                 THEA~TBRNEYGENERAL
                          OP TEXAS
                          AUSCITIN.TEXAS             78711




                                   April    28,    1975


The Honorable  Wilson E. Speir                            Opinion   No.   H-   593
Director
Texas Department   of Public Safety                       Re: Whether operating
P. 0. Box 4087                                            authority from the Rail-
Austin,  Texas 78773                                      road Commission    must
                                                          be obtained for wreck&s
                                                          used by the owner of a
                                                          garage which includes a
                                                          storage area for automobiles.

Dear   Colonel   Speir:

        You have requested   our opinion concerning  whether certificates
of convenience and necessity   from the Railroad   Commission     are
required under article 911b, V. T. C. S., for certain activities.

        Article   911b provides that “specialized      motor carriers”    must
obtain a certificate.      A “specialIied     motor carrier”   is defined by
section l(i) in part as one who uses “specialized         equipment” such as
hoists, winches,      etc.  However,     section 1 l/4 provides:

                  The term ‘Specialized   Motor Carrier’ and ‘Specialized
                  Equipment’ shall not include wrecker type vehicles
                  used incidental to or as an adjunct to the carrying
                  on of the primary business of buying, selling,    ex-
                  changing,  repairing,  storing, servicing or wrecking
                  motor vehicles.

        You ask whether     the following    activities      would be within this
exception:

         1.       The operation of a wrecker type vehicle by the owner
                  of a garage body shop specializing in body work which




                                      p.    2642
     .




The Honorable     Wilson   E.   Speir    page 2         (H- 5931




                 garage    has a fenced       storage    area   for automobiles;

         2.      The operation of a wrecker type vehicle by the owner
                 of a garage specializing in mechanical work which
                 garage has a fenced storage area for automobiles; and

         3.      The operation of a wrecker type vehicle when the
                 owner has no building. but does have a fenced storage
                 area for automobiles.

         Whether any specific situation would involve activities     “incidental
to or as an adjunct to the carrying   on of the primary business     of”‘one
listed in section 1 l/4 will depend on the characteristics    of the individual
circumstances    and will necessitate  a factual determination.    Consequently,
we are unable to rule on the three situations to which you make reference.

         However,    in Interstate     Commerce     Commission   v. S. C. Wholesale-
Warehouse     Company,     312 F.     Supp. 542 (D. Idaho 1969), the court construed
a “primary    business”   test to    req uire a determination  of whether the
transportation   operations are       in bona fide furtherance  of the primary
business   or are conducted as       unrelated or secondary    enterprises.

        In our view,    there are several factors which will be involved in
this determination.      While this is not an exclusive listing, some of these
factors are:

         1.      Whether the individual is in the business              of buying,
                 selling, exchanging,  repairing, storing,              servicing
                 or wrecking motor vehicles.

         2.      Whether the transportation    performed    is in furtherance
                 of the primary business    of buying, selling,   exchanging,
                 repairing,  storing, servicing   or wrecking motor vehicles.

         3.      Whether the individual business transports               or holds   out
                 to transport for anyone other than itself.




                                         p.    2643
--        .




     The Honorable     Wilson   E.   Speir    page 3         (H-593)




              4.      Whether the business           advertises    itself   as being
                      in a carrier business.

              5.      Whether its investment  in transportation  facilities
                      and equipment is the principal part of its total
                      business investment.

              6.      Whether revenues received from transportation
                      services   constitute a substantial portion of the
                      total revenue of the business.

                                         SUMMARY

                           Section 1 l/4 of article 911b, V. T. C. S., excepts
                      those who operate wrecker        type vehicles  incidental
                      to or as an adjunct to one of the primary businesses
                      listed therein from the requirement        of a certificate
                      of convenience    and necessity.     Whether a particular
                      situation will be within the exception must be determined
                      on a case by case basis.

                                                               Very    truly yours,




                                                                  HN L. HILL
                                                               Attorney General        of Texas
     APPROVED:




     DAVID    M.   KENDALL.      First   Assistant




     C. ROBERT HEATH,           Chairman
     Opinion Committee


     lg




                                               p.     2644
