**AUSTIN. TEXAS** 

Ap~ll 27* 1949

Hon. W. J. Murray, Jr., Chairman Railroad Commissionof Texas Austin, Texas Opinion Ho0 V-814

Re: The authorityof the Railroad Commleslonto set an applicationfor a oertiflcateof convenlenoe and necessity for hearing during a legialatfvesession, an interestedparty having requestedpostponment because his attorneg Is a member of the Dear Sir: Legislature.

Your Petter requeatfngthe 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 certificateof convenience and necessity to opeP&te a motor bus company between certain cltlee, The applfcatlonwas 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 appllcatlonnot be set for hearing until ten days after adjournmentof the 51st Leglslattwe,on the grounds that its attorney was a member of the 51et Legislatureand raa presently In actual attendanceon fts regular seaefoa. A notationwas then made by the Commissionon 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 onEon. ii. J. Murray, Jr., Page 2 (v-814)

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

Your speclflc question Is as follows:

**‘ Wndec**  the above fasts does the Rallroad Commlsslonof Texas have authorityto set said applicationfor hearing prior to ten days after the adjournmentof the slat Legislaturetm
mder the provisionsof Article glla, V.C.S., the Railroad Corlsslon Is given authorityto set and hold hearings on applleatlonsfor oertlfleates of coavenlence and neoemlty for bus routes. Hothing Is coatalned In Its provisionswhich llmlts the authorityof the Railroad Comslsslomto set hearings.

It Is erident that the applicationfor continuance In this Instancewas made pursuant to the provIsIonaof 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 LegislatureIs 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 elth**er** branch of the Legislature,and till be or Is in actual atteadanaeon 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 Legislatureand 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 applicationfor contInuame. :ItIs

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

hereby declared to be the intentionof the Legfalatupethat the provlsfonsof this section shall be deemed mandatory and not dlscretlonary,*

It wifp1

be noted that the above Statute is expressed In clear and unambiguouslanguageand Its meaning Is clear and obvious.. It Is well settled la this State that such a statutemust be applied and enforcedas it reads, regardlessof 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, ArticleV, Conatltutionof Texas, provides In part8

-he Judfclalpower 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 Justfoesof the Peace, and In ;zzh other courts as may be providedby 0 4

. 0 0
"The LegPsla%ure

may establishguch 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 Constltutfonfn named courts and such other courts as the Legfslatureshall oreate and prescribe their Jurlsdlctlon8. CePtalnly la the creation of the Railroad CommissionHon. W. J, Murray, Jr,, Page 4 (v-814)

the Legislaturedid not attempt to create any other court than those named ln the ConstltutloaOO O O

"We think the Rallroad Commlsslon la an administrative body OP board, and although It Is empoweredto summon witnesses and hear evidencebefore passing upon admlnlstratlve

matters, such acts are not 'In the exerciseof the judicialpower".'
That case furtherheld that a layman was not guilty of Illegallypracticinglaw (practicing without a license)because appearingbefore the Commlaslon did not constitutethe practice of law wlthla the meaning of those statutesrelating to the practice of law,

It la recognizedthat the Railroad Commlsslon, In acting upon appllcatlonsfor certlflcatesof eoavenlenceand necessity "exercisesfta powers and authoritymerely as an arm of the Legislatureand as an admlnlstratlve

body!. Railroad Colllnisslon of Texas v. Winkle, 57 S.W,2d 285 (Tex. clv, App. 1933) e In Southwestern

QreyhounaLines 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,"slonof Texas Is not a court.

In view of the above decisions It fs clear that the provisionsof Article 2P68a do not apply to hearings before the Railroad Commlsslonupon appllcations for certlflcatesof eonvenlenceand necessity, We have been able to find no statute flmltlng the authority of the Railroad Commlsslonto set such hearlngs during a leglslatlvesessfon. Therefore, an interested party having made appfleatlonfor a contlnuanee upon the grounds that its attorney la a member of the Legislature, It Is wlthfn the sound dlacretionof the Rallroad Commlsslonto determinewhether the hearing will be thus continuedor set at an earlier date.,

SUMWARY
The RailroadCommlsslonof Texas Is not a court0 Carp v, Str@gerP 17l S,' W,2a 920 (Tex. Cfv.T__

LPP.1 I

3 error ref, wOo,m,), SouthwesternGreyhoundLines vO Railroad.

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

Commlasion, 208 S.w.2d 'IIJsaerror ref. n.r.e. 7 93 (Tex, Clv. App. Acoordlnglythe pro&Ions of Artlole 2$8a, V.C,S*, do not apply to~hearlngs before It.
The question of uhether a Railroad Cosmlaslonhearing shall be set during OP after a LegislativeSession, an interested party having requested postponmentbecause Its attorney is a member of the Leglslature, is a matter wholly within the sound dlaaretlonof the Comalsslon.

Yours very truly,
ATTORREYffERRRALOFTlZAS

DBRk1g:mr.j 

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ATTORHRYQRRERAL