              THE      A~~~OKNEY                GENEKAI,
                              OP    TEXAS




Honorable   Jos. h. Dart
County Attorney
Kendall   County
Boerne,   Texas

Dear   8ir:                               Opinion NO. o-3964
                                          Re:   Nbcessity    for certificate
                                                 or permit for operation         as
                                                 a motor carrier,        ~Construc-
                                                 ;ir    of Article    qllb,   V.T.
                                                    . .    _

               We are In receipt         of your-recent     'request    for    an opin-
ion    in which you submit the         following    questions:

               "The highway between San Antonio             and:.Kerrville
       is Intersected      by first,     Leon Sprin:s,      L. unicccr-
       porated   town, then by Boerne,          an Incorporated      city,
       then by Comfort,        an unincorporated      town, finally
       winding up in Kerrvllle,           an incorporated     city.     In
       ycur opinion    would the fact that the unincorporat-
       ed towns lie between two or more incorporated                 cities,
       towns and~vlllages'        to the extent that the carrier
       could operate      anywhere along this route just SC
       long as he kept an unincorporated             town between him-
       self   and one of the Incorporated          cities,    or is the
       fact that the unincorporated            towns lie between       the
       incorporated     cities    merely incidental        and has no
       besring    on the ,stotus     of the highway 8s between two
       or more incorvcratsd        cities,     towns or villages?"

                "Paragraph     (h)'of     Art. qllb,    R.C.S.,    reads:
         'The term   "contract      carrier"    means   any  motor    car-
        rier  PS hereinabo-e        defined    transporting     property
        for compensation       or hire ever any highway in this
        State other than as a common carrier.'
                                                                                     .      ..




    Honorable   Joa.   B. Dart,     page   2 O-3964



                   “I would take this varagraph           to mean a motor
           carrier    opernting      over no.&ixed    route and with no
           fixed schedule       and not holding      himself  out as a
           carrier    for the general      public    but taking certain
           jobs cf hauling        here and there as opportunity       of-
           fers,   being under no obligation          to haul except
           when he felt      like    and for whom he pleased;     a pri-
           v8te carrier      as distinguished      from a ‘common car-
           rler. *

                  ‘%y interpret8tion     of this paragraph would be
           that this sort of a carrier       would have a permit
           to operate   on any public    highway,   and that suah
           perma would entitle       him to operate   when and where
           he pleased.”

                   We believe   your first    uestlon is answered by our
a   opinion0 No.    O-1592, O-1497, t&,53?, O-3449 and 0-3449-A, oag-
    ies of which    are encl,osed   hereilth.

                   Section    1 (g) of ArticIe        glib,   V.T.C.S.,      (H.B.       335,
    Aet.6 1931) defines      a “motor carrier”        88 followa~,

                     “(g)     The term t&or           oarrierl       means any
           person,      firm,     corpc,ratlon,      company, oo-pmtner-
           rhip,     rssocioti      on or joln#atock          usoclatlon,
           and their       losses,      receivers     or trusteea         8p-
           pointed      by any court whatsoever,              owning, con-
           trolling,       m8n8ging,       operating     or causing        to be
           operated       any motor propelled           vehicle       used in
           transporting          property     for compensation          or hire
           over any public           h1,ghway in this State,            where in
           the course        of such transportation             8 highway be-
           tween two or more Incorporated                  citl.es,..towns
           or villages         is traversed;        provided,       that the
           term ‘motor carrier’             as used in this Act shall
           not include,          and this Act shall not apply to motor
           vehicles       operated      exclusively      within       the lncor-
           por8ted      limits      of cities     .or towns.”

                  A&lying       this statutory    definition   to the facts    present-
     ed in your second       question   Ft will, be noted that It does not de-
     pend upon whether       the operation     i# over a fixed    route,   or with
     fixed  schedules   or     whether the carrier      holds himself    out to haul
     for the public    at    large.   The operator      Is a “motor carrier”     when
Honorable    Jcsfil8.    Dart,    psge   3 O-3964



(1) property  is transported,   (2) 1n 8 motor-propelled      vehicle,
(3) for cqmpensation   or hire,  and (4) over ony M$&w&y in this
St8t.8, where in the course of such transportaticn       a highway be-
tween two 07 more incorporated     cities, townm&,p villages      1s
t&versed.

              The operator  you have described   clearly             comes within
the &fin,ition    of a .“motor carrier,”  8ssumlng the              above listed
elementti of the definition    are pre~sent.   *

              Section     2 of Article      9llb,  V.T!C.S.,  makes all motor
carriers    as defined     in Section      1, subject   to the provisions of
the Act.

              Ssction     3 of    said   Act reads:

               “No motor car$Wr          shrll,  after   this Act goes
      Into effect,      operate      as P common carrier,      without
      first    having obtained        from the Commission,       under
      the provisions       of this Act, a certificate          of pub-
      lic convenience        and necessity      pursuuat    to a ffnd-
      ing to the effect         that the public      convenience     and
      necessi’ty    requires      such operation.      No motor cer-
      rier   shall,    after    this Act goes into effect,          operate
      8s 8 contract       carrier     without having first       obt@ned
      from the Commission a permit so to do, which
      permit shall have in all things             complied    with the re-
      quirements     of this Act.”

              Section     l’ih)   of Article    9llb,   V.T.C.S.,    defines   a
      “contract     c8rrier”      as follows:

              “?hhs term lcontract    crrrlert     means any motor
      carrier    as herein  above defined      transporting  pro-
      perty for compensation       or hire over any highway
      in this, State other than es 8 common carrier.”

             It will     thus be seen that every “motor carrier”         is
either  a “common ctcrier”      or 8 “contract   carrism,”      If 8 common
c8rrier  a “certificate”      is required,   and if P contract     carrier
8 “permit ” Is required,      to render the operation      lawful.

             The facts   presented are not sufficiently      detailed   for
us to determine    whether the motor carrier    you describe     should
have a certificate     or permit.  If he hauls for whom he pleases,
as the opportunity     is offered, his oper&tlons    might very well
Honorable    Jos.   B. Dart,   page 4 O-3964



be to such an extlent that he would in fact             be a cormnon carrier.
Section    6 of the motor carrier      ect requires      the applicant    for
&-contract    c&rrler   permit to set forth      in   his application     "the
nature cf the transportation        in which the       applicant  wishes,to
engage stating     substantially    the territory       to be covered   by the
operation    and including     the condition    and   character   of the
roads ever which the transportation          Is to    be performed."

            The permit issued to a contract       carrier    by the Rail-
road Commission describes     the 'territory  or hq.ghways, the service
to be rendered    and names the contracting    parties    the permit
holder  is authorized   to serve.     lt has been the prectice       of the
Commission to limit    a contract   c8rrier  to five    contracts    based
upon the proposition    that when such a motor carrier        serves    a
greater  number of shipflers   he in fact becomes a common carrier.

               The 8uthorisation    of 8 common c8rrier     or contract     car-
rier   is fully    set out in his certificlte      or p8rmj.t and if a
question    ersses- concerning    the scope of a motor carrier's        euthor-
ized operations       we suggest  that his certiflcete    or permit be
examined.      In this connecticn     we call attention   to Section     16 (e)
which requires      that an indentificetion     card cont&ining     certain      in-
formation    be displryed     in the cab of each motor vehicle.

             Because of the nature of your second question   we sre
unable to give,&    categorical answer but trust that the foregoing
sufficiently   enswsrs your question.

                                            Yours     very   truly

                                      ATTORNEYGEXERAI OF TEXAS

                                      BY         Cecil       C. Cammack
                                                              Assistant

CCC:db --    PAM

Enclosures

APPROVEDSep 23 1941
GERALD C. MANN
ATTORNEYGENERALOF TEXAS

APPROVED OPINION COMMITTEE
BY BWB, CHAIRMAN
