The Honorable Carol S. Vance       Opinion No. H-933
District Attorney
Harris County Courthouse           Re: Whether persons
Houston, Texas 77002               performing solid waste
                                   disposal services are
                                   motor carriers under
                                   article 911b, V.T.C.S.

Dear Mr. Vance:

     You have requested our opinion regarding whether a person
who performs solid waste disposal services may be regulated
by the Railroad Commission as a "motor carrier." Article
911b, V.T.C.S., authorizes the Commission "to prescribe all
rules and regulations necessary for the government of motor
carriers."  Sec. 4(a). "Motor carrier" is defined to include

          any person, firm, corporation, company,
          copartnership, association or joint stock
          association . . . controlling, managing,
          operating, or causing to be operated 3
          motor-propelled vehicle used in transporting
          property for compensatioGG -- Ere over any
          public highway in this state, where in the
          course of such transportation a highway
          between two or more incorporated cities, towns
          or villages is traversed. Sec. l(g).
           (Emphasis added).

Since 1972, the Railroad Commission has been issuing certifi-
cates of convenience and necessity to persons who perform
solid waste disposal services. You ask whether such operations
may properly be deemed to employ "motor-propelled vehicles
used in transporting property for compensation or hire," so
as to authorize the Commission to require them to obtain
certificates of convenience and necessity.




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The Honorable Carol S. Vance - page 2 (H-933)



     You state that a solid waste disposal company charges
a fee for its services to each customer based upon such
factors as the number and size of the containers, frequency
of pickup and compactability of the waste. Although there
is in most instances no separately stated charge for the
transportation of the waste, there is no dispute that
transportation costs are included within the charge which
the customer pays for the disposal service. So long as
transportation costs are included in the contract price,
we believe that the Railroad Commission is permitted to
conclude that the operation embraces transportation
"for compensation or hire" within the meaning of article 911b.
New Way Lumber --
               Co. v. Smith, 96 S.W.2d 282, 286-87 (Tex. Sup.
1936); Attorney General Opinion S-218 (1956). --
                                               See also
Attorney General Opinion C-126 (1963). Cf. Attorney General
Opinion M-247 (1968).

     In order to fall within the jurisdiction of the Railroad
Commission, however, a solid waste disposal company must also
be deemed to transport property. No Texas court has ever
determined whether garbage is "property," and the courts of
other jurisdictions have not reached a consensus on the issue.

      In Masgai v. Public Service Commission of Pennsylvania,
188 A. 599, 600-01 (Pa. 1936), the Pennsylvaxa   Supreme
Court held that garbage and other refuse had "certain
valuable uses under varied circumstances," even though its
owner regarded it as being of no value. The Supreme Court of
Washington has also concluded that *ashes, cinders, broken
household furniture and vegetable matter" have a property
value. State v. Diamond Tank Transport, 97 P.2d 145, 147
 (Wash. 1939). ?n the other hand, the Supreme Court of
Arizona has determined that garbage loses its character as
"property" when discarded by its owner. Vicso v. State,
388 P.2d 155, 163 (Ariz. 1963). And the SupremFCourt
of New Mexico, in Fairchild v. United Service Corp., 197
P.2d 875, 883 (N.M.  1948). hxdthat.   although garbage
may at times include objects of value, it is-worthless to its
owner and is hence not embraced within the meaning of
"property."




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f .

          The Honorable Carol S. Vance - page 3 (H-933)



                In 1965, the Interstate Commerce Commission ruled that
          "debris, including rock," has a negative value to the person
          who discards it and thus loses its character as "property"
          when it is loaded and removed from his premises. Joray
          Truckinq Corp., 99 M.C.C. 109 (1965). More recently, however,
          with the advent of recycling techniques, the Commission has
          reevaluated its position,   In a 1971 decision, Transportation
          of "Waste" Products for Reuse and Recycling, 114 M.C.C.
          E   (19711, the Commission ruled that waste materials which
          are recycled "assume all of the characteristics of 'property."'
          Id. at 104-05.

               The apparent acquiescence of the Legislature in the
          regulation of solid waste disposal activities by the Railroad
          Commission must be taken into account. As we have noted
          previously, the Commission has since 1972 issued certificates
          of convenience and necessity for disposal operations.    The
          two sessions of the Legislature which have convened since
          that time could easily have signaled their concern over such
          regulation by expressly removing solid waste disposal services
          from the Commission's jurisdiction. As the Supreme Court of
          New Hampshire observed in Waste Control Systems, Inc. v.
          State, 314 A.2d 659, 662 (N.H. 1974), the exercise of
          jurisdiction by the Public Utility Commission over disposal
          operations "was proper in the absence of a definite expression
          of legislative intent that rubbish and garbage is not 'property."'
          See also Schlagel v. Hoelsken, 425 P.2d 39, 42 (Cola. 1967).
          --
          In our opinion, thFRailroad   Commission's assumption of
          jurisdiction over solid waste disposal operations, even though
          of recent origin, is sufficient, in the face of legislative
          acquiescence, to authorize its regulation thereof, particularly
          in view of the numerous conflicting decisions regarding whether
          waste may be deemed "property." We conclude therefore that,
          at the present time and absent specific legislation on the
          subject, one who performs solid waste disposal services may
          be regulated by the Railroad Commission as a "motor carrier."

                                SUMMARY

                    A person who performs solid waste
                    disposal services may be regulated by
                    the Railroad Commission as a "motor




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The Honorable Carol S. Vance - page 4 (H-933)



            carrier," provided such~person is other-
            wise subject to Commission jurisdiction
            under article 911b, V.T.C.S.

                               Aery     truly yours,




                                   Attorney General of Texas

APPROVED:




Opinion Committee

jwb




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