A
F EXAS

**C,HAWFORlD** C. lMARTlN AUSTIN. TEXAS m3711

.a-l-rORN~X(IENERAI. February 15, 1967

Mr. Coke R. Stevenson, Jr. OpinionNo.~ M-26 Administrator Texas Liquor Control Board Re: 1s the Texas Liquor Control Board authorized to issue a Austin, Texas carrier’spermit to an alrline companyholding a certlflcate of convenienceand necessity Issuedby the Clvll AeronauticsBoard 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 the United States? Dear Mr. Stevenson:

You have requested.anopinion 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 shallmean and Includewater carriers,airplane lines, all steam, electric,and motor power railway carriers,and common carriermotor carriers operating under a certificateof 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 transportationof liquor as may be required by the Board.”

The Texas Liquor Control Act was passed In 19% with the words “airplanelines” not included in Article 666~15(12). In 1937 the Texas Legislatureamended this section to include “airplane lines”, but did not amend the requirement that all such carriersbe holders of certificatesof convenienceand

- 109-. -

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

necessity from either the Texas Railroad Commissionor the Interstate Commerce Commission. Subsequentamendmentshave not, to this date, changed this requirementas to airplane lines.

The Texas Railroad Commissionwas~establlshedby statute In 1891 to regulate railroads in Texas. Since that time the activities of the Railroad Commissionhave been broadened to includemotor carriers on State highways, 011 and gas, and gas companies. The Rallroad Commissionhas not, since its Inception In 1891, had any statutoryauthority over "airplane lines".

The Interstate CommerceAct 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 certificatesof pub110 convenienceand necessity.

Jurisdiction of the Interstate Commerce Commissionwas also extendedby 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 convenienceand necessity. The TransprrtatlonAct of 1940, 54 U.S. Stat.L. 898, againmodified 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 certificatehe deemed necessary.

In the CivilAeronautics Act of 1938, 52 U.S. Stat.L. 971, Congress created the CivilAeronauticsAuthority and transfer-ed all officers and personnel hired by the Secretary of Commerce under the Air CommerceAct of 1926 to this new Authority.

This 1938 Act provided in Sec. 401(a) that "noair carrier shall engage In air transportationunless there Is In force a certificate issued by the Authorityauthorizing such." Sec. 401(d) provided for the "Issuanceof Certl+Ycate if such transportation Is requiredby public oonvenlenceand necessity." Sec. 701(a) created theAir 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 Administratorof Civil Aeronauticsand theAir Safety Board transferred, to the Department of Commerce. Finally, as a part of this second step, the CivilAeronautics Board was created out of the combined functions of the Air Safety Board and what .remalnedof the Civil AeronauticsAuthority. The Civil AeronauticsBoard as part of Its duties
was to Initiate Investigationof aircraft accidents,prescribe safety rules and preside over hearings looking to the suspension and revocation of certificates. The Air Safety Board and Civil AeronauticsAuthoritywere effectivelyabolished by this reorganization.

In 1958 Congresspassed the Federal Aviation Act, 49 U.,S.C.A. 8s 1301 et seq., which created thePederal Aviation Qency, @g 1341-1355, to assume the duties and function of the CivilAeronautlcs 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,nyair ,transportation unless there is In force
a certificateof,publlc convenience and necessity issuedby the Board (CivilAeronautics Board) authorizing such air carrier to engage In such transportation.

The foregoing analysis of statutoryauthority shows that the Texas Railroad Commissionand the Unlted States Interstate Commerce Commissionhave never had the authorltx to Issue certlzlcates of public convenienceand necessity to airplane 1Lnes. At present only the ClvllAeronauticsBoard of the United States exercises this function In Interstate commerce. This Board was established In 1940, but Its predecessors In responsibilityhad their beginning in 1926, separateand apart from the Interstate Commerce Commission. Thus, It cannotbe 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 Commissionand the Railroad Commission
never had the authority to Issue certificatesof convenience and necessity to “airplanelines”, this 1937 amendment needed the additional requirement,with respect to “airplanelines”,

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

that the applicant have a certlfloateof convenienceand necessity from the federal or state agency authorized to Issue same. When literal enforcementof a'statutewould 1 d to consequenceswhich the Legislature couldnot have %ended, the statute should be given a constructionwhich will promote the declared purpose of the le lslatlon. 7 Baldridge v. S.W.2d 309 (Tex.Crim.1959

. Therefore, It i State, 321 the 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 companyholding a Certlflcate of Public Convenienceand Necessity issued by the Civil Aeronautics Board of the United States, even though it does not hold a Certificateof Convenienceand Necessity from the Railroad Commission of Texas or such certificate Issued by the Interstate Commerce Commissionof 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 companyholding a Certificate of Public Convenienceand Necessity Issued by the Civil Aeronautics Board of the United States, even though It does not hold a Certificate of Convenienceand Necessity from the Railroad Commission of Texas or such certificate issued by the Interstate Commerce Commission of the United States.
truly yours,

Preparedby 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-