THZ ATTORNEY GENERAL 

OF 3?ExAs 

Gerald C. Mann 

AUSTIN. 1,. TEXAS 

Railroad Commission Opinion No. O-3419 

of Texas Ret Validity of order of BaFlroad ComAustin, Texas mlssion amending the special commodity 

permit of J. R. Lingo without notice 

Gentlemen: or hearing. 

Your letter of April 9, 1941, sets forth the following 

facts: 

“On the 11th day of January, $936, the Railroad Commission of Texas in response to an application of J. R.~ 

Lingo, issued to said Lingo after pro er notice and hearing, .Special Commoddlty Permit No. 13 f 35 a copy of which 

is attached hereto and marked Exhibit ‘I.-i*‘. 

“On the 6th day of April, 1936, the Railroad Commission in response to an application of J. R. Lingo granted 

one additional truck to be operated under Special Commodity Permit No. 13435, a copy of which order is attached 

hereto and marked Exhibit “B”. 

“On the 22nd day of September, 1936, the Railroad 

Commission entered its order cancelling the additional 

truck granted J. R. Lingo under Special Commodity Permit 

No. 13435, a copy of which order is attached hereto and 

marked Exhibit We. 

“On the 19th day of September, 1938, the Railroad 

Commission entered its order amending Special Commodity 

Permit No. 13435, a copy of which order is attached 

hereto and marked Exhibit “D” . 

“On the 5th day of September, 1939, 3. R. Lingo, applied to the Commission for a rehearing and a restitution 

of his Special Commodity Permit No. 13435~, as it was originally issued to him and for the Commission to set aside 

its order of September 19, 1938, amending said permit, a 

copy of which application is attached hereto and marked 

Exhibit “E” . 

Wn the 21st day of December, 1939, the Railroad 

Commission entered its order denying application ,of J. R. 

Lingo, which is attached hereto and marked Exhibit “g”. 

Said order of denial is attached hereto and marked Exhibit 

“p . 
.: . . 

Railroad Commission, page 2 (O-3419) 

“On the 10th day of February, 1941, J. R. 

Lingo filed a new application for a restoration of his 

y original Permit No. 13435, issued by the Commission on 

the 11th day of January, 1936, and a copy of that application is attached hereto and marked Exhibit “G”. 

“As will be revealed to you by these various &hibits, the Railroad Commission made an error on the 11th 

day of January, 1936, and granted J. R. Lingo far more 

authority than they intended or that has ever been the 

policy of this Commission to grant anyone,” 

.4s shown by the exhibits mentioned in your letter, 

the original order granting the permit authorized the hauling 

of certain commodities “to and from all points in Texas” and the 

permit was issued accordingly. We have inspected the application upon which such order and permit were based and we find 

that the application sought the authority to thus operate. The 

order of September 19, 1938, purported to correct and amend the 

permit theretofore granted and directed the issuance of an 

amended permit to transport such commodities “from Fort Worth 

to all points in Texas and from all points in Texas to Fort 

Worthe. An amended permit was issued in accordance with such 

order of September 19, 1938. In Exhibits “Et’ and “G” mentioned 

in your letter the permit holder contends that he was never notifled of any such contemplated action on the part of the Commission and that he was never given an opportunity to be heard 

upon the question of thus amending and restricting the permit 

which had been theretofore granted to him. You request our 

opinion in response to this question: 

‘#Did the Railroad Commission have authority and jurisdiction to amend its order and the permit of January 11, 

1.936, thus taking from J. R. Lingo authority, which he 

had enjoyed from January 11, 1936 to September 19, 19381" 

We also have a letter from your Mr. B. L. Templeton, 

Examiner, under date of June 5, 1941, advising us as follows: 

“I am unable to find from our records that J. R. 

Lingo had notice of the proposed action of the Commission 

with respect to the amendment of his Permit, which was 

dated September 19, 1938. I am unable to find that a 

hearing was held or that evidence was taken. 

“Mr. Bryan Bell; who wrote this Order is employed 

by the Railroad Commission, and I have discussed the matter with him and it is his memory that be wrote the Order 

of September 19, 1938, amending Special Commodity Permit 

No. 13435 on instructions of the Railroad Commission without notice or hearing and no evidence of any nature was 
a’ - 

. 

Railroad Commission, page 3 (O-3419) 

taken. 

-. “It is my judgment that you should assume that J.R. 

Lingo had no notice of the proposed action by the Commlssion with respect to the amendment, that no hearing was 

held and that no evidence was taken.” 

The record seems to indicate the correctness of the 

conclusion drawn in the last paragraph of Mr. Templeton’s letter and for the purpose of this opinion we shall assume that 

J. R. Lingo had no notice of the proposed action by the Commission with respect to the amendment, 

and that no evidence was taken. 

that no hearing was held, 

Section 12(b) of Article 911b, 

Vernon’s Annotated Civil Statutes, the Texas Motor Carrier Act, 

reads as follows: 

“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 regulations 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.” 

The attempted amendment of the permit was not made in 

pursuance of Section 12(b) and cannot be sustained thereunder. 

In that section certain grounds are set out upon which the Commission may amend a permit or certificate. But, even where 

the grounds therein mentioned are believed and are alleged to 

exist, an amendment is not authorized without giving the permit 

holder an opportunity to be heard on the subject of such proposed amendment. Obviously the purport of the amended permit 

was to greatly restrict the operation in question, it was reduced to perhaps a rather small fraction of its former extent. 

Likening the original order granting the permit to a judgment, 

it could not be so materially altered without notice after the 

expiration of so long a time, if at all. 

Tex.Jur. 538-539. 

See 34 C.J. 246; 25’ 

Assuming the validity of the original permit, it is 

our opinion that the order dated September 19, 1938, attempting to amend the permit was erroneous and that it would be set 
V 

, 

Railroad Commission, page 4 (O-3419) 

aside upon an appeal conducted in accordance with Section 20 

-.of said ktlcle 911b. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By /s/ Glenn R. Lewis 

Glenn R. Lewis, Assistant 

APPROVED JUN 14, 1941 

/s/ Grover Sellers 

FIRST ASSISTANT ATTORNRY GENERAL 

APPROVED: OPINION COMMITTEE 

BY: MB, CHAIRMAN 

GRLtlh:wb