               THE       ATTORNEY                 GENERAL
                               OF     TEXAS




Honorable Alton R. Griffin                    Opinion No. M-1254
County Attorney
Lubbock County Courthouse                     Re: Whether a “riding lawn
Lubbock, Texas 79401                              mower” may be considered
                                                  an “implement of husbandry”
                                                  under Article 6675a- 1 (r),
Dear Mr. Griffin:                                 v. c. S.?

    You have requested our opinion on the question of whether a four-
wheel, motor-driven lawn mower is an implement of husbandry as de-
fined in Article 667%-l (r), Vernon’s Civil Statutes, and thus exempt
from motor vehi.cle registration under the terms of Article 6675a-2 (b).

   You have provided two factual situations,        which are, and we quote:

   (1) “An unlicensed driver, age 11 years, was operating a
       4-wheel ‘torro’ lawn mower on the public highway. He
       was mowmg the grass growing on the State ri,ght-of-way
       of Loop 388 withm the City Limits of Shallowater, Texas.
       The driver was mowing on the State right-of-way at the
       request of his father who owns a mobile home on the
       adjoining property. ”

   (2) “The other fact situation includes those contract lawn
       workers who drive upon the public highways from one
       ‘lawn job’ to another. These drivers are licensed
       drivers, but the lawn mowers are unregistered. ”

   The applicable    statutory provisions     are as follows:

   Article   6675a- 1 (a) and (b):

       “(a) ‘Vehicle’ means every device in, or by whi& any
       person or property is or may be transpo-rted or drawn



                                     -6134-
Hon. Alton R. Griffin,        page 2       (M- 1254)



       upon a public highway, except devices moved only by
       human power or used exclusively upon stationary rails
       or tracks. ”

       “(b) ‘Motor Vehicle’ means every vehicle,       as herein
       defined, that is self-propelled. ”

   Article   6675a-2 (b):

       “(b) Owners of farm tractors, farm trailers and farm
       semi-trailers   with a gross weight not exceeding four
       thousa,nd (4,000) pounds, and implements of husbandry
       operated or moved temporarily upon the highways shall
       not be required to register such farm tractors, farm
       trailers, farm semi-trailers   and implements of
       husbandry. ”

   Article   6675a- 1, (r):

       “(1) ‘Implements of husbandry’ shall mean farm
       implements, machinery and tools as used in tilling
       the soil, but shall not include any passenger car or
       truck. ”

   Article   6675a- 1 (q):

       “(q) By ‘operated or moved temporarily upon the high-
       ways’ is meant the operation of conveying between
       different farms, between a place of supply or storage
       to farms and return, or from an owner’s farm to the
       place where his farm produce is prepared for market
       or where same is actually marketed and return. ”

    There is no question that a four-wheel riding lawn mower comes within
the statutory classification of “Vehicle” and “Motor Vehicle. ” However, the
question of whether the four-wheel riding lawn mower is an “implement of
husbandry” necessitates additional considera,tions.




                                       -6135-
Hon. Alton R. Griffin,   page 3      (M- 1254)



    The Texas Supreme Court, prior to enactment of the statutory definition
of “implement of husbandry” quoted above, in Allred v. J* C. Engelman, Inc.,
123 Tex. 205, 61 S. W. 2d 75 (1933) 91 ALR 417, construed the exemptions
of Article 6675a,-2 as follows:

       “The Legisla,ture evidently had in mind that it was
       impossible to anticipat:e and expressly describe
       every motor vehicle whose particul,ar design and use
       would make of it an, implement of husbandry. It did
       name the on,es that readily come to mind as implements
       of husbandry, and i,t was evidently intended by the
       Legislature that what other vehicles that might be
       implements of husbandry could be well left to the facts
       of any particular case, and it was obviously for this
       reason that the general term ‘implements of husbandry’
       was added. It is clear that the purpose of the legislation
       was to exempt from registration all motor vehicles
       primarily designed and used for agricultural purposes,
       temporari.ly usi,ng the highways.”   123 Tex. at 210, 211,
       61 S. W. 2d at 78. [Emphasis added.]

The Court, upon an agreed statement of facts detailing the design and use
of the vehicles in question,, held that a water truck designed for the sole
purpose of carrying water for irrigation and a gasoline carrier truck
designed and used for the sole purpose of providing gasoline to tractors
in the orchards and fields were “implements of husbandry (agriculture). ”
It is important to note that, as to the gasoline trucks, the Court said,
“While they might conceivably be put to other uses, they were designed
primarily and used exclusively for agricultural purposes.”     More impor-
tant, however, is the test which the Court appli,ed in arriving at its holding,
we quote:

       “From the a,greed statem,ent of facts there is no
       question but that ally the vehicles mentioned~ in the
       pleadings are being used exc,lusively for the pur-
       pose of making the pa.rticular tract of land more
       productive of the particula,r crops to which i,t is
       adapted. ‘We are satisfied that: the vehicles here
       in question were bothgrimarily      designed and used
       as implem,ents of apricuse.”         1,2! Tex. at 2117
       61 S. W. 2d a,t:78. [Emphasis added.]

                                   -6136-
Hon. Alton R. Griffin,    page 4       (M-   1254)




    It is fundamental then, that whether a vehicle is an “implement of hus-
bandry” must be determined by the primary design and pri,mary use or pur-
pose to which the vehi,cle is put and turns on the “facts of any particular case.”

    The Court in Hickman v. Hickman, 149 Tex. 439, 234 S. W. 2d 410 (1950),
a proceeding by the surviving wife to set aside exempt property of the decen-
dent’s estate, held that a combine and two trailer chassis were implements
of husbandry. The holding was based on the undisputed testimony that the
combine was used as a thrasher to replace an old binder and the two trailer
chassis were “to be used to carry cotton to the gin” and for “any use you
would make for a four-wheel trailer on a farm or ranch.” The factual test
of primary design and primary use is implicit in this holding.

     In Reaves v. State, 121, Tex. Crim. 488, 50 S. W. 2d 286’(1932), the Court.
construed the meaning of “implements of husbandry” in the context of the
exception contained in Arti,cle 827 (a), Section 3 (a), V. A. P. C., exempting
implements of husbandry termporarily propelled or moved upon the public
highways from the length limnations placed upon motor vehicles by that pro-
vision of the penal code. The Court defined the phrase thusly, at page 287:

         “An implement of husbandry is something necessary
         to the ca,rryi,ng on of the busi.ness of farming, etc.,
         wi.thout which the work cannot be done. 31 Corpus
         Juris, p. 256.”

    In Attorney General’s    Opi.ni.on No. V-892 (1949), we concluded that:

         “If, as a matter of fact, a ,machi,ne is used solely for
         the purpose of driEwater       wells for irrigation and
         farm purposes, we conclude that such a machine is an
         implement of husbandry wi~thinthe meaning of the
         registration sta,tutes. ” [ Empha,si~sadded. ]

The factual test of primary design and prhnary use is implicit i,n that
holding.

    Of further signi,fi,cance is the meaning of the terms “farm” and “agri,-
                    ” A “,farrn”’ i,s defmed in -.-~
c,ult:ura i purposes.                            Gord,on v. Buster, 113 Tex.
382, 257 S. W. 220 (P923), as:



                                    -6137-
.   1   .




Hon. Alton R. Griffin,       page 5      (M- 1254)



                  a, tract of land chiefly under cultivation. While
            11
                 .   .   .



            it is i,n this sense that the word is most frequently used,
            yet:, as we have seen Ianits genera,1 scope and significance
            it means any tract of land used for the product:ion of crops
            or the rearing of animals. ”

The phrase “agricultural purposes” and “a,griculture” as defined by
Webster’s Dictionary wa,s recognized and adopted in,McNeelv v. State,
50 Tex. Cri,m. 279, 96 S. W. :1083 (1906). “Agriculture’” is defined as the:

            “a~rt or science of cultivating the ground, including
            harvesting of crops and rearing and management of
            livestock; tillage; husbandry; farming; in a broader
            sense, the science and art of the production of plants
            and animals useful to man, including to a variable
            ext:ent the preparation of these products for man’s use. ”

The words “agricultural purposes” are descriptive of the nature of the use
to which the land is put.. People v. Ci,ty of Joliet, 321 Ill. 385, 152 N. E. 159
(1926). There is nothing inherent in the design of a four-wheel riding lawn
mower that dictates the conclusi,on tha,t it is primarily designed for agricultural
purposes ~ We are not dealing with a combine, hay bailer or machine of
similar design. On, considerati,ons of design only we Mary sa,y that a four-
wheel ridi,ng lawn mower may be an “implement of husbandry. ”

    But, as in the case of vehicles such as trailer chassis, the use to which
the vehicle is put: becomes the determi,native factor where the inherent
nature of the vehicle design is such that the vehi,cle may be used for agri-
cultural as well as none-agricultural purposes.   The pri.mary use of a vehicle
for “agricultural purposes” dictates that the vehi,cle be classed as an imple-
ment of husbandry.

    The second factua,l situation you present cont:ai,ns the following elements:

            (1) the four-wheel ri.di,ng iawn, mower i,s used to mow the
                grass on residential, lot:s;

            (2) the four-wh,eel riding lawn mower i,s driven by an
                i.ndependent contra,ctor>EE  t:he public highways in
                going from one “lawn, job” to another.


                                      -6138-
Hon. Alton R. Griffin,   page 6      (M- 1254)



Applying the primary use test, we are persuaded that the mowing of grass
on a residential lot i,s not use of the subject vehicle for “agricultural pur-
poses, ” as that term is herein defined. A four-wheel riding lawn mower so
used insnot Ann“implement of husbandry” within the statutory definit.ion nor
th,e applic,a,ble cited case la,w,,, and therefore not exempt from registration
under Article 6675a-2 (a,), V. C. S.

     The first fac,tual situation is more difficult to resolve. Article 6675a-2,
being of a penal nature, m,ust be construed most favorably to the owner of
the vehi,cle. Texas Highway Department v. Kimble County, 239 S. W. 2d 831
(Ct. Ci,v.App. 1951, error ref. n.r. e.).     The statute speaks of operations
m     the public hi,ghways. Further, Section (a) thereof contains a proviso
that reads:
        7,
          D. . provided, that where a public highway separates
        lands under the dominion or control of the owner [of a
        motor vehicle], the operation of such a motor vehicle
        by such owner, his agent or employee, across such
        highway shall not consti,tute a use of such motor vehicle
        upon a public highway of this State.” [Emphasis added.]

     It i,s our opini,on that the basic i~ntentof the Legislat.ure is to require
regi,stration of motor vehicles used or to be used upon the public hi,ghways,
except where use and enjoyment of 1,andunder dominion and control of the
owner of the motor vehicle is potemially impaired by reason of th,e public
highway separati,ng the land. Use of a riding lawn mower by the owner
thereof to mow the grass upon his property as well as that upon the grassy
portion a,djacent to his property and the public highway, does not, in our
opinion, constitute use of a motor vehjcle upon the pub1i.c highwa,y within the
purview of the statute. The statutes do not expressly speak to t:he situation,
but to hold otherwise, would in our opinion be against the spirit and intent
of the Legi,slature.     We therefore hold that use of a four-wheel ridi.ng lawn
mower by the owner thereof to mow the grassy right-of-way adjoi.ning his
property i,s not use upon the public highways of this State by a moror vehicle
requiring that the four-wheel riding lawn mower be regi,stered under Article
6675a-2.
L    I.




Hon. Alton R. Griffin,    page 7      (M- 1254)



                             SUMMARY
                                   -


               A four-wheel riding lawn mower used by an inde-
          pendent contractor to mow the grass on residential lots
          i.s not an “implement of husbandry” within the meaning
          of Arti,cle 6675a- 1 (r), V. C. S.

              Use of a, four-wheel riding lawn mower by the owner
          thereof to mow the grassy right-of-way adjoining his
          property is not use upon the public highways of this State
          by a motor vehicle requiring that the four-wheel ridmg
          lawn mower be registered under Article 6675a-2, V. C. S.


                                            Youfiery   truly,




Prepar,ed by Rex H. Whi,te, Jr.
Assistant Attorney Genera,1

APPROVED:
OPlNlON COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Linward  Shivers
Lewis A. Jones
Herschel T. Moore
Ben Harrison

SAMUEL D. MCDANIEL
Staff Legal A.ssista,nt

AI-FRED WALKER
Execur.ive Assista,nt:

NOLA WHITE
First Assi,srant:                  -6140-
