# 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 ofa 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 911bprovides 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 1l/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 ofthe 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 ofa wrecker type vehicle bythe owner

ofa garage body shop specializing in body work which

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

garage has a fenced storage area for automobiles; 2. The operation ofawrecker type vehicle by the owner

ofa garage specializing in mechanical work which garage has a fenced storage area for automobiles; and 3. The operation ofawrecker type vehicle when the

owner has no building. but does have afenced storage area for automobiles. Whether any specific situation would involve activities “incidental to or as an adjunct to the carrying on ofthe primary business of”‘one listed in section 1l/4 will depend on the characteristics ofthe individual circumstances and will necessitate afactual determination. Consequently, we are unable to rule onthe three situations to which you make reference.

However, in Interstate Commerce Commission v. S.C. WholesaleWarehouse Company, 312F. Supp. 542 (D. Idaho 1969), the court construed a “primary business” test to require a determination ofwhether the transportation operations are in bona fide furtherance ofthe 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 ofthese factors are:

1. Whether the individual is in the business ofbuying,

selling, exchanging, repairing, storing, servicing or wrecking motor vehicles. 2.

3. Whether the transportation performed is in furtherance

ofthe 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 ofits total business investment. 6. Whether revenues received from transportation

services constitute a substantial portion ofthe total revenue ofthe business.

SUMMARY Section 1l/4 ofarticle 911b, V. T. C.S., excepts those who operate wrecker type vehicles incidental to or as an adjunct to one ofthe primary businesses listed therein from the requirement ofa certificate of convenience and necessity. Whether a particular situation will be within the exception must be determined ona 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

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