Railroad Commission of Texas 

Austin, Texas 

Gentlemen: Opinion No. O-3558 

Re: ~Effect of a carrier’s partially ceasing operations. 

You have submitted to us for our opinion the following six 

questions with accompanying explanation: 

“After due notice to all interested parties, and to 

the public generally, the Commission, on August 28, 1939, 

approved the application of Ralph Labutis, R. M, Hansen, 

and Paul E. Dahlman. doing business as Texas Film Service, to amend and consolidate certain certificates authorizing the operation of a 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 San Antonio 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 to Hillsboro, via Italy, 

over State Highway No. 77. 

“In authorizing such service, the Commission found, 

from the evidence, that the movement of motion 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 
$2 .!? *,,, 8 

Railroad Commission of Texas, Page 2 (O-3558) 

some months past, the operator of such establishments has 

not availed himself of the service offered by the holders of 

the certificate under consideration. As a consequence, the 

holders of such certificate have failed to run their trucks 

to Seguin at anything like regular intervals, although the 

holders of such certificates have continued to serve intermediate towns between San Antonio and Seguin. 

“The holders of said certificate do not desire to 

abandon any portion of their route permanently and offer to 

continue to serve Seguin and all other points on their irregular schedules if and whenever there is any necessity or request for their doing so from the persons whom they are authorized to render such service to. 

“Upon the basis of that above set out, we respectfully ask that you give your opinion upon the following questions: 

“(1) Whether the holders of the certificate referred 

to have so abandoned that portion of their certificate authorizing operations upon irregular schedules. so as to require that 

the Commission take affirmative action to amend the certificate in question and restrict it to those routes which are being operated on regular schedules, and revoke those portions 

, 

of such certificate authorizing irregular schedules. 

“(2) Whether it is necessary for the holders of such 

certificate, in order to comply with the applicable statutes 

and to legally retain the portion of their certificate which is 

being operated upon regular schedules, to apply to the Commission and obtain permission for fhe amendment of their certificate to eliminate those portions of the routes which are not 

operated on regular schedules. 

“(3) Where heretofore the Commission has issued a 

certificate of public convenience and necessity authorizing irregular service and irregular schedules and no fixed routes 

(intrastate), does the Commission have any power and authority to amend such a certificate for the purpose of bringing it 

outside of the field of invalidity recently pointed out in your 

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 authority to amend such a certificate for the purpose of bringing it 

outside of the field of invalidity recently pointed out in your 

opinion ? 
._. . 

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

“(5) Where an applicant presents proof of public 

convenience and necessity and of inadequacy of existing facilities and thereby obtains a certificate of public convenience and necessity (intrastate) on the theory that he is going to render a regular service and then renders irregular 

service, is it mandatory upon this Commission in such case 

to cancel his certificate 7 

“(6) Where an applicant presents proof of public 

convenience and necessity and of inadequacy of existing facilities and thereby obtains a certificate of public convenience and necessity (interstate) on the theory that he is going to render a regular service and then renders irregular 

service, is it mandatory upon this Commission in such case 

to cancel his certificate 7” 

Sec. 12 (b) of Article 911b, Vernon’s Annotated Statutes, 

the Motor Carrier Act of this State, reads: 

“(b) The Commission at any time after hearing had, 

upon notice to the holder of any certificate or permit and after opportunity given such holder to be heard, may by its order revoke, suspend or amend any certificate or permit issued under the provisions of this 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 of said certificate 

or permit; provided that the holder of such certificate or permit 

shall have the right of appeal as provided in this Act.” 

We do not believe that a carrier’s failure always to operate 

its certificate over a particular part of its line in accordance with the 

terms of the certificate will always necessarily require the Commission 

to~enter an order revoking, suspending or amending the same, regardless 

of reasons which might exist to justify such failure. There is left in the 

Commission at least a certain amount of discretion in respect to such 

~rnatters. The statute does not say that such a failure will automatically 

work a forfeiture of the 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. In the insmcase. if it 

be found that the carrier actually stands ready to serve the operator of 

the picture establishments in Seguin, that it was the failure of the picture 

show operator and not of the carrier which has caused the cessation of 

service, and that the action of the carrier is reasonable under the circumstances, it is our opinion that revocation, amendment or suspension is not 

mandatory. We believe this also sufficiently disposes of your second question. 
. 4 

. -_ 

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 of the Railroad 

Commission. Our answer to your third question is an affirmative one, 

conditioned upon the holder’s making proper application and a finding of 

public necessity and of the sufficiency of the highways to be traversed. 

We answer your fourth question in the affirmative, conditioned upon the 

operator’s filing a proper application, and if after hearing it be found 

that the roads proposed to be used will bear the traffic. 

We answer your fifth question in much the same way as 

the first. The substitution of irregular schedules in practice would not 

necessarily make it incumbent upon the Commission to cancel the certificate. The circumstances might be such as to warrant 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 to the protection 

of the 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