        OFFICE   OF THE ATTORNEY      GENERAL   OF TEXAS
                            AUSTIN




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

Dear Sir:                   Opinion No. O-1094

                            Re:    Whether a person who
                                   accepts goods at a
                                   point prior to destina-
                                   tion and transports same
                                   in his own trucks to
                                   destination, receiving a
                                   freight allowance, is a
                                   "motor carrier" or
                                   "contract carrier" and
                                   required to haue a permit

We received your letter of July 3, 1939, submitting the following
fact situation: goods are shipped from a distant point to a
consignee in the interior of Texas on a prepaid basis. However,
the consignee is permitted to accept delivery at a steamship
company pier in Houston and he transports the goods from that
point to destination in his own truck, receiving a credit in
the amount that a certificated carrier would have required to
make the haul. Such person not hawing a certificate or permit
issued by the Railroad Commission of Texas, you request our
opinion as to whether he is in violation of law.

Article 911b, Revised Statutes of Texas, is the Act placing motor
carriers for hire under the regulation of the Railroad Commission
of Texas. Subsections (g) and (h) of Section 1 of said Article
911b read as follows:
    .
,
        Honorable James B. Kilday, Page 2



            m(g) The term 'motor carrier' means any person,
            firm, corporation, company, co-partnership, associa-
            tion or joint stock association, and their lessees,
            receivers or trustees appointed by any Court whatso-
            ever,  owning, controlling, managing, operating or
            causing to be operated any motor propelled vehicle
            used in tranaporting property for compensation or
            hire  over any ,publichighway in this State, where in
            the course of such transpprtation a hi$hway between
            two or more incorporated cities, towns or villages is
            traversed: provided that the term ‘motor carrier' as
            used in this Act shall not include, and this Act shall
            notapply to motor vehicles operated exclusiuely within
            the incorporated limits of cities or towns.

             "(h) The term 'contract carrier' means any motor carrier
             as hereinabove defined transporting property for com-
             pensation or hire over any highway in this State other
             than as a common carrier. (Acts 1929, 41st Leg., p.
             698, ch. 314, as amended Acts 1931;. 42nd Leg., p. 480,
             ch. 277, par. 1. )"

             Section 2 of said Article 911b reads   as   follows:

             *Sec. 2. No motor carrier, as defined inthe preceding
             section, shall operate any motor propelled vehicle for
             the purpose of the transpoctation or carriage of pro-
             perty for compensation or hire over any publie.ELQQItqy
             in the State except in accordance with the provisions
             of this Act? . . .m

             Section 5 of said Article 911b reads:

             “Sec.   5.No motor carrier shall hereafter operate as a
             common carrier for the transportation of property,:for
             compensation or hire over the public highways of this
             State without first having obtained from the Commission
             under the provisions of this Act a cmrtificate declaring
             that the public convenience and necessity requires such
             operation; . . .(I
.
         Honorable James B. Kilday, Page 3


    It is quite clear that the operator of a truck is ,not within
    Article 911b and subject to regulation by the Railroad Commission
    unless he operates such vehicle for "compensation or hire." We
    think that such compensation or hire must be paid by others for
    the transportation of goods belonging to such others. Essentially
    there is no difference between the situation here presented and
    the one where the consignee directs shipment to Houston in the
    first place, takes delivery there and himself transports the goods
    to the point desired. In the case at hand the contract has been
    modified to do that very thing. He is transporting his own goods.
    In 13 C.J. Secundum, at page 26, among the tests prescribed for
    determining whether a person is a common carrier of goods is:
    "(1) He must be engaged in the business of carrying goods for
    others as a public employment, and must hold himself out as ready
    to engage in the transportation of goods for persons generally as
    a business, and not as a casual occupation." As pointed out at
    page 31 of the same work the only difference between the common
    carrier and the private carrier is that the latter does not hold
    himself out to transport property for the public in general but
    simply undertakes to carry goods in particular cases on special
    agreements.

    Our answer to your question is a negative one.

                                         Yours very truly,

                                   ATTORNEY GENERAL OF TEEAS

                                   'By Glen Ii.Lewis
                                                    Assistant

    GRL;PL/cge

    APPROVED AUG. 10, 1939
    s/ Gerald C. Mann
    ATTORNEY GENERAL OF TEXAS

    APPROPBU OPINION COMMITTEE
    ey: RWF, Chairman
