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~ 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 ofArticle S27a-6, V.P.C., to facts outlined.

The following question was submitted to us for our opinion, by your predecessor in office, towit:

"May the State Highway Department in its discretion grant the owner and operator of equipment utilized as outlined above, apermit 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 asprescribed by theAct 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, towit: There are certain trucks inuse inyour area for the purpose of fracing oilwells. The fracing operation involves high pressure injection ofvast amounts of oil sand or other liquid sandmixture into a formation to cause fractures and thereby stimulate oil production. The trucks inquestion transport a frac fluid composed of frac oil, acid, clearwater, brine and crude oil. The trailer tanks used in this business are custom made and specially equipped toperform this special function

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

of fracing. The trailer ismade ofhigh tensile steel to avoid corrosion and towithstand 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 inquestion are not suitable for any other purpose than that forwhich theywere designed. The equipment orvehicle inquestion backs up to the oil well and the frac fluid is run from the truck directly into the well. The fluid is~forcedinto thewell by the pump on the vehicle, while on other occasions, an additional pump isused tomove the fluid from the truck to thewell. At the completion of the fracing operation, the equipment takes the return frac fluid from thewell and removes it from the lease. The fluids carried to and from the oilwells are owned by the owner of the vehicle, and the vehicles inquestion do not operate as carriers for compensation orhire. The four and five axle vehicles in this operation meet the dimension, axle and over-all weight requirements ofArticle 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 isnecessary for these fracing trucks to go to the oil well to perform their designed service, it isnecessary at times for these vehicles to travel upon farm-to-market and ranch-to-market roads thathave maximum weight limits of 58,420 pounds setby the Texas Highway Commission by authority of Article 827a, Section 5 l/2. It is shown that thevehicles inquestion 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 inquestion, when carrying a full load of frac fluid, never exceed theweight limit of any roads traveled except the travel required upon the 58,420pou~ndload limit roads. In order to operate one of the vehicles within the legalweight limits of the 58,420 pound

-2973-Hon. Joseph Mims, page 3 (C-613 )

load limit roads, it isnecessary to reduce the trailer tanks to apartial 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 thevehicle to overturn when the truck attempts curves and turns ina road. Accident experience on these partially loaded fracing vehicles has resulted inproperty damage, personal injury and death. The onlyway toprevent load shift and the safe, practical operation of the fracing vehicles inquestion is to operate them fully loadedwith fracing fluld. The question presented iswhether or not the vehicles in question arewithin the type ofvehicle 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 ofAct "Section 1. The provisions of this Act shall be cumulative of all,other laws regulating the operation ofvehicles and themovement ofmachinery on thehighways of this state, itbeing the express intent of this Act to provide an optional procedure for the issuance of permits for themovement of oversize or overweight oil well servicing and/or oilwell drilling machineqand - eouipment. .Permits; designation of routes
"Sec. 2. 'When any person, firm or corporation, desires to operate over any road orhighway under the jurisdiction of the State Highway Department any vehicle

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

which isapiece of fixed loadmobile machinerv or equipment used for the purpose of servicing, cleaning out, or drilling oilwells, andwhen suchvehicle cannot comply with one ormore of the restrictions set out in Sections 3and 5ofActs 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 apermit for themovement of suchvehicle, when the Department is of the opinion that the samemay be moved without material damage to thehighway or serious inconvenience tohighway traffic. Provided, however, that all cities and towns having a statehighway within their limits may designate to the State Highway Department the route within the city ortown tobe used by said vehicles operating over the state highway. When so designated, the route shall be shown on allmaps routing saidvehicles by the State Highway Department. In the event a route isnot so designated by a city or town, the State Highway Department shall determine the route onstate highways for suchvehicles within cities or towns. No fee, permit or license shall be required by any city or town formovement of saidvehicles on the route of a statehighway designated by the State Highway Department or on said special route designated by a city or town.

Necessity of registration ofvehicles
"Sec. 3. Prior to issuing anypermit for the movement of suchvehicles, 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 themaximum qross weiqht applicable to suchvehicles 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, ifapplicable to saidvehicles.

-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 inapplying for same; conditions with reqard to route and time ofmovement and special requirements as to flaqs, flaqmen':andwarninq devices: the fees tobe collected and deposited in the State Hiqhwav Fund: whether a particular permit shallbe for one trip onlv, or for a period of time tobe established bv the Commission;and such other matters as the Commission may deem necessary to carry out the provisions of theAct. The failure of an owner orhis representative to complv with any rule or requlation of the Commission orwith any condition placed onhis permit shall render the permit void and immediatelv upon suchviolation, any further movement over thehighways of the oversize or overweight vehicles, shall be in violation of existing laws regulating the size andweight ofvehicles on public highways.
It is recognized that the movement of such overweight and oversize vehicles isaprivilege not accorded to every user of thehighway system, and it is logical and proper that the fees tobe 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 inproportion to the reduction of service life, and for the special privilege of transporting amore hazardous load over thehighways thus compensating for the economic loss to the operators ofvehicles in regular operation due tonecessary delays and inconveniences occasioned by these types ofvehicle movements. It is, therefore, declared tobe 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 itshighway system: b. The safety and convenience of the general traveling public: C. The amount of registration or license feepreviously paid on the vehicle forwhich 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 ofhighways of the system, variation in soil grade prevalent in the different regions of the state and the seasonal effects onhighway load capacity aswell as thehighway shoulder design and other highway geometries and the load capacity of thehighway bridges.

Damages tohighways
"Sec. 5. The issuance of apermit for an oversize or overweight movement shall notbe aguarante~eby the Department that thehighways can safely accommodate such movement, and the owner of any vehicle involved inany oversize or overweight movement, whether with orwithout permit, shall be strictly liable for any damage suchmovement shall cause thehighway system or any of its structures or appurtenances. Determination as towhether vehicle subject to registration: license plates
"Sec. 6. With respect to oilwell servicing, oil well clean out, and/or oilwell drilling machinery or equipment, the State Highway Department may, ifdetermined by it tobe necessary or expedient for theproper administration of the laws of this state regarding the registration and licensing ofmotor vehicles, establish criteria for determining whether avehicle of the specific type described in this Section is subject to registration under Article 6675a, Revised Civil Statutes, or eligible for thedistinguishing 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 thebasis of such criteria, said Department isauthorized to determine whether such vehicle isor isnot 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 'ofArticle 6675a shall hereafter be required to register under the provisions thereof. For all purposes under this~Section6 of this Act, oilwell servicing, oilwell clean out and oilwell ,drillinsmachinery or eauipment shall mean only those vehicles constructed as amachine used.solelv for servicing, cleaninq out, and/or drillinq oilwells, and consistinq in general of amast, an enqine for power, a drawworks and a chassis permanently constructed or assembled for such purpose or purposes. Application of act
"Sec. 7. Nothing in thisAct 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 orhire 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 aremet, towit:
1. It is apiece of,fixed loadmobile machinery or equipment used for the purpose of servicing, cleaning out or drilling oilwells. 2. It is equipment that cannot comply with one ormore of the restrictions set out inArticle 827a, Section 5.

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

3. Itmust be avehicle registered under Article 6675a for the maximum gross weight applicable to suchvehicles under Section 5,Article 827a, or itmust have distinguishing license plates evidencing that suchvehicle is exempt from registration. There isno doubt that the vehicles inquestion are equipment ormachinery designed and used for servicing, cleaning out, or drilling oilwells. It isagreed that the equipment in question cannot comply with theweight 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 iswhether or not the type ofvehicle or equipment inquestion isapiece of fixed loadmobile machinery or equipment when loadedwith 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 askabove described, when fully loadedwith frac fluidwould constitute apiece of fixed load mobile machinery or equipment used for the purpose of servicing, cleaning out ordrilling oil,wells. To hold that suchwas 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 amanner would cause damage or destruction to such equipment aswell as danger to the operator thereof and the traveling public. Therefore, the State Highway Department may, in itsdiscretion, grant the owner and operator of the equipment,utilized as outlined, apermit for themovement of such equipment under Sections 2.3.4 and 5 ofArticle 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.

-2979-Hon. Joseph Mims, page 9 (C-613 )
Nothing in thim opinion shallbe construed tohold that the above mentioned and described vehicles shall be exempt from the usual registration fees required under Article 6675a. The Highway Department shallhave the sole discretion to determine whether or not apermit shall issue to the above vehicles under the following conditions, towit: 1. When the Department is of the opinion that the same may be moved without material damage to thehighway, or 2. Serious inconvenience tohighway traffic. 3. If the vehicle inquestion isregistered under Article 6675a. Section 4 ofArticle 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 oilwell equipment apermit 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

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