., 

TISE ATTORNEY GENERAL 

OF TEXAS 

Gerald C. Mann AUHTXN 11. TRXAS 

*--I;= o-&s. 

Railroad Commlsslon of Texas .~ 

AImtIn, Texas 

Attention! Walton De Hood 

Dear Sir: 

Oplnlon uo. O-1401 

Rer Application of Motor Carrier Law to operation of truck 

for purpose of transporting oil 

and gasoline under the provlsions of a lease contract executed between J. Lawton Thomas 

and Lewis 011 Company. 

We acknowledge 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 hand you herewith Lease Contract exeouted by 

and between J. Lawton Thomas, first. party and Lewis 

011 Company, second party, for the purpose of transporting 011 and gasoline. 

*It will be noted la paragraph 3 of 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 own expense, eto. 

*Paragraph 6 attempts to place all liability <or 

accidents ,and damages Incurred on first party, etc. 

llWe consider 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 an opinion. regarding this 

contract and whether or not you consider this a W.Olatlon of ihe Motor Carrier Law?* 

The Motor Carrier Law is 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&Xn 
Railroad 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 common carrier without first having obtained from the Railroad 

Commission a certificate of public convenience and necessity, 

and provides 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. 

A situation analogous to the one at hand was presented 

in the case of Anderson, Clayton and Co. et al vs. State, ex 

rel Allred, Attorney General et al 82 8.W. (2d) 941. In this 

case, Anderson, Glayton and Eompany’entered into a lease 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 sum equal to a specified rate per ton mile for all property 

hauled In the leased trucks. No property 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 and the lessees, Anderson, Clayton and Company, were *motar carriers@’ and as such required to obtain a permit to do business was an Issue of fact to be presented to and passed upon by 

a jury, and in so holding made the 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 and circumstances In evidence. . . l n 

In the case of New Way Lumber Co. et al vs. Smith et 

al, 96 S.W. (2d) 282, the ~Supreme Court of 4 exas made .the foilowlng statement: 

“Since the company receives compensation for the 

delivery of lumber; ,it clearly appears that the trucks 

used come mder the -deflnltLoh of a ‘contract carrier’ 

and are subject to the provisions of Article 911b.e 

Ia’ this case, the trucks were owned &nd used by the lumbar company In transporting lumber over non-urban state highways 

for which the company made a delivery charge such charge being 

based on the weight of the truck and the distance which It had 

traveled; and under these circumstances the Supreme Court 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 company did make a 

charge for the delivery of the material transported, and that 

the case In no way conflicts with the holding of the Commission 

of Appeals In the case of Anderson, Clayton and Company vs. 

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 an issue of fact which must be 

passed upon by a jury. We do not Intend, by this 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 no authority to render any decision which invades 

the office and province of a jury. 

Yours very truly 

ATTORNEY GENRRAL OF TRXAS 

By /,s/ Ross Carlton 

Ross Carlton, Assistant 

APPROVRD: OCT 20, 1939 

/s/ Gerald C. Mann 

ATTORNEY GEXERAL. OF TFXAS 

APPROVED: OPINION COMMITTGE 

BYr BWB, CHAIRMAN 

RCrGOrwb