AUSTIN. TEXAS 

Ap~ll 27* 1949 

Hon. W. J. Murray, Jr., Chairman 

Railroad Commission of Texas 

Austin, Texas 

Opinion Ho0 V-814 

Re: The authority of the 

Railroad Commleslon to 

set an application for 

a oertiflcate of convenlenoe and necessity 

for hearing during a 

legialatfve session, an 

interested party having requested postponment because his attorneg Is a member of the 

Dear Sir: Legislature. 

Your Petter requeatfng the opinion of the 

Attorney General on the above question sets forth 

certain facts which, for brevitg, ue have condensed 

as followas 

On January 29, 194gp there was flled with 

the Motor Transportation ~Dlvlsfon of the Railroad 

Commlaslon, an application for a certificate of convenience and necessity to opeP&te a motor bus company between certain cltlee, The applfcatlon was 

filed by a firm of attorneys, one of whom 1~ a member of the slat Legfslature, now fn session, On the 

call of the do&et on February 1, 1949, a protesting 

motor bus company filed ba amd through Its Qenersl 

Manager and lta attorney, also a member of the Slat 

Legislature, a motion that the appllcatlon not be 

set for hearing until ten days after adjournment of 

the 51st Leglslattwe, on the grounds that its attorney was a member of the 51et Legislature and raa presently In actual attendance on fts regular seaefoa. A 

notation was then made by the Commission on the docket sheet to "Paas fop duration of Legislature." On 

March 25* 1949, the applicant, bjr and thcough its attorneys, filed a motion that the order or notation on 
Eon. ii. J. Murray, Jr., Page 2 (v-814) 

the docket sheet passing the application until ad&mmrant of the 5lst legislature be set aside and said appllcaat be given an early hearing, 

Your speclflc question Is as follows: 

‘Wndec the above fasts does the Rallroad Commlsslon of Texas have authority to 

set said application for hearing prior to 

ten days after the adjournment of the slat 

Legislaturetm 

mder the provisions of Article glla, V.C.S., 

the Railroad Corlsslon Is given authority to set and 

hold hearings on applleatlons for oertlfleates of coavenlence and neoemlty for bus routes. Hothing Is coatalned In Its provisions which llmlts the authority of 

the Railroad Comslsslom to set hearings. 

It Is erident that the application for continuance In this Instance was made pursuant to the 

provIsIona of Article 21680, B.C.&, which reads as 

follous: 

"In all suits, either clvll or crlmInal, or ln matters of probate, pending in 

any court of thin State at any time within 

ten (10) days of a date when the Leglslature is to be In sessloa, or at ay time 

the Legislature Is In se8slon, It shall 

be mandatory that the court continue 6ueh 

cause if It shall appear to the court, by 

affidavit, that an7 party appljing for 

such aontinuaace, or sny attorney for w 

party to such cause, is a member of elther branch of the Legislature, and till be 

or Is in actual atteadanae on a sesslo~ 

of the ssme. Where a party to amy cause 

is a member of the Leglerlature, his affldavlt need not be corroborated. On the 

filing of such affidavit, the oourt shall 

continue the cause until ten (10) days after the adJournrent of the Legislature and 

such affidavit shall be proof of the necessity for such continuance, and such continuance shall be deemed one of right and 

shall not be charged against the party recelvlng such continuance upon any aubsequent application for contInuame. :It Is 

. 
Hon. W. J. Murray, JP~, Page 3 (~-814) 

hereby declared to be the intention of 

the Legfalatupe that the provlsfons of 

this section shall be deemed mandatory 

and not dlscretlonary,* 

It wifp1 be noted that the above Statute 

is expressed In clear and unambiguous language and 

Its meaning Is clear and obvious.. It Is well settled la this State that such a statute must be applied and enforced as it reads, regardless of fts 

poller or purpose or the Justice of its effect. 39 

Tex. Jur. 161, Statutes, See0 88, By its express 

provlslons, the Statute applies only to "suftsB 

either cfvll or criminal, or In matters of probate, 

pending In any court of this State.* 

Sectfon 1, Article V, Conatltution of Texas, provides In part8 

-he Judfclal power of this State 

shall be vested In one Supreme Court, fn 

Courts of ClvfP Appeals, in a Court of 

CrlmlnaP Appeals, In Dlstrfet Courts, in 

County Court8, fn Coaosfsalonera Courts, In 

Courts of Justfoes of the Peace, and In 

;zzh other courts as may be provided by 

0 

4 . 0 0 

"The LegPsla%ure may establish guch 

other courts 88 ft may deem necessary and 

prescribe the Qurfsdfctfon and opganfzatlon thereof, and may eonfo~m the .+~fsdiction of the Distrfct and other fnferfor 

courts thereto,' 

It till be noted that. the Raflroad Comm%sslon Is not named fn the above provfalons. IncaPr 

v. Strl ep 171 S,W,2d 920 (Tex, Mr. App. 194-r- 

&iOrne) the court stateda 

%e have observed that the @gudfcial 

power of the Sta%e” fs vested by the Constltutfon fn named courts and such other 

courts as the Legfslature shall oreate and 

prescribe their Jurlsdlctlon8. CePtalnly 

la the creation of the Railroad Commission 
Hon. W. J, Murray, Jr,, Page 4 (v-814) 

the Legislature did not attempt to create 

any other court than those named ln the 

ConstltutloaO O O O 

"We think the Rallroad Commlsslon 

la an administrative body OP board, and 

although It Is empowered to summon witnesses and hear evidence before passing upon 

admlnlstratlve matters, such acts are not 

'In the exercise of the judicial power".' 

That case further held that a layman was 

not guilty of Illegally practicing law (practicing 

without a license) because appearing before the Commlaslon did not constitute the practice of law wlthla the meaning of those statutes relating to the practice of law, 

It la recognized that the Railroad Commlsslon, In acting upon appllcatlons for certlflcates of 

eoavenlence and necessity "exercises fta powers and 

authority merely as an arm of the Legislature and as 

an admlnlstratlve body!. Railroad Colllnisslon of Texas 

v. Winkle, 57 S.W,2d 285 (Tex. clv, App. 1933) e In 

Southwestern Qreyhouna Lines v. Railroad Coksnlsslon, 

08 S W 26 593 (T Cl A 1948 f.n,r.e.) 

It was kpressiy h% th% t~~ORallr~a~,"&p,"slon of 

Texas Is not a court. 

In view of the above decisions It fs clear 

that the provisions of Article 2P68a do not apply to 

hearings before the Railroad Commlsslon upon appllcations for certlflcates of eonvenlence and necessity, 

We have been able to find no statute flmltlng the authority of the Railroad Commlsslon to set such hearlngs 

during a leglslatlve sessfon. Therefore, an interested 

party having made appfleatlon for a contlnuanee upon 

the grounds that its attorney la a member of the Legislature, It Is wlthfn the sound dlacretion of the Rallroad Commlsslon to determine whether the hearing will be 

thus continued or set at an earlier date., 

SUMWARY 

The Railroad Commlsslon of Texas Is 

not a court0 Carp v, Str@gerP 17l S,' W,2a 

920 (Tex. Cfv.T__ LPP. 1 3 I error ref, wOo,m,), 

Southwestern Greyhound Lines vO Railroad 
. 

Hon. W. J. J&ray, Page 5 (v-814) 

Commlasion, 208 S.w.2d 

'IIJsa error ref. n.r.e. 7 

93 (Tex, Clv. App. 

Acoordlngly the 

pro&Ions of Artlole 2$8a, V.C,S*, do 

not apply to~hearlngs before It. 

The question of uhether a Railroad 

Cosmlaslon hearing shall be set during OP 

after a Legislative Session, an interested 

party having requested postponment because 

Its attorney is a member of the Leglslature, is a matter wholly within the sound 

dlaaretlon of the Comalsslon. 

Yours very truly, 

ATTORREYffERRRALOFTlZAS 

DBRk1g:mr.j 

~y&.g..J 

ATTORHRYQRRERAL