Hon. W. J. Townrend 

County Attorney 

Ange lina County 

Lufkin, Texas 

Dear Sir: 

Opinion No. O-6402 

Rc: IS It a violation of law regulating motor carriers for a 

person to transport 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 of this section of the state is the owner 

of several trucks and has purchased the output of a small 

sawmill. He takes ~11 the lumber manufactured by this 

concern. He procures A bill of ladtng in his own name 

and loads the lumber on hL 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 a violation of the state law, involving the 

use made of the stat5 hlghway in the transportation of 

commodities 7 ” 

We assume from your question that you have reference 

to a violatlou of the laws regulating motor carriers. 

Subsections (g) and (h) of Section 1 of Article 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 or joint stock AssOciation, and their lessees, 

receiver5 or trustees Appointed by any Court whatsoever owning, controlling, managing, operating or 

causing to be 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 

in this State other than as A common carrier. As 

amended Acts 1931, 42nd Leg., p. 480, ch. 277 i 1.” 

Subsection (1) of Section la of said Article 91 lb, sets 

out certain exemptions, among others, from the foregoing 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 of business, 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 

in the ordinary course of the mercantile, manufacturing, or processing business, and who, merely 

incidental to the operation of such business, kansports over the highways of this Sk% such goods of 

which such person is the bona fide owner by means 

of a motor vehicle of which such person is A bona 

fide owner.” 

Section lb of said Article 911b, provides, in regard to 

persons coming within the exemptions set out Ln said subsection (1) of 

Section la of said 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 to be 

excluded by the terms of said Section from the 

definition of ‘motor carrier’ or ‘contract carrier’ 

shall be deemed to be A private motor vehicle 

owner; and such use of the 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 on the 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 of transportation 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 of the State of Texas, 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 of public 

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 of New WAY Lumber Co. et al, vs. Smith et al, 

96 S. W. (2) 282, involving the Appiicabiiity of Section 1 of said Article 

911b to a company carrying their lsmber in trucks to various 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 AS follows: 

“Under the fACtS stAted here the cArrying of 

lumber owned by th5 company in its owu trucks 

does not exempt 13 from the provisions of this law. 

This is not A case where the trucks are operated 

exclusively within the incorporated limits of a 

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 of the lumber includes a direct charge for 

the delivery thereof. The carrying charge is 

based directly on the distance traveled And the 

weight of the truck. Since the Company receives 

compensation for the delivery of the lumber, it 

clearly appears thAt the trucks used come under 

the definition of a ‘contrrct carrier’, And Are 

subject to the provision5 of Article 91 lb.” 

After the rendition of the opinion in the above mentioned 

case. and because of It, the 47th Legislature of Texas 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 of fact, namely: first whether the price of the lumber 

delivered is the same AS that mvered, And if not, then second: 

whether the owner of the trucks and lumber in question has a regular, 

separate, fixed, And established place of business, etc., so AS to bring 

him within the exemption provided in subsection (A) of (l), Section la, 

of said Article 9 1 lb. 

If the first question is determined in the affirmative, 

then under the holding of the 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 no charge at all is 

made for such hauling. If, however, the first question is determined 

in the negative, And the 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) of Section la of Art. 911b, V.A.C.S) 
Hon. W. J. Townsend, page 5, Opinion No. O-6402 

As said by the Supreme Court of this State in opinions 

contained in Vol. 82 S. W. (2) 941, and Vol. 96 S. W. (2) 282, it is A 

question of fact, to be determined from all the facts and circumstances, as to whether or not the owners operating the trucks are 

motor carriers as defined by law, and subject to the provisions 

of the Article. 

Not having all the facts of your situation before us, 

it is impossible to answer your question categorically. 

Trusting the foregoing 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/ G rover Sellers 

ATTORNEYGENERALOFTEXAS