Untitled Texas Attorney General Opinion

Honorable James E. Rilday Director, Motor Transportation Division Railroad DQnmission of Texas Austin, Texas Dear Sir8 Opinion So. O-1833 Ret Whether or not a~proposed truck lease form presentsa situation by whibh haulingtian be &me without regard tothe'Texas Motor Carrier Law, same being Article 91lb;~Veipon's Annotated Civil Statutes. We have received your letter dated January 13, 1940, which is self-explanatory and same reads as followst 'We enclose a file which is self-explsnatory and which reflects a proposal whereunder Valley Shipper5 have assooi- ated themselves in a corporation for the *rpose of i%rket- ing fruits, et o&era from the Valley to various points in both inter and intrastate points'and whereunder this oorpo- ration will lease trucks from various persons with a planer in view of this oorporation's then hauling its products in these leased trucks on a theorythat it is a hauling of its ow5 goods in its ownt~cks or at least a.hauling~of the goods of the bonstitutent members of the corporation in these leased trucks. "QUESTIONS "Does this plan, reflected by the enclosed documents, present a situation whereunder~this hauling 6an be-done without regard to the Texas Motor'Cai+ier Lam'or~is the. proposal a mere subterfuge to oiroumvent complianoe with said law?" The proposed lease form reads, in part, as follows: Honorable lanes E. Kilday, Page 2 "Lessor is the owner of the folloaing desoribsd motor tm&, "Engine No. State License No. Manufaoturer , having the capacity of Three and one-half (e) Cons and has leased 58me to Lessee, such lease being for a perioa of one ysar beginning on the day of , 4. D. 19 and ending on the day of , 19-, both da& inclusive, subjects herein- after set forth terms and conditions: "(a) The aforesaid truck is being leased primarily for the transportation of fresh fruits snd/or vegetables and/or fruit juioes, from the Lower Rio Grands Valley of Texas to ggrthern, Eastern and Western marketst and for the transportation of both oanned and fresh fruits.end/or vegetables and juioes, and paakers' and shippers' supplies from Northern, 'Easternand Western cities in the United States to the Lowsr Rio Grande Valley of Texas. Lessee agrees to pay Lessor as rental for said truck the sue of . Dollars per week, plus an additional oents per ton mile for the transportation of all commodities, above described, during the period of time covered by this lease. ,(b) Lessor warrants that said motor truck is in first olass condition and in every respect suitable for the transportation of fresh fruits and/or wgetables; that said tmak ha8 been duly lioensed and is 80 constructed and equipped as to aoraplywith~all the rules and regulation8 governing its operation over the highways of this and other states. Atryrepair8 necessary to keep the said truok in good running condition throughout the life of this lease shall be at the expense of the Lessor; and in the event that the Operation Of said teak should be 8u8pended for purpose8 of neoe8- sary repair8 durgng the life of this Lease, such 1085 of time shall be considered to bs for the account of Lessor and the life of this lease shall ba extended, without additionalretial payment, for a corresponding period in order to omp8nSate Lessee for such loss of time. "(0) Lessee, during the'tem of this lease, shall have abso- lute control and 7188of said motor truck in the 881118 manner as though it %a8 the absolute owner thereof. Lea855 Will employ, 8ubjeat to the approval of Lessor, the operator or operators of saidtruck; but, it i8 expre88ly agreed by all pal-tie8hereto that Le88ee shall have absolute oontrol and supervision of the operator and/or operators of said truok. Lessor agrees to waive any olaim and relinquish and release Lessee from any liability for any injury or damage oo- aasioned to said tmak during the tern of this lease, whether Caused by negligence of the driver or otherwise. Honorable Jsmes E. Kilday, Page 3 "(d) Lessee agrees, at it8 expense, to carry fire, theft snd aoaident insurance to protect Lessor against 1088 and injury to said truck. 8(e) Lessee also agrees at it8 expense to carry public li- ability insursnoe with proper rider or aunibus clause 80 a8 to fully proteot all parties hereto in the amount of Tw8nty Five Thousand ((25,CCO.OO) Dollars for death or injury to one person, and Fifty Thousand (#30,0COeOO) Dollars for death or injury to tm or more persons growing out of the ssme aacident, and in the emomt of at least One Thousand (#l,mw) Lbllars for property damage. This insuranoe to be carried in a oompaq authorized to do business in th8 State Of T885.8." lfeare unable to arrive at the legal effeat of the heretofore quot- ed lea88 form a8 to its general application. It could well be that the operation of a truck under the said lease form in one instance would have the effect of rendering the Rotor Carrier Law inapplicable, while in another instance and under the ssme lease form, the operation of the truok would be subjeot to the provisions of the &tor Carrier Law. In any event, it would b8 necessary to ascertain the facts and oiroumstan- 085 leadimg to the making of eaoh particular lease a8 nell as the facts and circumstances relating to the operation thereunder in order to de- termninewhether or not the Rotor Carrier Law is applicable thereto. In this oonnectlon, 888 hderson, Clayton and Co. vs. State, 62 S% (2d) 107 and 62 S.H. (2d) 941e We oall your attention to our opinion8 Nos. O-1221 and C-1401, copies of which are 8nclo8ed, which are in aooord with our holding here. Vb are, therefore, unable to pass upon the q e&ions of whether or not the proposed lease agreement presents a 8ifUaeion by which hauling can be done without regard to the Rotor Carrier Law or whether the said lease agreement is an attempt to evade the provisions of the &tar Car- rier Law. Yours very truly ATTORNEY GNNERAL OF TFXAS By ~/Glenn R. Lewis Glenn R.-MS h85istant By ~/Lee Shoptaw LS:GO Lee Shoptaw ENCLOSURE APPROVED FBB 2, 1940 Gerald C, &nn ATTORNEY GENEBAL OF TEKAS APPRmD OPINION COMMITTEE BRB Chainnan