                      E     -iTTORN-ETf          GENERAL
                               OFTEXAS

                              Ausniu     ax. TEXAS

  WLL    WIlLSON
ATFOWNEY    GENERAL
                          September 13, 1961

 Mr. Ellis A. Oualline, Jr.            Opinion No. WW-1131
 County Attorney
 Montgomery County                     Re:   Whether a truck, with a
 Conroe, Texas                               permanently fixed water
                                             tank, the only outlet for
                                             the water being a perm-
                                             anently fixed spray bar,
                                             used to water down road
                                             beds prior to paving and
                                             used for no other purposes,
                                             come within the classifica-
                                             tion of "construction
                                             machinery" as that is used
 Dear Mr. Oualline:                          in Art. 6675a, V.C.S.
      You have requested an opinion from this department on the
 following question:
             "In your opinion does a truck with
           a permanently fixed water tank, the only
           outlet for the water being a permanently
           fixed spray bar, used to water down road
           beds or other surfaces prior to paving
           and used for no other purpose come
           within the classification of 'Construction
           machinery (not designed for the trans-
           portation of persons or property on the
           public highways)' Art. 6675a-S?"
      The pertinent parts of Article 6675a, V.C.S., read as
 follows :
             "Every owner of a motor vehicle, trailer
           or semi-trailer used or to be used upon
           the public highways of this state shall
           apply each year to the State Highway
           Department through the County Tax Col-
           lector of the county in which he resides
           for the registration of each such vehicle
           owned or controlled by him for the ensuing
           or current calendar year or unexpired
           portion thereof;. . . Owners of. . .con-
           struction machinery (not designed for the
           transportation of persons or property on
           the public highways) operated or moved
Mr. El1is A. Oualline, Jr., Page 2         Opinion No. WW-1131


             temporarily upon the highways shall not
             be required to register such. 0 .con-
             struction machinery;. ~ 0U
     This amendment pertaining to construction machinery was
added by Acts of the 55th Leg., Acts 1957, and we have been
unable to find any Texas decisions construing this particular
amendment.
     In an Ohio case, State ex rel. Yontz v. West, 22 N.E. 2d
645 (1938) a similar situation arose in which a cement mixing
motor conveyance that consisted of a truck chassis self-propelled
by a gasoline motor with a permanently attached rotating drum or
hopper, rotated by either the propelling motor or an auxiliary
motor which was used for hauling ready mixed cement to con-
struction jobs on the highway. In some instances, and other con-
struction jobs off the highway.
     The Ohio statute exempted motor vehicles
               ,!0 . -used In construction work and
             not designed for or employed in general
             highway transportation. . *'
     Quoting from the opinion at page 648,     it is said:
               11    .It is urged upon the part of
             the'respondent that the device falls
             within the exception 'used in construc-
             tion WGrk and not designed for or employed
             in general highway transportation'D D 0
               II
                e 0 .It goes without arguing that,
             'there is no presumption favorable  to
             the exempticn of property from taxation.
             An exemption from taxation must be clearly
             and expressly stated in the statute and
             must be such only as is authorized by the
             Constitution.'. o .


               "It has been urged that the mixing,
             motor conveyances generally are not
             designed for and can not be employed in
             general highway transportation, but are
             strictly confined to moving cement mixture
             to the place where the same is deposited
             upon the work under construction. The
Mr. Ellis A. Oualline, Jr., Page 3     Opinion No. WW-1131


         same thing may be said of numerous specially
         construction vehicles. The highways are
         clogged with heavy trucks upon which large
         tanks are placed by means of which oil
         and gas are transported over the highway
         to the gas stations where they are delivered
         to the retail customer. There are many
         specially constructed bodies such as those
         used for hauling groceries, transporting
         cattle and horses, farm products and manu-
         factured goods, all of which are definitely
         devoted to a single purpose and are not
         designed for or employed in general highway
         transportation, if by 'general' we mean a
         transportation without restriction as to
         the load carried. Any vehicle that is
         designed for the transportation of objects
         and adapted to general transportation of
         special freight is still a motor vehicle
         under the definition of Section 6290, General
         Code."
     The exemption in Article 6675a-2 specifies "construction
machinery (not designed for the transportation of persons or
property on the public highw~ays)". The truck in question is
designed for hauling water and spreading it on the road beds in
connection with construction of highways. It is common knowledge
that in many instances it is necessary for the water truck to
travel along the public road for distances up to several miles
in order to obtain the water to be spread on the road beds where
the construction is being done. It is our opinion that water is
property and is being transported on the public highway.
     Trucks designed for hauling gravel and used only for hauling
gravel on road construction jobs traveling various distances along
the public road to secure the gravel to be used on the construc-
tion job would come within a very similar classification and we
cannot conceive of these gravel trucks not being required to be
registered and licensed. The same thing could be said about oil
trucks which are designed and used only for hauling oil from a
supply point to the construction job in which case it is necessary
to travel over the public highways to deliver this commodity to
the construction job. It is, therefore, our opinion that a truck
designed for hauling water to a construction job and spreading it
on the road bed at the construction job does not come within the
classification of "construction machinery (not designed for the
transportation of persons or property on the public highways)."
                                                              .   .




Mr. Ellis A. Oualline, Jr., Page 4      Opinion No. WW-1131


                          SUMMARY

               A truck with a permanently fixed
          water tank, the only outlet for the water
          being a permanently fixed spray bar,
          used to water down road beds prior to
          paving and used for no other purposes,
          does not come within the classification
          of "construction machinery (not designed
          for transportation of ersons or property
          on the public highwaysP ~"
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas




JHE3:cm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Vernon Teofan
Sam Wilson
Dudley McCalla
REVIEWED FOR THE ATTORNEY GENERAL
By: Howard W. Mays
