E k%.TTORXEY
OF TEXAS
Hon. Ben Ramsey Opinion No. c- 62
Hon. Ernest 0. Thompson
Members Re: Whether the Railroad Commis-
Railroad Commission sion has jurisdiction to set
Austin, Texas down for cancellation a spe-
cialized motor carrier opera-
tor for failure to obtain per-
mission to use the highways of
Texas in Interstate commerce
In the transportation of fed-
Gentlemen: erally exempt commodities.
You have asked this office for an opinion on the following
question:
"Does the Railroad Commission of Texas
have jurisdiction to set down for cancella-
tion a specialized motor carrier operator
for failure to obtain permission from this
Commission to use the highways of Texas In
interstate commerce in the transportation of
federally exempt commodities?"
First, we point out that the Commission can and does have
jurisdiction to set down for hearing for cancellation a spe-
cialized motor carrier operator who has violated, refused or
neglected to observe the Commission's lawful orders, rules,
rates or regulations or that has violated the terms of his cer-
tificate or permit, subject, of course, to the appeal provided
in Article glib, Vernon's Civil Statutes. Article glib, Sec-
tion 12(b , V.C.S.
S.W.2d 924 (Tex.Clv.
Railroad Commission,
ref.).
Your question, we believe, is whether the Railroad Commis-
sion can cancel the certificate of a specialized motor carrier
who is using the highways of Texas to transport exempt commodi-
ties in interstate commerce In his equipment under his state
certificate, without obtaining a permit from the Railroad Com-
mission allowing him to transport the exempt commodities?
-299-
Hon. Ben Ramsey, Hon. Ernest 0. Thompson, Page 2 (C-62 )
In your letter you give us the facts as follows:
"We have a specialized motor carrier opera-
tor who owns three specialized motor carrier cer-
tificates, none of which authorize the use of
Texas highways in the transportation of federally
exempt commodities, who has used his equipment
under his certificates to haul articles, which
for the purposes of this question are exempt
commodities, from a point in Texas to a town in
another state and also from a town in another
state to a point in Texas."
As you point out, the carrier Is using his equipment under
his certificates to haul articles which for the purpose of this
question are "exempt" commodities. By exempt commodities you
refer to articles covered by Section 303(b) of Title 49, U.S.
Code Annotated. Carriers covered by this section are not regu-
lated by the Interstate Commerce Act or Commission except as
to qualification and maximum hours of service of employees and
safety of operation or status of equipment. This means in ef-
fect that carriers In this class may transport for hire those
exempt commodities in interstate commerce without securing any
authority from the Interstate Commerce Commission.
Section 302(a) of Title 49, U.S. Code Annotated, provides
in part as follows:
"The provisions of this chapter apply to
the transportation of passengers or property
by motor carrier engaged In interstate or for-
eign commerce ..." (Emphasis added)
Section 302(b) of Title 49, U.S. Code Annotated, Is as
follows:
"Nothing in this chapter shall be con-
strued to affect the powers of taxation of the
several states or to authorize a motor carrier
to do an intrastate business on the highways
of any state, or to interfere with the exclusive
exercise by each state by the power of regula-
tion of intrastate commerce by motor carriers
on the highways thereof." (Emphasis added)
It has been held that these sections of the Interstate
Commerce Act as well as the Act taken as a whole indicates
that:
-3oo-
Hon. Ben Ramsey, Hon. Ernest 0. Thompson, Page 3 (C-62 )
"It is manifest that it was the intention
of Congress for the Interstate Commerce Commis-
sion to co-operate with the various states In
the administration of the federal law. That
the federal law does not diSDhCe entirels the
state laws upon this subject-is too plain-for
argument." S. W. Greyhound Lines v. Railroad
Commission, 128 Tex. 5b0 99 S.W.2d 263 (1936);
Tips v. Railroad Commission, 110 S.W.2d 585
(Civ.App. 1937 error dism.).
In Lloyd A. Fry Roofing Company v. Wood, 344 U.S. 157,
162, the Court, in construing a holding of the public services
commission of Arkansas requiring a permit from a carrier trans-
porting commodities In interstate commerce where the trucker
had not obtained any authority from the Interstate Commerce
Commission, said that:
"In this situation our prior cases make
clear that a state can regulate so long as
no undue burden is imposed on interstate com-
merce, and that a mere requirement for a per-
mit is not such a burden."
Texas requires a permit similar to the one required by
Arkansas. Article glib, Section 3. See also Railroad Commis-
sion of Texas v. Querner, 150 Tex. 490, 242 S.W.2d lb6 (lg!d) 9
where the Court said:
"Under the federal motor carrier act the
Interstate Commerce Commission hasthe author-
ity to issue to a carrier of interstate commer-
ce a Certificate of Public Convenience and Ne-
cessity; but such authority does not deprive
the state from protecting its highways and the
public safety, and before a carrier can operate
in interstate commerce over the highways In
this state, under certificate Issued by Inter-
state Commerce Commission, it must first obtain
a certificate from the Railroad Commission of
Texas to do so." (Emphasis added)
We can see no distinction under the Texas Act, insofar as
the requirement of the State statute is concerned that the car-
rier must secure a permit from the State before transporting
for hire in interstate commerce, between a carrier who handles
exempt commodities and therefore needs no certificate from the
Interstate Commerce Commission and a carrier transporting under
-301-
Hon. Ben Ramsey, Hon. Ernest 0. Thompson, Page 4 (C-62 )
Interstate Commerce Commission authority. Both must secure
from the Railroad Commission the right to use the highways
of Texas when transporting goods for hire.
Section 12(b) of Article glib provides as follows:
"The Commission at any time after hearing,
had, upon notice to the holder of any certlfi-
cate or permit and after opportunity given such
holder to be heard, may by its order revoke,
suspend or amend any certificate or permit issued
under the provisions of this act, where in such
hearing the Commission shall find that such cer-
tificate or permit holder has discontinued opera-
tion or has violated, refused or neglected to
observe the Commission's lawful orders, rules,
rates or regulations or has violated the terms
of said certificate or permit; provided, that
the holder of such certificate or permit shall
have the right of appeal as provided in this
Act."
A carrier operating in interstate commerce without road
rights (the term applied to the permits issued by the Railroad
Commission to carrier authorizing the use of Texas highways in
interstate commerce) from the Railroad Commission is violating
the Statutes of Texas and the terms of his certificate issued
under and by those laws.
It Is our understanding that current specialized motor
carrier permits include the following language:
"This certificate and authority to remain
in effect from and after the date hereof, sub-
ject to the provisions, limitations and restric-
tions of Chapter 314, Acts, Regular Session of
the Forty-first Legislature, 1929, as amended
at the Regular Session of the Forty-second Legis-
lature, 1931, as amended Regular Session of the
Forty-seventh Legislature, 1941, and as otherwise
amended, and the rules and regulations of the
Railroad Commission of Texas heretofore prescribed
or which may be hereafter prescribed under and
pursuant to the authority conferred upon It by
law.”
We also point out that Railroad Commission Motor Transpor-
tation Division Qeneral Order No. 33 Is as follows:
-302-
. -
Hon. Ben Ramsey, Hon. ErnestO. Thompson, Page 5 (C-62 )
n
. . . ACCORDINGLY, IT IS
"ORDERED BY THE RAILROAD COMMISSION OF
TEXAS that any motor carrier subject to the
jurisdiction of the Commission shall not per-
mit, directly or indirectly, the operation of
any motor vehicle in any other service than
that authorized on the identification cards
and the operating authority granted to such
motor carrier by the Commission. In the event
the motor carrier subject to the jurisdiction
of the Commission desires to use the motor
vehicle in service other than that authorized,
the said motor carrier shall at once remove
the identification card and identification
plate and immediately surrender them to the
Commission at its offices at Austin, Texas,
together with a letter stating the reason
for such action.
"It is further ordered that all equip-
ment taken out of service, as herein provided,
shall not be placed in service until the car-
rier has obtained new identification cards
and new identification plates in the manner
and on forms prescribed by law."
If the carrier uses "his equipment under his certificates to
haul articles, which for the purposes of this question are
exempt commodities" as you indicate, he is violating the terms
of General Order No. 33, and under 12(b) of Article glib could
have his certificates cancelled.
In the fact situation you have set out the Commission
would in no way be imposing any burden on interstate commerce.
As we understand the situation, even if, after the hearing,
the Commission should cancel the speicalized carrier certifi-
cates (intrastate) of the carrier, the carrier could continue
to haul in interstate commerce at will and as long as he de-
sired commodities exempt under the Interstate Commerce Commis-
sion Act subject to his securing the necessary permit from the
Railroad Commission of Texas. The power of the Railroad Com-
mission to cancel the specialized carrier permits granting
authority to the carrier to transport in intrastate commerce
could be in no way affected by the interstate activity.
We, therefore, are of the opinion that a specialized
motor carrier transporting commodities exempt under the Federal
-303-
- .
Hon. Ben Ramsey, Hon. Ernest 0. Thompson, Page 6 (C-62 )
Interstate Commerce Act in interstate commerce must comply
with the state statutes and secure a permit to use the high-
ways of the State of Texas in interstate commerce as is re-
quired by Article glib, Vernon's Civil Statutes. The carrier
hauling "exempt" commodities in interstate commerce without
a permit from the Railroad Commission of Texas authorizing
the use of the Texas highways for such purpose is violating
the terms and conditions of Section 3 of Article glib, Ver-
non's Civil Statutes. It therefore follows that the Railroad
Commission could cancel the certificates held by the carrier
for his failure to comply with the state law which requires
that he secure a permit before using the highways of the State
to transport goods for hire in interstate commerce. Lloyd
A. Fry Roofing Co. v. Wood, supra.
SUMMARY
The Railroad Commission of Texas may set
for hearing the question of the cancellation
of a specialized motor carrier certificate of
an operator who has violated, refused or ne-
glected to observe the Commission~s lawful
orders, rules, rates or regulations or that
has violated the terms of his certificate or
permit.
The Railroad Commission of Texas may can-
cel the intrastate certificate of a specialized
motor carrier who uses his equipment under his
state certificate to transport exempt commodi-
ties in interstate commerce for hire or compen-
sation without having obtained a permit from
the Railroad Commission to transport such exempt
commodities on the highways of Texas.
Yours truly,
NORMAN V. SUAREZ
Assistant Attorne General
NVS:nss
-304-
Hon. Ben Ramsey, Hon. Ernest 0. Thompson, Page 7 (C-62 )
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Llnward Shivers
Dudley McCalla
Samuel Strong Pharr
Joseph Trimble
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
-305-