Col. Homer Garrison, Jr. 

Director 

Opinion No. C-225 

Department'of Public Safety Re: Whether, under H. B. 31, Acts 

Austin, Texas 58th Legislature, a contract 

carrier's.permit authorizing 

the transportation of a c&rtain chemical used In treatlng 011 wells, is required 

OS an Independent contractor, 

under the stated facts and 

Dear Col. +rlaon: relat.ed question. 

You have recently requested of 

the following questions: 

this oSSiCe an opinion on 

"QueatioqNo; 1: Under the conditions outlined In situation No. 1, Is a contract carrier's 

permit authorizing the transportation of the chemical used in treating oll.wells required of the 

Independent oontractor who has entered an agreement 

as caretaker of a number of oil wells when such 

transportation of the chemical for which he Is 

accountable IS merely Incidental to performance of 

the total- contract? 

"Question No. 2: Under the condl&.ons outlined in situatio'n No. 2, is a contract carrier's 

permit authorizing the transportation of the pipe 

Sittings used in pipe Sitting work required of the 

contractor who .has entered an agreement to perform 

the necessary pipe Sitting work at 011 well or oil 

storage sites. when such transportation of the Sittings for whi'ch the contractor is &countable is 

merely Incidental to performance of the total 

contract?" 

The fact situations you refer to are as Sollows: 

"Situation No. 1: An individual enters an 

independent contract with an oil company as caretaker of a number OS oil wells. His responsibilities 

-1094- 
Col. Iiomer Garrison, Jr., page 2 (C-225) 

under such a contract are to see that 011 Is 

being pumped, gauge storage tanks or divert 

011 through pipelines and any other services 

ordinarily performed by a caretaker. One 

of these services la the requirement that 

some or all oil wells for which such caretaker 

Is responsible be treated at Intervals with 

a small amount of special chemical. 

"This chemical Is checked out to the 

caretaker at the 011 company warehouse or 

storage dock In a 55 gallon barrel. The 

caretaker transports this chemical In his 

pickup along with any tools he might need to 

the various oil wells he has cdtitracted to 

service. It Is 0" understanding that a 

barrel of t&La chemical Is used In approxlmately two weeks and that during tNs time 

the barrel remains on the car&aketi's truck 

or pickup. This barrel Is refilled or replaced.at the company warehbuse as needed. 

The contractor does not purchase the chemical. 

He Is allowed $15.00 compensation which'ls 

In addition to other aompensatlon Sbr each 

barrel'of chemical used. A very small part 

of this See may be ldentlSlable as compensation Sor transportation of property for 

hire over a public highway; however, the 

major portion.16 compensation which would 

not be subject to regulation becaurie of offNghway travel on private property. 

"Situation No. 2: A labor contractor 

enters an agreement with an.011 company to 

perform the pipe Sitting yrork and maintenance 

of such pipelines at completed oil well and 

oil storage sites. Pipe Sittings such as 

valves, nipples, elbows, couplings, unions, 

etc., are secured by the contractor from .. 

local 011 well.supply houses and charged to 

'the 011 company. As items are used from 

tN& supply the contractor replenishes the 

.stock of Sittings in the same manneti. 

"Undeti this arrangement the contractor 

receives $2.50 per.hour for each pipe Sitter 

In his crew. In addition he receives $5.00 . 

-1095- 
col. Homer Garrison, Jr., page,3..(C-225) 

an hour for the use of his truck or pickup. 

This See covers transportation costs of 

pipe Sitters and pipe Sittings and covers 

the time the vehicle Is on the highway a8 

well as.tlme spent on the Job site. A 

portlon,oS this See may bi? ldentlSlable 

as compensation for transportptlon of. 

property over a public highway although 

-the major portion would not be subject to 

regulation because of off-highway use. 

"Special pipe fitting tools such as 

vises a welding machines, cutting torches, 

wrenches, etc., owned by the contractor 

are mounted or transported on this truck 

which he owns. These tools are necessary 

to satisfactory pipe Sitting work." 

We have carefully considered the fact sltuatlons and the 

questions you have propounded arising therefrom. We note the 

Interest In the problem evidenced by briefs submitted by lnterested groups. A study of the briefs and Article glib, Vernon's 

Civil Statutes, as amended, does not yield any ready answer to 

the problem. The Motor Carrier Act provides that transportation 

of commoclltles for hire over any public highway In the State 

under a contract requires a permit Srom:the Railroad Commission. 

Article glib, Sections 2, 3, and 6, Vernon's Civil Statutes. 

This office can find no basis In the Texas Motor Carrier Act 

for the "primary business" doctrine, where no permit Is 

required if the transportation Is "Incidental" to the primary 

business of the contractor. 

As you point out In your situation No. 1, "a very small 

part of this See 3 be Identifiable as compensation for transportation of property for hire over a public highway;" and In 

situation No. 2, "a portion of this. See ma be ldentlSlable as 

compensation for transportation of proper -3 y over a p.ubllc 

highway. . . ." (Emphasis Added) It Is apparent that the 

charge for, and transportation of, the dommodltles Is negligible. 

We, therefore, conclude that, In the specific fact sltuatlons outlined, a contract carrier's permit authorizing transportation of the chemical or pipe Sittings would not be.requlred. 

It should be noted that this conclusion applies only to the 

specific fact situations set out and any variance in the facts 

in the situations might easily lead to contrary conclusions. 

-1096- 
Col. Homer Garrison, Jr., page 4 (C-225) 

SUMMARY 

A contract carrier's permit Issued 

by the Railroad Commission of Texas Is not 

required to cover the trzgsportatlon of 

the commodities In the situations set out. 

Very truly yours, 

NVS:aJ 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Gordon,Appleman 

Joe Trlmble 

H. Grady Chandler 

John Reeves 

APPROVED FOR TRE ATTORNEY GENERAL 

BY: Howard W. Maya 

-1097-