Hon. Ben Ramsey and Ernest Opinion No..C-74
0. Thompson
Members                     Re: Whether certain advertising
Railroad Commission of Texas    on specialized motor vehicles
Austin, Texas                   violate Article 1690 In Ver-
                                non's Penal Code?
ATTENTION: C. R. McNamee
Gentlemen:
     You have requested an opinion from this office as to the
legality of the following tariff Item:
         "Upon tender of shipment In any quantity
    up to and including truckload lots, or when
    vehicle Is ordered by shipper for exclusive
    use, shipper may, at his option, afflx,adver-
    tlslng on carrier's vehicle advertising those
    goods being transported subject to the follow-
    ing terms and ,condltlons. No advertising Is
    permitted when shipments loaded on the truck
    and/or trailer consists of shipments from other
    shippers other than the shipper requesting ad-
    vertising. Shipments loaded on the truck ,and/
    or trailer are to be left to the discretion of
    the carrier."
     You have suggested that Paragraph (g) of Article 1690b,
Vernon's Penal Code, might be applicable. That paragraph pro-
vides as follows:

     carri~~~co~o~h~~lc~~t~~~~f~ for any motor
                                 , or the owner ,of
     a certificate or permit, or his agent, servant
     or employee, directly or indirectly, to offer,
     permit or give to any person, directly or in-
     directly, any commission or other consideration
     to induce such person to deliver to such motor
     carrier or certificate or permit owner, proper-
     ty to be transported; and it likewise shall be
     unlawful for any shipper or consignee or his
     agent, servant or employee, to receive from
     such motor carrier, directly or Indirectly, any

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Hon. Ben Ramsey and Ernest 0. Thompson, Page 2   (C-74   )


    such commission or consideration as an lnduce-
    ment to secure the transportation of any such
    property. Any person violating any of the pro-
    visions of this section shall be guilty of a
    misdemeanor, and shall, upon conviction, be
    punished by a fine not to exceed Two Hundred
    ($200) Dollars, and each such transaction shall
    constitute a separate offense."
     An analysis of this section of Article 1690b shows that
the element of the criminal offense set out are: (1) the mo-
tor carrier or his representative must, directly or indirectly,
offer permit or give a commission or other consideration to a
shipper and (2) the reason for the commission or other consld-
eratlon must be to induce such person to deliver to such motor
carrier or certificate or permit owner property to be trans-
ported. The offense so far as the shipper Is concerned Is
that the shipper or his representative must receive some com-
mission or consideration and such commission or consideration
must be received as an inducement to secure the transportation
of the property.
     If we examine the proposed Item for the tariff we find
that It Is the shipper who may "at his option" affix the ad-
vertising on the carrier's vehicle when he ships on the car-
rier any quantity of goods up to and Including a truckload
lot or when the vehicle Is ordered by shipper for his exclu-
sive use. However, under the proposed Items such advertising
1s not allowed If the shipment loaded on the truck and/or
trailer contain Items from other shippers. It Is further to
be noted that the carrier Is still in control of the shipment
to be loaded on his trucks. It should further be noted that
the Tariff will apply to all shippers under this item and all
shippers will therefore be allowed the same prerogatives.
     We believe that advertising would be included as "other
considerations" in the terms of the statute. However, such
considerations, as pointed out above, must be given as an ln-
ducement to the shipper and received by the shipper as an ln-
ducement to transport goods. We read into the word inducement
the connotation of "preferred treatment: as for example the
type of preferred treatment that would be received from a motor
carrier If he were to rebate part of the cost of the shipment.
Inasmuch as all carriers and shippers are treated alike and
all shippers are accorded the same opportunity under the item
to place their advertisements on the carriers under the same
conditions, it Is our opinion that the item would not be in
violation of the motor carrier law and particularly would not
be a violation of Paragraph (g) of Article 1690b, Vernon's

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Hon. Ben Ramsey and Ernest 0. Thompson, Page 3      (C-74   )


Penal Code.

                     SUMMARY
          An item placed In a Tariff allowing the affixing
     of advertising on the carrier's vehicle at the option
     of the shipper when such shipper ships a quantity of
     goods on the carrier up to and Including a truckload
     lot or when the vehicle is ordered by the shipper for
     his exclusive use and providing that no advertisement
     can be placed by such shipper on the carrier's vehl-
     cle when such shipment on the carrier's truck consists
     of shipments from other shippers not Including the
     shipper requesting the advertisement will not be in
     violation of the Motor Carrier Law, particularly Arti-
     cle 1690b, Section (g), Vernon's Penal Code.
                            Yours very truly,
                                       CARR
                                       Generat of Tnas



                            wNoh?-%3!?~.         ‘w
                                Assistant Attorne     General
NVS:nss
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Sam R. Wilson
V. F. Taylor
W. 0. Shultz
Pat Bailey
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




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