THEA~TBRNEYGENERAL 

OP TEXAS 

AUSCITIN. TEXAS 78711 

April 28, 1975 

The Honorable Wilson E. Speir 

Director 

Texas Department of Public Safety 

P. 0. Box 4087 

Austin, Texas 78773 

Opinion No. H- 593 

Re: Whether operating 

authority from the Railroad Commission must 

be obtained for wreck&s 

used by the owner of a 

garage which includes a 

storage area for automobiles. 

Dear Colonel Speir: 

You have requested our opinion concerning whether certificates 

of convenience and necessity from the Railroad Commission are 

required under article 911b, V. T. C. S., for certain activities. 

Article 911b provides that “specialized motor carriers” must 

obtain a certificate. A “specialIied motor carrier” is defined by 

section l(i) in part as one who uses “specialized equipment” such as 

hoists, winches, etc. However, section 1 l/4 provides: 

The term ‘Specialized Motor Carrier’ and ‘Specialized 

Equipment’ shall not include wrecker type vehicles 

used incidental to or as an adjunct to the carrying 

on of the primary business of buying, selling, exchanging, repairing, storing, servicing or wrecking 

motor vehicles. 

You ask whether the following activities would be within this 

exception: 

1. The operation of a wrecker type vehicle by the owner 

of a garage body shop specializing in body work which 

p. 2642 
. 

The Honorable Wilson E. Speir page 2 (H- 5931 

garage has a fenced storage area for automobiles; 

2. The operation of a wrecker type vehicle by the owner 

of a garage specializing in mechanical work which 

garage has a fenced storage area for automobiles; and 

3. The operation of a wrecker type vehicle when the 

owner has no building. but does have a fenced storage 

area for automobiles. 

Whether any specific situation would involve activities “incidental 

to or as an adjunct to the carrying on of the primary business of”‘one 

listed in section 1 l/4 will depend on the characteristics of the individual 

circumstances and will necessitate a factual determination. Consequently, 

we are unable to rule on the three situations to which you make reference. 

However, in Interstate Commerce Commission v. S. C. WholesaleWarehouse Company, 312 F. Supp. 542 (D. Idaho 1969), the court construed 

a “primary business” test to req uire a determination of whether the 

transportation operations are in bona fide furtherance of the primary 

business or are conducted as unrelated or secondary enterprises. 

In our view, there are several factors which will be involved in 

this determination. While this is not an exclusive listing, some of these 

factors are: 

1. Whether the individual is in the business of buying, 

selling, exchanging, repairing, storing, servicing 

or wrecking motor vehicles. 

2. 

3. 

Whether the transportation performed is in furtherance 

of the primary business of buying, selling, exchanging, 

repairing, storing, servicing or wrecking motor vehicles. 

Whether the individual business transports or holds out 

to transport for anyone other than itself. 

p. 2643 
-- . 

The Honorable Wilson E. Speir page 3 (H-593) 

4. Whether the business advertises itself as being 

in a carrier business. 

5. Whether its investment in transportation facilities 

and equipment is the principal part of its total 

business investment. 

6. Whether revenues received from transportation 

services constitute a substantial portion of the 

total revenue of the business. 

SUMMARY 

Section 1 l/4 of article 911b, V. T. C. S., excepts 

those who operate wrecker type vehicles incidental 

to or as an adjunct to one of the primary businesses 

listed therein from the requirement of a certificate 

of convenience and necessity. Whether a particular 

situation will be within the exception must be determined 

on a case by case basis. 

Very truly yours, 

HN L. HILL 

APPROVED: 

Attorney General of Texas 

DAVID M. KENDALL. First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

lg 

p. 2644