                          November 9, 1971



Honorable Preston Smith                Opinion No. M-993
Governor of Texas
Executive Department                   Re:   Legality of surge
Austin, Texas 78711                          brakes under Article
                                             6701d, Section 132,
                                             Vernon's Civil Statutes,
                                             prior to the recent
                                             amendment by Senate Bill
                                             183 and legality of surge
                                             brakes under Senate Bill
Dear Governor Smith:                         183.
     Your request for the opinion of this office concerns
whether surge brakes for trailers were legal under the lan-
guage of Article 6701d, Section 132, Vernon's Civil Statutes,
prior to its amendment by Senate Bill 183 passed by the 62nd
Legislature (Acts 62 Leg,, R,S. 1971, ch. 83, p0 722, 754) and
whether surge brakes are legal under the amendatory language
of Senate Bill'l83,
     The language of Article 6701d prior to amendment by
Senate Bill 183 reads in part [Section 132(a)3] as follows:
         "3.  Every trailer,or semitrailer of a reg-
    istered or actual gross weight of three thousand
    (3,000) pounds or more when operated upon a high-
    way shall~be equipped with brakes adequate to
    control the movement of'and to stop and to hold
    such vehicle and so designed as to be applied by
    the driver of the towing.motor vehicle from its
    ca,
    b    an sai                       esigned an
    connected that in case of an accidental break-
    away of the towed vehicle the brakes shall be
    automatically applied. 0 0" (Emphasis Added).
     In Senate Bill 183, Section 132 of Article 6701d has been
amended to read in paragraph (h):
         "(h) Single control to operate all brakes,
    After January 1, 1972, every motor vehicle,
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Honorable Preston Smith, page 2   (M-993)


     trailer, semitrailer and pole trailer, and
     every combination of,such vehicles; equipped
     with brakes shall have the braking system so
     arranged that one control-~device~canbe used
     to operate all service brakes, This require-
     ment does not prohibit vehicfes‘from beinc
     equipped with an additional control devi&to
     be used to operate brakes on the towed~vehicles.
     This.regulation does~not apply to driveaway or
     towaway operations unless the brakes on the in-
     dividual vehicles are designed to be operated
     by a single control on the towing vehicle,"
     (Emphasis Added),
     The surge brake, which.is used on small trailers, is
a self-contained, hydraulic braking system actuated by a
mechanism mounted onthe trailersitself and~connected by
linkages or similar devices'to'the-coupler which-attaches
the trailer to the towing,vehicle, ,The.trailer~brakes are
not actually linked with the braking system of.the towing
vehicle, but,the surge braking mechanism operates-automati-
cally, Any deceleration by the towing vehicle because of
braking 'or downshifting causes an instantaneous difference
in velocity between the towing vehicle and.the trailer, and
trailer momentum pushes the mechanism controlling the trail-,
er brakes forward in relation to the.coupling device, This
forward motion pushes a plunger into a master cylinder,
thereby causing the trailer brakes to apply, The trailer
braking is proportional to the braking~applied by the driver
to the towing vehicle, The braking of the trailer is vir-, '
tually spontaneous with the braking,of-the towing vehicle.
     The language of Section 132(aI3 before the amendment:
by Senate Bill 183,requires that-the.brakeson-a-trailer
be designed so that they~can~be-applied by-the driverfrom
the cab of the towing-vehicle,, Among the definitions of
"apply" in Webster's Third~New~International.Dictionary'are
"to bring into action"'and "to put,~into.effecto" Appli-
cation of the brakes of the towing vehicle.certainly brings
into actibn and puts into,effect the,surge.brakes on the
trailer, Thus the driver-in effect applies the trailer
brakes from the cab, This office is of the opinion that
the use of surge brakes is permissable under the language




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.      .




Honorable Preston Smith, page 3 (M-993)


    of Section 132 before the amendment by Senate Bill 183.l
     The amendatory language of Senate Bill 183 requires
that the braking system be arranged so that one control
device will operate all,service brakes; The statute ex-
pressly allows an additional control device to operate
trailer brakes. Whether the use of.surge brakes is allowed
under the language of Senate~Bill 183 depends on the defi-
nition of~the term~~"operate." Among the definitions of
"operate' in Webster's Third~New International,Dictionary
are Uto~cause to occur, to, bring about by or as if by the
exertion of positive,effort or influence;',to~*initiate,"
"to cause to function [usually] by direct.personal effort,"
and to "work." The term"onerateU-has been defined also
by various Texas court decisions, such as Big Three Weldin
Equipment Co. v. Crutcher, Bolfs, Cummings, 149 Tex. 204,
1
29 SoWa    60                     :
                "The ordinary, usual meaning of~the word
           'operate' is 'To put into; or to continue in,
           operation oractivity; to manage: to conduct;
           to carry out or through; to work; as to oper-
           ate a machine or motorvehicle... o
The foregoing definitions of operate clearly apply to the
use of the surge brake, The driver uses-only-one control
device, the brake pedal, to activate-the brake-of the tow-
ing vehicle and in turn the automatic surge brakes on the
trailer. With one'control device the drive, FI~KPS to
function or puts into action, that i:., operates the trailer
brakes. The opinion of thisoffice therefore is that,surge
brakes are lawful under Senate Bill 183. Whatever braking
device is used of course must comply with the performance standards
standards set forth in Senate Bill 183.


     1 Language in Ohio and Colorado statutes identical with
that in Section 132(a)3 requiring operationof trailer brakes
by the driver in the cab of the towing vehicle was interpreted
to allow surge brakes by the Attorney General of Ohio in Opin-
ion No. 67-006 (1967) and by the Attorney General of Colorado
in a memorandum dated April 24, 1968, to the Colorado State
Patrol,




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Honorable Preston Smith, page 4    (M-993)


                                  SUMMARY
          The use of surge brake for trailers is
     lawful under the language of Article 6701d,
     Section 132(a)3, Vernon's Civil Statutes,
     in effect prior to the amendment by Senate
     Bill 183, Acts. 62nd Leg., R.S., 1971, and
     also under Senate Bill 183.
                                     /?
                                   Respectfully submitted,




Prepared by Roland Daniel Green, III
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jerry Roberts
Larry Craddock
Jack Sparks
Fisher Tyler
SAM McDANIEL
Staff'Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant




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