Case Information

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TISE ATTORNEY GENERAL OF TEXAS

Gerald C. Mann AUHTXN 11. TRXAS

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Railroad Commlsslon of Texas .~ Oplnlon uo. O-1401 AImtIn, Texas Rer Application of Motor Car- rier Law to operation of truck Attention! Walton De Hood for purpose of transporting oil and gasoline under the provl- sions of a lease contract exe- cuted between J. Lawton Thomas Dear Sir: and Lewis 011 Company.

We acknowledge receipt of your letter of September 8 1939, in whlah you request the opinion of this department on the following stattement of facts, which we quote. from your letter8 “1 hand you herewith Lease Contract exeouted by and between J. Lawton Thomas, first. party and Lewis 011 Company, second party, for the purpose of trans- porting 011 and gasoline.

*It will be noted la paragraph 3 of this .contract that first party Is to reoeive a oent per gallon eaoh fifty miles hauled.

UParagraph 4 stipulates first party shall furnish all gasoline, 011 and grease used In the operation of said truok.

*Paragraph 5 states that fU?st party shall keep truok in good rumlng order at his own expense, eto. *Paragraph 6 attempts to place all liability <or accidents ,and damages Incurred on first party, etc. llWe consider this nothing more than a contract haul f@r hire in view of the foregoing, especially para- graph 3, which sets forth the proposed compensation. ttWlll you please give us an opinion. regarding this contract and whether or not you consider this a W.Ola- tlon of ihe Motor Carrier Law?*

The Motor Carrier Law is oodifled In Vernon’s Annotated Civil Statutes of Texas as Article 911b. Section 2 of Article glib prohibits the operation of a motor carrier, as defihl&Xn *2 Railroad Commlsslon of Texas - Walton D. Rood, page 2 Section 1 for the purpose of transportation of property compensat 1 on or hire over any pub110 highway ln the ,State, ex- cept in accordance with the provislons of Artl$Le 911b, and provides certain exceptions not pertinent here. Section 3 the Act provides that no motor carrier shall operate as a com- mon carrier without first having obtained from the Railroad Commission a certificate of public convenience and necessity, and provides that no motor carrier shall operate as a contract q+rrler without first having obtained from the Commission a permit to do so, after having complied with al.1 of the require- ments of Article 911b.

A situation analogous to the one at hand was presented in the case of Anderson, Clayton and Co. et al vs. State, ex rel Allred, Attorney General et al 82 8.W. (2d) 941. In this case, Anderson, Glayton and Eompany’entered into a lease con- tract for the purpose of hiring trucks to haul property from va- rious points In the State of Texas to the City of Houston and other ports, and agreed to pay a rental of $25.00 per week, plus a sum equal to a specified rate per ton mile for all property hauled In the leased trucks. No property was hauled In the trucks except that belonging to Anderson, Clayton and.Company. The Commisslon of Appeals held that whether the lessors of the trucks and the lessees, Anderson, Clayton and Company, were *mo- tar carriers@’ and as such required to obtain a permit to do busi- ness was an Issue of fact to be presented to and passed upon by a jury, and in so holding made the following statement:

” The question as to whether or not any of the p&&;ffs in error sre really motor carriers as defined by the statutes was for the jury to determine from all the facts and circumstances In evidence. . . l n In the case of New Way Lumber Co. et al vs. Smith et al, 96 S.W. (2d) 282, the ~Supreme Court of 4 exas made .the foilow- lng statement:

“Since the company receives compensation for the delivery of lumber; ,it clearly appears that the trucks of a ‘contract carrier’ used come mder the -deflnltLoh

and are subject to the provisions of Article 911b.e Ia’ this case, the trucks were owned &nd used by the lum- bar company In transporting lumber over non-urban state highways for which the company made a delivery charge such charge being based on the weight of the truck and the distance which It had traveled; and under these circumstances the Supreme Court held that the lumber company’s trucks were contract carriers subject to the statute requiring operators to obtain permits from the State Rall- road Commission. It will be noted, however, that the turning Point *3 . ’

Railroad Commission of Texas - Walton D. Hood, page 3 of this case was the fact that the lumber company did make a charge for the delivery of the material transported, and that the case In no way conflicts with the holding of the Commission of Appeals In the case of Anderson, Clayton and Company vs.

State, supra.

It Is the opinion of this department that the question of whether or not the operation of a truck under the lease con- tract submitted to us Is In violation of,the provisions of Artl- cl6 911b, above referred to Is an issue of fact which must be passed upon by a jury. We do not Intend, by this opinion, indicate that such operation of trucks Is not In violation the law, nor that it should be condoned, but rather that this Department has no authority to render any decision which invades the office and province of a jury.

Yours very truly ATTORNEY GENRRAL OF TRXAS By /,s/ Ross Carlton Ross Carlton, Assistant APPROVRD: OCT 20, 1939

/s/ Gerald C. Mann

ATTORNEY GEXERAL. OF TFXAS

APPROVED: OPINION COMMITTGE

BYr BWB, CHAIRMAN

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