Untitled Texas Attorney General Opinion

The Att0rne.y General of Texas JIM MATTOX September 25, 1985 Attorney General Supreme Court Building Eonorable Neal Birmingham Opinion No. ~~-354 P. 0. Box 12546 District Attorney Austin, TX. 76711. 2546 P. 0. Box 555 Re: Whether the exception of section 5121475-2501 Linden, Texas 75563 56). article 6701d-11, V.T.C.S., Telex 9101674-1367 Telecopier 51214750266 applies to pulpwood or logs being transported to a mill 714 Jackson, Suite 700 Dear Mr. Birmingham: Dallas, TX. 75202.4506 2141742.6944 You request an interpretation of the statutory provision which creates a forestry exception in article 6701d-11, section 5(b), 4624 Alberta Ave., Suite 160 V.T.C.S. Specificztlly,you ask whether the exception applies to the El Paso, TX. 79905.2793 hauling of logs or pulpwood from a wood yard to a lumber mill or to a 9151533364 paper mill. Section 5(e) of article 6701d-11 makes it unlawful to operate on the public highways a commercial motor vehicle, truck- 1001 Texas. Suite 700 tractor, trailer, or semitrailer having a weight in excess of the Houston, TX. 77002-3111 specified weight l:imitations. In 1983, the legislature added section 713/223-5666 5(b), which further,provides that (b) No person shall load, or cause to be 606 Broadway. Suite 312 Lubbock, TX. 794013479 loaded, a vehicle for operation on the public 6W747-5236 highways of this state with the intent to violate the weight: limitations in Subsection (a) of this section. Intent to violate those limitations is 4309 N. Tenth. Suite 6 presumed if the loaded vehicle exceeds the applic- McAllen, TX. 76501-1685 5121662-4547 able groE,svehicular *eight limit by 15 percent or more. This subsection does not apply to the loading ;? causing to be loaded of an agricultural 200 Main Plaza. Suite 400 or a forestry commodity prior to the processing of Ssn Antonio, TX. 76205-2797 the commc~~ (Emphasis added). 512lUM191 Your question is not whether the operator of an overloaded truck An Equal OppOrtUnityI violates article 6701d-11, but whether the owner or operator of a vood Affirmative Action Employer yard has loaded or caused to be loaded a vehicle for operation on the public highways in violation of section 5(b). You advise us that wood, after being cut in the forest, is first transported to a wood yard and then transported from the wood yard to a mill. The wood may be transported to a mill on the same truck that hauled it to the wood yard without being unloaded and reloaded at the wood yard. It may be unloaded, stacked, and subsequently reloaded for p. 1618 Honorable Neal Birmingham - P;age2 (JM-354) hauling to the mill. It my be unloaded, stacked, and subsequently, at the option of the wood yard, sold to a saw mill for lumber or cut into lengths suitable for pll:lpwoodand hauled to a paper mill. Even when there is no provable c.l.teration of the wood itself at the wood yard. there may be a change:of ownership. The issue in question is whether the logs or pulpwood leaving a wood yard have been processed within the meaning of the statute so that the forestry exception no longer applies, or whether i:heyremain "a forestry commodity prior to the processing of the commodity," in which case the owner or operator of the wood yard is protected from criminal charges under section 5(b) of article 6701d-11. We conclude that the legislature did not intend the forestry exception to apljlyto a vehicle hauling logs or pulpwood from a wood yard to a lumber,mill or paper mill. What constitutes "processing" is a complex question. See Commonwealth v. Babcock Lumbser Company, 272 A.2 522, 526 (Pa. 1971). The Texas Legislature did &t define "processing," and we have not found it defined by a court i:nthis context. It is well settled that an ambiguous statute must be construed consistent with legislative intent. Newsom v. State, 3":!S.W.2d 681, 683 (Tex. Crim. App. 1963). We assume that the legislature intends words used in a statute to be understood in their ordinary sense except where they are given a different meaning in the act:. See Markowsky v. Newman, 136 S.W.2d 808 (Tex. 1940); Attorney Genera1 Opinion JM-106 (1983). There are times when it is necessary to ,:onsult a dictionary to ascertain the appropriate meaning of a word in a statute. See Board of Insurance Commissioners v. Duncan, L‘14 S.W.2d 326, 328(Tex. Civ. App. - Amarillo 1943, writ ref'd); Attorney General Opinion E-1277 (1978). According to Black's L.arDictionary at page 1084 (5th ed. 1979), one meaning of process is "to prepare for market or to convert into marketable form." Supreme courts in other states have frequently found the term, in analogous contexts in other statutes, to mean the preparation of a product for market or conversion of a product into marketable form. In -- Moore v. Farmers Mutual Mfg. & Ginning Co., 77 P.2d 209, 211 (Aria. 1938). the Supreme Court of Arizona stated the following: The word 'process' is given several definitions by Webster's New International Dictionary, the standard authority for the meaning of the words of the English langu;sge. The one which obviously applies to an opezrttionlike the ginning of cotton is as follows: 'to subject (especially raw material) to a process of manufacturing, develop- ment, preparation for the market, etc.; to convert into marketable form, es livestock by slaugh- tering, grain by mjllling,cotton by spinning, milk by pasteurizing, fruits and vegetables by sorting p. 1619 Ronorable Neal Birmingham - Page 3 (JM-354) and repacking.' It will be seeu that the essential portion c'fthe definition is to 'prepare raw material . . , for the market. . . .' See also State v. Four States Drilling Co., 177 So.2d 828, 831 (Ala. --(quoting the same definition from Webster's New International Dictionary); Employment Sf:curity Commission of Arizona v. Bruce Church, Inc., 507 P.2d 108,111 (Ariz. 1973) (cooling of lettuce is incident to preparation fcr market though it does not change its nature or form); Bay Boti:!LedGas Co. v. Michigan Department of Revenue, 74 N.W.2d 37, 4(7 (Mich. 1955) (processing is refining, development, preparation, or converting of material, especially in a raw state, into marketable form); Southern Natural Gas Co. v. State, 73 So.2d 731, 735 (Ala. 1953) (process is synonymous with preparation for market and conversion l.ntomarketable form); Colbert Mill & Feed co, v. Oklahoma Tax Comm:~l~, 109 P.2d 504, 506 (Okla. 1941) (definition of process quested from Webster's New International Dictionary shows it is synoilymouswith preparation for the market). Your inquiry relates to logs and pulpwood leaving a wood yard. Logs and pulpwood do not have fixed definitions in the law, but clearly they are forestry commodities. Decisions of the supreme courts of other states have found that a log is the trunk of a tree, cut down and stripped of it!;branches. or the trunk of a tree cut into different lengths-: See Bishop v. DiBose. 113 S.E.2d 309, 313 (N.C. 1960); State v. Addiagtx; 27 S.E. 988, 990 (N.C. 1897). Other decisions have described pulpwood as wood logs, peeled or unpeeled, usually cut in lengths suL,table for manufacturina into wood oulo. which coumonlv is used in mskiun paper. Dead Rive< Co. v. Assesso& of Houlton, 103 A.2d 123, 129 &.' i953). Cf. State v. International 163 So.2d ,507 (Ala. 1964)(wood chips not same as You indicate thst the pulpwood in question is a tree that has been cut down, trimmed: and cut into five to seven foot lengths. Even if wood is transported to a mill on the same truck without its being unloaded, it has been visually inspected and sorted and determined to be in suitable condition for transportation to a mill. Recently, a Texas Court of Appeals determined the meaning of timber as used in a motoc carrier certificate of convenience and necessity issued by the Tecas Railroad Commission. The court stated that We hold that the word 'timber', as used in appellant's certificate . . . includes only trees not worked upon 'beyond their being felled and subjected to such other processing as may be reasonably neces&y to facilitate their transpor- tation by mOtor carrier, for example, removing limbs from the faL:Lentrees and sawing the logs to p. 1620 Bonosable Neal Birmingham - Page 4 (JM-354) lengths suitable for transport by motor carrier. (Emphasis added). Kinner Transp. 8 Enterprises, Inc. v. State, 644 S.W.2d 69, 70 (Tex. APP. - Austin 1982, writ rei'd n.r.e.). The court found that "timber" as used in the certificate has a meaning virtually synonymous with logs. By the time logs anil pulpwood leave a wood yard, they are products that have been prepared for market or converted into market- able form by the trimming of:branches, by sorting, by reloading, or by cutting into appropriate lt.ngths,and may already have entered into channels of commerce. It is an established ri:Leof construction that an exemption from the general terms of a stab&e is strictly construed. See Attorney General Opinion M-507 (1969:. It is our opinion that, inthe event of a judicial interpretation of the exception for a forestry commodity prior to the processing of the commodity, the exception would not be extended to the hauling of l.ogsor pulpwood from a wood yard under the facts presented to us. In addition, it is cur opinion that if the legislature had intended motor vehicles loathedwith logs or pulpwood to be exempt from the provlsions of article 6701d-11, section S(b), the legislature would have expressly so provided as it did in article 6701d-11, section 6(b), when it exeqlted motor vehicles loaded with timber or pulpwood from the provisions1of subdivision 1 of section 6 of the same statute. The latter provi;xLon requires the operator or owner of a motor vehicle to unload the vehicle to the extent necessary to reduce its weight to the lawful ,maximum before further operation of an overweight vehicle on the public road, unless the load consists of livestock. Subdivision 6 oE section 6 was enacted six years prior to the enactment of section 5(h) and provides that Notwithstanding:Subdivision 1 of Section 6 of this Act. the ooa:cator or the owner of a motor vehicle loaded with timber or pulp wood or agri- cultural products-in their natural state being transported from rhe place of production to the place of market or first processing, the operator or owner of a vehicle crossing a highway as provided by Section 5-l/3 of this Act, or the operator or owner ,of a vehicle crossing a highway as provided by Section 5-213 of this Act, is not required to unload any portion of his load. (Emphasis added). p. 1621 Eonorable Neal Birmingham - 'Page5 (JM-354) Unlike the exception in sect:LonS(b). the exemption to subdivision 1 of section 6 expressly applLes to a vehicle loaded with timber or pulpwood prior to any processing of the timber or pulpwood. This opinion is lim:.t:edto your request for a statutory interpretation and does not address any additional issues. ,SUMMARY The statutory exception in section 5(b) of article 6701d-11, V.T.C.S., for a forestry com- modity prior to 1:be processing of the commodity does not apply t,D a vehicle hauling logs or pulpwood from a ,alDodyard to a lumber mill or paper mill. JIM MATTOX Attorney General of Texas TOM GREEN First Assistant Attorney General DAVID R. RICHARDS Executive Assistant Attorney General ROBERT GRAY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Nancy Sutton Assistant Attorney General APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Colin Carl Susan Garrison Tony Guillory Jim Moellinger Nancy Sutton Sarah Woelk p. 1622