Railroad Commission of Texas 

Gas Utilities Division 

Au& in, Texas 

Gentlemen: Opinion No. 0-6724 

Re: Construction of certain 

provisions of S. B. 269, 

49th Legislature, 1945. 

We acknowledge receipt of your opinion request of July 

17, 1945, reading as follows: 

"This is a request for an opinion from your Department concerning Senate Bill No. 269, which was 

enacted by the 49th Legislature and filed by the 

Governor without his signature, and which is to become effective on or about September 5, 1945. 

"(1) Section 6 of the Act provides that 'In the 

manner provided in Section 4 of this Act * *' the 

Commission shall have full power and authority to 

promulgate rules and regulations to carry out the 

purposes of the Act. Section 4 of the Act does not 

provide the manner in which such rules and regulations should be promulgated. Please advise us your 

opinion a8 to what procedure should be followed in 

adopting or promulgating such rules and regulations. 

"(2) Section 7 of the Act provides that 'No 

license shall be issued until a hearing is had thereon and the Commission has determined that the applicant has made good and sufficient proof that he can 

and will meet all safety requirements provided in 

this act and. by the rules and regulations of the 

Railroad Commission, and the Commission finds that 

such applicant is qualified and the evidence adduced justifies issuance of such license.' Section 

16 of the Act provides that 'No formal notice of 

hearing on an application for license need be given 

applicant, other than that he be given a reasonable 

opportunity to appear in support of his application 

before the Commission renders its order refusing him 

a license.' Considering the above two provisions, 
Railroad Commission of Texas, page 2 (0-6724) 

please advise us if it is necessary to hold a formal 

hearing upon the application of each applicant not 

licensed prior to May 1, 1945; and, if it is nscessary to hold such a hearing, to whom is the Commission required to give notice. 

"(3) Section 10 of the Act provides that 'For 

the purpose of defraying the expenses of administering this Act, each person, firm, corporation or association engaged in one or more of the pursuits named 

in subsection (1) of this section * *I shall pay to 

the Commission certain annual license fees. Section 

10 does not have a subsection (1). Please advise us 

which persons, firms, corporations or associations 

we may legally collect the $25.00 annual license fee 

from and which operators we may legally collect the 

$50.00 snnual license fee from. 

"(4) Under the Act may we require persons, firm, 

or corporations that are engaged in the sale of appliances which burn liquefied petroleum gases to obtain a 

license when such persons do not install such appliances? 

"(5) The second paragraph of Section 11 of the 

Act provides that: 'In addition to the bond herein 

required, such licensee shall be obligated to procure 

from some reliable insurance or surety company qualified to do business in the State of Texas, and keep 

same in force so long as they shall continue business, 

a policy of insurance or surety bond which shall guarantee the payment of all damages which proximately result 

from any act of negligence, while engaging in any of 

the activities as herein provided, on the part of said 

licensee, their agents and employees, to both the employees of said licensee and also to the public generally, said policy or bond to be in the sum of not 

less than Ten Thousand ($lO,OOO.OO) Dollars for personal injury for any one accident, and not less than 

Five Thousand ($5,000.00) Dollars for property damage 

for any one accident. Provided that this Section 

shall not be applicable unless and until such bonds 

or policies of insurance are available for purchase 

and further provided that such bonds or policies of 

insurance shall be approved by the Railroad Commission 

of Texas.' As the Act only provides that a licensee 

shall be obligated to procure such insurance or bond, 

is it the Commission's duty to require such a bond 

or insurance policy before granting a license? 
Railroad Commission of Texas, page 3 (0-6724) 

"We will thank you to give us your opinion as soon 

as possible in order that we may prepare for the administration of this Act. Please send .a copy of your opinion to the Gas Utilities Division of the Railroad Commission of Texas." 

Question No. 1 

Section 1 of S. B. 269 reads as follows: 

"Section 1. That Section 2a, Section 2b, and 

Section 3 of Article 6053 of the Revised Civil Statutes of Texas of 1925, as enacted in 1920 by the Third 

Called Session of the 36th Legislature, page 18, 

Chapter 14, and as amended by Acts, 1937, 45th Legislature, Act, 1939, 46th Legislature, be and the same 

are hereby amended and renumbered to read as follows: 

I, 

The amendments of the Act in 1937 (Acts 45th Legislature, 

Regular Session, p. 737) and in 1939 (Acts 46th Legislature, Regular Session, p. 501) both provide, as does S. B. No. 269, for 

amendment of Article 6053 as revised in 1925. The device of codifying the 1937 and 1939 amendments as subdivisions under Article 

6053% is purely the work of the Vernon Law Book Company and is 

unofficial. The amendments are of the original Article and Section 4, which was added by the 1939 amendment, is not affected by 

s. B. 269. The numbered Sections of S. B. 269 are in reality 

subsections of Sections 2a, 2b and 3 of Article 6053a as they 

now appear in Vernon's Annotated Civil Statutes, and they should 

be so arranged in the pocket parts. Section 4 of Article 6053a, 

Vernon's Annotated Civil Statutes, is the "Section 4 of this Act" 

referred to in Section 6 of S. B. No. 269, and you will follow 

the procedure outlined in that Section in adopting and promulgating rules and regulations. 

Question No. 2 

Section 7 of S. B. 269, reads, in part, as follows: 

II . . . No such license shall be issued'until a 

hearing is had thereon and the Commission has determined that the applicant has made good and sufficient 

proof that he can and will meet all safety requirements provided in this Act and by the rules and regulations of the Railroad Commission, and the Commission 

finds that such applicant is qualified and the evidence 

adduced justifies issuance of such license. 
Railroad Commission of Texas, page 4 (0-6724) 

Section 16 of S. B. 269 contains the following provision: 

,I . . . No formal notice of hearing on an application for license need be given applicant, other than 

that he be given a reaeonable opportunity to appear in 

support of his application before the Commission renders its order refusing him a license. Appeal shall 

be to the District Court of the residence of the applicant in all cases where an application for a license 

hereunder is denied, subject to the same limits and 

restrictions 88 in cases of appeals from revocations 

and suspensions. n 

The inquiry here is whether or not formal hearings are 

necessary on each application for a license under Section 7 and 

if so, to whom is the Commission required to give notice. 

It is settled that the members of the Railroad Commission must act as a body at a formal meeting and not as individuals. 

The Supreme Court of Texas, in a recent case, said: 

"It is a well established rule in this State, 

as well as in other States, that where the Legislature has committed a matter to a board, bureau, 

or commission, or other administrative agency, 

such board, bureau, or commission. must act thereon 

as a body at a stated meeting, or one properly 

called, and of which all the members of such board 

have notice, or of which they are gl,ven an opportunity to attend. Consent or acquiescence of, or 

agreement by the individual members acting separately, 

and not as a body, or by a number of the members 

less than the whole acting collectively at an unscheduled meeting without notice or opportunity of 

the other members to attend, is not sufficient." 

Webster vs. Texas & Pacific Motor Transport Co., 

166 s. w. (2d) 75, 76, 77. 

As to the question of notice, Section 14 of S. B. 269 

is applicable. It provides in part: 

"Section 14. Notice of any hearing, and of the 

time and place thereof, shall be given by registered 

mail not less than ten (10) days exclusive of the day 

of mailing before such hearing, addressed to all parties whom the Commission may deem to be interested in 

the subject matter of such hearing. . D .ll 
Railroad Commission of Texas, page 5 (0-6724) 

The enforcement officers of the Railroad Commission should 

be notified, but there would seem to be no necessity for notifying 

every licensee under the Act. This is a matter, however, on which 

the Railroad Commission may exercise discretion and if its rule or 

regulation with reference to notice is reasonable, it will be upheld by the courts. 

Question No. 3 

Section 10 of S. B. 269 reads as follows: 

"Section 10. For the purpose of defraying the expenses of administering this Act, each person, firm corporation or association engaged in one or more of the 

pursuits named in subsection (1) of this section, except as otherwise provided in this subsection, shall 

at the time of issuance of such license, and annually 

thereafter, on or between September 1st and September 

15th of each calendar year pay to the Railroad Commission a special fee of Twenty-five ($25.00) Dollars; except that each person, firm, or corporation who operates 

a truck or trucks in the wholesale or retail delivery 

of liquefied petroleum gas, shall at the time of issuance of such license, and annually thereafter, on or 

between September 1st and September 15th of each calendar 

year, pay to the Railroad Commission a special fee of 

Fifty ($50.00) Dollars, and when such fifty dollar fee 

is paid, said firm or corporation shall not be liable 

for the payment of the Twenty-five ($25.00) Dollar fee 

as provided herein. I, 

"If the license here provided for is issued after the 

month of September of any year, all fees shall be prorated to the remaining portion of the year to August 31st 

following, but in no case less than one-fourth of the 

total annusl fee. I, 

The reference to "subsection 1 of this section" is a 

reference to Section 7.(l) of the Act which reads as follows: 

"Section 7. (1) No person, firm or corporation 

shall engage in this state in the manufacturing, and/or 

assembling, and/or repairing, and/or selling, and/or installing of containers to be used with liquefied petroleum 

gases as a fuel, nor shall such person, firm, or corporation 

engage in the sale, transportation, dispensing or storage 

of liquefied petroleum gases within this state, except 

where stored by the ultimate consumer for consumption only, 

without having first obtained from the Railroad Commission of Texas under the provisions of this Act a license 
Railroad Commission of Texas, page 6 (o-6724) 

so to do. Applications for such licenses shall be in 

writing and shall contain such information as the Commission shall prescribe. No such license shall be issued until a hearing is had thereon and the Commission 

has determined that the applicant has made good and 

sufficient proof that he can and will meet all safety 

requirements provided in this Act and by the rules and 

regulations of the Railroad Commission, and the Commission finds that such applicant is qualified and the 

evidence adduced justifies issuance of such license. 

The Railroad Commission shall have the authority to 

promulgate rules and regulations for the safety and 

protection of the public. 91 

This Section was "Section 2b (1)" of the 1939 amendment 

to Article 6053, and "Section 2b(2)" contained provisions similar 

to Section 10, above. In drafting S. B. 269, the scrivener in 

rewriting Section 2b(2) as Section 10 referred to "Subsection 1 

of this Section" thinking that he was referring to Subsection 1 

of Section 2b of the 1939 amendment. This Subsection (1) is now 

"Section 7 (1)" . I of S. B. 269. _ We believe that these two Sections 

when considered together are plain and unambiguous. 

Question No. 4 

The last paragraph of Section 6 of S. B. 269 provides: 

"Nothing contained in this Act shall apply to 

the sale in the ordinary course of business of any part 

of any appliance which may be employed for uses other 

than as an integral part of a liquefied gas system when 

the seller d&s not service, make repairs or permanent 

connection to any such liquefied gas system, as long as 

said appliance or container is approved under the 

standards set by the Railroad Commission of Texas. Nor 

shall this Act apply to containers subject to the regulation of the Interstate Commerce Commission, and containers which are owned and used by the Federal Government. M (Underscoring ours) 

Section $5 of S. B. 269 provides, in part: 

I, . . . Persons, firms, corporations or associations 

who handle appliances exclusively for use with natural 

es*, and who do not offer their appliances for sale or 

use with liquefied petroleum gases, are exempted from 

the provisions of this Act." 

Section 4 of S. B. 269 provides in part: 
Railroad commission of Texas, page 7 (o-6724) 

"The selling or exposing for sale. . . of 

such appliances using or to use liquefied petroleum gas as a fuel, without same having been 

designed, constructed, assembled, and equipped 

as specified by the rules and regulations of the 

Railroad Commission as provided for in this Act, 

shall be a violation of this Act and shall be 

subject to all fines, penalties and restrictions 

provided in this Act and Title 102, Revised Civil 

Statutes of Texas, 1925, as amended. 

Section 7 of S. B. 269 provides in part: 

"No person, firm or corporation shall engage 

in this State in . . . . selling . . . . of containers to be used with liquefied petroleum gases 

as a fuel e D . without having first obtained from 

the Railroad Commission of Texas under the provisions of this Act a license so to do . . . ." 

The Act makes a distinction between containers and appliances and a distinction between sales of appliances which are 

subject to the Act and those which are not. The sale .of appliances (other than containers) for use as a part of a liquefied 

gas system is subject to the Act and the rules and regulations 

of the Railroad Commission with reference to design and construction of such appliances and the manner of assembling and equipping 

same but a license to make such sale is not necessary. We therefore answer your fourth question "No." 

Question No. 5 

Section 11 of S. B. 269 provides, in part-t 

"Section 11. No license shall be issued pursuant 

to this section, unless such licensee shall first file 

with the Commission a surety bond in the sum of Two 

Thousand ($2,000.00) Dollars with a bonding company 

authorized to do business in Texas. . . . 

"In addition to the bond herein required, such 

licensee shall be obligated to procure from some reliable insurance or surety company qualified to do 

business in the State of Texas, and keep same in 

force so long as they shall continue in business, 

a policy of insurance or surety bond which shall 

guarantee the payment of all damages which proximately 

result from any act of negligence, while engaging in 

any of the activities as herein provided, on the part 

of said licensee, their agents and employees, to both 
Railroad Commission of Texas, page 8 (0-6724) 

the employees of said licensee and also to the public 

generally, said policy or bond to be in the sum of 

not less than Ten Thousand ($lO,OOO.OO) Dollars for 

personal injury for any one accident, and not less 

than Five Thousand ($5,000.00) Dollars for property 

damage for any one accident. Provided that this 

section shall not be applicable unless and until 

such bonds or policies of insurance are available 

for purchase and further provided that such.bonds 

or policies of insurance shall be approved by the 

Railroad Commission of Texas. I, 

Section 12 of the Act provides: 

"Section 12. The Commission shall have the power and 

authority, and it shall be its duty, to refuse to grant a license 

to any applicant, or to cancel the license of any licensee, if 

it she.11 appear to the Commission, upon hearing as herein provided, 

that such applicant or licensee has violated or failed to comply 

with any provision of the Act. 91 

Section 7 of the Act is quoted on pages 5 and 6 above. 

Under these several provisions, we are of the opinion that the 

Railroad Commission may issue a license effective immediately but 

conditioned that the indemnity bond, to be approved by the Commission, shall be filed within a certain specified time; otherwise 

the license shall be void. The $2,000.00 bond must be filed before the license is issued. 

No license shall be issued unless "the Commission finds 

that such applicant is qualified." Section 7. This includes a 

finding that the applicant is able to and will comply with that 

part of Section 11 requiring the filing of an indemnity bond. 

The matter of voiding a license upon failure to file the indemnity 

bond within a certain number of days can be set out in a rule applicable to all cases and incorporated. as a part of each order 

granting a license. 

are, 

Trusting that the foregoing answers your inquiries, we 

APPROVED AUG 8, 1945 Yours very truly, 

APPROVED 

/s/ Csrlos C. Ashley OPINION Attorney General of Texas 

COMMITTEE 

FIRST ASSISTANT BY Is/ GWB By /a/ Fagan Dickson 

ATTORREY GENERAL CHAIRMAN Fagan Dickson 

Assistant 

FD:JCP:LM