Untitled Texas Attorney General Opinion

The Honorable Garrett Morris Opinion No. H-644
Chairman
Public Utility Commission Re: Issuance of certif-
7800 Shoal Creek Boulevard icates of convenience and
Austin, Texas 70757 necessity to gas utilities
under section 50(2) of the
Public Utility Regulatory
Act.

Dear Chairman Morris:

you have asked:

Is the Public Utility Commission required,
under Section 50(2) of Article 1446c, V.T.C.S.,
The Public Utility Regulatory Act, to certif-
icate gas retail public utilities by September 1,
1976, if such gas retail utility files an
application therefor and is furnishing, making
available, rendering or extending retail public
utility service to any area to which gas
retail utility service is being lawfully
furnished by another gas retail public utility
on or after the effective date of this Act?

Your'question is necessitated by sections 49 and 50 of
the Public Utility Regulatory Act, which provide:

Sec. 49. For the purposes of this article
only: (a) 'Retail public utility' means any
person, corporation, municipality, political
subdivision or agency, or cooperative corpo-
ration, now or hereafter operating, maintaining,
or controlling in Texas facilities for providing
retail utility service. (b) 'Public utility'
does not include any person, corporation,
municipality, political subdivision or agency,
or cooperative corporation under the jurisdic-
tion of the Railroad Commlssion.
The Honorable Garrett Morris - page 2 W-844)

Sec. 50. Beginning one year after the
effective date of this Act, unless otherwise
::pecified:

(1) No public utility may in any way
render service directly or indirectly to the
public under any franchise or permit without
first having obtarned from the commission a
certificate that the present or future
public convenience and necessity require or
will require such installation, operation,
or extension.

(2) Except as otherwise provided in this
article no retail public utility may furnish,
make available, render, or extend retail
public utility service to any area to which
retail public utlllty servrce is being law-
fully furnished by another retail public
utility on or after the effective date of
this Act, without first having obtained a
certificate of public convenience and neces-
sity that includes the area in which the
consuming facility is located.

Since certain gas utlllties may fall within the defini-
tlon of retall public utility, it is arguable that the strict
language of section 50(2) would require those gas utilities
to obtain certrficates of convenience and necessity before
they may
'furnish, make avallable, render, or extend
retail public utrlity service to any area
to which retail utility service 1s being
lawfully furnlshed by another retail public
utility on or after the effective date' of
the statute. Sec. 50 (2). See Attorney
General Opinion H-831 (19761x-812 (1976).

Since the Public Utility Commission is the only body
authorized to grant such certificates by the Act, if a certif-
icate is required it must be received from the Public Utility
Commission.

p. 3559
The Honorable Garrett Morris - page 3 (Ii-8443

It is a fundamental rule of statutory construction that
a staEc;-e is to be read as a whole and its parts harmonized
to give effect to the evident intention of the Legislature.
Texas Turnpike Authority v. Shepperd, 279 1S.W.2d 302 (Tex.
sup. 19551; A&A%quor Stores v. Texas Li uor Control Board,
342 S.W.Zd 785-(Tex. Civ. Ape.:- -.+,
Austin writ ref'd
n.r.e.1.

In examining the entire Act it is evident that the
Legislature did not intend for certificates to be issued to
gas utilities by the Public Utility Commission. Exclusive
jurisdiction over services of gas utilities is vested either
in the municipality [sec. 19(a)] or the Railroad Commission
(sec. 19(b)]. If a gas utility were required to obtain a
certificate of convenience and necessity, the absurd result
would accrue that the utility would be required to obtain a
certificate from the Public Utility Commission, but the
Public Utility Commission would have no authority to issue
such a certificate. Since there is no entity which is
empowered to grant certificates of public convenience and
necessity to gas utilities under section 50 of the Public
Utility Regulatory Act, it is our view that gas utilities
are not required to obtain a certificate under that section.

SUMMARY

The Public Utility Commission is not
required to issue certificates of con-
venience and necessity to gas utilities
under section 5Oi2) of the Public vt:lity
Regulatory Act, article 1446c, V.T.C.S.

Very truly yours,

.JOHN I,.HIiL
,,'
Attorney General of Texas
,
 .

The Hmorable Garrett Morris - page 4 ftl-844)