Untitled Texas Attorney General Opinion

I.-&h<:.1 .;1Y.x-K:F: I:AEa,P AUSTIN aa.-I?EXAS i\lT.~l~.X,~~ (i*;~ncHAI- October 3, 1963 Col. Homer Garrison, Jr. Opinion No. C-152 Director Texas Department of Public Re: Multiple leases of com- Safety mercial vehicle6 in intra- Austin, Texas atate and Interstate commerce under the pro- visions of Article 670lc-1, Vernon's Civil Statutes, and multiple lessees in leases under the provisions of Article 6701c-1, Vernon's Dear Col. Garrison: Civil Statutes. In your letter of August 14, 1963, you requested an opinion of this office on the following questions: "1 . When a lease between A (the regis-~ tered owner) and B (the lessee) covering the operation of a commercial motor vehicle ha8 been accepted for filing by the Department of Public Safety, can the Department then ac- cept a second lease on the same motor vehicle from B (who becomes owner but not registered owner) and C (who becomes the lessee) for intrastate operation? “2. In view of the Interstate Commerce Commission rules and regulations governing leasing and interchanging of equipment, would your answer be the same as for our question number 1 If B subleased the motor vehicle to C for interstate operation? “3. Can the Department accept for filing a lease In which two lessees separate business organizations or corporationsI are indicated?" Article 6701~~1, Section 3, Vernon's Civil Statutes, provides as follows: "When any such lease, memorandum, or agreement, as required by Section 2 of this -736- Col. Homer Garrison, Jr., page 2 (C-152 ) Act, shall have been filed with the Depart- ment of Public Safety covering the operat,ion of any commercial motor vehicle or truck- tractor, no further such ,lease,memorandum, or agreement coverlng,the operation of the same commercial motor vehicle or truck- tractor may be accepted by the Department of Public Safety for filing until the exist-~ ing lease, memorandum, or agreement shall have expired In accordance with its own te~rmsor there shall have been filed with the ,Departmentof Public Safety a full re- ,lease thereof." The language of,the statute is explicit and provides that .the Department of Public Safety "cannot accept a second lease for filing covering the operatjon of any commercial motor vehicle or truck-tractor: I, .,'i. . until the existing:,lease,memo- randum tiragreement shall have expired in accordance with its own terms or there shall have been filed with the Departmen: of Public Safety,,afull release thereof. We, therefore, ~answer your first question in the negative. The Department of Public Safety cannot accept a second lease on the same motorvehicle covering intrastate operations until the first lease has expired or been released. Your second question we Interpret to apply to commodi- ties and transportation for hire in interstate commerce only. In relation to such Interstate operationsthe Texas Supreme Court hasheld as follows: "Under the Constitution of the United States the power of Congress to regulate Interstate commerce is supreme. (Cases cited.) In the exercise of that power the Federal Motor Carrier Act was passed, and all existing state laws in conflict there- with were superseded. (Cases and authori- ties cited.) This insures uniformity of regulation. It is quite obvlous~that many conflicts would occur, and that much con- fusion would follow if the different states had the power to regulate Interstate com- merce ifidependentof the power of Congress . . . . -737- - - Col. Homer Garrison, Jr.; page 3 (C-152 ) The Court continues further on: "Supreme control over the operation of interstate commerce was assumed by the Federal Motor Carrier Act." Railroad Com- mission of Texas v. Querener, 150 Tex. go, 242 S .W .2d lob (1931). The Interstate Commerce Commission has in Rx MC-43 under authority of 49 U.S.C. 304, part 20'7,-=F& promu ga ,e -In rules and regulations covering the lease and inter- change of vehicles. Under these rules and regulations a lessee may in certain instances be considered as an "owner." As such owner he may sublease, under the rules set out by the Interstate Commerce Commission, to other authorized carriers during the duration of,the ownership. Section 207.4 (4) (I), Ex parte No. MC-43. This would involve a two-lease situation and as such would be in.violation of Article 6701d, Vernon's Civil Statutes, if such statutes contemplated the regulation of interstate commerce. Article 6701~~ was origi- nally enacted by the Legislature in 1953, long after the Federal Government by the Interstate .CommerceAct had pre- empted regulation of motor transportation for hire in inter- state commerce. The Legislature must heaverconsidered this fact when enacting Article 6701c-1 and obviously did not mean to pass a statute which would be unconstitutional because It invaded the field of interstate commerce already pre-empted by federal legislation. The State Act must be interpreted to make it constitutional and valid if by any reasonable con- struction the enactment can be sustained. 39 Tex.Jur. 206, Statutes, Sec. 111, and cases there cited. This office is therefore, of the opinion that the term "registered owner as used in Article 6701~~ means, for interstate commerce transoortation, the "owner" as reconnlzed bv the Interstate CommeEce Commission. Rx parte MC-43, Section 207.4 (a) (4) (I) provides: "Lessee may be.considered as owner. Pro- vision may be made therein for considering the lessee as the,owner for the purpose of subleasing under these rules,to other au- thorized carriers during such duration." To answer your second question literally, the Department of Public Safety could not accept for filing the second lease. However, if the first lease from A to B had not been filed and the Department was furnIshed with satisfactory evidence of compliance with EK parte MC-43 the Department would be -738- Col. Homer Garrison, Jr., page 4 (C-152 ) authorized to consider the person recognized by the Inter- state Commerce Commission as the owner, for purposes of Article 67Olc-1. The lessee (person operating the vehicle), however, would be required to satisfy the requirements of Article 670112-lby furnishing the Department of Public Safety with a copy of the lease between the "owner',as recognized by the Interstate Commerce Commission and the lessee actually using the equipment. Such lease and leasing transaction would have to,comply with the terms and provisions of Article 6701c-1. We are aware that this office in Opinion No. S-117, dated December 23, 1953, held in part as follows: "Article 67Olc-1, V.C.S., applies to all operations of commercial motor vehicles and truck-tractors, except to the operations there- in specifically exempted, when the operator thereof is not the registered owner of such vehicle, or his agent, servant or employee, regardless of the character of the operation as being private or for hire, regulated or nonregulated, intrastate or interstate, and such application Is not violative of the Inter- state Commerce Clause of the Constitution of the United States." Insofar as the quoted holding conflicts wlth this opinion on the question of leases on commercial vehicles in interstate commerce isgoverned by Ex parte MC-43, Opinion No. S-117 is overruled. You asked In your third question whether the Depart- ment can accept for filing a lease in which two lessees are indicated. Article 6701c-1, as amended by the Legislature in 1963, contains the following language: "Sec. 2. No commercial motor vehicle nor any truck-tractor shall be operated over any public highway of this State by any person other than the registered owner thereof, or his agent, servant or employee under the supervision, direction, and control of such registered owner unless such other person under whose supervision, direction and con- trol said motor vehicle or truck-tractor Is operated shall have cause to be filed with the Department of'Public Sar'etyan executed copy of the lease, memorandum, or agreement -739- Col. Homer Garrison, Jr.,.page 5 (C-152 .) ."~:,pi under which such commetiial,motor vehicle or truck-tractor Ianbeing operated. . . . "Sec. ‘4. Such lease, memorandum, or agreement as required by Section 2 of this Act shall contain or provide, but shall not be limited to, I. . (a provision) that the operation of such vehicle shall be under the full and complete control and super- vision of the person other than the regis- tered owner, : . . .' (Emphasis supplied.) It therefore, becomes apparent that It would be Impossible to have a commercial vehicle leased to more than one lessee at any one time in view of the requirement in Section 4 that the operation of such vehicle shall be under the "full and %om- plete control and supervision" of the person other than the registered owner operating the vehicle. No lessee would be in a position to make this statement if at the time the lease was entered into it was contemplated that he would "share" such "full and complete control and supervision" of ,the vehicle with another person. We are therefore, of the opinlon that the Department may not accept for filing, under the pro- visions of Article 6701~~I., Vernon's Civil Statutes, a lease of a commercial motor vehicle In which two leseees~(separate business organizations or corporations) are indicated. SUMMARY The Department of Public Safety cannot ac- cept for filing a lease on a motor vehicle moving in intrastate commerce as long as there Is a lease on the same motor vehicle on file which has not expired or been released. A lease, under interstate commerce rules and regulations makes the lessee the "owner" and makes such owner a "registered owner" as that term is used In Article 6701~2-1. The said "owner" can then lease the commercial vehicle for interstate operations and the lessee of such "owner" of such commercial vehicle must file the lease under which he is operating the vehicle as required by Article 6701c-1. The Department of Public Safety cannot accept for filing a lease of a commercial -Pm- col. Homer Garrison, Jr., page 6 (C-152 ) vehicle under the terms of Article 6701c-1 ,in which two lessees (separate business organ- izations or corporations) are indicated. Yours very truly, NVS:aj:br APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman James M. Strock George Gray Linward Shivers APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone -741,