State v. Bounds (581 S.W.2d 799, 1979)

OPINION

BISSETT, Justice.

This is a suit brought by the State of Texas to enforce the provisions of Tex.Rev. Civ.Stat.Ann. art. 911b, the “Texas Motor Carriers Act,” to recover civil penalties thereunder and for an injunction. Trial was to the court, sitting without a jury. Judgment was signed on May 24, 1978, which denied all relief prayed for by the State. The State has duly perfected an appeal from that judgment.

The State alleged that Tom Bounds acted unlawfully as a motor carrier on 38 separate days during the period from July, 1976, to September, 1976, in that he transported property for compensation or hire over a public highway in Texas between two incorporated cities without having first obtained a certificate of public convenience and necessity or a permit from the Railroad Commission authorizing such transportation, in violation of the Act. It further alleged that Mercedes Co-operative Gin aided and abetted Bounds in such unlawful operation, in violation of the Act. Both defendants denied such allegations.

The controlling question presented by this appeal is whether or not Bounds was a motor carrier for compensation or hire, as defined by the Act, who was required to possess either a certificate of public convenience and necessity from the Railroad Commission or á permit from the Commission during the trucking operation here involved. The question is one of fact, to be determined from all the facts and circumstances in evidence. Anderson, Clayton & Co. v. State, 125 Tex. 453, 82 S.W.2d 941 (1935, opinion adopted); New Way Lumber Co. v. Smith, 128 Tex. 173, 96 S.W.2d 282 (1936). If it be held that he was a motor carrier who violated the Act, then, the next issue to be resolved is whether or not the Gin aided or abetted him in the violation.

The Gin is in the business of ginning cotton. As an adjunct to its business, it sold cottonseed to Valley Co-op Oil Mill and received a sales price therefor plus the per ton freight rate set by the Railroad Commission of Texas, which regulated cottonseed shipments. Prior to the 1976 ginning season, the Gin used its own trucks to haul cottonseed to Valley Co-op. For the 1976 season, the Gin changed its trucking operation and leased trucks owned by Bounds to transport the cottonseed from Mercedes, Texas, and Edcouch, Texas, where two of its gins were located, to Valley Co-op, at Harlingen, Texas. The transportation of the cottonseed sold by the Gin to Valley Co-op was over public highways between two or more incorporated cities. It was stipulated that Bounds did not possess a certificate of public convenience and necessity from the Railroad Commission which would authorize him to operate as a common carrier to transport cottonseed for hire over the highways of this State. Counsel for Bounds judicially admitted that Bounds did not have a permit from the Commission.

Bounds leased three trucks to the Gin under three written leases, each of which covered a particular truck. The term of each lease was 120 days. Compensation “as rental for said vehicle” was 60