THE A~~~OKNEY GENEKAI,
OP TEXAS
Honorable Jos. h. Dart
County Attorney
Kendall County
Boerne, Texas
Dear 8ir: Opinion NO. o-3964
Re: Nbcessity for certificate
or permit for operation as
a motor carrier, ~Construc-
;ir of Article qllb, V.T.
. . _
We are In receipt of your-recent 'request for an opin-
ion in which you submit the following questions:
"The highway between San Antonio and:.Kerrville
is Intersected by first, Leon Sprin:s, L. unicccr-
porated town, then by Boerne, an Incorporated city,
then by Comfort, an unincorporated town, finally
winding up in Kerrvllle, an incorporated city. In
ycur opinion would the fact that the unincorporat-
ed towns lie between two or more incorporated cities,
towns and~vlllages' to the extent that the carrier
could operate anywhere along this route just SC
long as he kept an unincorporated town between him-
self and one of the Incorporated cities, or is the
fact that the unincorporated towns lie between the
incorporated cities merely incidental and has no
besring on the ,stotus of the highway 8s between two
or more incorvcratsd cities, towns or villages?"
"Paragraph (h)'of Art. qllb, R.C.S., reads:
'The term "contract carrier" means any motor car-
rier PS hereinabo-e defined transporting property
for compensation or hire ever any highway in this
State other than as a common carrier.'
. ..
Honorable Joa. B. Dart, page 2 O-3964
“I would take this varagraph to mean a motor
carrier opernting over no.&ixed route and with no
fixed schedule and not holding himself out as a
carrier for the general public but taking certain
jobs cf hauling here and there as opportunity of-
fers, being under no obligation to haul except
when he felt like and for whom he pleased; a pri-
v8te carrier as distinguished from a ‘common car-
rler. *
‘%y interpret8tion of this paragraph would be
that this sort of a carrier would have a permit
to operate on any public highway, and that suah
perma would entitle him to operate when and where
he pleased.”
We believe your first uestlon is answered by our
a opinion0 No. O-1592, O-1497, t&,53?, O-3449 and 0-3449-A, oag-
ies of which are encl,osed hereilth.
Section 1 (g) of ArticIe glib, V.T.C.S., (H.B. 335,
Aet.6 1931) defines a “motor carrier” 88 followa~,
“(g) The term t&or oarrierl means any
person, firm, corpc,ratlon, company, oo-pmtner-
rhip, rssocioti on or joln#atock usoclatlon,
and their losses, receivers or trusteea 8p-
pointed by any court whatsoever, owning, con-
trolling, m8n8ging, operating or causing to be
operated any motor propelled vehicle used in
transporting property for compensation or hire
over any public h1,ghway in this State, where in
the course of such transportation 8 highway be-
tween two or more Incorporated citl.es,..towns
or villages is traversed; provided, that the
term ‘motor carrier’ as used in this Act shall
not include, and this Act shall not apply to motor
vehicles operated exclusively within the lncor-
por8ted limits of cities .or towns.”
A&lying this statutory definition to the facts present-
ed in your second question Ft will, be noted that It does not de-
pend upon whether the operation i# over a fixed route, or with
fixed schedules or whether the carrier holds himself out to haul
for the public at large. The operator Is a “motor carrier” when
Honorable Jcsfil8. Dart, psge 3 O-3964
(1) property is transported, (2) 1n 8 motor-propelled vehicle,
(3) for cqmpensation or hire, and (4) over ony M$&w&y in this
St8t.8, where in the course of such transportaticn a highway be-
tween two 07 more incorporated cities, townm&,p villages 1s
t&versed.
The operator you have described clearly comes within
the &fin,ition of a .“motor carrier,” 8ssumlng the above listed
elementti of the definition are pre~sent. *
Section 2 of Article 9llb, V.T!C.S., makes all motor
carriers as defined in Section 1, subject to the provisions of
the Act.
Ssction 3 of said Act reads:
“No motor car$Wr shrll, after this Act goes
Into effect, operate as P common carrier, without
first having obtained from the Commission, under
the provisions of this Act, a certificate of pub-
lic convenience and necessity pursuuat to a ffnd-
ing to the effect that the public convenience and
necessi’ty requires such operation. No motor cer-
rier shall, after this Act goes into effect, operate
8s 8 contract carrier without having first obt@ned
from the Commission a permit so to do, which
permit shall have in all things complied with the re-
quirements of this Act.”
Section l’ih) of Article 9llb, V.T.C.S., defines a
“contract c8rrier” as follows:
“?hhs term lcontract crrrlert means any motor
carrier as herein above defined transporting pro-
perty for compensation or hire over any highway
in this, State other than es 8 common carrier.”
It will thus be seen that every “motor carrier” is
either a “common ctcrier” or 8 “contract carrism,” If 8 common
c8rrier a “certificate” is required, and if P contract carrier
8 “permit ” Is required, to render the operation lawful.
The facts presented are not sufficiently detailed for
us to determine whether the motor carrier you describe should
have a certificate or permit. If he hauls for whom he pleases,
as the opportunity is offered, his oper&tlons might very well
Honorable Jos. B. Dart, page 4 O-3964
be to such an extlent that he would in fact be a cormnon carrier.
Section 6 of the motor carrier ect requires the applicant for
&-contract c&rrler permit to set forth in his application "the
nature cf the transportation in which the applicant wishes,to
engage stating substantially the territory to be covered by the
operation and including the condition and character of the
roads ever which the transportation Is to be performed."
The permit issued to a contract carrier by the Rail-
road Commission describes the 'territory or hq.ghways, the service
to be rendered and names the contracting parties the permit
holder is authorized to serve. lt has been the prectice of the
Commission to limit a contract c8rrier to five contracts based
upon the proposition that when such a motor carrier serves a
greater number of shipflers he in fact becomes a common carrier.
The 8uthorisation of 8 common c8rrier or contract car-
rier is fully set out in his certificlte or p8rmj.t and if a
question ersses- concerning the scope of a motor carrier's euthor-
ized operations we suggest that his certiflcete or permit be
examined. In this connecticn we call attention to Section 16 (e)
which requires that an indentificetion card cont&ining certain in-
formation be displryed in the cab of each motor vehicle.
Because of the nature of your second question we sre
unable to give,& categorical answer but trust that the foregoing
sufficiently enswsrs your question.
Yours very truly
ATTORNEYGEXERAI OF TEXAS
BY Cecil C. Cammack
Assistant
CCC:db -- PAM
Enclosures
APPROVEDSep 23 1941
GERALD C. MANN
ATTORNEYGENERALOF TEXAS
APPROVED OPINION COMMITTEE
BY BWB, CHAIRMAN