Railroad Commission of Texas
Austin, Texas
Gentlemen: Opinion No. O-3558
Re: ~Effect of a carrier’s partially ceas-
ing operations.
You have submitted to us for our opinion the following six
questions with accompanying explanation:
“After due notice to all interested parties, and to
the public generally, the Commission, on August 28, 1939,
approved the application of Ralph Labutis, R. M, Hansen,
and Paul E. Dahlman. doing business as Texas Film Ser-
vice, to amend and consolidate certain certificates authoriz-
ing the operation of a restricted common carrier motor car-
rier service transporting moving picture films and supplies
only between Dallas, Texas, and San Antonio. Texas, via Wax-
ahachie, Midlothian. Venus, Alvarado, Grand View, Itasca,
Hillsboro. Waco, Georgetown, Austin, and New Braunfels; and
between San Antonio. Seguin. and New Braunfels, serving all
intermediate points; providing for a schedule of one round
trip daily between Dallas and San Antonio. Texas, via Waxa-
hachie, Midlothian. Venus, Alvarado. Grand View, Itasca.
Hillsboro. Waco, Georgetown, Austin, and New Braunfels;
and for irregular schedules from San Antonio to Seguin to
New Braunfels, and between Dallas and Midlothian, via Dun-
canville and Cedar Hill over State Highway No. 67; and an ir-
regular schedule from Waxahachie to Hillsboro, via Italy,
over State Highway No. 77.
“In authorizing such service, the Commission found,
from the evidence, that the movement of motion picture films
and supplies requires an especially expedient service, and that
public convenience and necessity demand and require the grant-
ing of such application.
“The service rendered by Texas Film Service under
the certificate issued by the Commission is only to motion pic-
ture houses and distributors, and such certificate is so express-
ly restricted.
“The Commission is informed that ther~e are only two
motion picture establishments in Seguin, Texas; and that, for
$2 .!?
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Railroad Commission of Texas, Page 2 (O-3558)
some months past, the operator of such establishments has
not availed himself of the service offered by the holders of
the certificate under consideration. As a consequence, the
holders of such certificate have failed to run their trucks
to Seguin at anything like regular intervals, although the
holders of such certificates have continued to serve inter-
mediate towns between San Antonio and Seguin.
“The holders of said certificate do not desire to
abandon any portion of their route permanently and offer to
continue to serve Seguin and all other points on their irreg-
ular schedules if and whenever there is any necessity or re-
quest for their doing so from the persons whom they are au-
thorized to render such service to.
“Upon the basis of that above set out, we respect-
fully ask that you give your opinion upon the following ques-
tions:
“(1) Whether the holders of the certificate referred
to have so abandoned that portion of their certificate authoriz-
ing operations upon irregular schedules. so as to require that
the Commission take affirmative action to amend the certifi-
cate in question and restrict it to those routes which are be-
ing operated on regular schedules, and revoke those portions
of such certificate authorizing irregular schedules.
,
“(2) Whether it is necessary for the holders of such
certificate, in order to comply with the applicable statutes
and to legally retain the portion of their certificate which is
being operated upon regular schedules, to apply to the Com-
mission and obtain permission for fhe amendment of their cer-
tificate to eliminate those portions of the routes which are not
operated on regular schedules.
“(3) Where heretofore the Commission has issued a
certificate of public convenience and necessity authorizing ir-
regular service and irregular schedules and no fixed routes
(intrastate), does the Commission have any power and authori-
ty to amend such a certificate for the purpose of bringing it
outside of the field of invalidity recently pointed out in your
opinion ?
“(4) Where heretofore the Commission has issued
a certificate of public convenience and necessity authorizing
irregular service and irregular schedules and no fixed routes
(interstate), does the Commission have any power and authori-
ty to amend such a certificate for the purpose of bringing it
outside of the field of invalidity recently pointed out in your
opinion ?
._. .
Railroad Commission of Texas, Page 3 (O-3558)
“(5) Where an applicant presents proof of public
convenience and necessity and of inadequacy of existing fa-
cilities and thereby obtains a certificate of public conven-
ience and necessity (intrastate) on the theory that he is go-
ing to render a regular service and then renders irregular
service, is it mandatory upon this Commission in such case
to cancel his certificate 7
“(6) Where an applicant presents proof of public
convenience and necessity and of inadequacy of existing fa-
cilities and thereby obtains a certificate of public conven-
ience and necessity (interstate) on the theory that he is go-
ing to render a regular service and then renders irregular
service, is it mandatory upon this Commission in such case
to cancel his certificate 7”
Sec. 12 (b) of Article 911b, Vernon’s Annotated Statutes,
the Motor Carrier Act of this State, reads:
“(b) The Commission at any time after hearing had,
upon notice to the holder of any certificate or permit and af-
ter opportunity given such holder to be heard, may by its or-
der revoke, suspend or amend any certificate or permit is-
sued under the provisions of this Act, where in such hearing
the Commission shall find that such certificate or permit
holder has discontinued operation or has violated, refused or
neglected to observe the Commission’s lawful orders, rules,
rates or regulatia or has violated the terms of said certificate
or permit; provided that the holder of such certificate or permit
shall have the right of appeal as provided in this Act.”
We do not believe that a carrier’s failure always to operate
its certificate over a particular part of its line in accordance with the
terms of the certificate will always necessarily require the Commission
to~enter an order revoking, suspending or amending the same, regardless
of reasons which might exist to justify such failure. There is left in the
Commission at least a certain amount of discretion in respect to such
~rnatters. The statute does not say that such a failure will automatically
work a forfeiture of the right to operate a line in connection with which
such failure occurs, nor does it say that the Commission must enter an
order of revocation, suspension or amendment. In the insmcase. if it
be found that the carrier actually stands ready to serve the operator of
the picture establishments in Seguin, that it was the failure of the picture
show operator and not of the carrier which has caused the cessation of
service, and that the action of the carrier is reasonable under the circum-
stances, it is our opinion that revocation, amendment or suspension is not
mandatory. We believe this also sufficiently disposes of your second ques-
tion.
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Railroad Commission of Texas, Page 4 (O-3558)
Your second and third questions evidently refer to our
opinions Nos. O-2608 and O-3147, addressed to members of the Railroad
Commission. Our answer to your third question is an affirmative one,
conditioned upon the holder’s making proper application and a finding of
public necessity and of the sufficiency of the highways to be traversed.
We answer your fourth question in the affirmative, conditioned upon the
operator’s filing a proper application, and if after hearing it be found
that the roads proposed to be used will bear the traffic.
We answer your fifth question in much the same way as
the first. The substitution of irregular schedules in practice would not
necessarily make it incumbent upon the Commission to cancel the certi-
ficate. The circumstances might be such as to warrant the Commission’s
not cancelling the same.
Your sixth question is answered in the negative. The Com-
mission’s jurisdiction in the first instance extended only to the protection
of the highways.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By /s/ Glenn R. Lewis
Glenn R. Lewis
Assistant
GRL:AMM/cm
APPROVED JUN 5, 1941
/s/ Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
APPROVED
Ooinion
C-ommittee
By /s/ BWB
Chalrman
Untitled Texas Attorney General Opinion
Combined Opinion