### ATTORNEYGENERALOFTEXAS GREG ABBOTT

April 152004

Mr. Mac Tristan Chairman, Texas Automobile Theft Prevention Authority 4000 Jackson Avenue Austin, Texas 7873 1 Opinion No. GA-0179
Re: Whether the Texas Automobile Theft Prevention Authority may assess a fee for insurance on, and use its funds toinvestigate the theft of, self-propelled farm equipment, construction equipment, boats and aircraft (RQ-0127-GA)

Dear Mr. Tristan:
You ask whether the Texas Automobile Theft Prevention Authority may assess a fee for insurance on, and use its funds to investigate, the theft of self-propelled farm equipment, construction equipment, boats and aircraft.’
The Texas Automobile Theft Prevention Authority (the “Authority”), established under article 4413(37) of the Revised Civil Statutes, was initially created as apart of the criminal justice division ofthe governor’s office. SeeAct ofMay 25,1991,72d Leg., R.S., ch. 243,§ 1,199l Tex. Gen. Laws 1138,1138-41. The agencywas transferred to the Department ofTransportation in 1997. See Act of May 14, 1997,75th Leg., R.S., ch. 305, 8 3, 1997 Tex. Gen. Laws 1349, 1349. The Authority is composed of seven members, six appointed by the governor and the director of the Department of Public Safety, or a designee appointed by the director. See TEX. REV. CIV. STAT. fiNN. art. 4413(37), $ 3(a) (Vemon Supp. 2004). The governor’s appointees must include two representatives of motor vehicle insurance consumers, two representatives of motor vehicle insurance companies, and two representatives of law enforcement. See id. 0 3(b)(1)-(3).
The Authority is empowered to adopt rules. See id. 9 6(a). It is required to “develop and implement a plan of operation” that includes “an assessment of the scope of the problems of automobile theft and economic automobile theft”*; “an analysis of various methods of combating the problems of automobile theft and economic automobile theft”; and “a plan for providing financial support to combat automobile theft and economic automobile theft.” Id. 87(a)-(b).

‘SeeLetter fromMr. Mac Tristan, Chairman, Texas Automobile Theft Prevention Authority, toHonorable Greg Abbott, Texas Attorney General at 2 (Nov. 12, 2003) (on file with Opinion Committee, also avadable at http://www.oag.state.tx.us) [hereinafter Request Letter].
*“Economic automobile theft” is defined as “automobile theft committed for financial gain.” TEX.REV.CIV. STAT. ANN.art. 4413(37), 5 l(2) (Vernon Supp. 2004).Mr. Mac Tristan - Page 2 (GA-0179)

One of the Authority’s principal duties is to “develop a statewide automobile registration program to be administered by the Department of Public Safety.” Id 3 9(a). The Authority is directed to “identify aperiod of the day during which most automobiles are not used. An owner of an automobile that does not usually use the automobile during that period may register the automobile with the Department of Public Safety in accordance with the program developed by the authority.” Id. § 9(b). The registration program includes the issuance “to the owner of an automobile registered under this section adecal or other appropriate identifying marker tobe affixed to the automobile to indicate that the automobile is registered with the program.” Id. 8 9(e). “A peace officer who observes a registered automobile that is being operated during the period of the day identified by the authority under Subsection (b) of this section may stop the automobile to determine whether the automobile is being operated by the owner or with the owner’s permission.” Id. 5 9(f).
Section 8 of article 4413(37) describes the Authority’s use of appropriated funds. Much of its funding is derived from a fee imposed on insurers. Section 10(b)requires that an insurer “pay to the authority a fee equal to $1 multiplied by the total number ofmotor vehicle years ofinsurance for insurance policies delivered, issued for delivery, or renewed by the insurer.” Id. 8 10(b).

“Insurer” isdefined in article 44 13(37) as“any insurance company writing any form ofmotor vehicle insurance in this state, including an interinsurance orreciprocal exchange, mutual company, mutual association, or Lloyd’s plan.” Id. 0 1 O(a)(1)(emphasis added). The term “motor vehicle insurance” is not defined in article 4413(37). The Authority looks to the Insurance Code to define the term. See Request Letter, supra note 1, at 2. Article 5.01(e) of the Insurance Code provides:

(e) Motor vehicle or automobile insurance as referred to in this subchapter shall be taken and construed to mean every form of insurance on any automobile or other vehicle hereinafter enumerated and its operating equipment or necessitated by reason of the liability imposed by law for damages arising out ofthe ownership, operation, maintenance, or use in this State of any automobile, motorcycle, motorbicycle, truck, truck-tractor, tractor, traction engine, or any other self-propelled vehicle, and including also every vehicle, trailer or semi-trailer pulled or towed by a motor vehicle, but excluding every motor vehicle running only upon fixed rails or tracks. Workers’ compensation insurance is excluded from the foregoing definition.

TEX.INS.CODEANN.art. 5.01(e) (Vernon Supp. 2004) (emphasis added).
You first ask whether the Authority may “adopt a rule defining the term ‘any other selfpropelled vehicle’ to include self-propelled farm equipment, construction equipment, boats [and] aircraft.” Request Letter, supra note 1, at 2. You also ask whether the Authority may assess the article 44 13(37)feeonly upon vehicles insured under motor vehicle orautomobile insurance policies or whether it may also assess the fee on types of insurance that cover heavy equipment. See id. We gather from these two questions that the Authority proposes to adopt arule broadening the meaningMr. Mac Tristan - Page 3 (GA-0179)

of “motor vehicle” that would require insurers to pay the article 4413(37) fee based on insurance policies other than motor vehicle insurance policies. See id. (noting that certain kinds of mobile equipment may be insured under general liability insurance policies as opposed to motor vehicle insurance policies).
The scope ofthe term “motor vehicle” in article 5.O 1 (e)is not dispositive ofthe proper basis for the article 4413(37) fee, and arule providing abroad definition ofthe term would not permit the Authority to expand the basis for the fee. Chapter 5 ofthe Insurance Code is divided into a number of subchapters. Subchapter A, of which article 5.01 is a part, deals with “motor vehicle or automobile insurance.” TEX.INS.CODEANN. art. 5.01-.12 (Vernon Supp. 2004). Other subchapters govern “aircraft insurance” (subchapter K), id. art. 5.91-.98; fire and allied lines (subchapter C), which includes marine insurance, id. art. 5.25-.53A; and general casualty insurance (subchapter B), id. art. 5.13-.24. Article 5.01(e) describes a variety of vehicles, both self-propelled and otherwise, that may be insured under a “motor vehicle insurance” policy. But the Authority does not assess its fee upon “vehicles,” but upon “insurers” based on the number of “motor vehicle insurance” policies they write. See TEX.REV.CIV.STAT.ANN.art. 4413(37), $ IO(a)-(b) (Vernon Supp. 2004). If an insurer writes a “motor vehicle insurance” policy, the Authority may assess its fee upon that insurer for those policies. See id. If a vehicle is not insured under a “motor vehicle insurance” policy, however, but under some other kind of policy, such as aircraft, marine, or general casualty policy, the insurer is not an “insurer” for purposes of article 4413(37), and as a result, no fee may be imposed on the policy. See id.
In sum, to answer your specific questions, the Authority may not by rule define the term

“self-propelled motor vehicle” to impose the article 4413(37) fee on insuranbe policies other than motor vehicle insurance policies. Moreover, the Authority may not assess the fees on other kinds, of insurance policies that may insure against liability relating to motor vehicles, such as general liability policies, marine and aircraft policies.
Your third question is whether appropriated funds of the Authority may be used to fund projects that relate tothefts ofself-propelled farm equipment, self-propelled construction equipment, and boats and aircraft. See Request Letter, supra notel, at2. Section 8of article 4413(37) describes the permissible uses of appropriated funds to include:



### (1) establishing and funding the automobile registration program required by Section 9 of this article; (2) providing financial support to law enforcement agencies for economic automobile theft enforcement teams; (3) providing financial support to law enforcement agencies, local prosecutors, judicial agencies, and neighborhood, community, business, and nonprofit organizations for programs designed to reduce the incidence of economic automobile theft;Mr. Mac Tristan - Page 4 (GA-0179)



### (4) conducting educational programs designed to inform automobile owners of methods ofpreventing automobile theft; (5) providing equipment, for experimental purposes, to assist automobile owners in preventing automobile theft; and 

### (6) establishing a uniform program to prevent stolen motor vehicles from entering Mexico.
TEX.REV.CIV.STAT.ANN.art. 4413(37), 6 8(a)(l)-(6) (Vemon Supp. 2004) (emphasis added). Thus, article 4413(37) requires the Authority to take steps to prevent “automobile” theft, and in one instance, to prevent stolen “motor vehicles” from entering Mexico. Id. art.4413(37), 0 8(4), (6).
Article 4413(37) contains no definition ofeither “automobile” or “motor vehicle.” We must therefore look to other statutes and case law to discern the meaning of those terms. See La Sara Grain Co. v. First Nat ‘I Bank, 673 S.W.2d 558,565 (Tex. 1984). In Nichols v. State, 242 S.W.2d 396 (Tex. Crim. App. 1951),the court held that the word “automobile,” as used by the legislature in describing the offense of driving while intoxicated, “is a generic term which includes the motor vehicle commonly known as a ‘truck.“’ Id. at 397. In SmaZZ v. State, 631 S.W.2d 201 (Tex. App.-Corpus Christi 1982,no writ), the court held that, forpurposes ofthe offense of driving while intoxicated, “automobile” is broad enough to include “motorcycle.” No Texas case has held, however, that self-propelled farm or construction equipment is embraced within the definition of

“automobile” for purposes of article 4413(37).
The Texas Supreme Court has held that, in common usage, the terms “automobile” and “motor vehicle” are not synonymous:

The courts have held the term “motor vehicle” to be different from and broader than the term “automobile.“

. . . Common usage has made the phrase “motor vehicle” ageneric term for all classes of selfpropelled vehicles not operating on stationary rails or tracks, and therefore, as a result all automobiles are motor vehicles, but the contrary proposition is not true. The term “motor vehicle” is much broader than the word “automobile” and includes various vehicles which cannot be classified as automobiles. Slaughter v.Abilene State Sch., 561 S.W.2d 789’791-92 (Tex.. 1977). There is no single definition of “motor vehicle” under Texas law. Under the Certificate of Title Act, for example, “motor vehicle” includes “any motor driven orpropelled vehicle required to be registered under the laws of this state; a trailer or semitrailer

. . .that has a gross vehicle weight that exceeds 4,000 pounds; a house trailer; afour-wheel all-terrain vehicle

.. .;[and] amotorcycle, motor-driven cycle, ormoped.” TEX. TRANSP.CODEANIN. 5 501.002(14) (Vernon Supp. 2004). For purposes of Motor Vehicle Safety Responsibility Act, a “motor vehicle” is “a self-propelled vehicle designed for use on a highway, a trailer or semitrailer for use with a self-propelled vehicle, or a vehicle propelled byMr. Mac Tristan - Page 5 (GA-0179)

electric power fkom overhead wires and not operated on rails.” Id. 0 601.002(5) (Vernon 1999). Other statutes define “motor vehicle” in various but similar ways. A number of statutes emphasize the “highway use” aspect in defining the term. See, e.g., id. 0647.001 (Vernon Supp. 2004) (relating to the motor transportation of migrant agricultural workers); TEX.TAX CODEANN. Ej162.001(44) (Vernon Supp. 2004) (relating to motor fuel taxes); TEX. NAT. RES. CODE Am. $ 116.001(8) (Vernon 2001) (relating to compressed natural gas). Considering the purpose of article 4413(37) - to establish a mechanism for the prevention of automobile theft -we believe that the term “motor vehicle” asused in section 8(6)ofthat statute, is amore inclusive term than that of “automobile,” but that it should be restricted to motor vehicles that are intended for use on a highway. Thus, the Authority may establish a uniform program to prevent self-propelled farm and construction equipment from entering Mexico only ifthose vehicles are designed for highway use. If, on the other hand, such vehicles are operated entirely within the confines ofprivate property, they may not be included in the uniform program established by section 8(6) of article 4413(37). .

An aircraft, however, is clearly not a “motor vehicle” within the contemplation of article 4413(37). SeeMcBoyZev. UnitedStates, 283U.S. 25’26 (1931) (,‘ in everyday speech ‘vehicle’ calls up the picture of athing moving on land,” and thus, an airplane is not a “motor vehicle”). Neither, under Texas law, is amotorboat included within the definition of “motor vehicle.” See WiZZiams v. State, 698 S.W.2d 266,268 (Tex. App.-Fort Worth 1985), affd, 725 S.W.2d 258 (Tex. Crim. App. 1987). Case law thus excludes boats and aircraft from the definition of“motor vehicle” forpurposes of section 8of article 4413(37). As aresult, the Authority may not fund projects that relate to thefts ofboats and aircraft.Mr. Mac Tristan - Page 6 (GA-0179)

SUMMARY
The Texas Automobile TheftPrevention Authority may assess a fee only upon insurers who insure vehicles under a “motor vehicle insurance” policy. It may not assess a fee upon insurers that insure a vehicle under any other kind ofpolicy. The Authority may establish aprogram to prevent the theft of “automobiles,” including trucks and motorcycles, but not including self-propelled farm and construction equipment. The Authority may establish a uniform program to prevent self-propelled farm and construction equipment from entering Mexico only if that equipment is intended for highway use. It may not do so if such equipment is operated entirely within the confines of private property. The Authority may not fund any projects that relate to thefts of boats and aircraft.
Yours very truly,

BARRY R. MCBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee
Rick Gilpin Assistant Attorney General, Opinion Committee