The Honorable Bill Clayton 

Speaker of the HoWe 

State Capitol 

Autstin, Texas 78711 

Opinion No. H-,631 

H0: Whether the Railroad 

Cmirrion ia required to 

issue certificator of convenience and necem8ity to 

Uear Mr. Speaker: 

YOU have requested our opinion regarding whether the 

Railroad Conuaie8ion im required to iaeue certificates Of 

convenrence and neoemsity to qam utilities under the provieione of article lllbc, V.T.C.S., tha Public utility Regulatory 

Act. Article 1446a pravidea in pertinent partr 

qaa utilities. 

sec. 49. For the,purporer of ,thi& 

articlti only: (a) *Retail public utility' 

means any person, corporation, municipality, 

political eubdiviaion or agency, or cooperative corporation, now ar hereafter operating, 

maintaining, or controlling in Texae facilities 

for providing retail utility service. W 

'Public utility' does not include any person, 

corporation, municipality, political nubdivi: 

&on or agency, or cooperative corporation 

under the juriediction of the Railroad 

Commisaian. 

Sec. 50. Beginning one year after the 

effective date of this Act, unlese otherwi8e 

specified: 

s. 3509 
The 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 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 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 'retail public 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. 3510 
The 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~it ref'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