.,




                       TISE   ATTORNEY    GENERAL
                                 OF TEXAS
Gerald C. Mann                    AUHTXN   11. TRXAS
     *--I;=   o-&s.




          Railroad Commlsslon of Texas       .~ Oplnlon uo. O-1401
          AImtIn, Texas                         Rer Application   of Motor Car-
                                                rier Law to operation  of truck
          Attention!      Walton De Hood        for purpose of transporting   oil
                                                and gasoline under the provl-
                                                sions of a lease contract exe-
                                                cuted between J. Lawton Thomas
          Dear Sir:                             and Lewis 011 Company.
                        We acknowledge   receipt  of your letter   of September 8
          1939, in whlah you request        the opinion of this department on the
          following     stattement of facts,   which we quote. from your letter8
                      “1 hand you herewith Lease Contract exeouted by
                and between J. Lawton Thomas, first. party and Lewis
                011 Company, second party, for the purpose of trans-
                porting 011 and gasoline.
                      *It will be noted la paragraph 3 of this .contract
                that first   party Is to reoeive a oent per gallon for
                eaoh fifty   miles hauled.
                     UParagraph 4 stipulates     first party shall furnish
                all gasoline, 011 and grease     used In the operation  of
                said truok.
                        *Paragraph 5 states that fU?st party shall     keep
                truok    in good rumlng   order at his own expense,    eto.
                      *Paragraph 6 attempts to place all      liability   <or
                accidents ,and damages Incurred on first      party, etc.
                     llWe consider this nothing more than a contract  to
                haul f@r hire in view of the foregoing,  especially  para-
                graph 3, which sets forth the proposed compensation.
                      ttWlllyou please give us an opinion. regarding this
                contract   and whether or not you consider this a W.Ola-
                tlon of ihe Motor Carrier Law?*
                     The Motor Carrier Law is oodifled   In Vernon’s Annotated
          Civil Statutes  of Texas as Article 911b.    Section 2 of Article
          glib prohibits  the operation of a motor carrier,    as defihl&Xn
Railroad   Commlsslon of Texas - Walton D. Rood,    page 2


Section 1 for the purpose of transportation         of property for
compensat 1on or hire over any pub110 highway ln the ,State, ex-
cept in accordance with the provislons       of Artl$Le 911b, and
provides certain exceptions     not pertinent   here.   Section 3 of
the Act provides that no motor carrier       shall operate as a com-
mon carrier  without first    having obtained from the Railroad
Commission a certificate    of public convenience and necessity,
and provides that no motor carrier      shall operate as a contract
q+rrler without first    having obtained from the Commission a
permit to do so, after having complied with al.1 of the require-
ments of Article   911b.

            A situation analogous to the one at hand was presented
in the case of Anderson, Clayton and Co.       et al vs. State, ex
rel Allred,   Attorney General    et al   82 8.W. (2d) 941.   In this
case, Anderson, Glayton and Eompany’entered into a lease con-
tract for the purpose of hiring trucks to haul property from va-
rious points In the State of Texas to the City of Houston and
other ports, and agreed to pay a rental of $25.00 per week, plus
a sum equal to a specified    rate per ton mile for all property
hauled In the leased trucks.      No property was hauled In the
trucks except that belonging to Anderson, Clayton and.Company.
The Commisslon of Appeals held that whether the lessors       of the
trucks and the lessees,    Anderson, Clayton and Company, were *mo-
tar carriers@’ and as such required to obtain a permit to do busi-
ness was an Issue of fact to be presented to and passed upon by
a jury, and in so holding made the following      statement:
            ”      The question as to whether or not any of
      the p&&;ffs     in error sre really  motor carriers as
      defined by the statutes was for the jury to determine
      from all the facts and circumstances   In evidence. . . ln
           In the case of New Way Lumber Co.   et al vs. Smith et
al, 96 S.W. (2d) 282, the ~Supreme Court of 4 exas made .the foilow-
lng statement:
             “Since the company receives   compensation for the
      delivery    of lumber; ,it clearly appears that the trucks
      used come mder the -deflnltLoh     of a ‘contract  carrier’
      and are subject to the provisions     of Article  911b.e

          Ia’ this case, the trucks were owned &nd used by the lum-
bar company In transporting   lumber over non-urban state highways
for which the company made a delivery    charge    such charge being
based on the weight of the truck and the distance which It had
traveled;  and under these circumstances   the Supreme Court held that
the lumber company’s trucks were contract     carriers  subject to the
statute requiring  operators to obtain permits from the State Rall-
road Commission.   It will be noted, however, that the turning Point
.    ’




    Railroad   Commission of Texas - Walton D. Hood,      page 3


    of this case was the fact that the lumber company did make a
    charge for the delivery   of the material transported, and that
    the case In no way conflicts   with the holding of the Commission
    of Appeals In the case of Anderson, Clayton and Company vs.
    State, supra.

                It Is the opinion of this department that the question
    of whether or not the operation     of a truck under the lease con-
    tract submitted to us Is In violation     of,the provisions   of Artl-
    cl6 911b, above referred    to  Is an issue of fact which must be
    passed upon by a jury.     We do not Intend, by this opinion,    to
    indicate   that such operation  of trucks Is not In violation    of
    the law, nor that it should be condoned, but rather that this
    Department has no authority    to render any decision    which invades
    the office    and province of a jury.

                                       Yours very truly
                                       ATTORNEY
                                              GENRRALOF TRXAS

                                       By /,s/ Ross Carlton
                                       Ross Carlton, Assistant

    APPROVRD:OCT 20, 1939
    /s/ Gerald C. Mann
    ATTORNEYGEXERAL.OF TFXAS
    APPROVED:OPINIONCOMMITTGE
    BYr      BWB, CHAIRMAN
    RCrGOrwb
