                      THZ       ATTORNEY    GENERAL
                                   OF 3?ExAs
                                    AUSTIN.      1,. TEXAS
Gerald     C. Mann




     Railroad  Commission            Opinion No. O-3419
     of Texas                        Ret   Validity  of order of BaFlroad Com-
     Austin,  Texas                  mlssion   amending the special commodity
                                     permit of J. R. Lingo without notice
         Gentlemen:                  or hearing.

                      Your letter   of   April    9,   1941,   sets   forth   the following
     facts:

                     “On the 11th day of January,   $936, the Railroad  Com-
              mission    of Texas in response  to an application  of J. R.~
              Lingo,   issued to said Lingo after   pro er notice  and hear-
              ing, .Special   Commoddlty Permit No. 13f 35 a copy of which
              is attached    hereto and marked Exhibit   ‘I.-i*‘.

                     “On the 6th day of April,     1936, the Railroad  Commis-
              sion in response    to an application     of J. R. Lingo granted
              one additional   truck to be operated      under Special Commod-
              ity Permit No. 13435, a copy of which order is attached
              hereto   and marked Exhibit   “B”.

                    “On the 22nd day of September,   1936, the Railroad
              Commission entered  its order cancelling    the additional
              truck granted J. R. Lingo under Special     Commodity Permit
              No. 13435, a copy of which order is attached     hereto    and
              marked Exhibit  We.

                     “On the 19th day of September,  1938, the Railroad
              Commission entered   its order amending Special  Commodity
              Permit No. 13435, a copy of which order is attached
              hereto   and marked Exhibit  “D” .

                    “On the     5th day of September,   1939, 3. R. Lingo,      ap-
              plied   to the    Commission for a rehearing    and a restitution
              of his Special       Commodity Permit No. 13435~,as it was origi-
              nally issued      to him and for the Commission to set aside
              its order of      September 19, 1938, amending said permit,        a
              copy of which       application is attached  hereto  and marked
              Exhibit   “E” .

                    Wn the 21st day of December,      1939, the Railroad
              Commission entered   its order denying application     ,of J. R.
              Lingo, which is attached    hereto  and marked Exhibit    “g”.
              Said order of denial    is attached  hereto  and marked Exhibit
              “p .
                                                                         .:    . .




Railroad    Commission,   page 2    (O-3419)



              “On the 10th day of February,     1941, J. R.
       Lingo filed    a new application    for a restoration     of his
   y   original   Permit No. 13435, issued by the Commission on
       the 11th day of January,       1936, and a copy of that appli-
       cation   is attached hereto     and marked Exhibit    “G”.

               “As will be revealed   to you by these various   &hi-
        bits,   the Railroad   Commission made an error   on the 11th
        day of January,     1936, and granted J. R. Lingo far more
        authority    than they intended   or that has ever been the
        policy    of this Commission to grant anyone,”
              .4s shown by the exhibits      mentioned     in your letter,
the original     order granting   the permit authorized         the hauling
of certain    commodities    “to and from all points        in Texas” and the
permit was issued accordingly.         We have inspected        the applica-
tion upon which such order and permit were based and we find
that the application      sought the authority       to thus operate.        The
order of September 19, 1938, purported           to correct     and amend the
permit theretofore      granted and directed      the issuance      of an
amended permit to transport       such commodities       “from Fort Worth
to all points     in Texas and from all points        in Texas to Fort
Worthe.     An amended permit was issued       in accordance      with such
order of September 19, 1938. In Exhibits             “Et’ and “G” mentioned
in your letter      the permit holder    contends    that he was never noti-
fled   of any such contemplated      action   on the part of the Commis-
sion and that he was never given an opportunity               to be heard
upon the question      of thus amending and restricting          the permit
which had been theretofore       granted to him.       You request     our
opinion   in response    to this question:

                ‘#Did the Railroad Commission have authority   and jur-
       isdiction     to amend its order and the permit of January 11,
       1.936,thus taking from J. R. Lingo authority,      which he
       had enjoyed from January 11, 1936 to September 19, 19381"

              We also have    a letter    from   your   Mr. B. L. Templeton,
Examiner,    under date of    June 5,    1941, advising     us as follows:

              “I am unable to find from our records   that J. R.
       Lingo had notice   of the proposed action  of the Commission
       with respect  to the amendment of his Permit,   which was
       dated September 19, 1938. I am unable to find that a
       hearing was held or that evidence   was taken.

              “Mr. Bryan Bell;    who wrote this Order is employed
       by the Railroad   Commission,   and I have discussed    the mat-
       ter with him and it is his memory that be wrote the Order
       of September 19, 1938, amending Special       Commodity Permit
       No. 13435 on instructions     of the Railroad   Commission with-
       out notice   or hearing   and no evidence   of any nature was
a’         -


     .




         Railroad    Commission,   page   3   (O-3419)


                taken.
           -.         “It is my judgment that you should assume that J.R.
                Lingo had no notice   of the proposed   action by the Commls-
                sion with respect   to the amendment, that no hearing was
                held and that no evidence   was taken.”

                      The record   seems to indicate     the correctness   of the
         conclusion   drawn in the last paragraph       of Mr. Templeton’s   let-
         ter and for the purpose of this opinion we shall assume that
         J. R. Lingo had no notice     of the proposed      action  by the Commis-
         sion with respect    to the amendment, that no hearing was held,
         and that no evidence    was taken.     Section   12(b) of Article   911b,
         Vernon’s   Annotated Civil   Statutes,   the Texas Motor Carrier      Act,
         reads as follows:
                        “The Commission at any time after hearing           had, upon
                notice   to the holder     of any certificate      or permit and af-
                ter opportunity      given such holder     to be heard, may~by its
                order revoke,     suspend or amend any certificate         or permit
                issued under the provisions        of this Act, where in such hear-
                ing the Commission shall find that such certificate               or
                permit holder has discontinued         operation    or has violated,
                refused    or neglected    to observe   the Commission’s      lawful
                orders,    rules,  rates or regulations       or has violated     the
                terms of said certificate        or permit;    provided  that the
                holder   of such certificate      or permit shall have the right
                of appeal as provided       in this Act.”

                       The attempted amendment of the permit was not made in
         pursuance of Section        12(b) and cannot be sustained          thereunder.
         In that section      certain    grounds are set out upon which the Com-
         mission    may amend a permit or certificate.             But, even where
         the grounds therein        mentioned are believed       and are alleged      to
         exist,   an amendment is not authorized           without   giving    the permit
         holder   an opportunity      to be heard on the subject         of such pro-
         posed amendment.        Obviously    the purport     of the amended permit
         was to greatly     restrict     the operation     in question,     it was re-
         duced to perhaps a rather          small fraction     of its former extent.
         Likening    the original     order granting     the permit to a judgment,
         it could not be so materially           altered   without   notice    after the
         expiration     of so long a time, if at all.           See 34 C.J. 246; 25’
         Tex.Jur.    538-539.

                     Assuming the validity of the original  permit, it is
         our opinion  that the order dated September 19, 1938, attempt-
         ing to amend the permit was erroneous   and that it would be set
                                                                               V


                                                                               ,




Railroad     Commission,   page 4   (O-3419)



  aside upon an appeal conducted      in accordance           with   Section       20
-.of said ktlcle  911b.

                                     Yours     very   truly

                                     ATTORNEYGENERALOF TEXAS

                                    By /s/ Glenn R. Lewis
                                    Glenn R. Lewis, Assistant

APPROVEDJUN 14, 1941
/s/ Grover Sellers
FIRST ASSISTANT ATTORNRYGENERAL

APPROVED: OPINION COMMITTEE
BY:       MB, CHAIRMAN

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