Honorable James E. Rilday
Director, Motor Transportation Division
Railroad DQnmission of Texas
Austin, Texas

Dear Sir8

                                      Opinion So. O-1833
                                      Ret Whether or not a~proposed truck
                                           lease form presentsa situation
                                           by whibh haulingtian be &me
                                           without regard tothe'Texas Motor
                                           Carrier Law, same being Article
                                           91lb;~Veipon's Annotated Civil
                                           Statutes.

         We have received your letter dated January 13, 1940, which is
self-explanatory and same reads as followst

        'We enclose a file which is self-explsnatory and which
    reflects a proposal whereunder Valley Shipper5 have assooi-
    ated themselves in a corporation for the *rpose of i%rket-
    ing fruits, et o&era from the Valley to various points in
    both inter and intrastate points'and whereunder this oorpo-
    ration will lease trucks from various persons with a planer
    in view of this oorporation's then hauling its products in
    these leased trucks on a theorythat it is a hauling of its
    ow5 goods in its ownt~cks   or at least a.hauling~of the
    goods of the bonstitutent members of the corporation in
    these leased trucks.

                              "QUESTIONS

        "Does this plan, reflected by the enclosed documents,
    present a situation whereunder~this hauling 6an be-done
    without regard to the Texas Motor'Cai+ier Lam'or~is the.
    proposal a mere subterfuge to oiroumvent complianoe with
    said law?"

     The proposed lease form reads, in part, as follows:
Honorable lanes E. Kilday, Page 2



     "Lessor is the owner of the folloaing desoribsd motor tm&,

"Engine No.                           State License No.
Manufaoturer
                                     , having the capacity of
Three and one-half (e)    Cons and has leased 58me to Lessee, such
lease being for a perioa of one ysar beginning on the        day of
              , 4. D. 19          and ending on the   day      of
              , 19-,     both da& inclusive, subjects        herein-
after set forth terms and conditions:

     "(a) The aforesaid truck is being leased primarily for the
transportation of fresh fruits snd/or vegetables and/or fruit
juioes, from the Lower Rio Grands Valley of Texas to ggrthern,
Eastern and Western marketst and for the transportation of both
oanned and fresh fruits.end/or vegetables and juioes, and paakers'
and shippers' supplies from Northern, 'Easternand Western cities
in the United States to the Lowsr Rio Grande Valley of Texas.
Lessee agrees to pay Lessor as rental for said truck the sue of
        .             Dollars per week, plus an additional
oents per ton mile for the transportation of all commodities,
above described, during the period of time covered by this lease.

      ,(b)  Lessor warrants that said motor truck is in first olass
condition and in every respect suitable for the transportation of
fresh fruits   and/or wgetables; that said tmak ha8 been duly
lioensed and is 80 constructed and equipped as to aoraplywith~all
the rules and regulation8 governing its operation over the highways
of this and other states. Atryrepair8 necessary to keep the said
truok in good running condition throughout the life of this lease
shall be at the expense of the Lessor; and in the event that the
Operation Of said teak should be 8u8pended for purpose8 of neoe8-
sary repair8 durgng the life of this Lease, such 1085 of time shall
be considered to bs for the account of Lessor and the life of this
lease shall ba extended, without additionalretial payment, for a
corresponding period in order to omp8nSate Lessee for such loss of
time.

     "(0) Lessee, during the'tem of this lease, shall have abso-
lute control and 7188of said motor truck in the 881118
                                                     manner as though
it %a8 the absolute owner thereof. Lea855 Will  employ, 8ubjeat to
the approval of Lessor, the operator or operators of saidtruck; but,
it i8 expre88ly agreed by all pal-tie8hereto that Le88ee shall have
absolute oontrol and supervision of the operator and/or operators
of said truok. Lessor agrees to waive any olaim and relinquish
and release Lessee from any liability for any injury or damage oo-
aasioned to said tmak during the tern of this lease, whether
Caused by negligence of the driver or otherwise.
Honorable Jsmes E. Kilday, Page 3



     "(d) Lessee agrees, at it8 expense, to carry fire, theft
snd aoaident insurance to protect Lessor against 1088 and injury
to said truck.

     8(e) Lessee also agrees at it8 expense to carry public li-
ability insursnoe with proper rider or aunibus clause 80 a8 to
fully proteot all parties hereto in the amount of Tw8nty Five
Thousand ((25,CCO.OO) Dollars for death or injury to one person,
and Fifty Thousand (#30,0COeOO) Dollars for death or injury to
tm or more persons growing out of the ssme aacident, and in the
emomt of at least One Thousand (#l,mw)      Lbllars for property
damage. This insuranoe to be carried in a oompaq authorized to
do business in th8 State Of T885.8."

     lfeare unable to arrive at the legal effeat of the heretofore quot-
ed lea88 form a8 to its general application. It could well be that the
operation of a truck under the said lease form in one instance would
have the effect of rendering the Rotor Carrier Law inapplicable, while
in another instance and under the ssme lease form, the operation of the
truok would be subjeot to the provisions of the &tor Carrier Law. In
any event, it would b8 necessary to ascertain the facts and oiroumstan-
085 leadimg to the making of eaoh particular lease a8 nell as the facts
and circumstances relating to the operation thereunder in order to de-
termninewhether or not the Rotor Carrier Law is applicable thereto. In
this oonnectlon, 888 hderson, Clayton and Co. vs. State, 62 S%    (2d)
107 and 62 S.H. (2d) 941e

     We oall your attention to our opinion8 Nos. O-1221 and C-1401,
copies of which are 8nclo8ed, which are in aooord with our holding
here.

     Vb are, therefore, unable to pass upon the q e&ions of whether or
not the proposed lease agreement presents a 8ifUaeion by which hauling
can be done without regard to the Rotor Carrier Law or whether the said
lease agreement is an attempt to evade the provisions of the &tar Car-
rier Law.

                                             Yours very truly

                                             ATTORNEY GNNERAL OF TFXAS

                                             By ~/Glenn R. Lewis
                                                    Glenn R.-MS
                                                       h85istant
                                              By ~/Lee Shoptaw
LS:GO                                                Lee Shoptaw
ENCLOSURE        APPROVED FBB 2, 1940
                Gerald C, &nn
                 ATTORNEY GENEBAL OF TEKAS
APPRmD   OPINION COMMITTEE BRB Chainnan
