              THEATTO~~NEY                          GENERAL
                               OPTEXAS




Col. Homer Garrison,   Jr.                    Opinion   No.   C-125
Director
Texas Department   of Public       Safety     Re : Under the provisions         of S. B.
Austin, Texas                                 451, Acts 58th Leg., amending         Art.
                                              911b, V.C.S.,   if the owner of a truck
                                              leases   such vehicle    without a driver
                                              to any person other than a common
                                              carrier,   contract   carrier    or *pe-
                                              cialised   motor carrier,     will such
                                              owner be considered        to be transport-
                                              ing property    for compensation       or
Dear   Col.   Garrison:                       hire, and related     questions.

              In your recent letter you requested    an opinion of this office on the
recently    enacted Senate Bill 451, Acts 58th Legislature,       Chapter 451, page
1316, which amended Article       911b, Vernon’s  Civil Statutes,   by adding para-
graph    (j) to Section 1. The questions     you asked are as follows:

                    “1. Under this amendment,      if the owner of a truck
              leares   such vehicle  without a driver    to any person other
              than a common carrier,      contract   carrier   or specialized
              motor carrier,    will such owner be considered       to be trans-
              porting property    for compensation     or hire ?

                    “2. If the owner of a truck leases     such vehicle    to
              any person other than a common carrier,          contract   car-
              rier, or specialized    motor carrier   and is employed      by
              the lessee   as a driver,   will such owner be considered
              to be transporting    property   for compensation     or hire?

                    “3. If the owner bf a truck leases        such vehicle
              without a driver,      but with a provision   that a driver
              must be secured       through the Texas Employment         Commis-
              sion, to any person other than a common carrier,              con-
              tract  carrier   or specialized     motor carrier.    will such
              owner be considered        to be transporting    property   for com-
              pensation    or hire?




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Col.    Homer     Garrison,     Jr,,   Page   2 (C-125)



                      “4. If the lessee     of a truck not being a motor car-
                rier or contract    carrier     secures    a driver  for such ve-
                hicle through Manpower,         Inc., would the lessor     be con-
                sidered   to be transporting      property    for compensation
                or hire?

                      “Manpower,      Inc., is an organization         that has as its
                primary    business the furnishing          of employees      of differ-
                ent skills or trades to other business             organizations      upon
                request.    Manpower,       Inc., pays these employees           and
                maintains    ail payroll     records    including the withholding
                of taxes and social security         benefits.     The business       or-
                ganization    requesting     an employee       from Manpower,         Inc.,
                has complete      control    of the employee       except that pay-
                ment for such employee’s           services     is made to Manpower,
                Inc., who withholds       a commission        or fee for handling
                the account.     In practice,     the employee       performs     his work
                for the business     organization      just as any other employee
                of such organization       but draws no salary except from
                Manpower,      Inc.

                      “5. In the four preceding     questions, what would be
                your interpretation    if the lessee was a common carrier,
                contract  carrier   or specialized   motor carrier?  ”

              Article 911b, Section 1 is the section of the Motor                Carrier       Act
which    defines the terms used in the Act.     It provides that:

                     “When     used in this Act unless expressly     stated
                otherwise.”      (Then follow   the various definitions)

Senate Bill 451 amended this Section 1 by adding a paragraph                        (j), defining
the term   “transporting  property for compensation or hire”                       which provides
in its material  parts as follows:

                       ” ’ (j) The term transporting          property    for compen-
                sation or hire shall include the furnishing              during the same
                period of time of equipment.and             drivers   to persons,     firms,
                copartnerships,       associations      or joint-stock     associations
                other than common carriers,             contract    carriers,    or spe-
                cialized     motor carriers      for use in their carrier        opera-
                tions whether the equipment            and drivers     are furnished      by
                the same or separate          person,    firm, co-partnership,
                association      or joint-stock     association,    and their lessees,




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Col.   Homer     Garrison,    Jr.,   Page   3 (C-125)



               receivers  or trustees    appointed  by any court    whatso-
               ever owning, controlling;     managing,   operating    or
               causing to be operated     any motor-propelled      vehicle.’          ”

             The effect of this amendment     is to make the term     (phrase)   “trans-
porting property    for compensation    or hire”   where it appears    in Section 1 (g)
and 1 (h) and other sections     of the Motor Carrier    Act,  include the furnish-
ing during the same period of time of equipment        and drivers   to persons,
firms,  etc.

               The amendment         provides    that the transporting        of property      for com-
pensation      or hire shall include the furnishing             during the same period of time
the equipment       and drivers       “whether     the equipment        and drivers     are fur-
nished by the same or separate             person,     firm, co-partnership,          association     or
joint-stock      association    and their lessees         . . , owning, controlling,        managing,
operating      or causing to be operated         any motor propelled          vehicle.”     It seems
apparent that the Legislature            by its language       intended to include the furnish-
ing of the equipment         and the driver      within the meaning of the term              “trans-
porting property        for compensation        or hire.”      The language would be meaning-
less under any other kind of an analysis.                  If both the equipment        and drivers
are furnished       during the same period of time, even if furnished                   by “separate
person,     firm,   . . . ” etc., the transportation          would be for compensation           or hire
under the language         of the statute.     In other words,        to be unregulated       transpor-
tation, within the meaning          of Paragraph         (j), the person owning the commodity
being transported         must   furnish either the truck sr the driver.               If both the
equipment       and drivers     are furnished      by the same or separate           persons     other
than the owner of the commodity              being transported         the transportation       is for
compensation        or hire.

            It is, therefore,     our opinion that an owner of a truck who leases             such
vehicle without a driver      will be considered       to be transporting     property    for
compensation     or hire as he is furnishing         “equipment”      in the terms of the
statute only if the drivers      are being furnished       by a separate    person’or    firm
other than the lessee.       This, of course,     does not include the furnishing        of
equipment    and drivers    to common      carriers,     contract  carriers    or specialized
motor carriers     for use in their carrier        operations.    (See answer to question
No. 5)

               In answer  to your second question,     it is our opinion that a person
leasing  a truck    to be employed    in the transportation     of commodities     over
the highways     of The State of Texas,     and being employed       by the lessee   as a
driver  would be considered       to be transporting     property   for compensation     or
hire over the highways       of The State of Texas as he is, in addition to furnish-




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Col.   Homer   Garrison,    Jr.,   Page   4   (C-125)



ing the truck, also furnishing      the driver   (himself).     He is furnishing   both
the “equipment”      and “driver”       within the terms of the statute.       Again, this
does not include the furnishing       of equipment   and drivers     to common carriers,
contract    carriers or specialized     motor carriers      for use in their carrier
operations.

             Inasmuch as we have answered         your first question to the effect
that the leasing     of a truck and the furnishing     of drivers   by the same or
separate    persons would be considered       to be transporting     property    for com-
pensation    or hire, our answer to your third question must be in the negative.
Here the drivers       would be employed    by the lessee.      The fact that the Texas
Employment       Commission     referred  such drivers     to the lessee   would not
mean that the Commission         was furnishing    drivers    within the terms of the
statute.    Therefore,    all we have here is the lease of the equipment,          and,
as the drivers     are not being furnished    by the same or separate        persons,   the
transportation     would not be considered     for compensation       or hire under this
 statute;


             Ollr answer to question number four is in the affirmative.        The truck
being furnished     by one person and the drivers    furnished  by Manpower,     Inc., it
would follow that both the equipment     and drivers    are furnished   by separate    per-
sons which within the terms of the statute     is considered    to be transporting
property   for compensation     or hire.

               By virtue of the proviso      in Paragraph      (j) which reads:     “other
 than common carriers,         contract   carriers,   or specialized     motor carriers     for
 use in their carrier      operations”     if equipment     and drivers   are furnished    to
 common carriers,        contract   carriers    or specialized     motor carriers,    the opera-
 tions described     in your first four questions      would not be included in the term
 “transporting    property    for compensation      or hire”      as used in said Paragraph
 (j), and said four questions       would be answered       in the negative.

              We express     no opinion as to whether    the furnishing  of such equip-
 ment  and/or drivers     to common carriers,      contract   carriers,  or specialized
 motor   carriers  is a violation    of any other section of Article    911b, Vernon’s
 Annotated. Civil ,Statutes.



                                      SUMMARY



               The furnishing    of both the truck and drivers      by the same
               or separate   persons    is considered    to be the transporting
               of property  for compensation       or hire within the meaning
               of Article  911b, Section l(j), Vernon’s     Civil Statutes,   only




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    ,

,
        Col.   Homer      Garrison,   Jr.,   Page   5   (C-125)



                        in the event such furnishing    is to entities other      than com-
                        mon carriers,   contract  carriers,   or specialized       motor
                        carriers.



                                                          Yours   very   truly,

                                                          WAGGONER        CARR




                                                            Norman V. Suarez                  /
                                                            Assistant Attorney    Gen k ral

        NVS: nb

        APPROVED:
        OPINION   COMMITTEE
        W. V. Geppert, Chairman
        Murray  Jordan
        Gordon Zuber
        W-0. Shultz
        Pat    Bailey

        APPROVEDFOR       THEATTORNEYGENERAL
        BY:  Albert P. Jones




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