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                                           THE       A-HTOZZNEY           GENERAL
          ..
                                           :.              ‘OF   ‘rExAS
.
                                ,..                    AUSTIN      11. .~WXASI




                                                                 March 23, 1960




         Col. Homer Garrison, Jr.
         Director
         Texan Department of Public Safety
         P. 0. Rex 4087
         North Au~tid Station
         Auatin, Texas                                              Opinion No. WW 814

                                                                    Rs:, Questiona relatiugto authority
                                                                         of Department of .Public Safety
                                                                         in enforcing,the Texaw Motor
                                                                         Carrier. Art an ~to motor
                                                                         carriers transporting in inter-
                                                                         cltatc commerce, over Texas
                                                                         highwaya, commoditier which
                                                                         are exempt from ICC: reguh-
                                                                         tions.
                                                                                          .
                                                                                         _’

         Dear CoI. Garriedn:

                   We qaote your lettim of October 27, 1959, in part, as follows:

                        “This request for an opinion i# prompted by~Federal
                   decision8 in recent years, which appear to restrict the
                   authority of Stater to regulate the operation of motor
                   vehicles engaged in interntate transportation.    (Castle v.
                   Havei Freight Linea, Inc., 348 U. S. 61 (1954) ).

                         “Purlruant to Article,l690b   (V.A.P.C.),  am amended
                   by the 54th Legiklature,    it is the duty of thin Depdirtment~
                   to enforce the Motor Carrier Act (Art. 911b. V. A. C. S.)
                   except for rate violations.     This Act, of course, included
                   a requirement tbat vehicles hauling property for compen-
                    sation or hire over the public highways of this State haire
                   ~properauthority from the Railroad Commiseion.          This,
                   opinion request relate* to the application of the Act to
                   vebfclelr performing tranoportation aa private carriers
                    or aa “exempt” carrier. under Sections 203 (a) (17)
                   land 203 (b). respectively of the Interstate Commerce Act.
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              .,




          ’ ~kol. Homer Harrison,              Jr.;> Pago 2 &F-814)”                                            .:

                                                                                                   .;.
                               “For   thenpurpose of thin request, assume that m
                           ‘!exempt” carrier ha@ obtained tram the Texas Railroad                                    :             .,
                           Commission a permit which authoricea the’uae of Tek
                           Highways while transporting in interstate commerce corn-.:
                           modities which are exempt from regulation by th4 ICC        1.
                           pursuant to Sec. 203 (b) (6) of the Int.ersmte Commerce
                           Act, as amended by the Tranrportation Act of 1958..
                           Aarume further that such a carrier ia found to be tram: ,_ : ._
                           porting in interstate commercq, over Texai highways,
                           commoditiem which 8re not exempt from~ICC regulation.
                           (Refer to Comporite C.ommodity Idat. Appendix, to’     ”
                           hfotor Carrier  Inform8tion Rulletin No. 3; ittachedj.
                           Under kzh aesuinptionr, your opinion.‘is respectfully ,,‘., ,,
                                                                                        .
    .’
                           requested of the,following:                   :
                                                            :                           . .                                        .:
         ‘.




                                                                                      ‘., ~. ...
                                     9; ~Wouldyour8dsw4ritoanyd.&e                ~:.:” ’ .. ‘;
                                                                                                 ~..
                               foregoing queationr be offcited by t&e anawe? ,to. : :.
                               tbb .dditionaLtpieationNo.    61 If so, ywu
                            ~. eplnion iLfm+r     requelted’of $lie following I’ ‘~ .y       :
                                                                                                  ::
                               qa&tionNo;6.-           ~,

                                      ;“6..   bm   &e~Rud        Cqjmmi~‘i~of”.  1.     ‘~ ::.‘.‘:‘...~~..; :‘. ,::
                               *A      aP~~~8U&rity      tore&&t    the Arrier  "   .:     ~.;' .'
                                to hiruling, in i,nteratate commerce, commoditier
                                Rich 8re exempt fromICC regulat$on? In ‘.                   ~’.’ 1~’
                                &+g so, im i$ enoiqh tlqt the permit rimply
                                r)cite the rertr,iction, or muat the .CommiWon~
                                bav4 actually made 8 determination th8t the          ;~      :
                                ldghway affected OIIathe rafety of ti, tr8+Iig      I      _~ 1 :
                               ‘WC     thereon will not be adverkly sffected?           ‘~     ;: ‘.’ “’
                                                                               .   .     .
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    Col. Homer Garrison,    Jr., Page 3.   (WW-814)
.

               “Based upon existing Fedeial decisions, some Texas
          case law, and statementa contained in such Attorney
          General opinions as Nos. 0- 3973, o-3107, O-1843, O,-3176,
          O-4262, and O-4853, this Department has misgivings as
          to whether it can interfere with an interstate operation
          by a carrier after the Commission has, made a determina-
          tion that its operation on the highways would not adversely
          affect the highways or the public safety.”

          We will answer your questions in the order aa&ed.

          The answer to question No. 1 is Article 1690b of the Penal Code and Art.
    9llb (V. C. S.). Under the.facts outlined in yours opinion reque,st, the carrier
    has only been authorized by the ICC and the Texas Railroad Commission to
    haul exempt commodities.     It follows that if such carrier hauled any other
    i+nd~of commodity, he would neither have authority from the ICC nor the
                                                                               ,*i~~‘. .
    Railroad Commission to haul such commodity.                               .... !

           In.our opixiion the          caae~that you cite’ (Castle v. Hayer Freight
    Iinee, inc.. 348 U. S. 61          ) ) involved the quemtion of the right of a
    state to “bar interstatemotor       carrierm from ~theuse of atate roads 8#
    puniabment for repeated violations of state, highway regulationb.”      .In thia~
    case, Illfnois sought to.bar Hayes, a carrier with a cartificate from the. .’
    Interstate Commerce Commission, from the uee of Illinois highways on the
     grounds that Hayes was a repeated violator of’I.llinois weight laws. The
     Suprake Court’of the United States held that the State of Illinois had no
     right to bar this, certified interstate motor carrier from using’,the highways
    .of the state. The Supreme Court of Texas reached a similar result in
     RailroadCanmission        of Teda v. Querner, 242 S. W. 2d 166 (1951). Also
     see Soathweatern.Greyhound Lines v. Texas Railroad Commission, Sup.
     Ct. &Ten. 1936, 99 S. W. 2d 263; 109 A. L. R. 1235.

          TLC carrier in the question presented has neither ICC authority nor
    authority fran the Texas Railroad Commission for. the specific commodities
    hauled. -An examination of the Acts of Congress discloses no provision,
    exprees Q implied, by which there is withheld from the State ita ordinary
    police power to conserve the highways in the interest of .the public and to
    prescribe snch reasonable regulations for their use as may be wise to pre-
    vent iajary and damage to them.!’ Morris v. Duby,~.274 U. S. 135. Ex Parte
    Truloch, Tex. Ct. Crim. App. 1940, 140 S.’W. td 167~. Also see h&Donald
                  305 U. S. 263; Maurer v. Hamilton, 309 U. ,S. 598; Eichhols
    v. P&lie &vice    Commission of Missouri, 306 U. S. 268.

          -answer      to your question No. 2 is        “Yes”.            The first sentence of
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Cal. Homer Garrison,     Jr., Page 4.   (WW-814)


Section   (.d) of 16~90breads as follows:

           !‘Any License and Weight Inspectors or other peace
      officer of the Department of Public Safety shall have
      the power and authority to make ariecrta without war-
      rant for any violation of this.Act except rate violations.i’

      In answer to your question No. 3, the following are suggested forms
of complaints (omitting formal parts) :


                         COMMON CARRIER COMPLAINT


            That on or about~the             &YOf            196,     ,’
      in the County of             , State of Texas, John Doe..was
      then and there a motor ,carrier, and he, the said John Doe
      did. t+P. and there unlawfully operate a motor propelled,.
      vehicle as 8 common carrier and did’then and tberc trans-
      port property for compensation or hire upon a public high-     I:.
      way. of said County and State, and in the course of trans-
      porting said property did traverse said highway between
      the incorporated citie6 of                   and
      without having first obtained from the Railroad Commissioi
      of the State ~of Texas, a permit of public convenience and
      necesiity to operate aaid motor vehicle upon the public high-
      waye ofthis state as a common carrier, against the~peace                    ..
      and dignity of the State.                                    .



                        C&TRACT         CARkIER COkfPLAINT


           That on or about ,the          day of             196 :    ‘8
      in the County of              , State of Texas, John Doe, was
 *
      then 9pd there a motor carrier, and he, the said John Doe      ‘.
      did then and there unlawfully operate a motor propelled
      vehicle as a contract carrier and did then.and there transport
      property for compensation or hire upon a public highway of
      said Cmnty and State, and in the course of transporting
      said nronertv did traverse said highway between the cities ’
      of                 and                without having first
      obtaiacd fro& the Railroad Commission of the State of          i
      Texas a permit to operate said motor vehicle upon the
      publichighways of this State as a contract carrier, against
                                         .                            .

                                                                 _,


Col. Homer Garrison,    Jr., Page   5.   (WW-814)

      the peace and dignity of the State.


     ‘In answer to your question Nd. 4, .the follohng     are the elements which
must be proved by the State in such case:


      Elements:   (common Carrier)                                                    .~
          1. Venue. (Art. 1690b, P. C. )                                           -..
          2. All elements constituting a person to be 8
              “motor carrier.*’ (Art. 9llb V. C. S.,
              sec. 1 (g) 1.

           3.’ That the defendant is a common carrier.       *
           4. That at such time and place, John Doe bad
              not first obtained a certificate of public
               convenience and necessity from the Rail-
               road Commission.     (Sec. 3, Art. 9llb, V.C.S.),



       Elements:   (Contract Carrier)                                                      .
           1. Venue. (Art. 1690b, P. C.)                                                   ,
           2. AU elements con~stituting a person to be a
      ,        “motor carrier.‘!    (Art. 9Ilb, V. C. S., Sec.            “.                   ..
               1 (g) 1.
           3. Elements constituting a contract carrier.
               (Art. 9llb, Sec. 1, (h), V. C. S.)
           4. That at such time and pIace John Dot had
               not first obtained a permit’from the Rail-
               road Commission to Operate as 8 contract
               carrier.   (Art. 9lIb, Sec. 6, -V. C. S.)


      The answer to your question No. ~5is      “No”.

      In.answering your question No. 6, we quote from Ex Psrte Sterling,
 TexSup. Ct., 122Tex. 108, 53 S. W. (2) 294:

            T’he power to prohibit the use of the highways
       for such purposes necessarily includes the lesser    1
       power to place such restrictions and regulations
       upon the use thereof as may be deemed proper . . . ”                    .

        In the cases cited herein, the courts recognize the power of the state
 tomregulate the use of its highw8ys in the realm of safety to the traveling
 public and protection of its highways. Consequently the state has the power
 to restrict or limit such grant to the same grant of authority that has been
                                                                                          .y,:: :


                                 :

                    .~


.~.~;; C.oI. Homer. Garrison,   Jr., Page.6.   (WW-814)


   made. by ~theInter~state~Gomrxierce Commission to any given carrier. ~.in
   other, words* ,the. grant of authority to use Texas highways ,extends .only~to’
   the hauling of a particular commodity which has been authorized byethe
   ICC. : It doss not authorise the hauling of any others. In so doing, it is
   ~enough that the permit simply recite the restriction.
            :.,. ~.’                          ‘.
           -In’.any ‘case ,w++re permission to use the ,highways of Texas for :an
    interstate.carrier     .is xsought,’
                                ~.,      the Railroad Commission, ‘after due notice to
    all int@rest$ parties;h@s           a hearing to determine whether or not, the per-
    miisjqirequested        is~oonsonant,with the’safety of the public and protection
              ~‘.




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Ool. Homer Garrison,    Jr., Page 7.   (WW-814)


APPROVED:
  ..
OPINION COMMITTEE:


W. V. Geppert, Chairman


Riley Eugene Fletcher
Gordon C. Cass
Jack N. Price


REViEWiD FOR THE ATTQRNEY              GENERAL
BY:
    Leonard Passmore
