             E   k%.TTORXEY

                     OF   TEXAS




Hon. Ben Ramsey               Opinion No. c- 62
Hon. Ernest 0. Thompson
Members                       Re:     Whether the Railroad Commis-
Railroad Commission                   sion has jurisdiction to set
Austin, Texas                         down for cancellation a spe-
                                      cialized motor carrier opera-
                                      tor for failure to obtain per-
                                      mission to use the highways of
                                      Texas in Interstate commerce
                                      In the transportation of fed-
Gentlemen:                            erally exempt commodities.
     You have asked this office for an opinion on the following
question:
          "Does the Railroad Commission of Texas
     have jurisdiction to set down for cancella-
     tion a specialized motor carrier operator
     for failure to obtain permission from this
     Commission to use the highways of Texas In
     interstate commerce in the transportation of
     federally exempt commodities?"
     First, we point out that the Commission can and does have
jurisdiction to set down for hearing for cancellation a spe-
cialized motor carrier operator who has violated, refused or
neglected to observe the Commission's lawful orders, rules,
rates or regulations or that has violated the terms of his cer-
tificate or permit, subject, of course, to the appeal provided
in Article glib, Vernon's Civil Statutes. Article glib, Sec-
tion 12(b , V.C.S.
S.W.2d 924 (Tex.Clv.
Railroad Commission,
ref.).
     Your question, we believe, is whether the Railroad Commis-
sion can cancel the certificate of a specialized motor carrier
who is using the highways of Texas to transport exempt commodi-
ties in interstate commerce In his equipment under his state
certificate, without obtaining a permit from the Railroad Com-
mission allowing him to transport the exempt commodities?


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Hon. Ben Ramsey, Hon. Ernest 0. Thompson, Page 2 (C-62   )


In your letter you give us the facts as follows:
         "We have a specialized motor carrier opera-
    tor who owns three specialized motor carrier cer-
    tificates, none of which authorize the use of
    Texas highways in the transportation of federally
    exempt commodities, who has used his equipment
    under his certificates to haul articles, which
    for the purposes of this question are exempt
    commodities, from a point in Texas to a town in
    another state and also from a town in another
    state to a point in Texas."
     As you point out, the carrier Is using his equipment under
his certificates to haul articles which for the purpose of this
question are "exempt" commodities. By exempt commodities you
refer to articles covered by Section 303(b) of Title 49, U.S.
Code Annotated. Carriers covered by this section are not regu-
lated by the Interstate Commerce Act or Commission except as
to qualification and maximum hours of service of employees and
safety of operation or status of equipment. This means in ef-
fect that carriers In this class may transport for hire those
exempt commodities in interstate commerce without securing any
authority from the Interstate Commerce Commission.
     Section 302(a) of Title 49, U.S. Code Annotated, provides
in part as follows:
          "The provisions of this chapter apply to
     the transportation of passengers or property
     by motor carrier engaged In interstate or for-
     eign commerce ..." (Emphasis added)
     Section 302(b) of Title 49, U.S. Code Annotated, Is as
follows:
          "Nothing in this chapter shall be con-
     strued to affect the powers of taxation of the
     several states or to authorize a motor carrier
     to do an intrastate business on the highways
     of any state, or to interfere with the exclusive
     exercise by each state by the power of regula-
     tion of intrastate commerce by motor carriers
     on the highways thereof." (Emphasis added)
     It has been held that these sections of the Interstate
Commerce Act as well as the Act taken as a whole indicates
that:

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Hon. Ben Ramsey, Hon. Ernest 0. Thompson, Page 3 (C-62   )


          "It is manifest that it was the intention
     of Congress for the Interstate Commerce Commis-
     sion to co-operate with the various states In
     the administration of the federal law. That
     the federal law does not diSDhCe  entirels the
     state laws upon this subject-is too plain-for
     argument." S. W. Greyhound Lines v. Railroad
     Commission, 128 Tex. 5b0 99 S.W.2d 263 (1936);
     Tips v. Railroad Commission, 110 S.W.2d 585
     (Civ.App. 1937 error dism.).
     In Lloyd A. Fry Roofing Company v. Wood, 344 U.S. 157,
162, the Court, in construing a holding of the public services
commission of Arkansas requiring a permit from a carrier trans-
porting commodities In interstate commerce where the trucker
had not obtained any authority from the Interstate Commerce
Commission, said that:
          "In this situation our prior cases make
     clear that a state can regulate so long as
     no undue burden is imposed on interstate com-
     merce, and that a mere requirement for a per-
     mit is not such a burden."
     Texas requires a permit similar to the one required by
Arkansas. Article glib, Section 3. See also Railroad Commis-
sion of Texas v. Querner, 150 Tex. 490, 242 S.W.2d lb6 (lg!d) 9
where the Court said:
          "Under the federal motor carrier act the
     Interstate Commerce Commission hasthe author-
     ity to issue to a carrier of interstate commer-
     ce a Certificate of Public Convenience and Ne-
     cessity; but such authority does not deprive
     the state from protecting its highways and the
     public safety, and before a carrier can operate
     in interstate commerce over the highways In
     this state, under certificate Issued by Inter-
     state Commerce Commission, it must first obtain
     a certificate from the Railroad Commission of
     Texas to do so." (Emphasis added)
     We can see no distinction under the Texas Act, insofar as
the requirement of the State statute is concerned that the car-
rier must secure a permit from the State before transporting
for hire in interstate commerce, between a carrier who handles
exempt commodities and therefore needs no certificate from the
Interstate Commerce Commission and a carrier transporting under

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Hon. Ben Ramsey, Hon. Ernest 0. Thompson, Page 4 (C-62    )


Interstate Commerce Commission authority. Both must secure
from the Railroad Commission the right to use the highways
of Texas when transporting goods for hire.
     Section 12(b) of Article glib provides as follows:
         "The Commission at any time after hearing,
    had, upon notice to the holder of any certlfi-
    cate or permit and after opportunity given such
    holder to be heard, may by its order revoke,
    suspend or amend any certificate or permit issued
    under the provisions of this act, where in such
    hearing the Commission shall find that such cer-
    tificate or permit holder has discontinued opera-
    tion or has violated, refused or neglected to
    observe the Commission's lawful orders, rules,
    rates or regulations or has violated the terms
    of said certificate or permit; provided, that
    the holder of such certificate or permit shall
    have the right of appeal as provided in this
    Act."
     A carrier operating in interstate commerce without road
rights (the term applied to the permits issued by the Railroad
Commission to carrier authorizing the use of Texas highways in
interstate commerce) from the Railroad Commission is violating
the Statutes of Texas and the terms of his certificate issued
under and by those laws.
     It Is our understanding that current specialized motor
carrier permits include the following language:
         "This certificate and authority to remain
    in effect from and after the date hereof, sub-
    ject to the provisions, limitations and restric-
    tions of Chapter 314, Acts, Regular Session of
    the Forty-first Legislature, 1929, as amended
    at the Regular Session of the Forty-second Legis-
    lature, 1931, as amended Regular Session of the
    Forty-seventh Legislature, 1941, and as otherwise
    amended, and the rules and regulations of the
    Railroad Commission of Texas heretofore prescribed
    or which may be hereafter prescribed under and
    pursuant to the authority conferred upon It by
    law.”
     We also point out that Railroad Commission Motor Transpor-
tation Division Qeneral Order No. 33 Is as follows:

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        Hon. Ben Ramsey, Hon. ErnestO.          Thompson, Page 5 (C-62 )


                  n
                      .   .   .   ACCORDINGLY, IT IS
                 "ORDERED BY THE RAILROAD COMMISSION OF
            TEXAS that any motor carrier subject to the
            jurisdiction of the Commission shall not per-
            mit, directly or indirectly, the operation of
            any motor vehicle in any other service than
            that authorized on the identification cards
            and the operating authority granted to such
            motor carrier by the Commission. In the event
            the motor carrier subject to the jurisdiction
            of the Commission desires to use the motor
            vehicle in service other than that authorized,
            the said motor carrier shall at once remove
            the identification card and identification
            plate and immediately surrender them to the
            Commission at its offices at Austin, Texas,
            together with a letter stating the reason
            for such action.
                  "It is further ordered that all equip-
             ment taken out of service, as herein provided,
             shall not be placed in service until the car-
             rier has obtained new identification cards
             and new identification plates in the manner
             and on forms prescribed by law."
        If the carrier uses "his equipment under his certificates to
        haul articles, which for the purposes of this question are
        exempt commodities" as you indicate, he is violating the terms
        of General Order No. 33, and under 12(b) of Article glib could
        have his certificates cancelled.
             In the fact situation you have set out the Commission
        would in no way be imposing any burden on interstate commerce.
        As we understand the situation, even if, after the hearing,
        the Commission should cancel the speicalized carrier certifi-
        cates (intrastate) of the carrier, the carrier could continue
        to haul in interstate commerce at will and as long as he de-
        sired commodities exempt under the Interstate Commerce Commis-
        sion Act subject to his securing the necessary permit from the
        Railroad Commission of Texas. The power of the Railroad Com-
        mission to cancel the specialized carrier permits granting
        authority to the carrier to transport in intrastate commerce
        could be in no way affected by the interstate activity.
             We, therefore, are of the opinion that a specialized
        motor carrier transporting commodities exempt under the Federal

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Hon. Ben Ramsey, Hon. Ernest 0. Thompson, Page 6 (C-62   )


Interstate Commerce Act in interstate commerce must comply
with the state statutes and secure a permit to use the high-
ways of the State of Texas in interstate commerce as is re-
quired by Article glib, Vernon's Civil Statutes. The carrier
hauling "exempt" commodities in interstate commerce without
a permit from the Railroad Commission of Texas authorizing
the use of the Texas highways for such purpose is violating
the terms and conditions of Section 3 of Article glib, Ver-
non's Civil Statutes. It therefore follows that the Railroad
Commission could cancel the certificates held by the carrier
for his failure to comply with the state law which requires
that he secure a permit before using the highways of the State
to transport goods for hire in interstate commerce. Lloyd
A. Fry Roofing Co. v. Wood, supra.
                     SUMMARY
          The Railroad Commission of Texas may set
     for hearing the question of the cancellation
     of a specialized motor carrier certificate of
     an operator who has violated, refused or ne-
     glected to observe the Commission~s lawful
     orders, rules, rates or regulations or that
     has violated the terms of his certificate or
     permit.
          The Railroad Commission of Texas may can-
     cel the intrastate certificate of a specialized
     motor carrier who uses his equipment under his
     state certificate to transport exempt commodi-
     ties in interstate commerce for hire or compen-
     sation without having obtained a permit from
     the Railroad Commission to transport such exempt
     commodities on the highways of Texas.
                            Yours truly,




                                NORMAN V. SUAREZ
                                Assistant Attorne   General

NVS:nss


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Hon. Ben Ramsey, Hon. Ernest 0. Thompson, Page 7 (C-62 )



APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Llnward Shivers
Dudley McCalla
Samuel Strong Pharr
Joseph Trimble
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




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