A 

F EXAS 

C,HAWFORlD C. lMARTlN 

AUSTIN. TEXAS m3711 

.a-l-rORN~X (IENERAI. 

February 15, 1967 

Mr. Coke R. Stevenson, Jr. Opinion No .~ M- 26 

Administrator 

Texas Liquor Control Board Re: 1s the Texas Liquor Control 

Austin, Texas Board authorized to issue a 

carrier’s permit to an alrline company holding a certlflcate of convenience and 

necessity Issued by the 

Clvll Aeronautics Board of 

the United States, even though 

It does not hold a like certiflcate from the Railroad Commission of Texas or the Interstate Commerce Commission of 

Dear Mr. Stevenson: the United States? 

You have requested.an opinion from this office on the 

above captioned ~questlon. 

Artlole 666~15(12) of Vernon’s Penal Code provides, in 

part, as follows : 

“(12) Carrier Permlt. The word tcarrler8 

when used in this Section shall mean and 

Include water carriers, airplane lines, all 

steam, electric, and motor power railway 

carriers, and common carrier motor carriers 

operating under a certificate of convenience 

and necessity issued by the Railroad Commission 

of Texas or by certificate,8 Issued by the 

Interstate Commerce Commission. The holders 

of such certificates shall be authorized to 

transport liquor into and out of this State 

and between pointswithin this State. Such 

carriers shall furnish such information ooncernlng the transportation of liquor as may 

be required by the Board.” 

The Texas Liquor Control Act was passed In 19% with the 

words “airplane lines” not included in Article 666~15(12). In 

1937 the Texas Legislature amended this section to include 

“airplane lines”, but did not amend the requirement that all 

such carriers be holders of certificates of convenience and 

- 109 - 
. - 

Mr. coke R. Stevenson, Jr., page 2, (M-26) 

necessity from either the Texas Railroad Commission or the 

Interstate Commerce Commission. Subsequent amendments have 

not, to this date, changed this requirement as to airplane 

lines. 

The Texas Railroad Commission was ~establlshed by statute 

In 1891 to regulate railroads in Texas. Since that time the 

activities of the Railroad Commission have been broadened to 

include motor carriers on State highways, 011 and gas, and 

gas companies. The Rallroad Commission has not, since its 

Inception In 1891, had any statutory authority over "airplane 

lines". 

The Interstate Commerce Act of 188,7, 24 U.S. Stat.L. 379, 

created the Interstate Commerce Commission to regulate transportation by common carrier of passengers or property when made 

wholly by railroad or partly by railroad and partly by water 

when both are used. An amendment In 1917, 40 U.S. Stat.L. 101, 

gave the Interstate Commerce Commission the power to establish 

reasonable rules and regulations. A further amendment in 1920, 

41 U.S. Stat.L. 474, expended coverage to Include 011 pipe lines 

and wire or wireless communication. This 1920 amendment also 

called for Issuance of certificates of pub110 convenience and 

necessity. 

Jurisdiction of the Interstate Commerce Commission was also 

extended by the Motor Carrier Act of 1935, 49 U.S. Stat.L. 543. 

Section 207(a) of that Act called for the Issuance of certificates 

of public convenience and necessity. The Transprrtatlon Act of 

1940, 54 U.S. Stat.L. 898, again modified the Interstate Commerce 

Commission, but did not lrcrease the areas under the Commission's 

control. 

Federal control over avlatlon began with the Alr Commerce 

Act OS 1926, 44 U.S. Stat.L. 568. The provisions of this Act 

were to be enforced by the Secretary of the Department of Commerce, with full powers to provide for the Issuance of any type 

of certificate he deemed necessary. 

In the Civil Aeronautics Act of 1938, 52 U.S. Stat.L. 971, 

Congress created the Civil Aeronautics Authority and transfer-ed 

all officers and personnel hired by the Secretary of Commerce 

under the Air Commerce Act of 1926 to this new Authority. 

This 1938 Act provided in Sec. 401(a) that "no air carrier 

shall engage In air transportation unless there Is In force a 

certificate issued by the Authority authorizing such." Sec. 

401(d) provided for the "Issuance of Certl+Ycate if such transportation Is required by public oonvenlence and necessity." 

Sec. 701(a) created the Air Safety Board to operate Independent 

of the Authority in the area of alr safety. 

- 110- 
Mr. Coke R. Stevenson,; Jr., .Mge 3, (M-26) 

This division of responsibility led to a reorganization 

in 1940 which sew certain functions of the Civil Aeronautics 

Authority, transferred to an Administrator of Civil Aeronautics. 

Only those functions dealing with air safety and the Air Safety 

Board were excepted from this Initial reorganization. A second 

reorganization saw the Administrator of Civil Aeronautics and 

the Air Safety Board transferred, to the Department of Commerce. 

Finally, as a part of this second step, the Civil Aeronautics 

Board was created out of the combined functions of the Air 

Safety Board and what .remalned of the Civil Aeronautics Authority. The Civil Aeronautics Board as part of Its duties 

was to Initiate Investigation of aircraft accidents, prescribe 

safety rules and preside over hearings looking to the suspension 

and revocation of certificates. The Air Safety Board and Civil 

Aeronautics Authority were effectively abolished by this reorganization. 

In 1958 Congress passed the Federal Aviation Act, 49 U.,S.C.A. 

8s 1301 et seq., which created the Pederal Aviation Qency, @g 

1341-1355, to assume the duties and function of the Civil Aeronautlcs Administration; and which brought the Civil Aeronautics 

Board, 881321-1325, under Its jurisdiction. Section 1171(a) 

of the Federal Aviation Program, provides that no air carrier 

shall engage In a,ny air ,transportation unless there is In force 

a certificate of,publlc convenience and necessity issued by the 

Board (Civil Aeronautics Board) authorizing such air carrier to 

engage In such transportation. 

The foregoing analysis of statutory authority shows that 

the Texas Railroad Commission and the Unlted States Interstate 

Commerce Commission have never had the authorltx to Issue certlzlcates of public convenience and necessity to airplane 1Lnes. 

At present only the Clvll Aeronautics Board of the United States 

exercises this function In Interstate commerce. This Board was 

established In 1940, but Its predecessors In responsibility had 

their beginning in 1926, separate and apart from the Interstate 

Commerce Commission. Thus, It cannot be said that the Civil 

Aeronautics Board has “lnherlted” any of Its powers from the 

Interstate Commerce Commission. 

It Is apparent that the Texas Legislature Intended for 

the Texas Liquor Control Board to have authority to issue permits 

under Article 666~15(12) to “airplane lines” when it amended the 

statute In 1937. In view of the fact, as outlined above, that 

the Interstate Commerce Commission and the Railroad Commission 

never had the authority to Issue certificates of convenience 

and necessity to “airplane lines”, this 1937 amendment needed 

the additional requirement, with respect to “airplane lines”, 

- 111 - 
Mr. Coke R. Stevenson, Jr., Page 4, (M-26) 

that the applicant have a certlfloate of convenience and necessity from the federal or state agency authorized to Issue same. 

When literal enforcement of a'statute would 1 d to consequences which the Legislature could not have %ended, the 

statute should be given a construction which will promote the 

declared purpose of the le lslatlon. 

7 

Baldridge v. 

S.W.2d 309 (Tex.Crim. 1959 . Therefore, It i 

State, 321 

th e 0pinZon of 

this office that the Texas Liquor Control BoaFd is authorized 

to issue a Carrier's Permit as defined in Article 666~15(12), 

Vernon's Penal Code, to an airline company holding a Certlflcate of Public Convenience and Necessity issued by the Civil 

Aeronautics Board of the United States, even though it does 

not hold a Certificate of Convenience and Necessity from the 

Railroad Commission of Texas or such certificate Issued by 

the Interstate Commerce Commission of the United States, 

SUNMARY 

The Texas Liquor Control Board Is authorized 

to issue a Carrier's Permit as defined in 

Article 666~15(12), Vernon's Penal Code, to 

an airline company holding a Certificate of 

Public Convenience and Necessity Issued by 

the Civil Aeronautics Board of the United 

States, even though It does not hold a Certificate of Convenience and Necessity from 

the Railroad Commission of Texas or such 

certificate issued by the Interstate Commerce 

Commission of the United States. 

truly yours, 

Prepared by James H. Quick 

Assistant Attorney General 

: vmo 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

W. V. Geppert, Co-chairman 

Paul Martin 

Llnward Shivers 

Houghton Brownlee, Jr. 

W. 0. Shultz 

A. J. CARUBBI, JR. 

Staff Legal Assistant - 112 -