Honorable James E. Rilday

Director,Motor TransportationDivision Railroad DQnmissionof Texas Austin, Texas

Dear Sir8
Opinion So. O-1833 Ret Whether or not a~proposedtruck lease form presentsa situation by whibh haulingtianbe &me without regard tothe'Texas Motor Carrier Law, samebeing Article 91lb;~Veipon'sAnnotated Civil Statutes.

We have receivedyour letter dated January 13, 1940,which is self-explanatoryand same reads as followst

'We enclose a filewhich is self-explsnatoryand which reflects a proposalwhereunderValley Shipper5 have assooiated themselves in a corporation for the *rpose of i%rketing fruits, et o&era from theValley to various points in both inter and intrastatepoints'andwhereunder this oorporation will lease trucks from various personswith a planer inview of this oorporation'sthen hauling its products in these leasedtrucks on a theorythat it is a hauling of its ow5 goods in its ownt~cks or at least a.hauling~ of the goods of the bonstitutentmembers of the corporation in these leased trucks.
"QUESTIONS

"Does this plan, reflectedby the enclosed documents, present a situationwhereunder~thishauling 6an be-done without regard to the Texas Motor'Cai+ierLam'or~is the. proposal amere **subterfuge** to oiroumvent complianoewith said law?"

The proposed lease form reads, in part, as follows:Honorable lanes E. Kilday, Page 2

"Lessor is the owner of the folloaing desoribsdmotor tm&,
"Engine No. Manufaoturer State License No.

, having the capacityof Three and one-half (e) Cons and has leased 58me to Lessee, such lease being for a perioa of one ysar beginning on the

, 4. D. 19 and ending on the day of

, 19-, both da& inclusive, day of subjects hereinafter set forth terms and conditions:
"(a) The aforesaid truck is being leasedprimarily for the transportation of fresh fruits snd/orvegetables and/or fruit juioes, from the Lower Rio GrandsValley of Texas to ggrthern, Eastern and Western marketst and for the transportationof both oannedand fresh fruits. end/orvegetables and juioes, and paakers' and shippers' supplies from Northern, 'Easternand Western cities in the United States to the Lowsr Rio GrandeValley of Texas. Lessee agrees to pay Lessor as rental for said truck the sue of

. Dollars per week, plus an additional oents per ton mile for the transportation of all commodities, above described, during the period of time coveredby this lease.
**,(b)** Lessor warrantsthat said motor truck is in first olass conditionand in every respect suitable for the transportationof fresh **fruits** and/orwgetables; that said tmak ha8 been duly lioensed and is 80 constructedand equipped as to aoraply with~all the rules and regulation8 governingits operation over the highways of this and other states. Atryrepair8 necessaryto keep the said truok in good running conditionthroughout the life of this lease shall be at the expense of the Lessor; and in the event that the Operation Of said teak should be 8u8pended for purpose8 of neoe8- sary repair8 durgng the life of this Lease, such 1085 of time shall be consideredto bs for the account of Lessor and the life of this lease shallba extended,without additionalretial payment, for a correspondingperiod in order to omp8nSate Lessee for such loss of time.
"(0) Lessee, during the'tem of this lease, shall have absolute controland 7188of saidmotor truck in the 881118 manner as though it %a8 the absolute owner thereof. Lea855 Will employ, 8ubjeat to the approval of Lessor, the operator or operators of saidtruck; but, it i8 expre88ly agreed by all pal-tie8 hereto that Le88ee shallhave absolute oontrol and supervisionof the operator and/or operators of said truok. Lessor agrees to waive any olaim and relinquish and release Lessee from any liability for any injury or damage ooaasioned to said tmak during the tern of this lease,whether Caused by negligence of the driver or otherwise.Honorable Jsmes E. Kilday, Page 3

"(d) Lessee agrees, at it8 expense, to carry fire, theft snd aoaident insuranceto protectLessor against 1088 and injury to said truck.
8(e) Lessee also agrees at it8 expense to carry public liability insursnoewith proper rider or aunibus clause 80 a8 to fully proteot all parties hereto in the amount of Tw8nty Five Thousand ((25,CCO.OO)Dollars for death or injury to one person, and Fifty Thousand (#30,0COeOO)Dollars for death or injuryto tm ormore persons growing **out** of the ssme aacident, and in the emomt of at least One Thousand (#l,mw) Lbllars for property damage. This insuranoeto be carried in a oompaq authorized to do business in th8 State Of T885.8."

lfeare unable to arriveat the legal effeat of the heretoforequoted lea88 form a8 to its general application. It couldwell be that the operation of a truckunder the said lease form in one instancewould have the effect of renderingthe Rotor Carrier Law inapplicable,while in another instanceand under the ssme lease form, the operation of the truok would be subjeot to the provisions of the &tor Carrier Law. In any event, itwould b8 necessary to ascertain the facts and oiroumstan085 leadimg to themaking of eaoh particular lease a8 nell as the facts and circumstancesrelatingto the operationthereunder in order to determnine

whether or not the Rotor CarrierLaw is applicable thereto. In this oonnectlon, 888hderson, Clayton and Co.vs. State, 62 S% (2d) 107 and 62 S.H. (2d) 941e

We oall your attention to our opinion8Nos. O-1221 and C-1401, copies of which are 8nclo8ed,which are in aooordwith our holding here.

Vb are, therefore,unable to pass upon the q e&ions of whether or not the proposed lease agreementpresents a e 8ifUa ion by which hauling
can be done without regard to the Rotor Carrier Law or whether the said lease agreement is an attempt to evade the provisions of the &tar Carrier Law.

Yours very truly

ATTORNEY GNNERAL OF TFXAS
By ~/Glenn R. Lewis Glenn R.-MS h85istant By ~/Lee Shoptaw LS:GO Lee Shoptaw ENCLOSURE APPROVED FBB 2, 1940

Gerald C, &nn ATTORNEY GENEBALOF TEKAS APPRmD OPINION COMMITTEEBRB Chainnan