Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN GROVER SELLERS ATTORNEY GENERAL
Honorable H. G. Hooser County Attorney, Hovard County Big Spring, Texas
Dear Bir: opinion Ho. 0-7379 Re: Legality of an automobile dealer driving a motor vehicle upon a public highway for pur- poses other than "for demo- stration for the purpose of male" when such vehicle has attached to it only the dis- tinguishing number plate is- sued to him under the provisions of Article 6686, Revised Civil Statutes, as amended, and a re- lated question.
This is in response to your letter of August 22, 1946, to-vit: "I would like your opinion upon the following questions: "1. Certain automobile dealers own automobiles which they use both for demonstration purposes, and also for their own individual uses and pleasure. May they legally operate such automobiles under a dealer's tag without buying a regular license for them? "2. If they cannot legally operate such automobiles without buying a regular licenses for them, then what of- ferse should they be charged with if they are arrested while driving such automobiles for their own individual use be pleasure, carrying only a dealer's license? "In reference to the second question set out above, there is some doubt in my mind whether a person under the facts set out would be guilty of violation of Art. 6686, R. S., and should be charged with driving and op- erating a motor vehicle upon a public highway under a dealer's license for other purposes than demonstration for purpose of sale, or whether he should be charged with operation of a motor vehicle upon a public high- way without proper registration under Art. 6675a,R.S."
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Hounable H. G. Houser - Page 2
Art. 6686(a), V.A.C.S., to which you referred, reads in part as follows: "Anj manufacturer of or dealer in motor vehicle: In this state may, instead of registering each vehicle he may wish to show or demonstrate on the public highwars, apply for registration and secure a general distInguishing number which may be attached to any motor vehicle or motorcycle which he sondatemporarily upon the road. The annual fee for such dealer's registration of a general distinguishing number shall be fifteen ( 15.00 \ ) Dollars each. A dealer, within the meaning of this Article, means any person, firm or corporation engaged in the business of selling automobiles who runs them upon the public highways or streets for demonstration for the purpose of sale; and this Ant shall not be construed as pernitting the use of a dealers' Ileance or number plate on any vehicle owned or used by such a dealer for any other purpose than demonstration for the purpose of sale . . ." (Underscoring ours.)
Subdivision ( ) of the same Article, in effect, makes a violation of any provision of this Act a misdemeanor offeuse and fixes the penalty thereof by stating that: "Any person found guilty of violating any of the provisions of this Act, shall upon conviction, be fined not less than fifty ( 50.00 \ ) Dollars, and all costs of court." (As amended in the Acts of the 45 th Legislature, 1937.)
Article 6675a-2, V.A.C.S., to which you also referred, reads in part, as follows: "Every owner of a motor vehicle, trailer or semitrailer used, or to be used, upon the public highways of this State shall apply each year to the State Highway Departmeat through the County Tax Collector of the County in which he resides for the registration of each such vehicle owned or controlled by him for the enauiac or curreat calendar year or unexpired portion thereof, etc.,
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Nonorable H. G. Rosser - Page 3
That a dealer may lagally operate automobiles used for demonstration purposes only under a dealer's tag without buying a lloanse for them is expresaly affirmed in the text of Article 6686(a). Instead of registering the demonstration ear, he reaclyes upon application therefor a "general distiaguishing number" which he may use on any ear or motorcyele he sends temporarily on the road for demonstration for sale; and for this privilege he pays an annul fee for the "single distiaguising number" and an extra charge for oash facsimile thereof.
In addition to this, under subdivision (b) of Article 6686, a dealer is permitted himself to issue temporary cardboard numbers, bearing the same number as his "general distiaguishing number," which may be used by himself in conveying his ears from one point in the state to another, or from the anloading point, or from the state line to his place of business, and by anyone else purchasing a motor vehicle from him, which cardboard number may be used ouly for a reasonable length of time, not to exceed ten days after such purchase is made, etc.
As to the legality of an automobile dealer's driving a car with a dealer's lloanse, for other than demonstration purposes for sale, the statute is equally definite and conclusive regarding its prohibition of the employment of a dealer's lloanse for his individual use and pleasure, or for any other purpose.
As was said by Harvey, P. J., Commission of Appeals of Texas, Section A, June 9, 1932, in the case of Worahan Bulek 00. v. Issues, et al, 51 B. W. (2d) 277, - "Under the above statute, the use of the dealer's lloanse plate on an automobile belonging to the dealer, which automobile is operated on the public highways, except in cases where the vehicle is being operated for demonstration purposes, as there provided, is impliedly prohibited and is, therefore, unlawful. It can hardly be doubled that where the dealer permits his lloanse plate to be used on an automobile in violation of this statute, he creates a situation calculated to mislead third persons into assuming that the automobile is being operated for the dealer for demonstration purposes. . . ."
In a former opiaion of this Departme at, (No. 3068) the author stated that "obviously, it vas the intention of the legislature that the provisions of Article 6686 shall apply only to
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Eonerable 1. 0. 1ocger - Page 4
dealers and manufacturera, in order that they might not be subjected to andue hardship by reason of the application of the general registration lave. The provisions of this law should be atriatly construed aiese they do great in a mea sure special privileges, and should not be extended to include the operation without a license of such an automobile for private use."
In Corpus Juris, Vol. 42, page 659 , Soetion 475, it is stated that: "The registration and number of motor vehieles is necesaary te secure a proper obserwane of their duties on the highway and for the purpose of aiding in the detection of such vehieles and of those responsible for their movemeats and conduct, in ease they fail to observe such duties; and the object of the license is to furziah a further guaranty that proper use of the vehicle will be made and that it vill be operafed in compliause with the lav. The license to operate a motor vehicle in a personal privilege granted to the livenece; and in the ease of a dealer, it is in the nature of a gpecial privilege of right granted to the licensee. (Underseoring ours.)
Eence, in response to your first question, we express the opinion that automobile dealers may not legally operate their demonstration ears for their own individual use or pleasure without buying a regular license therefor; because the statute impliedly prohibits it, and it is therefore unlavful.
The second portion of your inquiry is: What of eense, then, should they be charged with if such dealers are arrested while driving such automobiles for their own individual use or pleasure, carrying only a dealer's license?
Artiole 3, of the Penal Code, provides:
It is declared that no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty is affixed thereto by the written lav of this state."
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Honorable E. C. Rooser - Page 5
Under our statute, all that is essential to constitute the offense must be sufficiently charged and cannot be aided by intendmeat. The facts constituting the offense must be set forth so that the conclusions of lav may be arrived at from the facts so stated. Article 396 and 397, Code of Criminal Procedure; Ford v. State, 211 S. W., 233. Therefore, the defendants in such a case would be entitled to have the complaint apprise them in no uncertain terms of the specific requirement of the lav with which they had failed to somply; and as was said in the case of George v. State, 145 S.W. (2d) 187, in which appellant was convicted for operating a motor vehicle upon a public highway which had not been registered as required by lav, ve think appellant was entitled to have the complaint state such allegations, not in such general terms as to refer to all the statutes governing the registration of motor vehicles, but in the specific instance that was intended when he violated such lav.
In the case under consideration, it is our opinion that, as stated in Article 6686(a), R. S., a dealer's general distinguishing number plate may not be used on any vehicle owned or used by him for any other purpose than demonstration for the purpose of sale; and whenever so used, it is the same as if the motor vehicle had not been registered at all, and therefore, is violative, not only of the civil statute but, also, of Article 804 of the Penal Code, which reads as follows: "Whoever operates upon any public highoay a motor vehicle which has not been registered as required by lav shall be fined not to oxoed two hundred dollars."
Under Art. 6686(a) a dealer does not "register" his demonstration car in the sense that an owner, under Art. 6675a, is required to apply each year through his county Tax Collector for the registration of each vehicle owned or controlled by him, upon which the Tax Collector issues him a licensee therefor. The statute says that, instead of registering each vehicle the dealer may, upon making application therefor, seoure a general distinguish ing number which may be attached to any automobile which he sends temporarily upon the road. Hence, when he drives his dealer's demonstration car upon the public highway under a dealer's tax
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Honorable 1. 0 Mooser - Page 6
for purpose: other than for demonstration for sale, he operates a motor vehicle which has not been registered as required by lav.
JLMIEd
Youre very truly
ATOORIEY GIBERAL OF TEXAS
By John L. Vroe Assistant