Honorable Eli Willls
County Attorney
i?Iz   , %2:~
Dear 8l.r;                              Oplnlon No. O-3442
                                        Ret Whether or not certain    out of State
                                              truck8 we operated for hire or com-
                                              penaation with in the meaning or
                                              Section 2 of Article  8m,   Vernon’s
                                              Annotated Penal Code.
                We received     your letter     dated April      17, 1941, which la aelf
explanatory     and reads     au follower
                 “There are 8everal       trucks from Oklahoma, Colo-
       rado and New Mexico tranmportlng gasoline              *III and
       through Xoore County, Texas.             Some of these tNCk
       owner6 are hauling for direct            oompensatlon   or hire
       and are buying Texas llcenaea            for their tNCkS.
       Others are Independent          Dealers    or Qasollne Brokers
       and buy the gasoline        and traneport      It our of’ State
       for resale at such profit          as the market may justify.
       The question has been raised as to the Classlflcatlon
       of the Oaeollne broker or Independent Dealer, whether
        they should be cla8sed as hauling Sor compensation
       or hire.        Some of these Independent dealers have been
       advlsed th8t au such Independent Dealers or Brokers they
        should not be classified           a8 hauling for compensation
        or hire and would not be required to purchase Texas
        licenses     f’or their trucks.       I have been of the opinion
        that purchasers of property for the purpose of trane-
       portatlon       and resele should be clasalfled          as hauling
        for compensation when it la the intent of the pur-
        chaser to purchsse,       transport      and resell  for profit.
        In the casea of the Independent Dealers or Gssollne
        Brokers the freight       differentials      fro- the place of
        purchase tc. d$stlnatlcn        are allowed in the purchase of
        the gasoline.
                  n                 II
                    . . . . . . .
                 Section 2 of Article         827b,   Vernon’s   Annotated   Penal Code,
 reads,     In part, aa followsr
                  “A nonresident  owner of a motor vehicle,   tra’ler
          or semi-trailer   which has keen dul; realatered  for the
          current year In the State or c::unty of which the owner
          16 a resident and In accordance with the lsws thereof,
          mw , In lieu of registering   aLck vehicle a8 otherwise
Honorable    Eli Willis,       Page 2                                    O-3442


     required by law, apply - to the State              Iiighy~r Depart-
     ment through a County Tax Collector                for the reglm-
     trstlon  thereof a8 provided  by law,




                Section     5 of Article      82’i’b, aupra,     reads   a6 follows~
                 “No non-resident       owner of a motor vehicle,
      trailer    or reml-trbiler      shall     operate any euah
    vehicle OF cau6e or permit it to be operated upon the
    public    highway6 of this State, either before or while
    It 16 registered        under this Section,          unless there
    shall at all times be dltlplayed thereon the registration
    number plate6 aeelgned to eald vehicle for the current
    calendar year by the country or state of which such
    owner Is a resident,          nor unless the certificate             of tem-
    porary registration,          when issued trlereto 68 In this
    Section provided rhall be placed on aald motor vehicle
    In the manner to be rrpeclfled            by the Department.             Pro-
    vided the Department shall not adopt any patented con-
    tainer,     holder or device for the certificate                of tem-
    porary registration         nor shall     any vieitor       be required
    by said Department to purchase or have said container,
    holder or device for seld tertlflcate.                   Provided that
    nothing in this Act shall prevent a non-resident                       owner
    of a motor vehicle         from operating at will such vehicle
    in thi6 State for the sole purpose of marketing farm
    product6 raised exclusively            by him, nor a resident             of
    an adjoining      State or county          from operating a privately
    owned and duly registered           vehicle,       not operated       for
    hire In this State at will,             for the purpose of pm-
    chasing goods, wares and merchandise.                   And provided,
    further,     that an? non-resident           owner .:.f a priVnte1:
     owned motor vehicle may be permitted fo make an occa-
     sionsl   trip into this State w:th such. vehicle uD.der th;
    privileges      of thlz set wlthoii t obtciclng            such temporary
     registration     cer:lf:cate.        An;- person violatine;          an;’
     proviEi3;1    of this scctim        ohall te ecca2e milt3              31‘ 2
     nisdcccsncr;     sr.;: qrn c*~.~:;:cti~:*. 21zerczf s!:all tc fi:>O<z
     i:> an: p;;;, n:t e:-;e&in&       p&?r,!;; ..f’?-;c ($rf,,;:J)   ;:ll,?p:*   ‘I

            As we undsrstand  t:?e facts,  r.;;::; 3ut of State trucks csze
Into this State for the purpose of        ‘
                                          uuyi.y     gao$line and hauling It
beck to their home 6tetc.        Further,  we    are  Informed that freight
differentials     from place of purchase to destination        are deducted
from the quoted price of t!le gasoline.           We are also  i?‘:rlned     ths5
the particular      Stater Mcntl2ned lr. :-%a letter requi+           ‘~:at before
2?,:! such trtc,:k5
Honorable   El1 Yillie,   Page 3                               3-3442



               It appears to UII that the out of st8te trucks mentioned
in your letter   are operating over the highway6 of Texae for compen-
sation within the meaning of the above quoted Section8 of Article
827b, supra.    See New Wa- Lumber Company, et al.    v. Smith, et al.,
(Supreme Court) 96 S.W. i 2) 282.
                                    Youre very truly
                                    ATTORNEY GENERALOF TEXAS


                                    By 6/ Lee Shoptaw
                                          Lee Shoptaw
                                          Assistant

LSrMPtwc

APPRovEDJ-UNE6, 1941
I/ GROVERSELLERS
PIRST ASSISTANT
ATTORNEY GENERAL


Tnis   Opinion   Considered   And Approved   In Limited   Conference
