Hon. **W. J.**  Townrend

County Attorney Ange lina County Lufkin, Texas

Dear **Sir:** Opinion No. O-6402 Rc: IS It aviolation of law **regu** lating motor carriers for a person totransport own property in own motor vehicle over public highway without first having obtained a certlflCAte **or** permit from the Rallrosd Comml5slon? We have received **your** recent request for an opinion and We **quote SALme**  **AS fOhWS:** 

“I write you for an opinion from your department covering this situation:

“A party ofthis section **of the**  **state is**  **the owner**  ofseveral trucks andhas purchased the output ofa small sawmill. He takes ~11the lumber manufactured by this concern. He procures **A** bill of ladtng inhis own name and loads the lumber onhL trucks and transport5 the same on the state highways. fie has priority rAting5 from the W.P.B. to sell this lumber. He transports this lumber over the state highways with bill of lading in his **own** name, **thereafter** he sells the same to sundry buyers. He maintains no lumber yard.

“IS this aviolation ofthe state law, involving the use made ofthe stat5 hlghway in the transportation of commodities 7” We assume from your question that you have reference to aviolatlou of the laws regulating motor carriers.

Subsections (g) and (h) ofSection 1ofArticle 911b, V.A.C.S., gives the following definitions:

“(g) The term ‘motor carrier’ means any person, firm, corporation, company, co-partnership, ASSO-

**, ’** . .

- -

Hou. W. J. Townsend, page 2, Opinion No. O-6402

ciation orjoint stock AssOciation, and their lessees, receiver5 or trustees Appointed by any Court whatsoever owning, controlling, managing, operating or causing tobe operated any motor-propelled vehicle used in transporting property for compensation or hire over any public highway in this Stak, where in the course of such transportation **A** highway between two or more incorporated cities, towns or villages is traversed; provided, that the term ‘motor carrier’ as used in this Act shall not include, and this Act shall not apply to motor vehicles operated exclusively within the incorporated limits of cities or towns
.”

“(h) The term ‘contract carrier’ means any motor carrier as hereinabove defined transporting property for compensation or hire over any highway inthis State other than as A common carrier. As amended Acts 1931, 42nd Leg., p. 480, ch. 277 i 1.” Subsection (1) ofSection la of said Article 91lb, sets out certain exemptions, among others, from theforegoing definitions, **AS** tOttOWS:

“Sec. la (1) Provided, however, that the term

‘Motor Carrier’ and the term ‘Contract Carrier’ **AS** defined in the preceding section shall not be held to include:

“(a) Any person having **A** regular, separate, fixed, and established place ofbusiness, other~than a transportation bucilness, where goods, wares, and merchandise are kept in stock and are primarily and regularly bought from the public or sold to the public or msnufactvred or processed by such person inthe ordinary course of the mercantile, manufacturing, or processing business, andwho, merely incidental to the operation ofsuch business, kansports over the highways ofthis Sk% such goods of which such person is the bona fide owner by means ofa motor vehicle ofwhich such person is **A** bona fide owner.” Section lb of said Article 911b, provides, in regard to persons coming within the exemptions set out Lnsaid subsection (1) of Section la ofsaid Article, as follows:

“Sec. lb. Any person who transports goods,Hon. W. J. Townsend, page 3, Opinion No. O-6402

. wares, or merchandise under the circumstances

set fort in the foregoing Section la so AS tobe excluded by the terms ofsaid Section from the definition of ‘motor carrier’ or ‘contract carrier’ shall be deemed tobe Aprivate motor vehicle owner; and such **use** ofthe highways by such private motor vehicle owners, **AS** herein defined, shall be construed **AS** use of the highways for the general public and not the **use** of such highways for the carrying onthe business of transporting property for compensation or hire. Added Acts 1941, 47th Leg., p. 463, ch. 290, i 1.” Set;-2 of said Art. 911b, provides as follows:

“No motor carrier, **AS** defined in the preceding section, shall operate any motor-propelled vehicle for the purpose oftransportation or carriage of property for compensation or hire over any public highway in the **State** except in accordance with the provisions of this Act; provided, however, that nothing in this Act or any provision thereof shall be construed or held to in any manner affect, Limit or deprive cities and towns from exercising any of the powers granted them by Chapter 147, Pages 307 to 318, 1ncIusive of the General LAWS ofthe State ofTexas, passed by the 33rd~ Legislature, or any amendments thereto. As amended Acts 1931, 42nd Leg., p. 480, ch. 2?7, I 2.” Sec. 3 of said Article 91lb, provides **AS** follows:

“No motor carrier shall, after this Act goes into effect, operate as a common carrier without first having obtained from the Commission, under the provisions of this Act, a certificate ofpublic convenience and necessity pursuant to a finding to the effect that the public convenience and necessity require such operation. No motor carrier shalt. after this Act goes into effect, operate as a contract carrier without first having obtained from the Commission a permit so to do, which permit shall not be issued until the applicant shall have in all things complied with the requirements of this Act. As amended Acts 1931, 42nd Leg., p. 480, ch. 277 13.”Hon. W. J. Townsend, page 4. Opinion No. O-6402

In the case ofNew WAY Lumber Co. et al, **vs.** Smith et al, 96S. W. (2) 282, involving theAppiicabiiity ofSection 1of said Article 911b to a company carrying their lsmber in trucks tovarious points in Texas, for which carrying they made A charge for the expense of delivery, which was Above the regular price therefor, the Supreme Court of Texas held ASfollows:

“Under thefACtSstAted here the cArrying of

lumber owned by th5 company in its owu trucks does **not** exempt 13from the provisions ofthis law. This is notAcase where the trucks are operated exclusively within the incorporated limits ofa town or city; nor is it a cAse where the price of goods delivered is the same **AS** those undelivered. On the contrary, it is clearly a case where the price ofthe lumber includes a direct charge for the delivery thereof. The carrying charge is based directly onthe distance traveled Andthe weight ofthe truck. Since the Company receives compensation for the delivery of the lumber, it clearly appears thAtthe trucks used come under the definition of a ‘contrrct carrier’, AndAre subject to the provision5 ofArticle 91lb.” After the rendition ofthe opinion in theabove mentioned case. and because of It, the47th Legislature ofTexas amended said Article 911b by adding said Sections la And lb, supra, to same. Said amendment containing the specific exemptions **AS** above set **out.**

We believe the solution of your question depends upon two questions offact, namely: first whether the price ofthe lumber delivered is the same **AS** that mvered, Andifnot, then second: whether the owner ofthe trucks and lumber in question has a regular, separate, fixed, Andestablished place ofbusiness, etc., so ASto bring him within the exemption provided in subsection **(A)** of (l), Section la, of said Article 91lb.

If the first question is determined in the affirmative, then under the holding ofthe Supreme Court the operator in question would not come within the definition of a “motor carrier” or “contract carrier”

. This is of **course** assuming that nocharge at all is made for such hauling. If, however, the first question is determined in the negative, Andthe operator does come within the definition of the terms “motor carrier” or “contract carrier”, According to said Supreme Court Opinion, then it must be determined whether or not such operator comes within the said statutory exemptfon (subsection (a) of subsection (1) ofSection la ofArt. 911b, V.A.C.S)Hon. W. J. Townsend, page 5, Opinion No. O-6402

As said by theSupreme **Court of**  this State in opinions contained in Vol. 82S. W. (2) 941, and Vol. 96S. W. (2) 282, itis A question of fact, tobe determined from all the facts and circumstances, as towhether or not the owners operating the trucks are motor carriers as defined by law, and subject to the provisions of theArticle. Not having all the facts of **your** situation before us, it is impossible toanswer your question categorically.

Trusting theforegoing will enable you to solve this situation, we are Yours very truly ATTORNEYGENERALOF TEXAS By /s/ Robert L. Lattimore, Jr.

Robert L. Lattimore, Jr.

Assistant. RLL: rt:ps

APPROVED FEB 28, 1945 /s/ Grover Sellers ATTORNEYGENERALOFTEXAS