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                                   fitate of Qtxae


                                  June 27.1991




Honorable James M. Kuboviak           Opinion No.    DM- 28
Braxos county Attorney
Braxos County Courthouse              Re: Whether section SB of article 6701d-11,
BryanTexas 77803                      V.T.C.S., authorizes a vehicle to operate at
                                      five percent over the maximum gross weight
                                      for which the vehicle can be registered, or
                                      whether the vehicle is limited to five percent
                                      over the posted load limit of the road over
                                      which it is traveling (RQ-41)

Dear Mr. Kuboviakt

       You have requested our opinion regarding a 1989 amendment to article
6701d-11, V.T.C.S.,.the statute which, among other things. regulates weight, load,
width, height, and equipment of vehicles operating on the public highways. In 1989,
the legislature adopted House Bill 2060, which amended the statute by adding
section SB to establish -a statewide permitting system for weight limitations on
commercial vehicles. Section SB provides, in pertinent part:

             (a) The [Highway] department shall issue permits as
         provided by this section allowing a commercial motor vehicle,
         truck tractor, trailer, semitrailer, or combination of those
         vehicles to operate with a gross weight or axle weight that
         exceeds the allowable gross or axle weight for the vehicle.

             (b) The permit authorizes the operation of the vehicle at a
         weight that exceeds the allowable axle weight by a tolerance
         allowance of 10 percent and erceedr the allowable grass we&hfby
         a tohance allowance of jive percent.

              . . ..


              (e) The permit is valid for one year and must be carried in
          the vehicle. . . .



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Honorable James M. Kuboviak - Page 2               (DM-28)




               (f) Operation of a vehicle for which a permit is issued under
          this section at a gross weight or a& weight that exceeds the
          amount authorized by the permit is a violation of this Act.

V.T.CS. art. 6701d-11, 3 SB, Acts 1989, 71st Leg., ch. 488, Q 1, at 1661 (emphasis
added).

        Subsequent provisions of section 5B require an applicant for a permit to file
a letter of credit or bond in the amount of SlS,tXIO,guaranteeing that the applicant
“will pay to the department for any damage to a state highway and will pay to a
county for any damage to a road or bridge of such county caused by the operation”
of the vehicle, and declare that liability for such damage is not limited to the amount
of the bond or letter of credit. V.T.C.S. art. 6701d-11,s 5B(g), (h).

        Your question is whether a permit issued under section 5B should authorize
the vehicle to operate at five percent over its maximum allowable gross weight, or
should limit the vehicle to a maximum of five percent above the posted load limit of
a particular road or bridge. The answer to your question is found in the language of
section SB. Every reference to gross weight or axle weight in that provision is in
connection with the weight of the vehicle and not the posted road weight limits.l
Thus, section SB provides for a permit authorizing operation of a vehicle at a weight
that exceeds the allowable gross weight of the vehicle by five percent.

       House Bill 2060 has also expressly limited a county’s power to enforce
load zoning regulations against vehicles operating under a section 5B permit.
Section 5 l/2 of article 6701d-11 provides that the State Highway and Public
Transportation Commission has the power to 6x the maximum gross weight of a
vehicle and load, as well as maximum axle and wheel loads, to be transported over
any .state highway or farm-to-market or ranch-to-market road under the
commission’s jurisdiction. The commissioners court of any county is given the same
power to limit the maximum weights to be transported over any county road, bridge,
or culvert. Subsection 2(b) of article 6701d-11, which already authorized the
commissioners courts to issue 9Oday permits for the transportation of overweight
and over&c commodities and equipment under some circumstances, was amended
by House Bill 2060 to allow the commissioners court to issue 90day permits for the


       ‘section S(a) of article 67Old-ll, V.T.C.S.,establisbcs the maximum akwabk. axle weightand
*css weight of vdlidy truck-tract- tdhs or amitrailcrq or I wmbination of those vehidcs.




                                           p.   128
operation over county roads “of vehicles or combinations of vehicles that exceed the
weights authorixed under Section 5 or Section 5 l/2 of this Act.” Acts 1989.71st
Leg., ch. 488, 0 4, at 1664. However, House Bi 2860 also added the following
provision to subsection 2(b)( 1):

          If a vehicle has a permit issued under section 5B of this Act, a
          commissioners court may not issue a permit under this
          subsection, charge any additional fee for, or otherwise regulate
          or restrict the operation of the vehicle with a gross weight or
          axle weight that exceeds the weights authorized by Section 5 or
          Section 5 l/2 of this Act, or require the owner or operator to
          execute or comply with a road use agreement or indemnity
          agreement, to make any filings or applications, or to provide a
          bond or letter of credit other than the bond or letter of credit
          provided for in Section 5B.

Id.

       Even though subsection 2(b)(l) limits the authority of the commissioners
court to impose weight and load restrictions on a vehicle with a section 5B permit,
the permit does not necessarily allow vehicles to travel over all county roads and
bridges. A commissionen court still retains some authority under other law to
prevent overweight vehicles from,using certain roads and bridges. See, cg., V.T.C.S.
art. 6702-1, 03 2.301(g) (certain county officers may set maximum load limits for
highways if they cannot be used safely without serious damage or if the bridge or
culverts are unsafe), 2.302 (authorizing use of detour roads for county roads under
construction).

        A commissioners court’s authority to momtor the safety of roads and bridges
within its jurisdiction is further suggested by the notification provision of subsection
2(b)(2). Under that section, a permittee who receives a section 5B permit must
notify the county clerk of every county in which he intends to operate the vehicle
that he intends to operate it on county roads, bridges, and culverts with a gross
weight, axle weight, or wheel load that exceeds the limitations established under
section 5 or section 5 l/2. The owner or operator of a vehicle with a section 5B
permit, who has Sled the required bond or letter of credit and made this notification

          is liable to the county only for the actual damages to the county
          roads, bridges, or culverts with load limitations established



                                       p.   129
Honorable James M. Kuboviak - Page 4         (DM-28)




         under Section 5 or Section 5 l/2 of this Act caused by the
         operation of the vehicle in excess of those limitations. If a
         ~Judge,cowY-,Carnry~Sllpc7visor,w
         GwntyT@cO@umquinssuchvehicletotmvelowa
         de.&natedrwtc,itshaubepnnuncdthatsuchderigMedlvlIte,
         bzcludbganybridgtsora&tmlocatedthawqisofsaqji&u
         stm@handdesigntocanyandwitiumdthewtightofthcv&icle
         tmvelingwwsuchderignmedmute

V.T.C.S. art. 67Old-11, 0 2(b)(5) (emphasis added). The italicized language indi-
cates that the enumerated county officials have authority to designate a particular
route for a vehicle to use, with the consequence that the designated route will be
presumed to withstand the weight of the vehicle.

        In adopting House Bill 2060, the legislature intended that vehicles with the
section 5B permit could operate at five percent in excess of their allowable gross
weight over roads and bridges, but it also provided that the counties would have
some means of preventing serious damage to their roads and bridges and of
protecting the safety of other persons using those roads and bridges.




             Section 5B of article 6701d-11, V.T.C.S., authorizes the
         Department of Highways and Public Transportation to issue a
         permit to authorize the enumerated vehicles to operate at five
         percent in excess of their allowable gross weight under section
         S(a) of article 6701d-11, V.T.C.S.




                                                 DAN      MORALES
                                                 Attorney General of Texas




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