Honorable Clifford Powell                  Opinion No. M- 1288
County Attorney
Grayson County Courthouse                  Re: Whether a certain piece of
Sherman, Texas 75090                           equipment used primarily
                                               for the application of ferti-
                                               lizer and herbicides is re-
                                               quired to be registered for
                                               highway usage ,under Art.
Dear Mr. Powell:                               6675a-2, V. C. S.

    You have requested our opinion as to whether primary use and design
is the appropriate test to be applied in determining whether a vehicle is an
“implement of husbandry” within the meaning of Article 6675a-1 (r),
Vernon’s Civil Statutes.   The vehicle in question is the “PAMCO MUD CAT”
described in some detail in materials attached to your request.

     In Attorney General’s Opinion M-1254 (1972), this office had occasion     to
review the above-cited statutory provision and we held that:

         “It is fundamental then, that whether a vehicle is an
         ‘implement of husbandry’ must be determined by the
         primary design and primary use or purpose to which
         the vehicle is put and turns on the ‘facts of any par-
         ticular case’. ”

    We have therefore previously answered your inquiry as to the appropriate
test to be applied. Physical appearance, while providing a visual impression
of the vehicle’s function, can be no more than one element in the overall
consideration of primary design and use.

     Examinations of the attached materials reveals that the “PAMCO MUD CAT”
is designed solely to apply liquid and dry fertilizer. The vehicle itself is
equipped with greatly oversized tires and a planetary axle system to facilitate
off-the-road use. Mounted upon the vehicle is either a dry bulk fertilizer
steel body container with hydraulic motor operated 20” spinners used to


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Honorable Clifford Powell, page 2    (M- 1288)



distribute and apply the dry bulk fertilizer or a 1290 gallon fiberglass single
or double compartment tank and associated pumps, valves and spreading
applicators.  In addition, the vehicle may be equipped with a wheel mounted
36’ wing spreader for special dry fertilizer application.   While the vehicle
does have 4-wheels rather than 3 as is the case with some vehicles of similar
design and purpose the additional wheel is designed to add stability to the
vehicle during its off-the-road use.

    You state in your request that the “PAMCO MUD CAT” is used to apply
liquid fertilizer and herbicides to farms owned by the owner of the “PAMCO
MUD CAT” as well as to the farms of others. The vehicle travels empty
upon the public highways when moving from one farm to another. Once on
location at a particular farm, the fertilizer or herbicide is loaded from a
supply trailer or semi-trailer   into the “PAMCO MUD CAT” for subsequent
application onto the field. During the off-season for fertilizer application
the vehicle is idle.

    In view of all the factors presented we are persuaded that the “PAMCO
MUD CAT” is primarily designed and used as an implement of husbandry
within the meaning of Article 6675a-1 (r), Vernon’s Civil Statutes. While
the vehicle may conceivably be put to other uses, the Supreme Court in
Allred v. J. C. Engelman, Inc., 123 Tex. 205, 61 S. W. 2d 75 (1933),
Yl ALX 417 recognized and overruled this factor as not being dispositive
of the question so long as the vehicle was primarily designed and used for
agricultural purposes.


                              SUMMARY

             Utilizing the appropriate test of primary design and
         use, the “PAMCO MUD CAT” is an “implement of husbandry”
         within the meaning of Article 6675a- 1 (r), Vernon’s Civil
         Statutes.

                                     Youmery     truly,




Prepared by Rex H. White, Jr.
Assistant Attorney General
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Honorable Clifford Powell, page 3    (M- 1288)


APPROVED:
OPINION COMMITTEE

W. E. Allen,   Chairman

Jay Floyd
James H. Cowden
Bob Flowers
John Banks

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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