.   -




              THE     A~TORNEYGENERAL
                          OWTEXAS
                          AUSTIN.    Texas       78711




    The Honorable Wilson E. Speir                Opinion No. H-1001
    Director
    Texas Department of Public Safety            Re: Base municipality
    5805 N. Lamar Boulevard                      of a certificated common
    Austin, Texas 78773                          carrier motor carrier.

    Dear Colonel Speir:

         You have requested our opinion regarding the extent to
    which a common carrier motor carrier under section l(g) of
    article 911b, V.T.C.S., may lawfully serve points not autho-
    rized to be served in certificates of public convenience and
    necessity issued to it by the Texas Railroad Commission when
    such service is incident to otherwise regulated transporta-
    tion performed under a through bill of lading.

         As an example, you describe a situation in which a
    carrier possesses requisite authority to conduct operations
    between City A and City B. City A is contiguous to City C;
    City D is contiguous to City C, but is not contiguous to
    City A; City B is contiguous to City E; City F is contiguous
    to City E, but not to City B. Each of the cities is incor-
    porated and none surrounds any other incorporated area.

         Your specific question is:

              [Clan operations between the following points
              be lawfully performed by the common carrier:

                    (1)   Between    City    A   and   City   E;
                    (2)   Between    City    C   and   City   E;
                    (3)   Between    City    A   and   City   F;
                    (4)   Between    City    D   and   City   F?
         The question and description are difficult to concep-
    tualize, so we have prepared the following chart to illus-
    trate the issues.




                                    P. 4147
The Honorable Wilson E. Speir - page 2        (H-1001)




        A

        c

        D

    Article 911b, section l(g), reads in pertinent part:

               The term "motor carrier" means any person
            . . . operating, or causing to be operated
            any motor-propelled vehicle used in transporting
            property for compensation or hire 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.

               Provided, that the term "motor carrier" as
            used in this Act shall not include, and this
            Act shall not apply to motor vehicles engaged
            in the transportation of property for compen-
            sation or hire between points:

               .   .   .   .

                (4) Wholly within the limits of a base
            incorporated rn~~~a~y~an~-n-iYFof
            TnGporated    crtres, towns and villages which
            are immediately contiguous
                                   --- to said base
            municipalrty.

               Provided further, that motor
                                          --~   carriers
            authorized
            --          to
                    --. _  serve  any   incorporated     cEy, town
            or vmage    witKnihe      areas described in . . .
            '(4) above, except carriers    of commodities in




                                  p. 4148
The Honorable Wilson E. Speir - page 3   (H-1001)



          bulk in tank trucks and all specialized motor


          described in .


          Grce    at all points within such areas when
          such transportation is incident to, or a part of,
          otherwise regulated transportation performed
          under a through bill of lading.

(Emphasis added).

     Under the fact situation submitted, regulated trans-
portation service may be conducted between City A and City
B because each city is an authorized service point in the
carrier's certificate.  However, the carrier possesses no
certificated authority to conduct operations to or from
Cities C, D, E, or F. Such authority, if any, must come
from the second proviso of section l(g) as it refers to
sub-paragraph (4) in the first proviso.

     Sub-paragraph (4), when incorporated into the second
proviso, authorizes the certificated common carrier to provide
service between all points within the limits of a base incor-
porated municipality and cities immediately contiguous to it
on the one hand, and, on the other hand, authorized points
beyond such area if the service is incident to otherwise regu-
lated transportation.

     The first problem in interpreting this statute is defin-
ing the term "base incorporated municipality," since it was
not defined within the statute. In Attorney General Opinion
M-411 (1969) at 10, this office defined the term simply as
"any municipality to which other municipalities are immediately
contiguous."  Attorney General Opinion M-411 involved a dif-
ferent fact situation to which it must be limited. That opin-
ion relied entirely on an unreported Texas District Court case,
State vL Lomeda Corfi, Civ. No. 67-4559-A, Dist. Ct. of Dallas
--
County, 14thGd:dicial Dist. of Texas, October 24, 1968, which
itself relied on the opinion accompanying an Interstate Com-
merce Commission (ICC) order, EX Parte No. MC-37, Commercial
Zones and Terminal Areas, 46 M3.C.   665-946).    The ICC opin-
ion stated that "base municipality" designated  the municipality
whose commercial zone is under consideration by the ICC.




                            P. 4149
The Honorable Wilson E. Speir - page 4   (H-1001)



     Both of these definitions show by their generality that
the term "base incorporated municipality" has ,not been given
a distinct technical definition, but has rather been used in
its ordinary meaning.  "Base" means "[tlhe fundamental part
of a thing," or "[tlhe chief ingredient of anything viewed
as its fundamental constituent."  Webster's New Collegiate
Dictionary at 72 (2nd ed. 1956). "Municipality" means city,
town, or village chartered pursuant to laws of the state
where located. -Ex parte No. MC-37, su~r2 at 699.
                      -----
     If we apply the general definition to the term as re-
ferred to in the second proviso in section l(g), the base in-
corporated municipality for certificated motor carriers is
the city authorized in the carrier's certificate of public
convenience and necessity.  It is the fundamental part of the
area authorized to be served by the certificate.   This defi-
nition not only follows from the ordinary meaning of the
words and past usage, but also effects the legislative pur-
pose of the Act, "to restrict and regulate rather than to ex-
pand or create exemptions."  State .._
                             __...  v. Ace1 Delivery Service,
                                       ._-_ -
Inc., 388 S.W.Zd 930, 934 ,(Tex. 1965). See DJ= Trucking Co.
v. Miller, 397 S.W.2d 507 (Tex. Civ. App,-    AusEni965,   writ
Gf'd.e.)      .

     We conclude that, in the case of certificated carriers,
the base incorporated municipality is a fixed point, namely,
the city or cities in the carrier's certificate.   We also
believe that the language of the statute is clear in stating
that transportation, in order to be incident to regulated
transportation, must be between the "base incorporated munic-
ipality and any . . . cities 7.   . immediately contiguous to
said base incorporated municipality," and "authorized points
beyond such areas." V.T.C.S. art. 911b;- l(g) (4).

     In answering your specific questions we believe that:
(1) a certificated common carrier motor carrier could provide
transportation services between City~ A and City E because
City A is authorized as a service point in the carrier's cer-
tificate and City E is immediately contiguous to City B, also
named in the certificate; (2) service between City C and City
E could not be performed because neither of the two cities is
authorized as a service point in the carrier's certificate:
(3) service could not be performed between City A and City F
because City F is neither a city authorized as a service point
in the certificate nor contiguous to such a city; and (4) ser-
vice could not be performed between City D and City F because
neither of the cities is authorized as a service point by the
carrier's certificate.




                            p. 4150
.   I




    The Honorable Wilson E. Speir - page 5     (H-1001)



                           SUMMARY
                           .----~-
                The base incorporated municipality of
                a certificated common carrier, as referred
                to in the second proviso of article 911b,
                section l(g), V.T.C.S., is the city or
                cities named in the carrier's certificate
                of public convenience and necessity.
                Transportation services by a certificated
                motor carrier, in order to be exempt from
                regulation as incident to otherwise regu-
                lated transportation, under the second
                proviso of article 911b, section l(g),
                must be between points in the base incor-
                porated municipality and cities immediately
                contiguous and another point authorized in
                the certificate of public convenience and
                necessity.

                                     Very truly yours,




                                     Attorney General of Texas

    APPROVED:




               __-~
    C. ROBERT HEATH, Chairman
    Opinions Committee

    km1




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