THE 

## ATTORNEY GENERAL
OF TEXAS

GERALD C. MANN **AUSTIN 11,**  **TEXAR**

HonorableJames E. Kilday Director,Motor TransportationDivision Railroad Commission of Texas Austin, Texas

Dear Sir: Opinion No. O-1264 Re: Whether under facts statedJ. H. Robinson Truck Lines may be rerouted.

We received your letter of August 10, 1939,wherein you submit to
us the following facts:

The J. H. Robinson Truck Lines now holds and operates a certificate of convenienceand necessity from Houston to Corpus Christi over State HighwayNo. 3 from Houston to Rosenburg, over State No. 12 from Rosenburg to Victoria, over State Hi hway No. Hi hway

% 12% from Victoria to Sinton, 1 from Sinton to Corpus Christi. and over State Highway No.

over this route. He is authorized to serve all intermediatepoints
especiallybetween The route thus travelled is a very congestedone, Houston and Rosenburg. The certificateholder has requested of the Commission a re-routing in part of his line which would authorize him to operate as follows: All through shipments between Houston and Corpus Christi and vice versa would be carried over State Highway Non.35, known as the "Hug the Coast Highway," and no serviceswould be rendered over said State Highway No. 35 at any point between Houston and Corpus Christi. He would retain his old route only for the purpose of servingpoints intermediate between Houston and Corpus Christi on that route and would not carry through shipmentsbetween Houston and Rosenburg over the old route. You are advised that State Highway No. 35 is now traveled only about half as much as the route over which Robinson now goes. It is also represented that the distancebetween Houston and Corpus Christi over State Highway No. 35 is about 26 miles farther than the old route travelledby Robinson, although he will be able to make the distance about an hour and half quicker, due probably to the fact that on the new route he will not be stopping to serve intermediatepoints.

The Railroad Commissionwill hold a hearing upon such application for a re-routingbut at suchhearing it is proposed to, exclude and and hear no evidence upon questions of publicnecessity and convenience and the inadequacyof the existing transportationfacilitiesHonorable James K. Kilday, page 2 O-1264

between Houstonand Corpus Christi. You request our opinionas to whether the Railroad Commissionwould have the authority,after such a hearing, and if the above facts are found to be true, to grant the application.

In the case of Railroad Commissionvs. Red Arrow Freight Lines, 96 S. W. (2d) 735, before the Austin Court of Civil Appeals, the facts involvedwere briefly there: H.H. Lawler became the owner by purchase of two certificatesof convenience and necessity, one to operate from Houston to San Antonio and intermediatepoints and the other from San Antonio to the Rio GrandeValley via Edinburg and serving intermediatepoints. He filed an applicationbefore the Railroad Commission for a so-calledre-routing to permithim to go directly from Houston to Edinburg without serving intermediate points .onthat route. His theory was that he could already haul freight from Houston to Edinburg and points beyond and vice vsrsa, going by San Antonio, volved. and that no new servicewas, therefore, inIt appeared in that case,however, that the new routewas about 120miles shorter than the one by way of San Antonio and that his servicebetween Houston and Edinburg would be siiortened abctiut 30 hours. Over the protest of competing carriers, the Railroad Commission limited the hearing and its findings to the adequacyof the Highways overwhich the re-routingwas sought. The trial court eat aside the order of the Commissiongranting such re-routingand the Commissionappealed to the Court of Civil Appeals, That court affirmed the action of the trial court but its opinionwas based purely upon the proposition that the new route was somuch shorter and quicker that in fact the re-routing operated to inauguratea new direct servicebetween Houston and Edinburg and thence into the Valley, and that on account thereof, the Commission erred in not requiring Lawler to show the need of such additional service and in not also requiringhim to show the inadequacyof existing facilities. Since the judgment of the Court of Civil Appeals was based upon the reasoning that the change of route would shorten Lawler's traveling distance to substantiallyand make his service so much quicker
as in fact to constitutethe inaugurationof a new service,we believe it may be clearly inferredthat the court'sactionwould have been different if the routehad not been substantially shortened and the service substantiallyquickened. In the case beforeus the
new routewill be 26 miles longer than the old one, We do not believe that the mere fact that he will be able to make the new distance about an hour and a half quicker than the old one, on account of not stopping to serve intermediatepoints, is substantial enough a changeas to constitutea new service. Subsection (c) and the first paragraph of subsection (d)of Section 4 of Article qllb, Revised Civil Statutes, read as follows:

"(c) The Commission is further authorized and empoweredand it shallbe itsduty to supervise and regulatemotor carriers in all matters affecting the relationshipbetween such motor carriers and the shippingpublic that may be necessary in the interestof the public. 'HonorableJames E. Kilday, page 3 O-1264

"(d) The Commission is furtherauthorized and empoweredand it shallbe its dut K to superviseand regulatemotor carriers in all matterswhet er specificallymentioned herein or not
so as to carefullypreserve, foster and regulate transportation and to relieve the existing and all futureundue burdens
on the highways arising by reason of the use of the highways by motor carriers, adjustingand administering its regulations in the interest of the public."

We do not believe that the advantages in competitionto be gained by Robinson over competingcarrierswould be sufficientto off-set the right and power of the Commission to shift a part of the traffic from the over-burdenedroute heretofore travelledby Robinson to the new route. Our answer to your question is, therefore, in the affirmative.

Yours very truly

ATTORNEY GENERALOF TEXAS

BY GlennR. Lewis

Assistant GRL;N;ml

APPROVED AUG. 19, 1939 GERALD C.MANNA ATTORNEY GENERALOF TEXAS