Col. Homer Garrison, Jr.        Opinion No. C-225
Director
Department'of Public Safety     Re: Whether, under H. B. 31, Acts
Austin, Texas                       58th Legislature, a contract
                                    carrier's.permitauthorizing
                                    the transportationof a c&r-
                                    tain chemical used In treat-
                                    lng 011 wells, is required
                                    OS an Independent contractor,
                                    under the stated facts and
Dear Col. +rlaon:                   relat.edquestion.
       You have recently requested of this oSSiCe an opinion on
the following questions:
              "QueatioqNo; 1: Under the conditions out-
       lined In situation No. 1, Is a contract carrier's
       permit authorizing the transportationof the chemi-
       cal used in treating oll.wells required of the
       Independent oontractor who has entered an agreement
       as caretaker of a number of oil wells when such
       transportationof the chemical for which he Is
       accountable IS merely Incidental to performance of
       the total-contract?
              "Question No. 2: Under the condl&.ons out-
       lined in situatio'nNo. 2, is a contract carrier's
       permit authorizing the transportationof the pipe
       Sittings used in pipe Sitting work required of the
       contractor who .hasentered an agreement to perform
       the necessary pipe Sitting work at 011 well or oil
       storage sites.when such transportationof the Sit-
       tings for whi'chthe contractor is &countable is
       merely Incidental to performance of the total
       contract?"
       The fact situations you refer to are as Sollows:
              "Situation No. 1: An individual enters an
       independent contract with an oil company as care-
       taker of a number OS oil wells. His responsibilities



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Col. Iiomer Garrison, Jr., page 2 (C-225)


       under such a contract are to see that 011 Is
       being pumped, gauge storage tanks or divert
       011 through pipelines and any other services
       ordinarilyperformed by a caretaker. One
       of these services la the requirementthat
       some or all oil wells for which such caretaker
       Is responsible be treated at Intervals with
       a small amount of special chemical.
              "This chemical Is checked out to the
       caretaker at the 011 company warehouse or
       storage dock In a 55 gallon barrel. The
       caretaker transports this chemical In his
       pickup along with any tools he might need to
       the various oil wells he has cdtitractedto
       service. It Is 0" understandingthat a
       barrel of t&La chemical Is used In approxl-
       mately two weeks and that during tNs time
       the barrel remains on the car&aketi'struck
       or pickup. This barrel Is refilled or re-
       placed.at the company warehbuseas needed.
       The contractor does not purchase the chemical.
       He Is allowed $15.00 compensationwhich'ls
       In addition to other aompensatlonSbr each
       barrel'of chemical used. A very small part
       of this See may be ldentlSlableas compensa-
       tion Sor transportationof property for
       hire over a public highway; however, the
       major portion.16 compensationwhich would
       not be subject to regulationbecaurieof off-
       Nghway travel on private property.
              "Situation No. 2: A labor contractor
       enters an agreement with an.011 company to
       perform the pipe Sitting yrorkand maintenance
       of such pipelines at completedoil well and
       oil storage sites. Pipe Sittings such as
       valves, nipples, elbows, couplings,unions,
       etc., are secured by the contractorfrom ..
       local 011 well.supply houses and charged to
      'the011 company. As items are used from
       tN& supply the contractorreplenishes the
      .stock of Sittings in the same manneti.
              "Undetithis arrangementthe contractor
       receives $2.50 per.hour for each pipe Sitter
       In his crew. In addition he receives
                                    .        $5.00



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col. Homer Garrison, Jr., page,3..(C-225)


       an hour for the use of his truck or pickup.
       This See covers transportationcosts of
       pipe Sitters and pipe Sittings and covers
       the time the vehicle Is on the highway a8
       well as.tlme spent on the Job site. A
       portlon,oS this See may bi?ldentlSlable
       as compensationfor transportptlonof.
       property over a public highway although
       -themajor portion would not be subject to
       regulation because of off-highway use.
              "Special pipe fitting tools such as
       visesa welding machines, cutting torches,
       wrenches, etc., owned by the contractor
       are mounted or transported on this truck
       which he owns. These tools are necessary
       to satisfactorypipe Sitting work."
       We have carefully considered the fact sltuatlons and the
questions you have propounded arising therefrom. We note the
Interest In the problem evidenced by briefs submitted by lnterest-
ed groups. A study of the briefs and Article glib, Vernon's
Civil Statutes, as amended, does not yield any ready answer to
the problem. The Motor Carrier Act provides that transportation
of commoclltlesfor hire over any public highway In the State
under a contract requires a permit Srom:the Railroad Commission.
Article glib, Sections 2, 3, and 6, Vernon's Civil Statutes.
This office can find no basis In the Texas Motor Carrier Act
for the "primary business" doctrine, where no permit Is
required if the transportationIs "Incidental" to the primary
business of the contractor.
       As you point out In your situation No. 1, "a very small
part of this See 3   be Identifiable as compensation for trans-
portation of property for hire over a public highway;" and In
situation No. 2, "a portion of this.See ma be ldentlSlable as
compensationfor transportationof proper -3 y over a p.ubllc
highway. . . ." (Emphasis Added) It Is apparent that the
charge for, and transportationof, the dommodltles Is negligible.
       We, therefore, conclude that, In the specific fact sltua-
tlons outlined, a contract carrier's permit authorizing trans-
portation of the chemical or pipe Sittings would not be.requlred.
It should be noted that this conclusion applies only to the
specific fact situations set out and any variance in the facts
in the situationsmight easily lead to contrary conclusions.




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Col. Homer Garrison, Jr., page 4 (C-225)


                           SUMMARY
                A contract carrier's permit Issued
         by the Railroad Commission of Texas Is not
         required to cover the trzgsportatlonof
         the commoditiesIn the situations set out.

                                     Very truly yours,




NVS:aJ
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Gordon,Appleman
Joe Trlmble
H. Grady Chandler
John Reeves
APPROVED FOR TRE ATTORNEY GENERAL
BY: Howard W. Maya




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