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## ATTORNEY GENERAL OF TEXAS Gerald C. Mann AUHTXN 11.TRXAS *--I;= o-&s.

Railroad Commlsslon of Texas .~ AImtIn, Texas Attention! Walton DeHood

Dear Sir: Oplnlon uo. O-1401 Rer Application of Motor Carrier Lawto operation of truck for purpose of transporting oil and gasoline under the provlsions of alease contract executed between J. LawtonThomas andLewis 011 Company. Weacknowledge receipt of your letter of September 8 

### 1939,in whlah you request the opinion of this department on the following stattement of facts, which we quote. from your letter8

“1 handyou herewith Lease Contract exeouted by andbetween J. Lawton Thomas, first. party andLewis 011 Company, second party, for the purpose of transporting 011 and gasoline. *It will be noted la paragraph 

### 3of this .contract that first party Is to reoeive a oent per gallon for eaoh fifty miles hauled. UParagraph 4 stipulates first party shall furnish all gasoline, 011 and grease used In the operation of said truok. *Paragraph 5 states that fU?st party shall keep truok in good rumlng order at his ownexpense, eto. *Paragraph 6attempts to place all liability <or accidents ,anddamages Incurred on first party, etc. llWeconsider this nothing more than a contract to haul f@r hire in view of the foregoing, especially paragraph 3, which sets forth the proposed compensation. 

### ttWlll you please give us anopinion. regarding this contract andwhether or not you consider this a W.Olatlon of ihe Motor Carrier Law?* TheMotor Carrier Lawis oodifled In Vernon’s Annotated Civil Statutes of Texas as Article 911b. Section 2 of Article glib prohibits the operation of a motor carrier, as defihl&XnRailroad Commlsslon of Texas - Walton D. Rood, page 2

Section 1 compensat 1 for the purpose of transportation of property for

on or hire over any pub110 highway ln the ,State, except in accordance with the provislons of Artl$Le 911b, and provides certain exceptions not pertinent here. Section 3 of the Act provides that no motor carrier shall operate as a commoncarrier without first having obtained from the Railroad Commission a certificate of public convenience andnecessity, andprovides that no motor carrier shall operate as a contract q+rrler without first having obtained from the Commission a permit to do so, after having complied with al.1 of the requirements of Article 911b.

Asituation analogous to the one at handwas presented in the case of Anderson, Clayton andCo. et al vs. State, ex rel Allred, Attorney General et al 82 8.W. (2d) 941. In this case, Anderson, Glayton andEompany’entered into alease contract for the purpose of hiring trucks to haul property from various points In the State of Texas to the City of Houston and other ports, and agreed to pay a rental of $25.00 per week, plus a sumequal to a specified rate per ton mile for all property hauled In the leased trucks. Noproperty was hauled In the trucks except that belonging to Anderson, Clayton and.Company. The Commisslon of Appeals held that whether the lessors of the trucks andthe lessees, Anderson, Clayton andCompany,were *motar carriers@’ andas such required to obtain a permit to do business was anIssue of fact to be presented to andpassed upon by ajury, and in so holding madethe following statement:

” The question as to whether or not any of the p&&;ffs in error sre really motor carriers as defined by the statutes was for the jury to determine from all the facts andcircumstances In evidence.

. . l n In the case of NewWayLumberCo. et al vs. Smith et al, 96 S.W. (2d) 282, the~SupremeCourt of 4exas made.the foilowlng statement:

“Since the companyreceives compensation for the delivery of lumber; ,it clearly appears that the trucks used comemder the -deflnltLoh of a ‘contract carrier’ and are subject to the provisions of Article 911b.e Ia’ this case, the trucks were owned&ndused by the lumbar company In transporting lumber over non-urban state highways for which the companymadea delivery charge such charge being based on the weight of the truck andthe distance which It had traveled; and under these circumstances the SupremeCourt held that the lumber company’s trucks were contract carriers subject to the statute requiring operators to obtain permits from the State Rallroad Commission. It will be noted, however, that the turning Point. ’

Railroad Commission of Texas - Walton D. Hood, page 3

of this case was the fact that the lumber companydid makea charge for the delivery of the material transported, and that the case In nowayconflicts with the holding of the Commission of Appeals In the case of Anderson, Clayton andCompanyvs. State, supra.

It Is the opinion of this department that the question of whether or not the operation of a truck under the lease contract submitted to us Is In violation of,the provisions of Artlcl6 911b, above referred to Is anissue of fact which must be passed upon by ajury. Wedo not Intend, bythis opinion, to indicate that such operation of trucks Is not In violation of the law, nor that it should be condoned, but rather that this Department has noauthority to render any decision which invades the office andprovince of ajury. Yours very truly ATTORNEY

GENRRAL

OFTRXAS By/,s/ Ross Carlton Ross Carlton, Assistant APPROVRD:

OCT20, 1939 /s/ Gerald C. Mann ATTORNEY

GEXERAL.

OFTFXAS APPROVED:

OPINIONCOMMITTGE BYr BWB,CHAIRMAN RCrGOrwb