c 

~ THE ATTORNEY GENERAL 

QFTEXAS 

AUSTIN. TEXAS 78711 

February 17, 1966 

Honorable Joseph H. Mims 

District Attorney 

Midland County Courthouse 

Midland, Texas 

Dear Mr. Mims: 

Opinion No. C- 613 

Re: Applicability of Article 

S27a-6, V.P.C., to facts 

outlined. 

The following question was submitted to us for our opinion, 

by your predecessor in office, to wit: 

"May the State Highway Department in its discretion grant the owner and operator of equipment 

utilized as outlined above, a permit for the movement of such equipment under Section 2, Acts 1963, 

58th Legislature, Page 492, Chapter 179 (Section 2, 

Article 827a-6, V.A.P.C.) provided such owner and 

operator otherwise complies with the conditions and 

pays the fees as prescribed by the Act and set forth 

by regulation of the Highway Department?" 

Your opinion request and additional information submitted 

to this office concerning the equipment and its use are as 

follows, to wit: 

There are certain trucks in use in your area for the purpose of fracing oil wells. The fracing operation involves high 

pressure injection of vast amounts of oil sand or other liquid 

sand mixture into a formation to cause fractures and thereby 

stimulate oil production. The trucks in question transport a 

frac fluid composed of frac oil, acid, clear water, brine and 

crude oil. The trailer tanks used in this business are custom 

made and specially equipped to perform this special function 

-2972- 
Hon. Joseph Mims, page 2 (C- 613) 

of fracing. The trailer is made of high tensile steel to 

avoid corrosion and to withstand high pressures involved in 

fracing. The trailers are equipped with appropriate pumps to 

move large volumes of fluid rapidly through special noncorrosive lines and valves. The trailers in question are not 

suitable for any other purpose than that for which they were 

designed. 

The equipment or vehicle in question backs up to the oil 

well and the frac fluid is run from the truck directly into the 

well. The fluid is ~forced into the well by the pump on the 

vehicle, while on other occasions, an additional pump is used 

to move the fluid from the truck to the well. At the completion 

of the fracing operation, the equipment takes the return frac 

fluid from the well and removes it from the lease. The fluids 

carried to and from the oil wells are owned by the owner of the 

vehicle, and the vehicles in question do not operate as carriers 

for compensation or hire. 

The four and five axle vehicles in this operation meet the 

dimension, axle and over-all weight requirements of Article 827a. 

Vernon's Penal Code. These vehicles are duly registered and 

licensed under,Article 6675a, Vernon's Civil Statutes, for the 

maximum amount of 72,000 pounds allowed under Article 827a, 

Section 5. 

Because it is necessary for these fracing trucks to go to 

the oil well to perform their designed service, it is necessary 

at times for these vehicles to travel upon farm-to-market and 

ranch-to-market roads that have maximum weight limits of 58,420 

pounds set by the Texas Highway Commission by authority of 

Article 827a, Section 5 l/2. It is shown that the vehicles 

in question are required to travel upon the 58,420 pound load 

limit roads approximately 18% of the total mileage traveled. 

By virtue of their registration, the trucks in question, 

when carrying a full load of frac fluid, never exceed the weight 

limit of any roads traveled except the travel required upon the 

58,420 pou~nd load limit roads. In order to operate one of the 

vehicles within the legal weight limits of the 58,420 pound 

-29 73- 
Hon. Joseph Mims, page 3 (C-613 ) 

load limit roads, it is necessary to reduce the trailer tanks 

to a partial load. A partial load in one of the trailers in 

question shifts laterally on turns and often causes the truck 

to overturn. We have been submitted written opinions of 

engineering experts that the trailer tanks cannot be baffled to 

prevent the lateral shift of the frac fluid. Because of the 

inability to provide lateral baffels, the lateral shift of a 

partially loaded trailer tank causes the vehicle to overturn when 

the truck attempts curves and turns in a road. Accident 

experience on these partially loaded fracing vehicles has 

resulted in property damage, personal injury and death. The 

only way to prevent load shift and the safe, practical operation 

of the fracing vehicles in question is to operate them fully 

loaded with fracing fluld. 

The question presented is whether or not the vehicles in 

question are within the type of vehicle described in Section 2, 

Article 827a-6. 

Article 827a-6 provides: 

"Att.827a-6. Movement of oversize or overweight oil 

well servicing and drilling machinery 

Purpose of Act 

"Section 1. The provisions of this Act shall be 

cumulative of all,other laws regulating the operation 

of vehicles and the movement of machinery on the highways 

of this state, it being the express intent of this Act 

to provide an optional procedure for the issuance of 

permits for the movement of oversize or overweight oil 

well servicing and/or oil well drilling machineqand - 

eouipment. 

.Permits; designation of routes 

"Sec. 2. 'When any person, firm or corporation, 

desires to operate over any road or highway under the 

jurisdiction of the State Highway Department any vehicle 

-2974- 
Hon. Joseph Mims, page 4 (C- 613) 

which is a piece of fixed load mobile machinerv or 

equipment used for the purpose of servicing, cleaning 

out, or drilling oil wells, and when such vehicle cannot 

comply with one or more of the restrictions set out in 

Sections 3 and 5 of Acts 1929, 41st Legislature, 2nd 

Called Session, Chapter 42, page 72, as amended (Article 

827a, Vernon's Annotated Penal Code), the State Highway 

Department may, as an alternative to any other procedure 

authorized by law, upon application, issue a permit 

for the movement of such vehicle, when the Department is of 

the opinion that the same may be moved without material 

damage to the highway or serious inconvenience to highway 

traffic. Provided, however, that all cities and towns 

having a state highway within their limits may designate 

to the State Highway Department the route within the city 

ortown to be used by said vehicles operating over the 

state highway. When so designated, the route shall be 

shown on all maps routing said vehicles by the State 

Highway Department. In the event a route is not so designated by a city or town, the State Highway Department shall 

determine the route onstate highways for such vehicles 

within cities or towns. No fee, permit or license shall 

be required by any city or town for movement of said vehicles 

on the route of a state highway designated by the State 

Highway Department or on said special route designated by 

a city or town. 

Necessity of registration of vehicles 

"Sec. 3. Prior to issuing any permit for the movement 

of such vehicles, said vehicles must have been reqistered 

under Acts, 1929, 41st Leqislature, 2nd Called Session, 

Chapter 88, as amended (Article 6675a, Vernon's Annotated 

Civil Statutes) for the maximum qross weiqht applicable 

to such vehicles under Section 5, Acts, 1929, 41st 

Leqislature, 2nd Called Session, Chapter 42, page 72, as 

amended (Article 827a, Vernon's Penal Code), or shall 

have the distinguishing license plates as provided in 

Paragraph (c) of Section 2, Acts 1929, 41st Legislature, 

2nd Called Session, Chapter 88, as added by Acts, 1961 

57th Legislature, Regular Session, Chapter 259, page 554, 

as amended, if applicable to said vehicles. 

-2975- 
Hon. Joseph Mims, page 5 (C-613 ) 

Rules and regulations: forms and procedures; 

violations: fees 

"Sec. 4. The State Highway Commission shall formulate 

rules and regulations regarding the issuance of such permits 

including, but not limited to, the forms and procedures to 

be used in applying for same; conditions with reqard to 

route and time of movement and special requirements as to 

flaqs, flaqmen': and warninq devices: the fees to be 

collected and deposited in the State Hiqhwav Fund: whether 

a particular permit shall be for one trip onlv, or for a 

period of time to be established bv the Commission;and 

such other matters as the Commission may deem necessary 

to carry out the provisions of the Act. The failure of an 

owner or his representative to complv with any rule or 

requlation of the Commission or with any condition placed 

on his permit shall render the permit void and immediatelv 

upon such violation, any further movement over the highways 

of the oversize or overweight vehicles, shall be in 

violation of existing laws regulating the size and weight 

of vehicles on public highways. 

It is recognized that the movement of such overweight 

and oversize vehicles is a privilege not accorded to every 

user of the highway system, and it is logical and proper 

that the fees to be charged for special transportation 

permit be sufficient to'provide that the permittee pay the 

administrative costs incurred in the processins and 

issuinq of the permits, pay for the added wear on the 

hiqhwavs in proportion to the reduction of service life, 

and for the special privilege of transporting a more 

hazardous load over the highways thus compensating for the 

economic loss to the operators of vehicles in regular 

operation due to necessary delays and inconveniences 

occasioned by these types of vehicle movements. It is, 

therefore, declared to be the policy of the.Legislature 

that in formulating such rules and regulations and in 

establishing such fees, the Commission shall consider and 

be guided by: 

-2976- 
Hon. Joseph Mims, Page 6 (C-613), 

a. The state's investment in its highway system: 

b. The safety and convenience of the general traveling 

public: 

C. The amount of registration or license fee previously 

paid on the vehicle for which the.,permit'~is 

desired, and the amount of such fees paid by 

vehicles operating within legal limits: and 

d. The suitability of roadways and sub-grades on the 

various classes of highways of the system, variation 

in soil grade prevalent in the different regions 

of the state and the seasonal effects on highway 

load capacity as well as the highway shoulder 

design and other highway geometries and the load 

capacity of the highway bridges. 

Damages to highways 

"Sec. 5. The issuance of a permit for an oversize or 

overweight movement shall not be a guarante~e by the Department that the highways can safely accommodate such movement, and the owner of any vehicle involved in any oversize 

or overweight movement, whether with or without permit, 

shall be strictly liable for any damage such movement shall 

cause the highway system or any of its structures or 

appurtenances. 

Determination as to whether vehicle subject to 

registration: license plates 

"Sec. 6. With respect to oil well servicing, oil 

well clean out, and/or oil well drilling machinery or 

equipment, the State Highway Department may, if determined 

by it to be necessary or expedient for the proper administration of the laws of this state regarding the 

registration and licensing of motor vehicles, establish 

criteria for determining whether a vehicle of the 

specific type described in this Section is subject to 

registration under Article 6675a, Revised Civil Statutes, 

or eligible for the distinguishing license plate provided 

-2977- 
Hon. Joseph Mims, page 7 (C- 613) 

for in Paragraph (c) of Section 2, Acts, 1929, as 

added by Acts of 1961, 57th Legislature, Chapter ,259, 

page 554, as amended, and on the basis of such criteria, 

said Department is authorized to determine whether such 

vehicle is or is not subject to registration under Artic~le 

6675a. Provided, however, that no vehicle heretofore authorized by the State Highway Department to operate without 

registration under the provisions 'of Article 6675a shall 

hereafter be required to register under the provisions 

thereof. For all purposes under this ~Section 6 of this 

Act, oil well servicing, oil well clean out and oil well 

,drillins machinery or eauipment shall mean only those 

vehicles constructed as a machine used. solelv for servicing, 

cleaninq out, and/or drillinq oil wells, and consistinq in 

general of a mast, an enqine for power, a draw works and a 

chassis permanently constructed or assembled for such purpose 

or purposes. 

Application of act 

"Sec. 7. Nothing in this Act shall be construed to 

include or apply to any person, firm or corporation 

authorized by the Railroad Commissionof Texas to operate 

as a carrier for compensation or hire over the public 

highways'of this state, whether or not all the operations 

of such person, firm or corporation are performed under 

such certificate, permit or authority granted by the 

Commission." (Emphasis added) 

The foregoing article provides for the issuance of a special 

permit for overweight travel provided, the following conditions 

are met, to wit: 

1. It is a piece of,fixed load mobile machinery or 

equipment used for the purpose of servicing, cleaning out or 

drilling oil wells. 

2. It is equipment that cannot comply with one or more of 

the restrictions set out in Article 827a, Section 5. 

-297s 
Hon. Joseph Mims, page 8 (C-613) 

3. It must be a vehicle registered under Article 6675a 

for the maximum gross weight applicable to such vehicles under 

Section 5, Article 827a, or it must have distinguishing license 

plates evidencing that such vehicle is exempt from registration. 

There is no doubt that the vehicles in question are 

equipment or machinery designed and used for servicing, cleaning 

out, or drilling oil wells. It is agreed that the equipment in 

question cannot comply with the weight requirements for travel 

on certain regulated farm and ranch roads. The vehicles are 

registered for the maximum gross weight applicable. 

The only question to resolve herein is whether or not the 

type of vehicle or equipment in question is a piece of fixed 

load mobile machinery or equipment when loaded with a full 

load of frac fluid. 

We are of the opinion that the facts above outlined clearly 

show that the above described vehicles, specifically designed 

for oil well fracing operations ask above described, when fully 

loaded with frac fluid would constitute a piece of fixed load 

mobile machinery or equipment used for the purpose of servicing, 

cleaning out or drilling oil,wells. To hold that such was not 

a fixed load simply because the quantity of the fluid could be 

lessened would lead to an absurdity. There would be no sound 

reason to require this specially designed equipment to be operated 

at partial capacity, when use in such a manner would cause 

damage or destruction to such equipment as well as danger to the 

operator thereof and the traveling public. 

Therefore, the State Highway Department may, in its discretion, grant the owner and operator of the equipment, utilized 

as outlined, a permit for the movement of such equipment under 

Sections 2.3.4 and 5 of Article 827a-6, provided that the owner 

and operator otherwise complies with the conditions required 

by the Highway Commission and pays the fees established by the 

Highway Commission. 

-29 79- 
Hon. Joseph Mims, page 9 (C-613 ) 

Nothing in thim opinion shall be construed to hold that the 

above mentioned and described vehicles shall be exempt from the 

usual registration fees required under Article 6675a. 

The Highway Department shall have the sole discretion to 

determine whether or not a permit shall issue to the above vehicles 

under the following conditions, to wit: 

1. When the Department is of the opinion that the same 

may be moved without material damage to the highway, or 

2. Serious inconvenience to highway traffic. 

3. If the vehicle in question is registered under Article 

6675a. 

Section 4 of Article 827a-6, provides that the Highway 

Department shall have the authority to prescribe the rules and 

regulations regarding the issuance of such permits and fees to 

be charged for such permits. 

SUMMARY 

The State Highway Department may, in its discretion; grant the owner and operator of overweight mobile equipment which transports frac 

oil in servicing oil well equipment a permit for 

the.movement of such equipment under Article 

827a-6, ViP.C. 

Yours very truly, 

WAGGONER C 

B 

torney General 

-2980- 
Hon. Joseph Mims, page 10 (C- 613,); 

APPROVI$D : 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

K. B. Taylor 

Gordon C. Cass 

John Pettit': 

Brandon Bickett 

-2981- (