Attorney General Opinion WW-0814

- .,_. i e. ..d. ,. _” . THE A-HTOZZNEY . . ‘OF ‘rExAS . :. _‘. . GENERAL ,.. AUSTIN 11. .~WXASI Col. Homer Garrison, Jr. Director Texan Department of Public Safety P. 0. Rex 4087 North Au~tid Station Auatin, Texas Dear CoI. Garriedn: March 23, 1960 Opinion No. WW 814 Rs:, Questiona relatiugto authority of Department of .Public Safety in enforcing,the Texaw Motor Carrier. Art an ~to motor carriers transporting in inter- cltatc commerce, over Texas highwaya, commoditier which are exempt from ICC: reguh- tions. . _’ We qaote your lettim of October 27, 1959, in part, as follows: “This request for an opinion i# prompted by~Federal decision8 in recent years, which appear to restrict the authority of Stater to regulate the operation of motor vehicles engaged in interntate transportation. (Castle v. Havei Freight Linea, Inc., 348 U. S. 61 (1954) ). “Purlruant to Article,l690b (V.A.P.C.), am amended by the 54th Legiklature, it is the duty of thin Depdirtment~ to enforce the Motor Carrier Act (Art. 911b. V. A. C. S.) except for rate violations. This Act, of course, included a requirement tbat vehicles hauling property for compen- sation or hire over the public highways of this State haire ~proper authority from the Railroad Commiseion. This, opinion request relate* to the application of the Act to vebfclelr performing tranoportation aa private carriers or aa “exempt” carrier. under Sections 203 (a) (17) land 203 (b). respectively of the Interstate Commerce Act. ‘. . . . . . ., .,.~’ ._: ,I... :. ‘I’,.. ,, ‘: ’ ~kol. Homer Harrison, Jr.;> Pago 2 &F-814)” .: “For then purpose of thin request, assume that m ‘!exempt” carrier ha@ obtained tram the Texas Railroad : Commission a permit which authoricea the’uae of Tek ., Highways while transporting in interstate commerce corn-.: modities which are exempt from regulation by th4 ICC 1. pursuant to Sec. 203 (b) (6) of the Int.ersmte Commerce Act, as amended by the Tranrportation Act of 1958.. Aarume further that such a carrier ia found to be tram: ,_ : ._ porting in interstate commercq, over Texai highways, commoditiem which 8re not exempt from~ICC regulation. (Refer to Comporite C.ommodity Idat. Appendix, to’ ” hfotor Carrier Inform8tion Rulletin No. 3; ittachedj. Under kzh aesuinptionr, your opinion.‘is respectfully ,,‘., requested of the,following: : ,, . .’ .: : . . ‘. .;. ‘., ~. . . . 9; ~Wouldyour8dsw4ritoanyd.&e ~:.:” ’ .. ‘; foregoing queationr be offcited by t&e anawe? ,to. : :. ~.. tbb .dditionaLtpieationNo. 61 If so, ywu ~. eplnion iLfm+r requelted’of $lie following I’ ‘~ .y : qa&tionNo;6.- ~, :: ;“6.. bm &e~Rud Cqjmmi~‘i~of”. 1. ‘~ ::.‘.‘:‘...~~ ..; :‘. ,:: *A aP~~~8U&rity tore&&t the Arrier " .: ~.;' .' to hiruling, in i,nteratate commerce, commoditier Rich 8re exempt fromICC regulat$on? In ‘. ~’ .’ 1~’ &+g so, im i$ enoiqh tlqt the permit rimply r)cite the rertr,iction, or muat the .CommiWon~ bav4 actually made 8 determination th8t the ;~ : ldghway affected OIIa the rafety of ti, tr8+Iig I _~ 1 : ‘WC thereon will not be adverkly sffected? ‘~ ;: ‘.’ “’ . . . ..~ I . . . ,;., i ., : .‘,~ .:.. . :. ‘,~T ,: Col. Homer Garrison, Jr., Page 3. (WW-814) . “Based upon existing Fedeial decisions, some Texas case law, and statementa contained in such Attorney General opinions as Nos. 0- 3973, o-3107, O-1843, O,-3176, O-4262, and O-4853, this Department has misgivings as to whether it can interfere with an interstate operation by a carrier after the Commission has, made a determina- tion that its operation on the highways would not adversely affect the highways or the public safety.” We will answer your questions in the order aa&ed. The answer to question No. 1 is Article 1690b of the Penal Code and Art. 9llb (V. C. S.). Under the.facts outlined in yours opinion reque,st, the carrier has only been authorized by the ICC and the Texas Railroad Commission to haul exempt commodities. It follows that if such carrier hauled any other i+nd~ of commodity, he would neither have authority from the ICC nor the Railroad Commission to haul such commodity. ,*i~ ~‘. . . . . . ! In.our opixiion the caae~ that you cite’ (Castle v. Hayer Freight Iinee, inc.. 348 U. S. 61 ) ) involved the quemtion of the right of a state to “bar interstatemotor carrierm from ~the use of atate roads 8# puniabment for repeated violations of state, highway regulationb.” .In thia~ case, Illfnois sought to.bar Hayes, a carrier with a cartificate from the. .’ Interstate Commerce Commission, from the uee of Illinois highways on the grounds that Hayes was a repeated violator of’I.llinois weight laws. The Suprake Court’of the United States held that the State of Illinois had no right to bar this, certified interstate motor carrier from using’,the highways .of the state. The Supreme Court of Texas reached a similar result in RailroadCanmission of Teda v. Querner, 242 S. W. 2d 166 (1951). Also see Soathweatern.Greyhound Lines v. Texas Railroad Commission, Sup. Ct. &Ten. 1936, 99 S. W. 2d 263; 109 A. L. R. 1235. TLC carrier in the question presented has neither ICC authority nor authority fran the Texas Railroad Commission for. the specific commodities hauled. -An examination of the Acts of Congress discloses no provision, exprees Q implied, by which there is withheld from the State ita ordinary police power to conserve the highways in the interest of .the public and to prescribe snch reasonable regulations for their use as may be wise to pre- vent iajary and damage to them.!’ Morris v. Duby,~. 274 U. S. 135. Ex Parte Truloch, Tex. Ct. Crim. App. 1940, 140 S.’ W. td 167~. Also see h&Donald 305 U. S. 263; Maurer v. Hamilton, 309 U. ,S. 598; Eichhols v. P&lie &vice Commission of Missouri, 306 U. S. 268. -answer to your question No. 2 is “Yes”. The first sentence of _L . ‘.. .- - ..- Cal. Homer Garrison, Jr., Page 4. (WW-814) Section (.d) of 16~90b reads as follows: !‘Any License and Weight Inspectors or other peace officer of the Department of Public Safety shall have the power and authority to make ariecrta without war- rant for any violation of this.Act except rate violations.i’ In answer to your question No. 3, the following are suggested forms of complaints (omitting formal parts) : * COMMON CARRIER COMPLAINT That on or about~ the &YOf 196, ,’ in the County of , State of Texas, John Doe..was then and there a motor ,carrier, and he, the said John Doe did. t+P. and there unlawfully operate a motor propelled,. vehicle as 8 common carrier and did’then and tberc trans- port property for compensation or hire upon a public high- I:. way. of said County and State, and in the course of trans- porting said property did traverse said highway between the incorporated citie6 of and without having first obtained from the Railroad Commissioi of the State ~of Texas, a permit of public convenience and necesiity to operate aaid motor vehicle upon the public high- waye ofthis state as a common carrier, against the~peace .. and dignity of the State. . C&TRACT CARkIER COkfPLAINT That on or about ,the day of 196 : ‘8 in the County of , State of Texas, John Doe, was then 9pd there a motor carrier, and he, the said John Doe ‘. did then and there unlawfully operate a motor propelled vehicle as a contract carrier and did then.and there transport property for compensation or hire upon a public highway of said Cmnty and State, and in the course of transporting said nronertv did traverse said highway between the cities ’ of and without having first obtaiacd fro& the Railroad Commission of the State of i Texas a permit to operate said motor vehicle upon the publichighways of this State as a contract carrier, against . . _, Col. Homer Garrison, Jr., Page 5. (WW-814) the peace and dignity of the State. ‘In answer to your question Nd. 4, .the follohng are the elements which must be proved by the State in such case: Elements: (common Carrier) .~ 1. Venue. (Art. 1690b, P. C. ) -.. 2. All elements constituting a person to be 8 “motor carrier.*’ (Art. 9llb V. C. S., sec. 1 (g) 1. 3.’ That the defendant is a common carrier. * 4. That at such time and place, John Doe bad not first obtained a certificate of public convenience and necessity from the Rail- road Commission. (Sec. 3, Art. 9llb, V.C.S.), Elements: (Contract Carrier) 1. Venue. (Art. 1690b, P. C.) 2. AU elements con~stituting a person to be a . , , “motor carrier.‘! (Art. 9Ilb, V. C. S., Sec. “. . . 1 (g) 1. 3. Elements constituting a contract carrier. (Art. 9llb, Sec. 1, (h), V. C. S.) 4. That at such time and pIace John Dot had not first obtained a permit’from the Rail- road Commission to Operate as 8 contract carrier. (Art. 9lIb, Sec. 6, -V. C. S.) The answer to your question No. ~5 is “No”. In.answering your question No. 6, we quote from Ex Psrte Sterling, TexSup. Ct., 122Tex. 108, 53 S. W. (2) 294: T’he power to prohibit the use of the highways for such purposes necessarily includes the lesser 1 power to place such restrictions and regulations upon the use thereof as may be deemed proper . . . ” . In the cases cited herein, the courts recognize the power of the state tom regulate the use of its highw8ys in the realm of safety to the traveling public and protection of its highways. Consequently the state has the power to restrict or limit such grant to the same grant of authority that has been .y ,:: : : .~ .~. ~;; C.oI. Homer. Garrison, Jr., Page.6. (WW-814) made. by ~the Inter~state~ Gomrxierce Commission to any given carrier. ~.in other, words* ,the. grant of authority to use Texas highways ,extends .only~ to’ the hauling of a particular commodity which has been authorized bye the ICC. : It doss not authorise the hauling of any others. In so doing, it is ~enough that the permit simply recite the restriction. :.,. ~.’ ‘. -In’.any ‘case ,w++re permission to use the ,highways of Texas for :an interstate.carrier .is sought,’ the Railroad Commission, ‘after due notice to x ~., all int@rest$ parties;h@s a hearing to determine whether or not, the per- miisjqirequested is~oonsonant,with the’safety of the public and protection ~‘. ..‘,,.~ ., .~ Ool. Homer Garrison, Jr., Page 7. (WW-814) APPROVED: . . OPINION COMMITTEE: W. V. Geppert, Chairman Riley Eugene Fletcher Gordon C. Cass Jack N. Price REViEWiD FOR THE ATTQRNEY GENERAL BY: Leonard Passmore