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           OFFICE   OF THE ATTORNEY     GENERAL   OF TEXAS
                               AUSTIN




    Honorable Joe G. Fender
    County Attorney
    Fisher County
    Roby. Texas

    Dear Sir:                     Opinion No. O-1497

                                  Re:   Proof required to con-
                                        stitute a carrier a
                                        "motor carrier" under
                                        the terms of Article
                                        911b. Vernon's Texas
                                        Civil Statutes, 1925

    We are in receipt of your letter of September 23, 1939, in
    which you present the following facts:

          "Defendant was arrested on a state highway between
          the incorporated cities of Roby and Anson, Texas.
          Proof was made in the Justice Court that defendant
          was hauling sheep for hire with his truck without
          a permit from the Railroad Commission as required by
          Revised Civil Statutes 911b. The defendant contended
          it was necessary that the State prove as part of its
          case that the defendant actually drove through at
          lease two incorporated cities with his load. Defend-
          ant appealed from a judgment of conviction in the
          Justice Court."

    You desire a ruling upon the question of "whether or not it is
    necessary for the State to prove that the defendant actually
    went through two or more incorporated towns with his load," in
    establishing that defendant unlawfully operated a motor carrier
    without a permit or certificate of convenience and necessity.

    The question presented in your letter of request is one which
    has caused mush confusion and uncertainty in attempting to
    apply the motor carrier act, Article 911b. Vernon's Texas Civil
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Honorable Joe G. Fender, Page 2



Statutes, Article 1690b, Vernon's Texas Penal Code, being Acts
1929, 41st Legislature, p. 698, Ch. 314, as amended, Acts 1931,
42nd Legislature, p. 480, Ch. 277, Ii. B. No. 335. This depart-
ment, in its opinion Wo. 0-1592, in response to questions sub-
mitted by the Railroad Commission of Texas, has carefully
considered the proper construction of Section 1 (g) of this statute,
and attempted to make a comptehhnsive: analysis of the issues
controlling your question. A copy of said opinion is enclosed
herewith.

We concluded in that opinion that the Legislature in defining
a "motor carrier" intended to include within the terms of the Act
carriers for hire by motor vehicle over any public highway in
this state where in the course of the transportation the operator
travels between or through two or more incorporated cities, towns
or villages.

In the case you present, if the only evidence produced was that
defendant was arrested on a highway which was situated or located
between two incorporated towns without any reference to origin
or destination of the load or the seruice rendered we do not
think a violation of the Motor Carrier Act has been proved.

Based upon the reasoning set out in our Opinion No. O-1592,
enclosed herewith, we are of the opinion that in order to show
that a defendant operated a "motor carrier'* for hire as defined
in ?I. B. No. 335, Acts 42nd Legislature, (Acts,  911b, Vernon's
Texas Civil Statutes and 1690b Vernon's Texas Penal Code, 1925)
it is necessary to prove that the defendant, in the course of
his transportation, traveled from one incorporated town to another
with this load, however, it is not necessary to prove that munici-
pal corporations wbce the tennini of the transportation.    We are
not to be understood as suggesting however,   that an operator may
evade the regulations of a motor carrier for hire where his service
is in fact that of a "motor carrier", by merely driving around
or skirting the boundary lines of incorporated towns along his
route or some similar subterfuge.

The foregoing represents the considered opinion of this
Department.
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    Honorable Joe G. Fender, Qage 3



                                     Yours very truly

                                ATTORNEY   GBNBRAL OF TEXAS

                                s/ Cecil C. Cammack

                                By
                                     Cecil C. Cammack
                                             Assistant

    CCC:BBB/cge

    ENCLOSURB

    APPROVED: Opinion Connnittee,    By RWL, Chairman

    APPROVED DEC. 16, 1939
    a/ Gerald C. Mann
    ATTORNEY GENERAL OF TEXAS
