### TWEA-JTORNEY GENERAL
OF TEXAS

Honorable James'

E. Kildag,Director Motor TransportatLonDivision Railroad Cotimlssion of Texas Austin, Texas

Dear Sir: OpinionNo. O-1843 Re: Authority of Railroad Comniisslon to limit interstateoperations of Highway Motor Freight Lines, Inc.

You have handed tous copy of a certificate of convenience and necessity, dated January 14, 

### 1936,issued to Highway Motor Freight Lines, Inc., authorlzlngan exclusively interstate operation,using not more than thirty-nine trucks. The certificate contains the following:
"RESTRICTH)ENTIRELY TO THE TRANSPORTATIONOF COMMODITIESMOVING IN INTERSTATECOMMERCE,FROM POINTS BEYOND THE STATE LINE TO POINTSWITHIN THE STATE OF TEXAS,AND FROM POINTSWITHIN THE STATE OF TEKAS TO POINTS BEYOND THE STATE LINE; BUT PROHIBITEDFROM MOVING ANY COMMODITIESEITHER INTERSTATEOR INTRASTATE,BETWEEN ANY TWO TEXAS POINTS.

"THISCERTIFICATESHALL BE LIMITEDAND RESTRICTED TO NOT MCEEDING TWO ROUND TRIPS PER WEEK OVER ANY OF THE FOLLOWING HIGHWAYS:

"StateHighways Nos. 

### l-A,2, 6, 8, 1, 3,5, 7, 9, lo 12, 13 43, 64, 71, 

### 86 14, 15, 16, 20, 24, 26, 31, 35, 40,

and 19 as far South as Huntsville and no further, 

### 45,156,114 and 121.

"FederalHighways Nos. 

### 66, 67, 69, 77, 277 and 370 from Bowie to Amarillo."

In your letter of June 7, 1940, you request our opinion in response to the following questton:

'Doesthe Railroad Commisslon of Texas have the authority to restrict motor carriers operating wholly in interstate commerce to the extent of prohibiting said interstate carriers from serving intermediatepoints?"-

Honorable James E. Kilday, page 2 O-1843

To make your question clear you offer the illustration that the port of Houston receives a-large,vblume of freight moving byboat from the Atlantic seaboard,and it is there unloaded and immediatelyplaced on motor vehicles for trans~ portation toDallas and other Texas cities, points of original destliiation.You mention that this freightuniversally hasbeen accepted as freightmoving in interstate commerce,which Is undoubtedly correct. Highway Motor Frel ht Lines, Inc., desires to receive'such freight at Houston 7and other Texas citiesunder similar circumstances),transport the same over highways described in the certificate and'.deliver it at points in Texas on such highways. As an illustration;'ina purely interstate transaction,it would pickup goods at Houston and deliver the same atDallas wFthout deviating from the highways named In its certificate.

The Highway Motor Freight Lines, Inc., holds a certificate from the Interstate Commerce Commtssionwhich would authorize the operation so far as that body is concerned. The validity of the restrictionprohibiting the carri.er.'frommoving any commodities in interstate commerce between any two Texas points is thus brought into question.

Since the Federal Congress enacted the Motor Carrier Act of 1935, 49 U.S.C.A., Sec. 301, et seq., the Railroad Commission of'Texas cannot concern itselfwith questions oi~public necessity and conveniencewith respect to purely Interstate motor carriers, those questions being within the field occupiedby the Congress. However, in the case of Thompson vs. McDonald, 95 Fed. (2d) 937, certiorariclenled,it was held that the preservationand safety of the highways themselves are stillwithin the jurisdictionof the Railroad Commission, and that this body may stilldeny the use of the highways to an interstate carrierwhen it is sufficiently shown that the preservationof the highways and safety of the traveling publicwould be endangered by the added traffic burden. As you know, the Austin and. Waco Courts of Civil Appeals have followed that decision in a number of cases, in some of which writs of errorwere denied.

The certificate in question authorizes only the carrying of freight in interstate commerce from a point within this State to a point without its boundaries, and vice versa. This, of course, is a narrower authority than if the carrierwere allowed to handle any and all Interstate shipmentsregardless of the points where itmfght receive or deliver the same. Its use of the highways is correspondingly less. In granting the certificateupon such terms as it contained, the Railroad Commission necessarily found that the highways traversed, couldHonorable James E. Kilday, page 3 o-1843

properly handle the narrower service. On the other hand, there is absent any finding that the highwayswouldbe able to withstand the added burden of the heavier traffFcwhlch would~~'follow

from the~broader authority, - that Is, a certificate authorizing an unrestricted interstateoperation
over all the hIghwaysdescribed.

Our opinion follows that theRaIlroadCommission has the authority to enforce the restriction contained In the certificate.

Yours very truly

ATTORNEY GENERAL OF TEXAS

By s/GlennR. Lewis Glenn R. Lewis Assistant

-GRL:LW:wc

APPROVED JUN 18, 1940 s/Gerald C. Mann ATTORNEY GENERAL OF TEXAS Approved Opinion CommitteeBy s/BWB Chairman