### The HonorableBill Clayton

Speakerof the HoWe StateCapitol Autstin,

Texas 78711 OpinionNo. H-,631 H0: Whether the Railroad Cmirrion ia requiredto issue certificator of convenienceand necem8ityto

UearMr. Speaker: YOU have requestedour opinionregardingwhether the RailroadConuaie8ion im requiredto iaeue certificates Of 

### convenrenceand neoemsityto qam utilitiesunder 

### the provieioneof articlelllbc,V.T.C.S.,tha PublicutilityRegulatory Act. Article 1446apravideain pertinentpartr qaa utilities.



### sec. 49. For the,purporerof ,thi& articlti

only: (a) *Retailpublicutility' means any person,corporation, municipality, politicaleubdiviaionor agency,or cooperative corporation, now ar hereafteroperating, maintaining,or controlling**in** 

### Texae facilities for providingretailutility service. W 'Publicutility'does not includeany person, corporation,

municipality,

politicalnubdivi: &on or agency,or cooperativecorporation under the juriediction of the Railroad Commisaian. Sec. 50. Beginningone year after the effectivedate of thisAct, unleseotherwi8e specified:

s. 3509The Honorable Bill Clayton - page 2 (H-831)

(1) **No** public utility may in any way render service directly **or** indirectly to the public under any franchise or permit without first having obtained from the **com** mission 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 utility service is being lawfully 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 necessity that includes the **area** in which the consuming facility is located.
It is apparent that a gas utility under the jurisdiction of the Railroad Commission is exempt from **the** prohibition of subdivision (1) of section 50, which is applicable only to a "public utility." The statute does not, however, exclude such gas utilities from the definition 

### of "retail public utility." In Attorney General Opinion H-812 (1976),we held that the term "public utility" does not "include the **more** broadly defined 'retailpublic utility' found in section 49." The statute could thus be construed as suggesting that a gas utility which is a "retail public utility" as defined by section 49(a) must obtain a certificate of convenience and **necessity** before it may "furnish,make available, render, or extend retail public utility service to any area to which retail utility service is being lawfully furnished by another retail public utility on or after the effective date" of the statute. Sec. 50(2). However, subsection (1) of section 50 specifies that certificates of convenience and necessity are to be obtained

“from the commission," which means the Public Utility Commission. Sec. 3(e). Although subsection (2) iS silent **as** to the issuing authority, it is our opinion that the certificates required therein must also be obtained **from** the

p. 3510The Honorable Bill Clayton - page 3 (H-831)

Public Utility Commission. Article VII, which is the only part of the statute dealing with certificates of convenience and necessity, repeatedly refers to issuance of certificates by the "commission," and makes no provision for their issuance by the Railroad Commission. In any event, a total absence of any statutory guidelines would preclude the Railroad Commission from issuing certificates of convenience and necessity. See Gerst v. Jefferson County Savings & Loan Asso., 390 S.w.2-,520 (Tex.Civ. App. -- AustinmS, wr~itref'd n.r.e.1.
It accordingly is our opinion that the Railroad Commission is neither required nor authorized to issue certificates of convenience and necessity.to,gas utilities.
SUMMARY The Railroad Commission is not authorized or required to issue certificates of convenience and necessity to gas utilities under the Public Utility Regulatory Act. Aery truly yours,

Attorney General of Texas APPROVED:

Opinion Committee jwb

p. 3511