          ---         . .
           .r.,




                                The Attorney            General           of Texas
                                                   March 21,       1979
MARK WHITE
Attorney General


                            Honorable Don Henderson, Chairman         Opinion No. Mw-7
                            House Transportation Committee
                            State Capitol                            Re: Registration of machinery
                            Austin, Texas 70767                      used to transport and apply
                                                                     fertilizer.

                            Dear Representative Henderson:

                                You have requested our opinion regarding the registration of
                            machinery used to transport and apply fertilizer.

                                  The 65th Legislature enacted two separate statutes dealing with the
                            ragktration of fertilizer machinery. Article 6675a-2, V.T.C.S., which
‘23 Main. Suite 610         specifies the requirements for registering motor vehicles, provides that
,O’ n. TX. 77coz
‘1      4701
                                       owners of . . . implements of husbandry operated or
                                       moved temporarily upon the highways shall not be
                                       required to register such . . . implements of
                                       husbandry.

                            ,Article 667%-2(b). House Bii 1324,65th Leg., 1977, ch. R9, at 252, amended
313 N. Tmh.       sun4 F    the definition of Ymplements of husbandry”to include.
whn.lx,6601
13a63-4347                            self-propelled machinery specifically designed or
                                      especially adapted for applying plant food materials
                                      or egricultural chemicals and not designed or adapted
                                      for the sole purpose of transporting the materials or
                                      chemicals, but shall not include any passenger car or
                                      ~trwk.

                            V.T.C.S. art. 6675a-l(r).    House Bill 1324 also amended the traffic
                            regulations to provide:

                                       No person may operate on a public highway at a speed
                                       greater than thirty (30) miles per hour any ~self-
                                       emWed       machinery specifically      designed or
                                       especially adapted for applying plant fcod materials
                                       or agricultural chemicals and not designed or adapted




                                                         p.   19
Honorable Don Henderson -        page Two    IMW-7)



            for the sole purpose of transporting the materials or chemicals,
            unless the machinery is registered mder Chapter 86,GeneraJ Laws,
            Acts of the Ust Legislature, 2nd Called Session, 1929, as amended
            (Article 6675s~1,et seq., Vernon’sTexas Civil Statutes).

V.T.C.S..art. 6701d,S 169Afe).

      The Other relevant statute enacted by the 65th Legislature, House Bill Sl, Acts, 65th
Leg., 1977,oh. 184, at 373, added another provision to the traffic regulations:

           Section L In this Act, “fertilizer” includes agricultural limestone..
           Sec. 2. The annual license fee for the registration of motor
           vehicles designed or modified exclusively to transport fertilizer to
           the field and spread it, and used only for that purpose, is $50.
           Sec. 3. The width requirements in Subsection (a), Section 3,
           Chapter 42, General Laws, Acts of the 4lst Legislature, 2nd Called
           Session, 1929, as amended (Article 67Old-U, Vernon% Texas Civil
           Statutes), do not apply to a vehicle registered’under Section 2 of
           this Act ,whichhas a width of 136inches ce less at its widest point.

V.T.C.S. art. 670%lla. Thus, there is a category of fertilizer ‘ma&ii       to which both
House Bill 1324 and House ,Bill 61 are applicable: certain motor vehicles designed or
modified bdth to transport and apply fertilizer. Since the former~statute provides an
exemption from registration, and the latter fiies an annual registration fee of $50, it has
been contended that the two statutes are in irreconcilable conflict. In our cpinion, they
may be harmonized and both given effect.

            House Bill 1824, when read together with article 6675a-2(b), exempts from
.registration certain self-propelled machinery designed or adapted for applying fertiizer.
 The statute then rescinds the exemption for one clam of fertilizer ~machinery- those
 operated at speeds of greater than 30 miles per hour. As to such machinery, registration
 is stillrequired.

      House Bill 81 does not itself require any vehicle to be registered. Rather, it merely
specifies a fee when registraticn is required. The fee is imposed mn re ’ tered fertilizer
machinery which is &signed or modified for both transporting and sprea  +kiYhus,itis
                                                                             g.
applicable to certaii kinds of machinery described by House Bill 1324but not exempt from
~tration     tbzreunder by virtue of their operation at speeds greater than 30 miles per
    .

     ln answer to your specific questions, we believe that the passage of House Bills 81
and 1324 has somewhat altered the law set forth in, Attorney General Opinion M-l288
(1972),which applied the test of “primary design and use” to a particular vehicle. We need
not determine the extent to which the “primary design and use” test has survived the
enactment of the two statutes, however, since we are confident that the vehicle described
in Opinion M-l288 retains its exemption from registration, so long as it is not operated at
speeds greater then 30 miles per hour.




                                         P. ‘20
Honorable Don Henderson      -   Page Three     (r4w-7)



     In Motor Vehicle Snformatiem Circular No. 10-77, dated August 26,1977, the State
Department of Highways and Public Transportation interpreted House Bill 1324 to provide
an exemption from registration only for those motor vehicles which “have been built from
the       9 a~ machinery for the exclusive purpose of spreading fertilizer.R (emphasis
inigiY%tf . In our opinion, such a construction imposes a requirement not present in the
statute and is im%nsistent therewith. As we have indicated, fertilizer machinery is
 exempt fmm registration if it is included within the definition of vimplements of
 husbandryvin article 6675a-lb) and is not operated at speeds greater than 30 miles per
hour.

                                     SUMMARY

           Selfpropelled machinery which does not come within the statutory
           defmition of passenger car or truck and which is designed or
           adapted for applying fertilizer ls exempt from registration under
           article 6675a, et     V.T.C.S., so long aa such ma&inery is not
                          7iF
           operated at spee greater than 30 miles per hour.

                                               Very truly yours,


                                          -
                                               MARK     WHITE
                                               Attorney General of Texas

JOHN W. PAINTER, JR.
First Assistant Attorney General

TRD L. HARTLEY
Executive ~AssistantAttorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINIONCOMMITTRE

C. Robert Heath, Chairman
Watson Arnold
David B. Brooks
Rick Gilpin
WilRamG Refd
Lambeth Townsend
Bruce Youngblood




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