OF TEXAS
Honorable W. J, Townsend
County Attorney
Angellna County
Lufkin, Texas
Dear Sir: Opinion NO. o-6571
Re: Whether a person transporting a 'load
of steel by truck of which he is
the bona fide owner is exemp,t from
regulation of Motor Carrier Act. by
reason of Sec. la(l) (a) and Set,
lb of Art. glib, V.A,C,S,, under
the facts stated.
We have your opinion request reading as follows:
"I write your department for an opinion, covering
this situation:
"A person.owning and operating his own
motor vehicle, "%owit: a truck, purchases steel
at Port Arthur, Texas, on a basis of $50.00 per
ton, when he transports tie'same over the high-
ways of the State of Texas and resells such
steel wherever he is able to do so at an advanead
price, to say, about $78.30 per to:., the profit
in the transaction being his compensation for
the service rendered, This party claims to own
a junk yara at Longview, and may claim to carry
such products transpord'i,ed by him to his junk yard
located at Longview for resale.
"This par~ticular load of steel, here re-
ferred to, is apparently r:either junk or scrap
steel o
"I enclose you herewikh for your information
copy of said party's invoice, as well as ruport
of the inspector of the Railroaa Commission, re-
lating to this s\tuation,
"(a) Is the cam;gf:?g of such steel by this
party without a permit from the Railroad Commis-
sion of Texas unlawful?
Hon, W. J, zToz!send, page 2 o-6571
“(b) Is the profit in the resales of this
steel at an advanced pric’e, such compensation as to
make t.he use of the highways of Texas unlawful by
such party in transporting the sam,e without a permit?”
Under the facts stated the person inoulred about is
subject to the Motor Carrier Act and must have a permit from’ tr,e
Railroad Commission unless he is exempt by’ Section la(l) (a) a:&
Section lb of Art. 911, V.A.C.S., which reads as follows:
“Sec. la(l) Provided, however, that the term
‘Motor Carrier’ and the term ‘Contract Carriers as
defined in the preceding section shall not be held
to include:
“(a), Any person having a regular, separate,
fixed and established place of business, other t,han
a transportation business, where goods, wares, and
merchandise are kept in stock and are primarily and
regularly bought from the public or sold to the pub-
lic or manufactured or processed by such~‘person in
the ordinary course of the mercantile, manufacturing,
or processing business, and who, merely incidental to
the operation of such business, transports over the’
highways of this State such goods of which such person
is the bona fide owner by meansof a motor vehicle
of which such person-is the bona fide owner; . D . D
.
“Sec. lb, Any person who transports goods,
wares 9 or merchandise under the circumstances set
forth in the foregoing Section la so as to be ex-
cluded by the terms of said section from the defi-
nition of !motor carrier’ or ‘contract carrier’
shall be deemed to be a private motor vehicle owner;
and such use of the highways by such private motor
vehicle owners, as herein defined, shall be constn%ed
as use of tne highways for the general public and
not the use of such highways for the carrying on
the business of transporting property for compensa-
tion for hire.”
This article is part of House Bill No, 25, ch. 29G,
Acts of the 47t.h Legislature (1941) p* 463.
The Invoice which you enclosed recites that the steel
was sold. on terms of net cash. However, the Inspection report
by Mr. J-J, Ray, Jr, states that the steel was paid for after it
was resold o We will assume, however, that this was not a,consign-
ment to an agent for sale but that a sale was made of t’he load
of steel by ,the Port Iron & SUpply Company, Inc, at Port Arthur,
Hon. W.J. Townsend, page 3 o-6571
Texas, to the person inquired about who received it in his own
truck.
Our answer to your question'wlll also depend on
whether the person Inquired about has a "regular, separate, fix-
ed and established place of business" for sale at retail of the
steel which he was hauling. His 'junk yard" at Longvlew may or
may nbt be. such an established business. This would depend on
the facts and you have not given us enough information in.'your
Ietterfor us to determine this point. However, we will assume
as a basis of this bpinion that the person inquired about does
have a "junk yard" at Longview where he sells steel to the
public.
Under the foregoing assumptions, our answer to your
inquiry Is that the person inquired about does come within the
terms of the statute above quoted and is not required to have
a permit from the Railroad Commission. The fact that he'makes
a profit on the steel after he gets it to Longview over and
above what he bought it for, OP that one particular load was
resold.by him at retail without actually carrying it to Long-
view and redelivering it from that point, does not alter our
answer~to'your question. From ~the facts'stated in your letter
It is apparent that the person inquired'about is enga ed In bus-
iness for himself (other than transportation business k and Is
hauling his own merchandise in his own trucks.
Trusting that the foregoing answers your inquiry, we
are
Yours very truly
ATTORNEYGENERALOF TEXAS
By s/%'agan Dickson
Fagan Dickson
Assistant
FD:BT:wc
APPROVEDMAY 23, 1945
s/Grover Sellers
ATTORNEYGENERALOF TEXAS
Approved Opinion Committee By s/GWB Chairman