Untitled Texas Attorney General Opinion ( 1940 )

. - OFFICE OF THE ATTORNFX GLNERAL
OEiiALDC. MANN
Attorney General
Honorable L, R. Thompson
County Auditor
Taylor County
Abllens, Texas
Dear Sir3 Opinion No. O-2535
Ret Can the described
deliveries be made by
the truok without heving
It registered In Texas?
:!;e
have received your recent request for the opinion of this Department
upon the above stated question. For fsctuel background of your request,
we quote from your letter as followrl
"A men living In Texhs end his brother living In Arizona are operating
under a trade name In Arizona, and are delivering fruit Into Texhs by
truck whioh Is registered under en Arisone license.
"The oucstion arises:
"C&n such deliveries be made by this truck without having it registered
in Texas?
"The Arizona concern IQ a partnership, wholesale dealers In fruit end
vegatables.
"The truck does not make scheduled trips to Texas, but makes from one
to four trips per month dslivsrlng fruit end vegetables to their diatrl-
buting warehouse In Texas, from khlch place It is redistributed by
Texas registered truoka taoother pointa."
The registrntlon and licensing laws respectins motor vehiolss are shown
by the various sections of Article bh75e, Vernon's Civil Jtetutes.
Sections 6, ba, 7 end 8 heve'specifia epplicetlon to commerolel motor
vehicles, truok-trnotors and trailers or semi-trailers. Examination of
these sections reveals no exception under which the owne!'or operator
of e truck line Is permitted to operate e truck, truok-treotor or
trailer witrioutfirst licensing same under theprovisions of the laws
of Texas relating thereto.
Article 667sa-2 provides, Inpert:
"Every owner of e motor vehicle, trailer or sesi-trailer used or to be
used upon the public highways of this state, and er;chchauffeur, shall
apply each year to the Stete Highway Department through the aounty tax
collector of the oounty in whiah he resldss for the registration of
each such vehlole oainedor controlled by him, . . .v
Honorable L. R. Thompson, Page 2, O-2535
Section (L) of said Article bb75e-l-defines the term 'owner" PI)followsr
'(L) (Owner 1 means any person who holds the legal title of a vehicle or
who has the legelrlght of possession tnereof, or the legal right of
oontrol of said vehicle,"
We are assuming that the partners In the instant case have a community
of interest as common owners of the property enge-jedIn the business.
The first question w+ioh arises Is whether or not the vehicle In question
Is exoepted from the general registration laws by Article 827b of the
Penal Code, which deals with non-resident owners of motor vehioles.
Under said Article 827b temporary registration certificates may be obtained
for out of state vehicles by non-resident owners,
A "non-resident" Is defined in Section 1 of said Article 827b as follows:
"'Non-resident' means every resident of e state or country other then
the State of Texas, whose sojourn In this State, or WIOOSSoccupation,
or place of abode, or business In thin State, if any, covers a total
period of not more than one hundred earltwenty-five days in the calendar
year."
The courts of this State do not recognize a partnershlp aa a legal entity.
The Co.mmlsslonof A.c,peals of Texas, In thee ase of Martin vs. fiemphill,
237 6.U. 5.50,speeklng through Justice Powell stated;
" . . . A partnership, at comrOonlaw, 1s not e legal entity, but only '8
eontrsatuel status."
The commission of Appeals of Texas held that tha common law rule
applied in Texas In the aase of Allison vs. Campbell, 1 S.W. (26) 866.
The court stated es follows~
II . A partnership at oomnon law 1s not e legal entity but e contractual
SC&S. Martin vs. Bemphill (Tex. Corn.App.) 237 Y. b. 550, 20 A.L.R.
984; Marshall V. Bennett, 214 Ky. 328, 283 S. vi. 1151 Schumaker on
Partnerships (2d. Ed.) p. 2. Texeo has no statute regulating general
partnerships, in the absence of whioh the rules of common law govern the
oourts In dealing with the question of general partnerslips."
TheFort Xorth Court of Civil Appeals In the case of Beggs v. Brooker,
79 9.3. (26) 6/+2,steted as followsr
"A partnersnip has no legal entity. It exists only as Its individual
membe's exist."
The Federal District Court for the 7th District of Ohio In the case of
E. 1. Depont De Nemours Powder Co. v. Jones Bras., 200 Fed. Rep. 638,
stated es follows:
"Residence cannot be predicated of a partnership.'
.
fionorable L. R. Thompson, Pam 3. O-2535
The Supreme Court of Ohio in the %aae of Byera va. schlupe, 38 Ii.E.
117, etsted aa follows:
“A partnerkhlp is not, in our judgment, a lc~,alertltp, having, aa
such, a domicile or resldenoe separate and dlatlnot from that of the
lndlvfcuals who constitute It."
The above holding of the Ohio court8 Is the law in this atate, because
said case8 are predloated upon the idea that a partnership is not a
aeparete la-al entity aside and dletlnct from the Individual partners.
Therefore, the residenoe of a partnership must be oonsldared the same
aa that of the individuals oomprlslng the partnership. It follows
that the >artnershIp in question, by vfrtue of one of Its mem'terebeing
a resident of this btate, Is a domeatlo gartnershlp and as such Is a
resident of the Stete of Texas. The fsot that one of the partnera
resides In Arizona, an3 though the Arizona Laws may construe this
partnership a resident of that state, the partnership, nevertheless,
Is a resldsnt of Texsa under the Motor Vohlcle Reglstratlon Law.
Under the foregoing authoritfes, you are reapeotfully advised that
it 1s the opinion of thlr Department that Article 827b of the Yenal
Code would have no a?plIcatIon to the vehicle in question and that
the vehicle should be registered In Texas under our general
reglatered In Texas under our general registration laws.
Truetlng that this aatlsfaotorily disposes of y'3urinquiry, we remain
Yours very truly
ATTORIUKYOtlWiAL OF TlXAS
a/ D. Burla iravIae
.BY
D, Burle DavIsr
Aaalatant
DBDzBIE/og
APYROVE~ ;NLY 29, 1440
Olenn R. Lsrlr
AT'I'ORhTEY
CILNZRAL3F TEXAS
Approved Opinion- Committee
By BS3, Chairman