                                                                R-458

                                                                        45
                                   t.WX?ICE     OF

                      TEE AIYTORNEY               GENERAL
                                  Ausq~.      TEXAS
PRICE   DANIEL
ArTO*NeYGENERAL                    July 23, 19%

        Eon. Ernest 0. Thompson               Opinion No. V-309
        chalrman
        Railroad Commlssion~of                Re: The necessity of
          Texas                                   approval by the
        Au&in, Texas                              Railroad Commls-
                                                  slon of Texas of
                                                  a dlscontlnuance
                                                  of the supply of
                                                  gas to a munlcl-
                                                  pallty by a gas
                                                  utility, pursuant
                                                  to'contractbe-
                                                  tween the parties.
                                                  And related ques-
                                                  tions.
        Dear Sir:
                  You have requested the opinion of this Depart-
        ment In letters establishingthis factual situation:
                       "111May, 1928, the Mobeetlb Gas Company
                  made a contract with certain lndlvldtilsto
                  furnish-gasto-the alty'llmlts of Mkuul,
                  Roberts County, Texas; these l~lvlduals
                  having a franchise from the City running
                  for;a period of~20.years;the Mobeetle Gas
                  Company to construct a 4 Inch line and fur-
                  nishing gas to the city limits of the City
                  of Miami.  This contract was .&lsofor a
                  period of 20 years. This contract ~111 ex-
                  pire in 1948.
                       "The Publio-SeFviceCorporationof Tex-
                  as is successor to the M6beetle Gas Com-
                  pany, and desires to dlscontln~e furnlsh-
                  lng 'gasto the ol$g llmlts of the city of
                  Miami at the explratXon of Its coatract for
                  the reason, 'amongothers, that itswill re-
                  quire the constructionof a new 15 Iidle
                  line since the old line Is not In condition
                  to coritlnueservice after the expiration
                  &ate.
     Hon. Ernest 0. Thompson - Page 2                   v-309

46
             ". . . Public Service Cbrporatlonhas In
         m,lndthat It will give notlce to the owners
         of the franchise in the City of Miami and to
         the said City In ample time for them to make
         other arrangementsbefore the expirationof
         the contract."
             Your questions are as follows:
             "Pleaseadvise If It Is necessary for
         the Public Service Corporationof Texas to
         apply for permission from the Railroad Com-
         mission to discontinuethe service described
         In the enclosed letters and If it is neces-
         sary for a hearing to be held If such appll-
         cation Is to be required.
             "Also please advise us If notice to the
         customers of the utility are required to be
         given notlce,prlor to discontinuanceof
         aervlce Ln the event applicationto the
         CommlsslonIs not required."
              The Public Service CorporationIs a "gas utll-
     1ty" or 'public utility" as defined In Article 6050,
     V.C.S.) as follows:
              "The term 'gas utility' and 'publicutll-
          ltys'or 'utility,*as used In this subdlvl-
          sion, means and Includes persons, companies
          and private corporations,their lessees,
          trustees,and receivers, owning, managing,
          operating,leasing Or controllingwithin
          this State tinywells, pipe lines, plant;
          property, equipment, facility, franchise,
          license, dr permit for elther,one or more
          of the following kinds of business:
              "1. Producing or obtaining,transport-
          ing, conveying distributingor delivering
          natwal~gas: [a) for public use or service
          for ccmpensatlon; (b) for sale to munici-
          palities or persons or companies, In those
          cases referred to In paragraph 3 hereof,
          engaged in distributing or selling natural
          gas to the public; (c) for sale or delivery
          of natural gas to any person or firm or cor-
          portatlon operating under franchise or a con-
          tract with any municlpalltyor other legal
Ron..Ernest0. Thompson - Page 3                    v-309   47



    subdlvlslonof thls.State.; or, (a) for sale
    or delivery of natural gas to the public for
    domestic or other use.
        "2. Owning or operating or managing  a
    pipe line for the transportationor car-
    riage of natural gas, whether for public
    hire or not, if any,part of the right of
    way for said line haa been acquired, or may
    hereafterbe acquired by the exercise of
    the right of emInentdomaIn; or If said line
    or any part thereof,.lslaid upon, over-or
    under any public road or highway of this
    State, or street or alley of any munlcl-
    pality, or the right of way of any rall-
    road or other,publicutility; Includingalso
    any natural.gas~utilltyauthorize&by law
    to exercise the right of eminent domain.
        “3e  Producing or purchasing natural gas
    and transportingor causing the same to be
    transportedby pipe .llnesto or near the
    llmlts oftany munlclpallty ln~whlch.saSdgas
    Is received ana dlstFlbuted or sold to the
    public by another public utility or by said
    munlclpallty,In all cases where such busl-
    ness Is In fact that only or practically.ex-
    cluslve agency of supply of natural gas to
    such utility or municipality, is hereby de-
    clared to be virtual monopoly and a business
    and calling affected with a DubllC.interest.
    and the said business and property employed-
    therein within this State shall be subject
    to the provisionsof this law and to the ju-
    risdlctlonand regulation of the Commission
    as a gas utility.
        '%very such gas utllftg Is hereby de-
    clared to be affected with a public interest,
    and subject to the jurisdiction,control and
    regulationof the Commission as provided
    herein."
          "Jurlsdlctlon,control and regulation"of.the
utility are vested In the Railroad Cominisslon
                                             by Artl-
cle 6050, supra. 'This "j~urlsdlctlon"~and"conttiol"
                                                   may
not be divestedwlthotitthe.consent of,the Railroad Com-
mlsslon. For only the Railroad Commlsslonmay terminate
that "jui3sdlctlon"and ,control;"
48 Eon. Ernest 0. Thompson      - Page 4                 v-309


              Section 1 OS Article   6053, V.C.S., provides as
   follows:
              'The Commissionafter dtienotice shall
        fix and establishand enforce the adequate
        and reasonableprice of gas and fair and
        reasonablerates of charges and Fegulatlons
        for transporting,producling,  dlstrlbutlng,
        buying, selling,and delivering g a by such
        pipe lines In this State; and sha11 estab-
        llsh fair and equitable rules and regula-
        tions for the full control and SupervIsIon
        of said gas pipe lines and all their hold-
        ings pertainingto the gas business in all
        their relations to the public, as the Com-
        mlsslon may frcm time to time deem proper;
        and establish a fair and equitable dlvislon
        of the proceeds of the sale of gas between
        the companies transportingor protiualngthe
        gas and the companies dlatrlbutlngor sell-
        ing It; and prescribe and enforce rules and
        regulatlonafor the governmentati control
        of such pipe lines in respect to their gas
        elpe lines and produalng, receiving,trans-
        porting,   and dlstrlbutlngfaOllitle8;and
        regulate and apportion the supply of gas
        between towns, cities, and corporations,
        and when the supply of gas controlledby
        any gas pipe line shall be Inadequate,the
        Commlssloashall prescribe fair and rea-
        sonable rules and regulationsrequiring such
        gas-pipe lines to augment their supply of
        gas, when-in-thejudgment cjfthe Commlsslon
        it la practicableto do so; and It shall
        exercise its power, whether upon Its own
        motion or upon petition by any person, cor-
        poration,munlclpkilcorporation,county, or
        Commlsslonersprecinct showing a substantial
        Interest.  In the subject,~ortiponpetition of
        the Attorney~G~neral;~or6f any County or
        District Attbrneg in any county wherein such
        business or any part thereof may be carried
        on."
             By virtue of Article-6053, 8.iipra,
                                               the Commls-
    sion Is empoweredwith'"full oontrol and~supervlslonof
    said gas pipe lines and alltheir holdings pertaining
    to the gas business In all their relations-m
                                               to the &-
    lie." It Is ft@her%szered      ~1-5       overnmentand
Hon. Ernest 0. Thompson - Page 5                 v-309      *9


control of such pipe lines In respect to theif gas pipe
lines and producing,receiving,transportingand dls-
trlbutlng facilities"and.empowered to "re&.ate and ap-
po;il$n the supply of gas controlledbynany gas pipe
    . It may exercise Its power upon Its own motion
or upon petition."
         It would be an empty "jurisdiction"and an emp-
ty "full control" if the Commissioncould not continue
a service by a utility. Otherwise the utlllty could
abandon at will and bargain on that basis. It Is stated
In State ex reL Public Service Commlsslonv. Mlssourl
Southern R. Co. (Sup. Ct. MO, lglg), 214 S. W. 381.: (pp.
384-385 I
            11  Can appellant abandon this serv-
     ice witio&, applying to the commissionfor
     leave to do so? If so, any carrier can aban-
     don any service without such leave, and,
     doubtless,change fares and take oft equlp-
     ment, whenever It comes to the conclusion
     that the facts jtistlfysuch action.. If this
     course be lawful, the ccaumlsslonwill became
     little more than a figureheadso far as car-
     riers are concerned,and Its powers can be
     Ignored or Invoked as the carrier may desire.
     In this case the carrier was operating In
     submissionto'the commissionand under rates
     on file. A rate was changed., Instead of
     applying to the commlsslonfor an Increase
     elsewhere,or for leave to abandon the serv-
     ice, the carrier said, In effect, that It
     would not submit to the change, but would
     take up the track. It may be It is entitled
     to an order permitting It to do so. It
     should have applied to the connnlsslonfor
     the leave. Unless the power of the commls-
     slon to pass on this question Is conceded,
     then~lt is apparent the exercise of 801118of
      Its express powers is conditionedupon the
     consent of the carHer. The express power
     of the commission over facllltles,equlpent,
     and honstructlon,and changes therein,and
      over the operation of trains (sections49,
      41, ~avs lg13), pp. 588, sgo), is of.no avail,
      if appellant'scontention $8 sound. As .was
      said by the Kansas SuprenieCourt:
          "'If these utilitg~corporatlons~mag aban-
      don this particular service without the'con-
      sent of the commlssfon,may they not take
50   Hon. Ernest 0. Thompson - Page 6                  v-309


         off their pass6nger trains, take up and aban-
         don unprofitablebranch lines, change the
         fares and rates of transportation for pas-
         sengers and freight, or raise the charge for
         telegraphmessages without the consentof
         the'commlsslon? These questionsanswer them-
         selves. To yield approval to the contention
         of defendants Is to concede that the state's
         program for the regulationand controlof
         public service corporations1s Ineffective;
         that the Public UtllltlesAct has been enact-
         ed In vain.' State ex rel. v. PostalTel.
         co., supra."
              It Is further stated in State v. Kansas Postal-
     Telearauh-CableCo. (Sup. Ct. Kans. 1915),15CP. 544:
     '(P.5471
              II
               . . . In view of all these, can there
          be any doubt of the duty of the defendant,
          before dismantlingIts stationat Syracuse
          and abandoning Its business thereat,t@ se-
          cure the approval of the ConmIssionfor such
          an Important change in Its mode of service?
          How Is the Public lJtllltlesCommissionto
          discharge Its importantduties if the pnb-
          llc service companiesmay quit businesshere,
          there, or anywhere In the state vlthout 811
          opportunityfor the %omisslon to detezi:ne
          the propriety of such a course?
               "It Is clear that, If the defendantmy
          forego Its business In Syracusevithotithe
          sanction of the Commlsslon,it can close its
          office in Topeka, Wichita, or Kensas CLtr,
          without the consentof the Comlsslon. Jf
          this public utility,'& telegraphcompsv, can
          close one of its offices and qult bus'3ess
          without the-consentof the Commlsslon,6~
          dther'ptibllc utility, like the Santa P? Zall-
          w&y, So* exempl6; could close Its depct at
          DMg6 City, Htitchlnson,  or Emporiavitt?zt
          the consent of the Cominli~sloh. Where r--nld
          this end? If these utility corporatlozsgay
          abandon this partlculsrservicewlthorr.   :he
          consent of the Commlssion;may they net -zke
          off their passenger trains,take up ati sban-
          don unprofitablebranch lines, change t%
          fares and rates of transportation  for 1Ji'-
          sengers  and freight, or raise the c-e    for
Ron. Ernest 0. Thompson - Page 7                 v-3.09
                                                          51

    telegraphmessages without the consent of the
    CCmmlSslon?'These questldns answer themselves.
    To yield approval to the contentionof the de-
    fendant Is to concede th8t the state's program
    for the regulationand control of public serv-
    ice corporationsis Ineffective;that the pub-
    lic utllltles act has been enacted In vain."
         Further reason dictates that this jurisdiction
may not be terminatedwithout the consent of the Rall-
road Commission. For, If the conversebe true, a util-
ity, against the will of the State, could abandon Its
pipe line, tear up the line and sell it before replace-
ment could be made. The possible effects of such a
claimed power could be utter disaster to the great ln-
terests of the community. Destructionof private prop-
erty, in which the entire community Is Interested,could
result. The life of the citizen as well as the property
could be jeopardized.
         It Is well establishedthat "as a general rule,
the proprietor of a public utility or service Is bound
to continue the business until such time as he shall
have been granted permission to discontinueIt." 34
Tex. Jur., "Public Utllltles and Services,"Section 15,
p. 717; 43 Am. Jur., "Public Utllltlesand Services,"
Section 78, p. 621; 5 Corpus Jurls, "PublicUtllitles,"
Section 17, p. 8. See 5 P. U. R. Digest, "Service,"
Section 215, pp. 4611-4614.
         Moreover, this has been the practice and con-
struction of the Railroad Coxnlssionover a period of
years. During this period of years, utllltles have made
applicationto the Railroad Commissionfor permission to
discontinuetheir service. The constructionand lnter-
pretation of a statute by the Departmentcharged with
its administrationIs entitled to great weight and will
be adhered to unless clearly erroneous or unsound. 39
Tex. Jur., "Statutes,"Section 126, pp. 235-237.
         In answer to your first question, therefore,
the Public Service Corporationmust have the consent of
the Railroad Commission to discontinuethe furnishingof
gas to the dfstPlbutor for the City of Miami.
         Section 1 of Article 6053, supra, provides, in
part, as follows:
         "The Commissionafter due notice shall
     fix and establish . . .'I
sf2 Hon. Ernest 0. Thompson - Page 8                   v-309     '


               Section 14 of Article 6053, v.c.s., provides as
    follows:
             "Rotice of 8ny hearing,and of the time
         and place thereof, shall be given by regls-
         tered'mallnot less than ten (10) claysex-
         clusive of the day of mailing before such
         hearing, addressed to all parties whom the
         Comml~slonmay deem to be interestedIn the
         subject matter of such hearing. Any llcen-
         see against whom a complainthas been filed
         shall be notified of the hearing on such com-
         plaint as herein provided,and shall have the
         right to appear at such hearing, file answer,
         Introduce evidence, and be heard both in p,er-
         son and by counsel."
             In answer to your second question, It Is our
    opinion that the statutes contemplatea hearing by the
    Railroad Commlsslonupon applicationfor discontinuance
    of service, because the Commissionmust enter an order
    upon such applicationunder Article 6053, supra, which
    must be after "due notice." Section 14, supra, provides
    that "notice of any hearing" shall be qlven to "lnter-
    ested" parties, not less than 10 days before such hear-
    ing."
              In view of this opinion, your third question
     does not require an ansver.
                           SWMARY
             1. It Is necessary for the Public Serv-
         ice Corporation,a "gas utility" as defined
         bg~our statutes (Article6050, V.C.S.), to
         have the consent of the Railroad Conrmlsslon
         to discontinuethe furnishingof gas to the
         distributor for the City of Miami.  State ex
         rel. Public Servfce Commissionv. Mlssourl
         Southern R. Co; (Sup. Ct. MO. lglg), 214
         3~.W: 381, 384; State v. Kansas Postal-Tele-
         graph-cable Co. (Sup.
         p. 544, 547.
              2. A hearing must be held by the Com-
          mlsslon on an 8ppllcatlon of a "gas utility"
          for requested permission to discontinue
                                                        53
Hon. Ernest 0. Thompson - Page 9                    v-309


         service to a municipality. Article 6053,
         V.C.S.
                                 Yours very truly
                            A!l3!ORNEYGElW3ALOFTEXAS


                            BY


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