 1 n (3) for cqmpensation or hire, 8motor-propelled vehicle, and (4) over ony M$&w&y in this St8t.8, where in the course of such transportaticn ahighway between two 07more incorporated cities, townm&,p villages 1s t&versed. The operator you have described clearly comes within the &fin,ition of a.“motor carrier,” 8ssumlng the above listed elementti of the definition are pre~sent. *

Section 2 of Article 9llb, V.T!C.S., makes all motor carriers as defined in Section 1, subject to the provisions of the Act. Ssction 3of said Act reads:

“Nomotor car$Wr shrll, after this Act goes Into effect, operate as Pcommoncarrier, without first having obtained from the Commission, under the provisions of this Act, a certificate of public convenience and necessity pursuuat to affnding to the effect that the public convenience and necessi’ty requires such operation. Nomotor cerrier shall, after this Act goes into effect, operate 8s 8contract carrier without having first obt@ned from the Commission apermit so to do, which permit shall have in all things complied with the requirements of this Act.” Section l’ih) of Article 9llb, V.T.C.S., defines a

“contract c8rrier” as follows:

“?hhsterm lcontract crrrlert means any motor carrier as herein above defined transporting property for compensation or hire over any highway in this, State other than es 8commoncarrier.” It will thus be seen that every “motor carrier” is either a “common ctcrier” or 8“contract carrism,” If 8 common c8rrier a “certificate” is required, and if Pcontract carrier 8“permit ” Is required, to render the operation lawful.

The facts presented are not sufficiently detailed for us to determine whether the motor carrier you describe should have a certificate or permit. If he hauls for whomhe pleases, as the opportunity is offered, his oper&tlons might very wellHonorable 

### Jos. B. Dart, page 4 

### O-3964

be to such an extlent that he would in fact be a cormnoncarrier. Section 

### 6 of the motor carrier ect requires the applicant for &-contract c&rrler permit to set forth in his application "the nature cf the transportation in which the applicant wishes,to engage stating substantially the territory to be covered by the operation and including the condition and character of the roads ever which the transportation Is tobe performed."

The permit issued to acontract carrier by the Railroad Commission describes the 'territory or hq.ghways, the service to be rendered andnames the contracting parties the permit holder is authorized to serve. lt has been the prectice of the Commission to limit a contract c8rrier to five contracts based upon the proposition that when such amotor carrier serves a greater number of shipflers he in fact becomes acommoncarrier.

The 8uthorisation of 8commonc8rrier or contract carrier is fully set out in his certificlte or p8rmj.t and if a question ersses- concerning the scope of amotor carrier's euthorized operations wesuggest that his certiflcete or permit be examined. In this connecticn wecall attention to Section 

### 16 (e) which requires that an indentificetion card cont&ining certain information be displryed in the cab of each motor vehicle.

Because of the nature of your second question we sre unable to give,& categorical answer but trust that the foregoing sufficiently enswsrs your question. Yours very truly ATTORNEY

GEXERAIOFTEXAS BY Cecil C. Cammack Assistant CCC:db -- PAM Enclosures APPROVEDSep 23 1941 GERALDC. MANN ATTORNEYGENERALOFTEXAS APPROVEDOPINIONCOMMITTEE BYBWB,CHAIRMAN