                              OF      TEXAS




Honorable   W. J,     Townsend
County Attorney
Angellna   County
Lufkin,   Texas

Dear Sir:                          Opinion NO. o-6571
                                   Re:   Whether a person transporting     a 'load
                                         of steel   by truck of which he is
                                         the bona fide owner is exemp,t from
                                         regulation   of Motor Carrier   Act. by
                                         reason of Sec. la(l)     (a) and Set,
                                         lb of Art. glib,    V.A,C,S,,  under
                                         the facts   stated.

               We have your        opinion    request     reading   as follows:

                 "I write   your    department      for   an opinion,    covering
this    situation:

               "A person.owning        and operating     his own
       motor vehicle,    "%owit:    a truck,    purchases    steel
       at Port Arthur,      Texas,    on a basis of $50.00 per
       ton, when he transports         tie'same   over the high-
       ways of the State of Texas and resells             such
       steel wherever he is able to do so at an advanead
       price,  to say, about $78.30 per to:., the profit
       in the transaction      being his compensation         for
       the service    rendered,       This party claims to own
       a junk yara at Longview,          and may claim to carry
       such products     transpord'i,ed by him to his junk yard
       located   at Longview for resale.

               "This par~ticular        load of     steel,    here re-
       ferred  to, is apparently         r:either     junk   or scrap
       steel o

              "I enclose    you herewikh for your information
       copy of said party's     invoice, as well as ruport
       of the inspector   of the Railroaa   Commission,  re-
       lating to this   s\tuation,

               "(a)  Is the cam;gf:?g of such steel   by this
       party without   a permit from the Railroad   Commis-
       sion of Texas unlawful?
Hon, W. J,         zToz!send,       page 2            o-6571


                “(b) Is the profit   in the resales of this
       steel  at an advanced pric’e,   such compensation   as to
       make t.he use of the highways of Texas unlawful      by
       such party in transporting    the sam,e without   a permit?”

                 Under the facts  stated the person inoulred     about is
subject      to the Motor Carrier    Act and must have a permit from’ tr,e
Railroad       Commission unless  he is exempt by’ Section  la(l) (a) a:&
Section      lb of Art. 911, V.A.C.S.,    which reads as follows:

                “Sec. la(l)    Provided,    however,  that the term
        ‘Motor Carrier’     and the term ‘Contract     Carriers as
       defined   in the preceding     section   shall not be held
       to include:

                 “(a),   Any person having a regular,             separate,
       fixed and established        place of business,          other t,han
       a transportation       business,     where goods, wares, and
       merchandise     are kept in stock and are primarily                 and
       regularly     bought from the public          or sold to the pub-
       lic or manufactured        or processed      by such~‘person        in
       the ordinary      course   of the mercantile,         manufacturing,
       or processing      business,     and who, merely incidental             to
       the operation       of such business,       transports       over the’
       highways of this State such goods of which such person
       is the bona fide owner by meansof                a motor vehicle
       of which such person-is          the bona fide owner;           . D . D
                                                      .
                 “Sec. lb,      Any person who transports            goods,
       wares 9 or merchandise       under the circumstances             set
       forth   in the foregoing       Section    la so as to be ex-
       cluded by the terms of said section               from the defi-
       nition    of !motor carrier’        or ‘contract       carrier’
       shall be deemed to be a private            motor vehicle         owner;
       and such use of the highways by such private                    motor
       vehicle     owners, as herein defined,           shall be constn%ed
       as use of tne highways for the general                 public    and
       not the use of such highways for the carrying                    on
       the business      of transporting      property      for compensa-
       tion for hire.”

                   This   article      is   part of House Bill    No, 25,   ch.     29G,
Acts    of   the    47t.h Legislature          (1941) p* 463.

            The Invoice                which you enclosed    recites    that the steel
was sold. on terms of               net cash.   However,    the   Inspection  report
by Mr. J-J, Ray, Jr,                states  that the steel was paid for after        it
was resold o We will                assume, however,    that this was not a,consign-
ment to an agent for                sale but that a sale was made of t’he load
of steel  by ,the Port              Iron & SUpply Company, Inc, at Port Arthur,
Hon. W.J.        Townsend,      page   3              o-6571


Texas,     to    the   person    inquired     about      who received      it   in his     own
truck.

            Our answer to your question'wlll         also depend on
whether the person Inquired     about has a "regular,         separate,     fix-
ed and established  place of business"        for sale at retail        of the
steel which he was hauling.       His 'junk yard" at Longvlew may or
may nbt be. such an established     business.      This would depend on
the facts  and you have not given us enough information             in.'your
Ietterfor   us to determine    this point.       However, we will       assume
as a basis of this bpinion     that the person inquired         about does
have a "junk yard" at Longview where he sells           steel   to the
public.

              Under the foregoing       assumptions,     our answer to your
inquiry   Is that the person inquired         about does come within       the
terms of the statute      above quoted and is not required            to have
a permit from the Railroad         Commission.      The fact that he'makes
a profit   on the steel     after   he gets it to Longview over and
above what he bought it for,          OP that one particular       load was
resold.by   him at retail      without   actually    carrying   it to Long-
view and redelivering        it from that point,       does not alter     our
answer~to'your    question.       From ~the facts'stated      in your letter
It is apparent that the person inquired'about               is enga ed In bus-
iness for himself     (other    than transportation       business k and Is
hauling his own merchandise         in his own trucks.

                  Trusting      that   the   foregoing      answers     your    inquiry,    we
are

                                                  Yours     very   truly

                                             ATTORNEYGENERALOF TEXAS


                                                  By s/%'agan Dickson
                                                       Fagan Dickson
                                                        Assistant
FD:BT:wc


APPROVEDMAY 23, 1945
s/Grover Sellers
ATTORNEYGENERALOF TEXAS

Approved        Opinion   Committee        By s/GWB Chairman
