Untitled Texas Attorney General Opinion

A F EXAS AUSTIN. TEXAS m3711 C,HAWFORlD C. lMARTlN .a-l-rORN~X (IENERAI. February 15, 1967 Mr. Coke R. Stevenson, Jr. Opinion No .~M- 26 Administrator Texas Liquor Control Board Re: 1s the Texas Liquor Control Austin, Texas Board authorized to issue a carrier’s permit to an alr- line company holding a certl- flcate of convenience and necessity Issued by the Clvll Aeronautics Board of the United States, even though It does not hold a like certi- flcate from the Railroad Com- mission of Texas or the Inter- state Commerce Commission of Dear Mr. Stevenson: the United States? You have requested.an opinion from this office on the above captioned ~questlon. Artlole 666~15(12) of Vernon’s Penal Code provides, in part, as follows : “(12) Carrier Permlt. The word tcarrler8 when used in this Section shall mean and Include water carriers, airplane lines, all steam, electric, and motor power railway carriers, and common carrier motor carriers operating under a certificate of convenience and necessity issued by the Railroad Commission of Texas or by certificate,8Issued by the Interstate Commerce Commission. The holders of such certificates shall be authorized to transport liquor into and out of this State and between pointswithin this State. Such carriers shall furnish such information oon- cernlng the transportation of liquor as may be required by the Board.” The Texas Liquor Control Act was passed In 19% with the words “airplane lines” not included in Article 666~15(12). In 1937 the Texas Legislature amended this section to include “airplane lines”, but did not amend the requirement that all such carriers be holders of certificates of convenience and - 109 - . - Mr. coke R. Stevenson, Jr., page 2, (M-26) necessity from either the Texas Railroad Commission or the Interstate Commerce Commission. Subsequent amendments have not, to this date, changed this requirement as to airplane lines. The Texas Railroad Commission was ~establlshed by statute In 1891 to regulate railroads in Texas. Since that time the activities of the Railroad Commission have been broadened to include motor carriers on State highways, 011 and gas, and gas companies. The Rallroad Commission has not, since its Inception In 1891, had any statutory authority over "airplane lines". The Interstate Commerce Act of 188,7, 24 U.S. Stat.L. 379, created the Interstate Commerce Commission to regulate trans- portation by common carrier of passengers or property when made wholly by railroad or partly by railroad and partly by water when both are used. An amendment In 1917, 40 U.S. Stat.L. 101, gave the Interstate Commerce Commission the power to establish reasonable rules and regulations. A further amendment in 1920, 41 U.S. Stat.L. 474, expended coverage to Include 011 pipe lines and wire or wireless communication. This 1920 amendment also called for Issuance of certificates of pub110 convenience and necessity. Jurisdiction of the Interstate Commerce Commission was also extended by the Motor Carrier Act of 1935, 49 U.S. Stat.L. 543. Section 207(a) of that Act called for the Issuance of certificates of public convenience and necessity. The Transprrtatlon Act of 1940, 54 U.S. Stat.L. 898, again modified the Interstate Commerce Commission, but did not lrcrease the areas under the Commission's control. Federal control over avlatlon began with the Alr Commerce Act OS 1926, 44 U.S. Stat.L. 568. The provisions of this Act were to be enforced by the Secretary of the Department of Com- merce, with full powers to provide for the Issuance of any type of certificate he deemed necessary. In the Civil Aeronautics Act of 1938, 52 U.S. Stat.L. 971, Congress created the Civil Aeronautics Authority and transfer-ed all officers and personnel hired by the Secretary of Commerce under the Air Commerce Act of 1926 to this new Authority. This 1938 Act provided in Sec. 401(a) that "no air carrier shall engage In air transportation unless there Is In force a certificate issued by the Authority authorizing such." Sec. 401(d) provided for the "Issuance of Certl+Ycate if such trans- portation Is required by public oonvenlence and necessity." Sec. 701(a) created the Air Safety Board to operate Independent of the Authority in the area of alr safety. - 110- Mr. Coke R. Stevenson,;Jr., .Mge 3, (M-26) This division of responsibility led to a reorganization in 1940 which sew certain functions of the Civil Aeronautics Authority,transferred to an Administrator of Civil Aeronautics. Only those functions dealing with air safety and the Air Safety Board were excepted from this Initial reorganization. A second reorganization saw the Administrator of Civil Aeronautics and the Air Safety Board transferred,to the Department of Commerce. Finally, as a part of this second step, the Civil Aeronautics Board was created out of the combined functions of the Air Safety Board and what .remalnedof the Civil Aeronautics Au- thority. The Civil Aeronautics Board as part of Its duties was to Initiate Investigation of aircraft accidents, prescribe safety rules and preside over hearings looking to the suspension and revocation of certificates. The Air Safety Board and Civil Aeronautics Authority were effectively abolished by this re- organization. In 1958 Congress passed the Federal Aviation Act, 49 U.,S.C.A. 8s 1301 et seq., which created the Pederal Aviation Qency, @g 1341-1355, to assume the duties and function of the Civil Aero- nautlcs Administration; and which brought the Civil Aeronautics Board, 881321-1325, under Its jurisdiction. Section 1171(a) of the Federal Aviation Program,provides that no air carrier shall engage In a,nyair ,transportationunless there is In force a certificate of,publlc convenience and necessity issued by the Board (Civil Aeronautics Board) authorizing such air carrier to engage In such transportation. The foregoing analysis of statutory authority shows that the Texas Railroad Commission and the Unlted States Interstate Commerce Commission have never had the authorltx to Issue certlz- lcates of public convenience and necessity to airplane 1Lnes. At present only the Clvll Aeronautics Board of the United States exercises this function In Interstate commerce. This Board was established In 1940, but Its predecessors In responsibility had their beginning in 1926, separate and apart from the Interstate Commerce Commission. Thus, It cannot be said that the Civil Aeronautics Board has “lnherlted” any of Its powers from the Interstate Commerce Commission. It Is apparent that the Texas Legislature Intended for the Texas Liquor Control Board to have authority to issue permits under Article 666~15(12) to “airplane lines” when it amended the statute In 1937. In view of the fact, as outlined above, that the Interstate Commerce Commission and the Railroad Commission never had the authority to Issue certificates of convenience and necessity to “airplane lines”, this 1937 amendment needed the additional requirement, with respect to “airplane lines”, - 111 - Mr. Coke R. Stevenson, Jr., Page 4, (M-26) that the applicant have a certlfloate of convenience and neces- sity from the federal or state agency authorized to Issue same. When literal enforcement of a'statute would 1 d to conse- quences which the Legislature could not have %ended, the statute should be given a construction which will promote the declared purpose of the le lslatlon. Baldridge v. State, 321 S.W.2d 309 (Tex.Crim. 19597 . Therefore, It i the 0pinZon of this office that the Texas Liquor Control BoaFd is authorized to issue a Carrier's Permit as defined in Article 666~15(12), Vernon's Penal Code, to an airline company holding a Certlf- lcate of Public Convenience and Necessity issued by the Civil Aeronautics Board of the United States, even though it does not hold a Certificate of Convenience and Necessity from the Railroad Commission of Texas or such certificate Issued by the Interstate Commerce Commission of the United States, SUNMARY The Texas Liquor Control Board Is authorized to issue a Carrier's Permit as defined in Article 666~15(12), Vernon's Penal Code, to an airline company holding a Certificate of Public Convenience and Necessity Issued by the Civil Aeronautics Board of the United States, even though It does not hold a Cer- tificate of Convenience and Necessity from the Railroad Commission of Texas or such certificate issued by the Interstate Commerce Commission of the United States. truly yours, Prepared by James H. Quick Assistant Attorney General :vmo APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman W. V. Geppert, Co-chairman Paul Martin Llnward Shivers Houghton Brownlee, Jr. W. 0. Shultz A. J. CARUBBI, JR. Staff Legal Assistant - 112 -