Hon. W. J. Townrend
County Attorney
Ange lina County
Lufkin, Texas                                    Opinion No. O-6402
                                                 Rc: IS It a violation of law regu-
                                                     lating motor carriers    for a
                                                     person to transport own pro-
                                                     perty in own motor vehicle
                                                      over public highway without
                                                     first having obtained a certl-
                                                     flCAte or permit from the
Dear Sir:                                             Rallrosd Comml5slon?

                      We have received    your   recent   request   for an opinion and
We   quote   SALme    AS   fOhWS:


                    “I write you for an opinion from        your department
             covering this situation:

                    “A party of this section of the state is the owner
             of several trucks and has purchased the output of a small
             sawmill.   He takes ~11 the lumber manufactured by this
             concern.   He procures A bill of ladtng in his own name
             and loads the lumber on hL trucks and transport5 the
             same on the state highways.    fie has priority rAting5
             from the W.P.B. to sell this lumber.    He transports
             this lumber over the state highways with bill of lading
             in his own name, thereafter he sells the same to sun-
             dry buyers.   He maintains no lumber yard.

                  “IS this a violation of the state law, involving           the
             use made of the stat5 hlghway in the transportation             of
             commodities 7 ”

                       We assume from your question that you have reference
to a violatlou       of the laws regulating motor carriers.

                    Subsections (g) and (h) of Section        1 of Article   911b, V.A.C.S.,
gives    the following definitions:

                    “(g)       The term ‘motor carrier’ means any per-
             son, firm,       corporation, company, co-partnership, ASSO-




                                                                                               ,’
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                                                                                   -       -




Hou. W. J. Townsend,     page 2, Opinion No. O-6402



         ciation or joint stock AssOciation, and their lessees,
         receiver5 or trustees Appointed by any Court what-
         soever owning, controlling,    managing, operating or
         causing to be operated any motor-propelled         vehicle
         used in transporting property for compensation or
         hire over any public highway in this Stak, where in
         the course of such transportation      A highway between
         two or more incorporated     cities, 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 exclu-
         sively within the incorporated     limits of cities or
         towns .”

                 “(h) The term ‘contract carrier’ means any
          motor carrier as hereinabove defined transporting
          property for compensation or hire over any highway
          in this State other than as A common carrier.  As
          amended Acts 1931, 42nd Leg., p. 480, ch. 277 i 1.”

                Subsection (1) of Section la of said Article    91 lb, sets
out certain exemptions, among others, from the foregoing        definitions,
AS tOttOWS:


                 “Sec. la (1) Provided, however, that the term
          ‘Motor Carrier’ and the term ‘Contract Carrier’ AS
          defined in the preceding section shall not be held to
          include:

                  “(a) Any person having A regular, separate,
          fixed, and established place of business, other~than
          a transportation bucilness, where goods, wares, and
          merchandise are kept in stock and are primarily
          and regularly bought from the public or sold to the
          public or msnufactvred     or processed by such person
          in the ordinary course of the mercantile,   manufac-
           turing, or processing business, and who, merely
           incidental to the operation of such business, kans-
          ports over the highways of this Sk% such goods of
          which such person is the bona fide owner by means
           of a motor vehicle of which such person is A bona
           fide owner.”

                 Section lb of said Article 911b, provides, in regard to
 persons coming within the exemptions set out Ln said subsection (1) of
 Section la of said Article, as follows:

                 “Sec.   lb.   Any person who transports   goods,
Hon. W. J. Townsend,    page 3, Opinion No. O-6402



         wares, or merchandise     under the circumstances
         set fort in the foregoing Section la so AS to be
         excluded by the terms of said Section from the
         definition of ‘motor carrier’ or ‘contract carrier’
         shall be deemed to be A private motor vehicle
         owner; and such use of the highways by such
         private motor vehicle owners, AS herein defined,
         shall be construed AS use of the highways for the
 .       general public and not the use of such highways
         for the carrying on the business of transporting
         property for compensation or hire. Added Acts
          1941, 47th Leg., p. 463, ch. 290, i 1.”

               Set;-2   of said Art.   911b, provides   as follows:

                “No motor carrier, AS defined in the pre-
         ceding section, shall operate any motor-propelled
         vehicle for the purpose of transportation  or car-
         riage of property for compensation or hire over
         any public highway in the State except in accor-
         dance with the provisions of this Act; provided,
         however, that nothing in this Act or any provision
         thereof shall be construed or held to in any manner
         affect, Limit or deprive cities and towns from ex-
         ercising any of the powers granted them by Chap-
         ter 147, Pages 307 to 318, 1ncIusive of the General
         LAWS of the State of Texas, passed by the 33rd~
         Legislature,  or any amendments thereto. As
         amended Acts 1931, 42nd Leg., p. 480, ch. 2?7,
         I 2.”

               Sec. 3 of said Article     91lb,   provides   AS   follows:

                 “No motor carrier shall, after this Act goes
         into effect, operate as a common carrier without
         first having obtained from the Commission,        under
         the provisions   of this Act, a certificate  of public
         convenience and necessity pursuant to a finding
         to the effect that the public convenience and
         necessity require such operation.        No motor car-
         rier shalt. after this Act goes into effect, operate
         as a contract carrier without first having ob-
         tained from the Commission a permit so to do,
         which permit shall not be issued until the appli-
         cant shall have in all things complied with the
          requirements   of this Act. As amended Acts 1931,
         42nd Leg., p. 480, ch. 277 13.”
Hon. W. J. Townsend,   page 4. Opinion No. O-6402



                 In the case of New WAY Lumber Co. et al, vs. Smith et al,
96 S. W. (2) 282, involving the Appiicabiiity of Section 1 of said Article
911b to a company carrying their lsmber in trucks to various points in
Texas, for which carrying they made A charge for the expense of delivery,
which was Above the regular price therefor, the Supreme Court of Texas
held AS follows:

                “Under the fACtS stAted here the cArrying of
         lumber owned by th5 company in its owu trucks
         does not exempt 13from the provisions        of this law.
         This is not A case where the trucks are operated
         exclusively   within the incorporated   limits of a
         town or city; nor is it a cAse where the price of
         goods delivered is the same AS those undelivered.
         On the contrary, it is clearly a case where the
         price of the lumber includes a direct charge for
         the delivery thereof.    The carrying charge is
         based directly on the distance traveled And the
         weight of the truck. Since the Company receives
         compensation for the delivery of the lumber, it
         clearly appears thAt the trucks used come under
         the definition of a ‘contrrct carrier’,   And Are
         subject to the provision5 of Article    91 lb.”

               After the rendition of the opinion in the above mentioned
case. and because of It, the 47th Legislature  of Texas amended said
Article 911b by adding said Sections la And lb, supra, to same. Said
amendment containing the specific exemptions AS above set out.

                 We believe the solution of your question depends upon
two questions of fact, namely: first whether the price of the lumber
delivered  is the same AS that mvered,       And if not, then second:
whether the owner of the trucks and lumber in question has a regular,
separate, fixed, And established place of business, etc., so AS to bring
him within the exemption provided in subsection (A) of (l), Section la,
of said Article  9 1 lb.

                 If the first question is determined in the affirmative,
then under the holding of the Supreme Court the operator in question
would not come within the definition of a “motor carrier”       or “con-
tract carrier”.    This is of course    assuming that no charge at all is
made for such hauling. If, however, the first question is determined
in the negative, And the operator does come within the definition of the
terms “motor carrier”        or “contract carrier”,  According to said
Supreme Court Opinion, then it must be determined whether or not
such operator comes within the said statutory exemptfon (subsection
(a) of subsection (1) of Section la of Art. 911b, V.A.C.S)
Hon. W. J. Townsend,      page 5, Opinion No. O-6402



                 As said by the Supreme Court of this State in opinions
contained in Vol. 82 S. W. (2) 941, and Vol. 96 S. W. (2) 282, it is A
question of fact, to be determined from all the facts and circum-
stances, as to whether or not the owners operating the trucks are
motor carriers    as defined by law, and subject to the provisions
of the Article.

                   Not having all the facts of your situation before             us,
it is impossible    to answer your question categorically.

                  Trusting   the foregoing   will    enable you to solve     this
situation,   we are

                                        Yours       very   truly

                                  ATTORNEYGENERALOF                    TEXAS


                                  By    /s/ Robert         L. Lattimore,   Jr.
                                            Robert         L. Lattimore,   Jr.
                                                              Assistant.

RLL: rt:ps



APPROVED        FEB 28, 1945

/s/ G rover    Sellers

ATTORNEYGENERALOFTEXAS
