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      ~   THE     ATTORNEY              GENERAL
                     QFTEXAS
                   AUSTIN.      TEXAS   78711




                             February 17, 1966


Honorable Joseph H. Mims                Opinion No. C- 613
District Attorney
Midland County Courthouse               Re: Applicability of Article
Midland, Texas                              S27a-6, V.P.C., to facts
                                            outlined.
Dear Mr. Mims:

     The following question was submitted to us for our opinion,
by your predecessor in office, to wit:

           "May the State Highway Department in its dis-
      cretion grant the owner and operator of equipment
      utilized as outlined above, a permit for the move-
      ment of such equipment under Section 2, Acts 1963,
      58th Legislature, Page 492, Chapter 179 (Section 2,
      Article 827a-6, V.A.P.C.) provided such owner and
      operator otherwise complies with the conditions and
      pays the fees as prescribed by the Act and set forth
      by regulation of the Highway Department?"

     Your opinion request and additional information submitted
to this office concerning the equipment and its use are as
follows, to wit:

     There are certain trucks in use in your area for the pur-
pose of fracing oil wells. The fracing operation involves high
pressure injection of vast amounts of oil sand or other liquid
sand mixture into a formation to cause fractures and thereby
stimulate oil production.  The trucks in question transport a
frac fluid composed of frac oil, acid, clear water, brine and
crude oil. The trailer tanks used in this business are custom
made and specially equipped to perform this special function




                             -2972-
Hon. Joseph Mims, page 2 (C- 613)


of fracing. The trailer is made of high tensile steel to
avoid corrosion and to withstand high pressures involved in
fracing. The trailers are equipped with appropriate pumps to
move large volumes of fluid rapidly through special non-
corrosive lines and valves. The trailers in question are not
suitable for any other purpose than that for which they were
designed.

     The equipment or vehicle in question backs up to the oil
well and the frac fluid is run from the truck directly into the
well. The fluid is ~forced into the well by the pump on the
vehicle, while on other occasions, an additional pump is used
to move the fluid from the truck to the well. At the completion
of the fracing operation, the equipment takes the return frac
fluid from the well and removes it from the lease. The fluids
carried to and from the oil wells are owned by the owner of the
vehicle, and the vehicles in question do not operate as carriers
for compensation or hire.

     The four and five axle vehicles in this operation meet the
dimension, axle and over-all weight requirements of Article 827a.
Vernon's Penal Code. These vehicles are duly registered and
licensed under,Article 6675a, Vernon's Civil Statutes, for the
maximum amount of 72,000 pounds allowed under Article 827a,
Section 5.

     Because it is necessary for these fracing trucks to go to
the oil well to perform their designed service, it is necessary
at times for these vehicles to travel upon farm-to-market and
ranch-to-market roads that have maximum weight limits of 58,420
pounds set by the Texas Highway Commission by authority of
Article 827a, Section 5 l/2. It is shown that the vehicles
in question are required to travel upon the 58,420 pound load
limit roads approximately 18% of the total mileage traveled.

     By virtue of their registration, the trucks in question,
when carrying a full load of frac fluid, never exceed the weight
limit of any roads traveled except the travel required upon the
58,420 pou~nd load limit roads. In order to operate one of the
vehicles within the legal weight limits of the 58,420 pound




                         -29 73-
Hon. Joseph Mims, page 3 (C-613 )


load limit roads, it is necessary to reduce the trailer tanks
to a partial load. A partial load in one of the trailers in
question shifts laterally on turns and often causes the truck
to overturn. We have been submitted written opinions of
engineering experts that the trailer tanks cannot be baffled to
prevent the lateral shift of the frac fluid. Because of the
inability to provide lateral baffels, the lateral shift of a
partially loaded trailer tank causes the vehicle to overturn when
the truck attempts curves and turns in a road. Accident
experience on these partially loaded fracing vehicles has
resulted in property damage, personal injury and death. The
only way to prevent load shift and the safe, practical operation
of the fracing vehicles in question is to operate them fully
loaded with fracing fluld.

     The question presented is whether or not the vehicles in
question are within the type of vehicle described in Section 2,
Article 827a-6.

     Article 827a-6 provides:

     "Att.827a-6. Movement of oversize or overweight oil
        well servicing and drilling machinery

                          Purpose of Act

         "Section 1. The provisions of this Act shall be
     cumulative of all,other laws regulating the operation
     of vehicles and the movement of machinery on the highways
     of this state, it being the express intent of this Act
     to provide an optional procedure for the issuance of
     permits for the movement of oversize or overweight oil
     well servicing and/or oil well drilling machineqand
                                                      -
     eouipment.

                  .Permits;   designation of routes

          "Sec. 2. 'When any person, firm or corporation,
     desires to operate over any road or highway under the
     jurisdiction of the State Highway Department any vehicle




                         -2974-
Hon. Joseph Mims, page 4 (C- 613)


    which is a piece of fixed load mobile machinerv or
    equipment used for the purpose of servicing, cleaning
    out, or drilling oil wells, and when such vehicle cannot
    comply with one or more of the restrictions set out in
    Sections 3 and 5 of Acts 1929, 41st Legislature, 2nd
    Called Session, Chapter 42, page 72, as amended (Article
    827a, Vernon's Annotated Penal Code), the State Highway
    Department may, as an alternative to any other procedure
    authorized by law, upon application, issue a permit
    for the movement of such vehicle, when the Department is of
    the opinion that the same may be moved without material
    damage to the highway or serious inconvenience to highway
    traffic.  Provided, however, that all cities and towns
    having a state highway within their limits may designate
    to the State Highway Department the route within the city
    ortown to be used by said vehicles operating over the
    state highway. When so designated, the route shall be
    shown on all maps routing said vehicles by the State
    Highway Department.   In the event a route is not so desig-
    nated by a city or town, the State Highway Department shall
    determine the route onstate highways for such vehicles
    within cities or towns. No fee, permit or license shall
    be required by any city or town for movement of said vehicles
    on the route of a state highway designated by the State
    Highway Department or on said special route designated by
    a city or town.

                  Necessity of registration of vehicles

          "Sec. 3. Prior to issuing any permit for the movement
     of such vehicles, said vehicles must have been reqistered
     under Acts, 1929, 41st Leqislature, 2nd Called Session,
     Chapter 88, as amended (Article 6675a, Vernon's Annotated
     Civil Statutes) for the maximum qross weiqht applicable
     to such vehicles under Section 5, Acts, 1929, 41st
     Leqislature, 2nd Called Session, Chapter 42, page 72, as
     amended (Article 827a, Vernon's Penal Code), or shall
     have the distinguishing license plates as provided in
     Paragraph (c) of Section 2, Acts 1929, 41st Legislature,
     2nd Called Session, Chapter 88, as added by Acts, 1961
     57th Legislature, Regular Session, Chapter 259, page 554,
     as amended, if applicable to said vehicles.


                         -2975-
Hon. Joseph Mims, page 5 (C-613 )


             Rules and regulations: forms and procedures;
             violations: fees

           "Sec. 4. The State Highway Commission shall formulate
     rules and regulations regarding the issuance of such permits
     including, but not limited to, the forms and procedures to
     be used in applying for same; conditions with reqard to
    route and time of movement and special requirements as to
     flaqs, flaqmen': and warninq devices: the fees to be
     collected and deposited in the State Hiqhwav Fund: whether
     a particular permit shall be for one trip onlv, or for a
     period of time to be established bv the Commission;and
     such other matters as the Commission may deem necessary
     to carry out the provisions of the Act. The failure of an
     owner or his representative to complv with any rule or
     requlation of the Commission or with any condition placed
     on his permit shall render the permit void and immediatelv
     upon such violation, any further movement over the highways
     of the oversize or overweight vehicles, shall be in
     violation of existing laws regulating the size and weight
     of vehicles on public highways.

          It is recognized that the movement of such overweight
     and oversize vehicles is a privilege not accorded to every
     user of the highway system, and it is logical and proper
     that the fees to be charged for special transportation
     permit be sufficient to'provide that the permittee pay the
     administrative costs incurred in the processins and
     issuinq of the permits, pay for the added wear on the
     hiqhwavs in proportion to the reduction of service life,
     and for the special privilege of transporting a more
     hazardous load over the highways thus compensating for the
     economic loss to the operators of vehicles in regular
     operation due to necessary delays and inconveniences
     occasioned by these types of vehicle movements.   It is,
     therefore, declared to be the policy of the.Legislature
     that in formulating such rules and regulations and in
     establishing such fees, the Commission shall consider and
     be guided by:




                         -2976-
Hon. Joseph Mims, Page 6 (C-613),


          a.   The state's investment in its highway system:
          b.   The safety and convenience of the general traveling
               public:
          C.   The amount of registration or license fee previously
               paid on the vehicle for which the.,permit'~is
               desired, and the amount of such fees paid by
               vehicles operating within legal limits: and
          d.   The suitability of roadways and sub-grades on the
               various classes of highways of the system, variation
               in soil grade prevalent in the different regions
               of the state and the seasonal effects on highway
               load capacity as well as the highway shoulder
               design and other highway geometries and the load
               capacity of the highway bridges.

                            Damages to highways

          "Sec. 5. The issuance of a permit for an oversize or
     overweight movement shall not be a guarante~e by the Depart-
     ment that the highways can safely accommodate such move-
     ment, and the owner of any vehicle involved in any oversize
     or overweight movement, whether with or without permit,
     shall be strictly liable for any damage such movement shall
     cause the highway system or any of its structures or
     appurtenances.

         Determination   as to whether vehicle subject to
         registration:   license plates

          "Sec. 6. With respect to oil well servicing, oil
     well clean out, and/or oil well drilling machinery or
     equipment, the State Highway Department may, if determined
     by it to be necessary or expedient for the proper admin-
     istration of the laws of this state regarding the
     registration and licensing of motor vehicles, establish
     criteria for determining whether a vehicle of the
     specific type described in this Section is subject to
     registration under Article 6675a, Revised Civil Statutes,
     or eligible for the distinguishing license plate provided




                              -2977-
Hon. Joseph Mims, page 7 (C- 613)


     for in Paragraph (c) of Section 2, Acts, 1929, as
     added by Acts of 1961, 57th Legislature, Chapter ,259,
    page 554, as amended, and on the basis of such criteria,
     said Department is authorized to determine whether such
    vehicle is or is not subject to registration under Artic~le
     6675a. Provided, however, that no vehicle heretofore auth-
     orized by the State Highway Department to operate without
     registration under the provisions 'of Article 6675a shall
    hereafter be required to register under the provisions
     thereof. For all purposes under this ~Section 6 of this
    Act, oil well servicing, oil well clean out and oil well
    ,drillins machinery or eauipment shall mean only those
     vehicles constructed as a machine used. solelv for servicing,
     cleaninq out, and/or drillinq oil wells, and consistinq in
    general of a mast, an enqine for power, a draw works and a
     chassis permanently constructed or assembled for such purpose
     or purposes.

                        Application   of act

           "Sec. 7. Nothing in this Act shall be construed to
     include or apply to any person, firm or corporation
     authorized by the Railroad Commissionof  Texas to operate
     as a carrier for compensation or hire over the public
     highways'of this state, whether or not all the operations
     of such person, firm or corporation are performed under
     such certificate, permit or authority granted by the
     Commission."   (Emphasis added)

     The foregoing article provides for the issuance of a special
permit for overweight travel provided, the following conditions
are met, to wit:

     1. It is a piece of,fixed load mobile machinery or
equipment used for the purpose of servicing, cleaning out or
drilling oil wells.

     2. It is equipment that cannot comply with one or more of
the restrictions set out in Article 827a, Section 5.




                         -297s
Hon. Joseph Mims, page 8 (C-613)


     3. It must be a vehicle registered under Article 6675a
for the maximum gross weight applicable to such vehicles under
Section 5, Article 827a, or it must have distinguishing license
plates evidencing that such vehicle is exempt from registration.

     There is no doubt that the vehicles in question are
equipment or machinery designed and used for servicing, cleaning
out, or drilling oil wells.  It is agreed that the equipment in
question cannot comply with the weight requirements for travel
on certain regulated farm and ranch roads. The vehicles are
registered for the maximum gross weight applicable.

     The only question to resolve herein is whether or not the
type of vehicle or equipment in question is a piece of fixed
load mobile machinery or equipment when loaded with a full
load of frac fluid.

     We are of the opinion that the facts above outlined clearly
show that the above described vehicles, specifically designed
for oil well fracing operations ask above described, when fully
loaded with frac fluid would constitute a piece of fixed load
mobile machinery or equipment used for the purpose of servicing,
cleaning out or drilling oil,wells. To hold that such was not
a fixed load simply because the quantity of the fluid could be
lessened would lead to an absurdity. There would be no sound
reason to require this specially designed equipment to be operated
at partial capacity, when use in such a manner would cause
damage or destruction to such equipment as well as danger to the
operator thereof and the traveling public.

     Therefore, the State Highway Department may, in its dis-
cretion, grant the owner and operator of the equipment, utilized
as outlined, a permit for the movement of such equipment under
Sections 2.3.4 and 5 of Article 827a-6, provided that the owner
and operator otherwise complies with the conditions required
by the Highway Commission and pays the fees established by the
Highway Commission.




                            -29 79-
Hon. Joseph Mims, page 9 (C-613 )


     Nothing in thim opinion shall be construed to hold that the
above mentioned and described vehicles shall be exempt from the
usual registration fees required under Article 6675a.

     The Highway Department shall have the sole discretion to
determine whether or not a permit shall issue to the above vehicles
under the following conditions, to wit:

     1. When the Department is of the opinion that the same
may be moved without material damage to the highway, or

     2.   Serious inconvenience to highway traffic.

     3.   If the   vehicle in question is registered under Article
6675a.

     Section 4 of Article 827a-6, provides that the Highway
Department shall have the authority to prescribe the rules and
regulations regarding the issuance of such permits and fees to
be charged for such permits.

                                SUMMARY

           The State Highway Department may, in its dis-
           cretion; grant the owner and operator of over-
           weight mobile equipment which transports frac
           oil in servicing oil well equipment a permit for
           the.movement of such equipment under Article
           827a-6, ViP.C.

                                          Yours very truly,

                                          WAGGONER C



                                      B

                                                        torney General




                            -2980-
Hon. Joseph Mims, page 10 (C- 613,);


APPROVI$D:

OPINION COMMITTEE

W. V. Geppert, Chairman
K. B. Taylor
Gordon C. Cass
John Pettit':
Brandon Bickett




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