The Honorable Garrett Morris

Chairman Public Utility Commission 7800 Shoal Creek Boulevard Opinion No. H-644

Re: Issuance of certificates of convenience and Austin, Texas 70757

Dear Chairman Morris:

you have asked:

Is thePublic under Section necessity togas utilities under section 50(2) of the Public Utility Regulatory Act.

Utility Commission required, 50(2) of Article 1446c,V.T.C.S., The Public Utility Regulatory Act, tocertificategas retail public utilities by September 1, 1976, if such gas retail utility files an application therefor and is furnishing, making available, rendering or extending retail public utility service to any area towhich gas retail utility service isbeing lawfully furnished by another gas retail public utility on or after the effective date of thisAct? Your'question isnecessitated by sections 49and 50of the Public Utility Regulatory Act, which provide:

Sec. 49. For the purposes of this article only: (a) 'Retail public utility' means any person, corporation, municipality, political subdivision or agency, or cooperative corporation, now or hereafter operating, maintaining, or controlling in Texas facilities forproviding retail utility service. (b) 'Publicutility' does not include any person, corporation, municipality, political subdivision or agency, or cooperative corporation under the jurisdiction of theRailroad Commlssion.The Honorable Garrett Morris -page 2 W-844)

Sec. 50. Beginning one year after the effective date of thisAct, unless otherwise ::pecified:
(1) No public utility may inany way render service directly or indirectly to the public under any franchise or permit without first having obtarned from the commission a certificate that the present or future public convenience and necessity require or will require such installation, operation, or extension. (2) Except asotherwise provided in this article no retail public utility may furnish, make available, render, or extend retail public utility service toany area towhich retail public utlllty servrce isbeing lawfully furnished by another retail public utility on or after the effective date of thisAct, without first having obtained a certificate of public convenience and necessity that includes the area inwhich the consuming facility is located.
Since certain gas utlllties **may** fall within the definitlon of retall public utility, it isarguable that the strict language of section 50(2)would require those gas utilities to obtain certrficates of convenience and necessity before theymay 'furnish,make avallable, render, or extend

retail public utrlity service to any area towhich retail utility service 1sbeing lawfully furnlshed by another retail public utility on or after the effective date' of the statute. Sec. 50 (2). SeeAttorney General Opinion H-831 (19761x-812 (1976).
Since the Public Utility Commission is the only body authorized togrant such certificates by theAct, ifa certificate is required itmust be received from the Public Utility Commission.

p.3559The Honorable Garrett Morris -page 3 (Ii-8443

It isa fundamental rule of statutory construction that a staEc;-eis tobe read as awhole and itsparts harmonized togive effect to the evident intention of theLegislature. S.W.2d 302 (Tex. Texas Turnpike Authority v. Shepperd, 279 1 sup. 19551; A&A%quor Stores v. Texas Li uor Control Board, 342 S.W.Zd 785-(Tex. Civ. Ape.:- Austin -.+, writ ref'd n.r.e.1.

In examining the entire Act it isevident that the Legislature did not intend for certificates tobe issued to gas utilities by the Public Utility Commission. Exclusive jurisdiction over services of gas utilities isvested either in themunicipality [sec. 19(a)] or theRailroad Commission (sec.19(b)]. Ifagas utility were required to obtain a certificate of convenience and necessity, the absurd result would accrue that the utility would be required to obtain a certificate from the Public Utility Commission, but the Public Utility Commission would have noauthority to issue such a certificate. Since there isno entity which is empowered togrant certificates of public convenience and necessity togas utilities under **section** 50of the Public Utility Regulatory Act, it is **our** view that gas utilities are not required to obtain a certificate under that section.
SUMMARY
The Public Utility Commission isnot required to issue certificates of convenience and necessity togas utilities under section 5Oi2) of the Public vt:lity Regulatory Act, article 1446c,V.T.C.S.
Very trulyyours,

.JOHN I,.HIiL ,,' Attorney General of Texas

,.

The Hmorable Garrett Morris -page 4 ftl-844)