Hon. Ben Ramsey and Ernest OpinionNo..C-74

0. Thompson Members Re: Whether certain advertising Railroad Commission of Texas on specializedmotor vehicles Austin, Texas violate Article 1690 InVernon's Penal Code? ATTENTION: C. R. McNamee
Gentlemen:

You have requested an opinion from this office as to the legality of the following tariff Item:

"Upon tender of shipment In any quantity up to and including truckload lots, or when vehicle Is orderedby shipper for exclusive use, shippermay, at his option, afflx,advertlslng on carrier'svehicle advertising those goods being transported subject to the following terms and ,condltlons. No advertising Is permittedwhen shipments loaded on the truck and/or trailer consists of shipments from other shippers other than the shipper requesting advertising. Shipments loaded on the truck ,and/ or trailer are to be left to the discretion of the carrier."

You have suggested that Paragraph (g) of Article 1690b, Vernon's Penal Code,might be applicable. That paragraph provides as follows: 

## carri~~~co~o~h~~lc~~t~~~~f~for anymotor

, or the owner ,of
a certificate or permit, or his agent, servant or employee, directly or indirectly, to offer, permit or give to any person, directly or indirectly, any commission or other consideration to induce such person to deliver to suchmotor carrier or certificateor permit owner,property to be transported;and it likewise shallbe unlawful for any shipper or consignee or his agent, servant or employee, to receive from suchmotor carrier, directly or Indirectly,any

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Hon. Ben Ramsey and Ernest 0. Thompson, Page 2 (C-74 )

such commission or considerationas an lnducement to secure the transportationof any such property. Any person violating any of the provisions of this section shall be guilty of a misdemeanor, and shall,upon conviction,be punishedby a fine not to exceed Two Hundred ($200)Dollars, and each such transaction shall constitute a separate offense."

An analysis of this section of Article 1690b shows that the element of the criminal offense set out are: (1) themotor carrier or his representativemust, directly or indirectly, offer permit or give a commissionor other consideration to a shipper and (2) the reason for the commissionor other conslderatlonmust be to induce such person to deliver to suchmotor carrier or certificate or permit owner property to be transported. The offense so far as the shipper Is concerned Is that the shipper or his representativemust receive some commission or considerationand such commission or consideration must be receivedas an inducement to secure the transportation of the property.
If we examine the proposed Item for the tariffwe find that It Is the shipperwho may "at his option" affix the advertising on the carrier'svehicle when he ships on the carrier any quantity of goods up to and Including a truckload lot or when the vehicle Is orderedby shipper for his exclusive use. However, under the proposed Items such advertising 1s not allowed If the shipment loaded on the truck and/or trailer contain Items from other shippers. It Is further to be noted that the carrier Is still in control of the shipment to be loaded on his trucks. It should furtherbe noted that the Tariff will apply to all shippersunder this item and all shipperswill thereforebe allowed the sameprerogatives.

We believe that advertisingwould be includedas "other considerations" in the terms of the statute. However, such considerations,as pointed out above,must be given as an lnducement to the shipper and receivedby the shipperas an lnducement to transportgoods. We read into the word inducement the connotation of "preferred treatment:as for example the type of preferred treatment thatwould be received from a motor carrier If he were to rebatepart of the cost of the shipment. Inasmuchas all carriers and shippersare treated alike and all shippersare accorded the same opportunityunder the item to place their advertisementson the carriersunder the same conditions, it Is our opinion that the itemwould not be in violation of themotor carrier law and particularlywould not be a violation of Paragraph (g)of Article 1690b,Vernon's

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Penal Code.

SUMMARY

An itemplaced In a Tariff allowing the affixing of advertising on the carrier'svehicle at the option of the shipperwhen such shipper ships a quantity of goods on the carrierup to and Includinga truckload lot or when the vehicle is orderedby the shipper for his exclusiveuse and providing that no advertisement
can be placed by such shipper on the carrier'svehlcle when such shipment on the carrier's truck consists of shipments from other shippersnot Including the shipper requesting the advertisementwill not be in violation of the Motor Carrier Law, particularlyArticle 1690b, Section (g),Vernon's Penal Code.

Yours very truly,

CARR Generat of Tnas

wNoh?-%3!?~ ‘w

. AssistantAttorne General

NVS:nss

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Sam R. Wilson V. F. Taylor W. 0. Shultz Pat Bailey

APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone

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