Untitled Texas Attorney General Opinion

AC25lTIN. -a 78711 June 21, 1968 Hon. Frank Coffey, Opinion No. M- 244 Criminal District Attorney Tarrant County Criminal Rer Whether a motor carrier Courts Building may transport gravel and Fort Worth, Texas 76102 other commodities from gravel pits and other places of storage to processinq plants under a specialized motor carrier certificate issued by the Railroad Commission under Article Dear Mr. Coffey: 911b, V.C.S.? By letter and acccmpanying brief you recently presented the above captioned question and requested an opinion of this office. Your brief refers to a Specialized Motor Carrier Certificate which has been issued by the Railroad Corn-- mission of Texas under Article 911b, Vernon's Civil Statutes, authoriaina the transwrtation of crave1 and other named ccamoditits, "fram gravel pits asd-other places of storage to construction sites, including buildings, dams, streets andhighways, and all other kinds and types of 8tructurts. . ." You state that those commodities originate at gravel pits and other places of storage, art moved to processing plants for mixing into concrete, blocks, etc., and are there- after moved outbound from such processing plants to jobsite8, etc.; that the sole question for determination is whether the carrier raayproperly transport the named cocrnodities from such points of origin to processing plants. Aowevtr, it is a matter of common knowledge that in uny instances a protiesoingplant is situated at, and necessarily operated in conjunction with, a particular construction pro- ject , and this opinion dots not cover or reach the question of the transportation of commodities to a processing plant under such circumstances. Interpretation of the words expressed in certificates issued by the Railroad Commission must be considered under the same principles as if the certificate was an act -1187- - . Hon. Frank Coffey, Page 2 (W- 249 of .the Legislature. Trapp v. Shell Oil Company, 145 Ttx. 323, 198 S.W.Zd 424 (1946); Attorney General's Opinion No. C-136 (1963). The intent of the Commission must be gathered from the language of the certificate construed as a whole, aivina the words used their common and ordinarilv accepted mea&g.- Railroad Commission v. Texas & New Orleans Ry., 42 S.W.Zd 1091 (Tex. Civ. App. 1931, error ref.). It has been suggested that the language "and all other kinds and types of structures" may authorize mo7rements to "Btructure" processing plants, since his defined as meaning something already constructed or built, as a building or a dam, or a bridge. The nouns "buildin " "dam," "street," or "highway" also ordinarilv +* re er to somethina that has already been constructed or-built and may likewise be included within the general definition of a "structure." This certificate authorizes transportation of the named commodities to "construction sites,* (a specific designation), "includin uildings, dams, streets and ;gEs," (specific en&irations) followed by the gener:l and all other kinds and types of structures !.~,. . Applying thenrule of ;ju;dem gtn;ris!~~ the general words following the sptcif c targnat on and particular enumeration art not to be construed in their widest meaning, but art limited to things of the same kind or class cs those expressly mentioned. Stanford v. Butler, 142 Tex. 692, 181 S.W.Zd 269 (19441. Grants of property rights or privileges, such as the right to transport certain commodities for hire, must be construed strictly, and whatever is not unequivocally granted in clear and explicit terms must be considered withheld. Dye Trucking Company v. Miller, 397 S.W.211507 (Tex. Civ. ADD. 1965, error ref., n.r.e.1. Therefore, the Specialized Miior Carrier certificate as issued by the Commission may. be literally interpreted as authorizing the transportation of gravel and the other named commodities. from grave.1 pits and other places of storage to construction sites, including buildings in the process of construction, dams in the process of construction, streets and highways in the process of construction, and all other kinds and type of structures in the process of construction. -1188- Hon. Frank Coffey, page 3 (M-344) Although not bound by a departmental construction, the courts will ordinarily adopt and uphold a construction placed on a statute by the department charged with its enforcement and administration. 53 Tex. Jur.Zd 259;Statutea, sec. 177. The Department of Public Safety is charged with the duty and responsibility to enforce all violations of the Texas Motor Carrier Act, except rate violations, Art. 1690)3(d).Vernon's Penal Code, and we are advised that this department has always taken the position and construed the statute to the effect that sand or gravel, etc.. could not be transported to processing plants where the authority had restrictions to construction sites, job sites, etc. It is the opinion of this office that a motor carrier may not transport gravel and other commodities from grave1 pita and other places of storage to processing plants under this Specialized Motor Carrier Certificate issued by the Railroad Commission unless, of course, the pro- cessing plant is in the state of construc5.on er~:cLL=m or composition such aa would constitute a “construction site.* SUMMARY Under the stated facts, and limited thereto, a motor carrier may not transport gravel and other commodities from gravel pita and other places of storage to processing plants under the specialized motor carrier certificate iaau by the Railroad Commission under Article 911b Civil Statutes. Prepared by Monroe Clayton Assistant Attorney General APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman Lonny F. Zwiener Dyer Moore, Jr. Bill Allen Eugene neatly EXECUTIVE ASSISTANT A. J. Carubbi, Jr. -1189-