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                       iiUHX%N.  -X%XAH  78711
                           August 13, 1963                   52/Y


    Col. Homer Garrison, Jr.        Opinion NO. c-126
    Director
    Texas Department of Public      Re: Interpretationof Sec. la, Acts
      Safety                            58th Leg., Chap. 359, P. 929
    Austin, Texas                       (Art. glib, Sec. lc, VCS) a6 to
                                        the regulation of the tranapor-
                                        tatlon of pipe for the strlng-
                                        lng of pipe for plpellnea;
                                        whether tranaportatlonof water,
                                        drilling mud, petroleun’andpe-
                                        troleum products In bulk Is
                                        regulated; whether the term
                                        water Includes ealt water; and
                                        whether drilling mud In aacka
                                        or petroleum and petroleum pro-
                                        ducts in cans or barrel8 ia
    Dear Col. Garrison:                 considered“In bulk?”
           You have recently requested an opinion of thlrroffice
    on the following questions:
                                  t.;:s
               “1. Does paragraph 2, Section lc, Ho&e
           Bill 31, Acta of the 58th Leglelature exclude
           vehicles used exclualvely‘$nthe stringing of
           pipe for pipeline8 from thq provisions of
           Section lc?
              "2. If your .anewerto the above question
          Indicate8 that paragraph 2, Section la, House
          Bill 31, 58th Legislature,excludes auoh ve-
          hicles unless a highway between two (2) or more
          Incorporated cities, towns or villages Is tra-
          versed, would the exemption8provided for in
          paragraph 3, Section lc, House Bill 31, 58th
          Legislature, be applicable to such vehicles?
              “3.  Are we correct In our Interpretation
          that paragraph 2, Section lc, House Bill 31,
          58th Leglslatura, excludes the transportation
          of water, drIl1n.g mud, petroleum and petrole-
          um products when such substance8are traneport-
          ed In bulk and In tank trucks for use In servlc-
          lng 011 and gas wella provided a highway between



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Col. Homer Garrison, Jr., page 2 (c-126)


       two (2) or more Incorporatedcities, towna or
       villages is not traversed?
          "4. Doea the term 'water' as used In para-
      graph 2, Section lc, House Bill 31, 58th Legla-
      lature, Include 'salt water' which la frequently
      transportedfrom 011 and gas well8 to a eultable
      place for disposal a8 a part of the servicing of
      such wells?
          "5 . Are we correct In our Interpretation
      that exclusionsprovided for In paragraph 2,
      Section lc, House Bill 31, 58th Leglalature
      would not be applicableto the transportation
      of drilling mud in aacka or petroleum and pe-
      troleum products In cana or barrels?"
       Section 1 of Acts 1963, Chapter 359, Page 929 (Houee
Bill 31) provides a8 follows:
          "Section 1. Chapter 314, General Laws,
      Forty-firstLegislature,Regular Sesalon, aa
      heretofore amended (now codified a8 Article
      glib, Vernon's Texas Civil Statutes),la amend-
      ed hereby, by the addition of a new Section
      thereto, reading and numbered as follows:
          "'Sec. lc.  The terms 'Motor Carrier1 and
      ~SpeclallzedMotor Carrier,' aa .uaedIn Section
      1 of thla Act, shall apply to ahd Include all
      for hire transportationof oil field equlpmefit,
      aa defined In subdivision(I) of Section 1 of
      thla Act, over the public highways of this State
      outside the corporate limits of cltlee or towns,
      lrreapectlveof whether In the course of such
      transportationa highway between two (2) or more
      Incorporatedcities, town8 or villages la tra-
      versed.
          "'The provisions of this Section lc shall
      not apply to or Include vehicles used excluelve-
      ly In the atringing of pipe for pipelinea, nor
      shall thla Section lc apply to or Include the
      transportationof water, drilling mud, petrole-
      um and petroleum products In bulk, In tank trucks,
      when such aubstanceaare used In connection with
      the servicing of oil and gas wells, unless In



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    Col. Homer Garrison, Jr., page   3   (c-126)




          the course of such transportationa highway be-
          tween two (2) or more Incorporatedcities, towns
          or villages la traversed.

              “‘Nothing In this Section la shall In any-
          wise repeal, alter, amend or affect any of the
          provisions of Chapter 290, Acts, Regular Session,
          Forty-seventhLegislature (being Sections la and
          lb of this Act and now codified as Sections la
          and lb of Article glib, Vernonte Texas Civil
          Statutes).1”
       011 field equipment Is defined In Acts 1961, 57th Legle-
lature, Chapter 295, Pa e 629 (Article glib, Section l(l),
Vernon’a Civil Statutes7.
       House Bill 31 epeclflcallyprovides that Sections la and
lb of Article glib, Vernon’e.Civil Statutes, shall not be repeal-
ed, altered, amended or affected by It. So far as your request
Is concerned, Section la(l)(a) of Article glib lists tranepor-
tatlon which Is not Included In the definition of motor carrier
and contract carrier.
       In your first question y~ouask whether paragraph 2,
Section lc of House Bill 31 excludes vehicle8 used excluelve-
ly In the stringing of pipe for .plpellnee. As eat out above,
the second paragraph of Section lc provides:
              “The provisions of this Section lc shall
          not apply to or Include vehicles used excluelve-
          ly In the stringing of pipe for pipelines. . . .I’
We therefore answer your question In th’eaffirmative. Para-
graph 2, Section lc, House Bill 31, Acts 58th Laglelature, ex-
oludee vehicles used In the stringing of pipes for pipelines
from Its provisions. This means that vehicles used In the
stringing of pipelines are subject to regulation under the
definitionof motor carrier and contract   carrier In Artlole
glib the same as If Section lo had never been passed.
       We Interpret your second quo&Ion to ask whether the
exemptionsprovided In Sections la and lb of Article glib are
applicableto such vehicles. We point out that the language
of Seotlon la(l)(a) exempts from the provlelone.ofthe Motor
Carrier Act persons having a regular, separate, fixed and
establishedplace of business, other than a transportation
business, where goods, wares and merchandise are kept In



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    Col. Homer Garrison, Jr., page 4 (c-126)


    stock and are primarily and regularly bought from the public
    or sold to the public or manufacturedor processed by such
    person In the ordinary course of the mercantile,manufactur-
    ing, or processing buelneea, and who, merely Incidental to the
    operation of such business, transportsover the highways of
    this State such goods of which such person la the bona fide
    owner by means of a motor vehicle of which such person la the
    bona fide owner.
           As your first question concerned vehicles used excluslve-
    ly In the stringing of pipelines, we are concerned only with
    that type of transportationIn answering this question. From
    your letter It Is not clear whether the pipeline contractor
    owns the pipe and contracts for a “turnkey job” supplying pipe
    as part of the contract or whether the pipeline contractor
    contracts to build a pipeline furnishingeverything Incident
    In the laying of the pipeline except the pipe itself as was
    the situation set out In Attorney General16 Opinion S-218. In
    that opinion It was held that the transportationof the pipe
    to the Job site from the rallhead did not fall within the ex-
    emption set out In Section la(l)(a) and that the transportation
    furnishedIs In the nature of a contract carrier service and
    subject to regulation. Therefore,as we have held In anewer-
    lng your first question that the eltuatlpn insofar as vehicles
    used exclusivelyIn the stringingof pipeline Is the same as
    It was prior to the enactment of +ztlon lc, the transportation
    would be regulated as la polnte~dout In Opinion S-218, a copy
    of which Is attached hereto. However, If the pipeline etrlng-
    lng contractorcontracts to furnish the pipe as a part of the
    coat of the job, he would have to purchase and own the pipe
    &nd, If he owned the truck used In stringingthe pipe, he
    would come within the exemptions set out In Section la(l)(a)
    as It la our opinion that he would be “manufacturing”the plpe-
    line.
           We,concur with your Interpretationthat Section lc ex-
    cludes the transportationof water, drilling mud, petroleum
    aMpetroleum products In bulk, In tank trucks, when such
    substancesare used In connectionwith the servicing of 011
    and gas wells unless In the course of such transportationa
    highway between two (2) or more Incorporatedcities, towns or
    villagesIs trayereed. The language of the statute ia un-
    ambiguouson this point.
           In your fourth question you ask whether “water” ln-
    cludee "salt water." The Legislatureplaced no adjective In
    the statute to modify water. The term “water” is used In-its
    ordinary sense and Include8 salt water.


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Col. Homer Garrison, Jr., page 5 (c-126)


       Section lc excludes from Its provlelone “drilling mud,
petroleum and petroleum products In bulk, In tank trucks, when
such substancesare used In connection with the servicing of
011 and gas wells. . . .’ The term “In bulk” Is defined as
“merchandisewhich Is neither counted, weighed,‘nor measured.”
Texas and P. RY. co. v. Gate City Fertilizer Co., 176 S.W. 868,
 69 (Tex.Clv.App.1915). In that case the court held that a
load of fertilizer:
           II   .was not loaded In bulk since It was
       countddj weighed, and measured,~In that the bill
       of ladlag recited 260 bags weighing 26,000 pounds
       . . . .
       We, therefore, agree with your Interpretationof Section
lc that drilling mud In sacks or petroleum and petroleum pro-
ducts In cans or barrels are not excluded. The transportation
of these Items would therefore be subject to regulation.

                      SUMMARY
          Paragraph 2, Section lc, House Bill 31, Acts
       58th Legislature,excludes vehicles used ex-
       clusively In the stringing of pipe fop pipelines
       from the provlelone of Section lc, but are.eub-
       ject to regulationsunder the definitionsof a
       common carrier or contract carrier by virtue of
       lts’provlslonsof Article glib, V.C.S.
          A pipe stringing contractor contractingto
       string pipe where the pipe Is furnished by the
       Pipeline Company and not by the contractor is
       subject to the provlelone of Article glib as set
       out In Attorney General’s Opinion S-218. Where
       the pipe Is furnished by the contractorunder the
       terms of the contract the transportationof the
       pipe does not fall within the terms of Article
       glib as regulated transportation.
          Transportationof water, drilling mud, petrole-
       um and petroleum products In bulk, lntank trucks,
       for use In servicing 011 and gas wells Is not
       regulated under the terms of Article glib as
       amended by Section lc, Acts 58th Legislature,
       Chapter 359 (House Bill 31) unless transported
       for hire between two or more Incorporatedcltlee,
       towns or villages.


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Col. Homer Garrison, Jr., page 6 (c-126)


          The term water as used In Section lc, Acts
       58th Legislature,Chapter 359 (House Bill 31)
       Includes salt water.
          Drilling mud In sacks and petroleum and pe-
       troleum products In cans or barrels are not
       considered to be transported"In bulk" as that
       term Is used In Section lc, Acts 58th Legle-
       lature, Chapter 359 (House Bill 31).
                             Yours very truly,
                             ___--   -_-   -_--
                             WAGQONER      CAAR
                             Attobney General o


                             BY m
                                Norman V. Suarea           I
                                Assistant Attorney Goner
NVS:nse:br
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Edward R. Moffett
Robert Richards            9.l
W. 0. Shultz
Pat Bailey
APPROVED POR TRE ATTORNEXGENERAL
BY: Stanton Stone




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