Col. Homer Garrison, Jr.

Director Opinion No. C-225 Department'ofPublic Safety Re: Whether, under H. B. 31, Acts Austin, Texas 58th Legislature,a contract carrier's.permit

authorizing the transportation of a c&rtain chemicalused In treatlng 011 wells, is required OS an Independentcontractor, 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 conditionsoutlined In situationNo. 1, Is a contract carrier's permit authorizing the transportation of the chemical used in treating oll.wellsrequired of the Independentoontractorwho has entered an agreement as caretaker of a number of oil wells when such transportationof the chemical for which he Is accountable IS merely Incidental to performanceof the total-

contract? "QuestionNo. 2: Under the condl&.onsoutlined in situatio'n No. 2, is a contract carrier's permit authorizing the transportation of the pipe Sittingsused in pipe Sitting work required of the contractorwho .hasentered 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 contractoris &countable is merely Incidental to performanceof the total contract?"
The fact situationsyou refer to are as Sollows:

"SituationNo. 1: An individualenters 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 storagetanks or divert 011 throughpipelines and any other services ordinarilyperformedby a caretaker. 

### One of these services la the requirementthat some or all oil wells for which such caretaker Is responsiblebe treatedat Intervalswith a small amount of special chemical.

"This chemical Is checkedout to the caretakerat the 011 companywarehouseor storagedock In a 55 gallonbarrel. The caretaker transports this chemicalIn his pickup along with any toolshe 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'struck or pickup. This barrel Is refilled or replaced.at the company warehbuseas needed. The contractordoes 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 privateproperty.

"SituationNo. 2: A labor contractor enters an agreement with an.011 company to perform the pipe Sittingyrork and maintenance of such pipelines at completedoil well and oil storage sites. Pipe Sittings such as valves, nipples, elbows, couplings, unions, etc., are secured by the contractorfrom

.. local 011 well.supply houses and charged to 'the011 company. As items 

### are used from tN& supply the contractor replenishesthe .stock of Sittings in the samemanneti.

"Undeti this arrangementthe 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 transportationcosts 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 compensationfor transportptlonof. property over a public highway although -the major portion would not be subject to regulationbecause of off-highwayuse.

"Specialpipe fitting tools such as vises a weldingmachines, cutting torches, wrenches, etc., owned by the contractor are mounted or transportedon this truck which he owns. These tools are necessary to satisfactory

pipe Sitting work."

We have carefully considered the fact sltuatlonsand the questions you have propounded arising therefrom. We note the Interest In the problem evidenced by briefs submittedby 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 "primarybusiness" doctrine, where no permit Is required if the transportationIs "Incidental"to the primary business of the contractor.

As you point out In your situationNo. 1, "a very small part of this See 3 be Identifiable

### as compensationfor transportation of property for hire over a public highway;" and In situationNo. 2, "a portion of this. See ma be ldentlSlableas -3 compensationfor transportationof proper y over a p.ubllc highway.

. . ." (EmphasisAdded) It Is apparent that the charge for, and transportation of, the dommodltlesIs 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'spermit Issued by the Railroad Commissionof Texas Is not required to cover the trzgsportatlon of the commoditiesIn 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
APPROVEDFOR TRE ATTORNEY GENERAL BY: Howard W. Maya

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