                             A
                                       F        EXAS
                                 AUSTIN.   TEXAS       m3711
C,HAWFORlD    C. lMARTlN
  .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 alr-
                                                   line company holding a certl-
                                                   flcate of convenience and
                                                   necessity Issued by the
                                                   Clvll Aeronautics Board of
                                                   the United States, even though
                                                   It does not hold a like certi-
                                                   flcate from the Railroad Com-
                                                   mission of Texas or the Inter-
                                                   state 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,8Issued 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 oon-
                   cernlng 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 trans-
portation 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 Com-
merce, 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 trans-
portation 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 .remalnedof the Civil Aeronautics Au-
thority. 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 re-
organization.
     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 Aero-
nautlcs 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 ,transportationunless 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 certlz-
lcates 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 neces-
sity from the federal or state agency authorized to Issue same.
When literal enforcement of a'statute would 1 d to conse-
quences which the Legislature could not have %ended,    the
statute should be given a construction which will promote the
declared purpose of the le lslatlon. Baldridge v. State, 321
S.W.2d 309 (Tex.Crim. 19597 . Therefore, It i 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 company holding a Certlf-
lcate 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 Cer-
            tificate 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 -
