Railroad Commission ofTexas Austin, Texas
Gentlemen: Opinion No. O-3558 Re: ~Effect ofa carrier’s partially ceasing operations.
You have submitted tous for our opinion the following six questions with accompanying explanation:
“After due notice toall interested parties, and to the public generally, the Commission, onAugust 28, 1939, approved the application ofRalph Labutis, R. M, Hansen, and Paul E. Dahlman. doing business as Texas Film Service, toamend and consolidate certain certificates authorizing the operation ofa restricted common carrier motor carrier service transporting moving picture films and supplies only between Dallas, Texas, and San Antonio. Texas, via Waxahachie, 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 Waxahachie, Midlothian. Venus, Alvarado. Grand View, Itasca. Hillsboro. Waco, Georgetown, Austin, and New Braunfels; and for irregular schedules from SanAntonio to Seguin to New Braunfels, and between Dallas and Midlothian, via Duncanville and Cedar Hill 

### over State Highway No. 67; and an irregular schedule from Waxahachie toHillsboro, via Italy,
over State Highway No. 77.

“In authorizing such service, the Commission found, from the evidence, that the movement ofmotion picture films and supplies requires an especially expedient service, and that public convenience and necessity demand and require the granting of such application.

“The service rendered by Texas Film Service under the certificate issued by the Commission is only to motion picture houses and distributors, and such certificate is so expressly restricted.

“The Commission is informed that ther~e are only two motion picture establishments in Seguin, Texas; and that, for

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Railroad Commission ofTexas, Page 2 (O-3558)

some months past, the operator of such establishments has not availed himself ofthe service offered by the holders of the certificate under consideration. As aconsequence, the holders **of**such certificate have failed to run their trucks to Seguin at anything like regular intervals, although the holders ofsuch certificates have continued toserve intermediate towns between San Antonio and Seguin.

“The holders of said certificate do not desire to abandon any portion oftheir route permanently and offer to continue to serve Seguin and all other points on their irregular schedules ifand whenever there is any necessity or request for their doing so from the persons whom they are **au** thorized to render such service to.

“Upon the basis ofthat above set out, we respectfully ask that you give your opinion upon the following questions: “(1) Whether the holders ofthe certificate referred tohave so abandoned that portion of their certificate authorizing operations upon irregular schedules. so as torequire that the Commission take affirmative action toamend the certificate in question and restrict ittothose routes which are being operated on regular schedules, and revoke those portions

, ofsuch certificate authorizing irregular schedules. “(2) Whether itis necessary for the holders of such certificate, in order tocomply with the applicable statutes and to legally retain the portion oftheir certificate which is being operated upon regular schedules, toapply tothe Commission and obtain permission for fhe amendment oftheir certificate toeliminate those portions ofthe routes which are not operated on regular schedules.

“(3) Where heretofore the Commission has issued a certificate ofpublic convenience and necessity authorizing irregular service and irregular schedules and no fixed routes (intrastate), does the Commission have any power and authorityto amend such acertificate for the purpose ofbringing it outside ofthe field ofinvalidity recently pointed out inyour 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 authoritytoamend such a certificate for the purpose ofbringing it outside ofthe field ofinvalidity recently pointed out in your opinion ?._. .

Railroad Commission of Texas, Page 3(O-3558)

“(5) Where an applicant presents proof ofpublic convenience and necessity and ofinadequacy ofexisting facilities and thereby obtains a certificate of public convenience and necessity (intrastate) onthe theory that he is going to render a regular service and then renders irregular service, is it mandatory upon this Commission insuch case tocancel his certificate 7



## “(6) Where an applicant presents proof ofpublic convenience and necessity and ofinadequacy ofexisting facilities and thereby obtains a certificate ofpublic convenience and necessity (interstate) onthe theory that he is going to render a regular service and then renders irregular service, is itmandatory upon this Commission in such case tocancel his certificate 7”

Sec. 12 (b) ofArticle 911b, Vernon’s Annotated Statutes, the Motor Carrier Act ofthis State, reads: “(b) The Commission at any time after hearing had, upon notice tothe holder of any certificate or permit and after opportunity given such holder tobe heard, may by its order revoke, suspend or amend any certificate or permit issued under the provisions ofthis 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 ofsaid certificate 

### orpermit; provided that the holder ofsuch certificate or permit shall have the right ofappeal as provided in this Act.”

We do not believe that acarrier’s failure always to operate its certificate 

### over aparticular part ofits line in accordance with the terms of

### thecertificate will always necessarily require the Commission 

### to~enter an order revoking, suspending or amending the same, regardless of reasons which might exist tojustify such failure. There is left in the Commission at least a certain amount ofdiscretion inrespect to such ~rnatters. The statute does not say that such afailure will automatically work aforfeiture ofthe 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. Inthe insmcase. ifit be found that the carrier actually stands ready to serve the operator of the picture establishments in Seguin, that itwas the failure of the picture show operator and not ofthe carrier which has caused the cessation of service, and that the action ofthe carrier is reasonable under the circumstances, itis our opinion that revocation, amendment or suspension is not mandatory. We believe this also sufficiently disposes ofyour second question.. 4

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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 ofthe Railroad Commission. Our answer toyour third question is an affirmative one, conditioned upon the holder’s making proper application and afinding of public necessity and ofthe sufficiency ofthe highways tobe traversed. We answer your fourth question in the affirmative, conditioned upon the operator’s filing a proper application, and ifafter hearing itbe found that the roads proposed tobe used will bear the traffic.

We answer your fifth question in much the same way as the first. The substitution ofirregular schedules in practice would not necessarily make itincumbent upon the Commission tocancel the certificate. The circumstances might be such as towarrant the Commission’s not cancelling the same.
Your sixth question is answered in the negative. The Commission’s jurisdiction in the first instance extended only tothe protection ofthe 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