Mr. Charles Murphy                                Opinion No. M- 460
Director
Texas Aeronautics Commission                      Re: House Bill No. 823, Ch. 424,~. 1393,
204 West 16th                                         Acts 61st Legislature,    R. S., 1969;
Austin, Texas 78701                                   questions relating to jurisdiction
                                                      of the Texas Aeronautics Com-
                                                      mission to regulate intra-city
                                                      for-hire air transportation

Dear Mr. Murphy:

    Your recent   letter requested   this office’s opinion on the following two
questions:

        1. Does the Texas 4eronautics Commission have juris-
           diction to accept.an application for a Certificate of
           PubIic Convenience and Necessity,    hold appropriate
           hearings, and grant or refuse then Certificate of Public
           Convenience and Necessity to scheduled air carriers
           whose points of departure and destination are solely
           within the boundaries of a city or town and whose flight
           path does not exceed such boundaries?

       2. If the Texas Aeronautics Commission has previously
          granted a Certificate of Public Convenience and Necessity
          to carriers   whose routes include points of departure
          and destination solely within a city or town, and if a
          carrier who operates solely within such city or town
          as described above competes with the certificate holder,
          does the Commission have jurisidction     to seek legal
          sanction against the intra-city carrier to protect the routes
          granted the certificate holder?

    Your question also states that the frame of reference in which these questions
are to be answered is that which will exist after September 1, 1969, which is
the effective date of House Bill 823, Chapter 424, page 1394, Acts of the 61st
Legislature,  R. S., 1969, and which amends Vernon’s Texas Civil Statutes, Articles
46c-1 through 46c-8.
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Mr.    Charles   Murphy, page 2 (M-460)


     With respect to your first question, it appears that the Texas Aeronautics
Commission does have jurisdiction      over the type of air traffic to which you
refer.   This determination is based upon an interpretation      of the statutory
language employed in House Bi,ll No. 823 a,nd upon the legal conclusion that
House Bill No, 823 subordinates,    so far as for-hire air transportation      is con-
cerned, the general power of cities to regulate commerce within their boundaries

      Subdivision   3 (b) of Section 6 of House Bill No. 823 provides:

          “No air carrier shall operate as such, after this act goes
          into effect, without having first obtained from the Commission
          a Certificate of Public Convenience and Necessity pursuant to
          a determination by the Commission that its proposed service
          is in the interest of public convenience and necessity;” [Emphasis       added. ]

      The term “air carrier”     is defined in Section   1 (e) to mean:

          “Every person owning, controlling,     operating or managing
          any aircraft as a common carrier in the transportation     of
          persons or property for compensation or hire which con-
          ducts all or part of its operations in the State of Texas. ” [Emphasis     added.]

     Section 6 does exempt from the definition of “air carrier” and from the effect
of the Act those air carriers    which operate within the state pursuant to the pro-
visions of a certificate   issued by the Civi,l Aeronautics Board under the Federal
Aviation Act. However, there is no exemption in this Section, or any other section
of House Bill No. 823, whi,ch would remove from the effect of the Act those air
carriers    solely on the basis of their operations being confined wholly within the
boundaries of a city or town.

     It is noted that the exemption of intra-c&y operations from the State’s power
to regulate commerci.al transportation     is not unfamiliar to our Legislature.   Both
the Motor Bus Act, Article 911a, Vernon’s Civil Statutes, and the Motor Carrier
Act, Article 911b, Vernon’s Civil Statutes, clearly exempt intra-city operations.
The Motor Bus Act provides that the term “motor-bus company” shall not i,nclude
those persons operating motor propelled passenger vehicles “wholly within the
limits of any incorporated town or city and the suburbs thereof, whether sepa--
rately incorporated or otherwise. ” The Motor Carrier Act provides that the term
“motor carrier” shall not. be included and “this act shall not apply to motor vehicles
operated exclusively within the corporate limirs of cities or towns.” As was men--
tioned, no such exemption appears i.n the Texas Aeronautics Act; i,ndeed, it
appears that even a city in undertaking for-hire air transportation     operations would
fall within the jurisidction  of the Texas Aeronautics Commission.      This is so
because Section 1 (a) defines the term “person” to include “any body poli,tic” and
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    Mr.   Charles   Murphy, page 3 (M-460)


    the definition of “air carrier”,  as set out above, employs the term “person”.
    Certainly if the city itself would fall within the Commi,ssion’s jurisidction, then
    a private entity operating as an ai,r carrier should not be exempt from t,he Com-
    mission’s jurisdiction   simply because i,ts operations are confined wholly within
    the city’s limits.

         The fact that the Texas Aeronautics Commission has jurisdiction      over
    intra-city commercial      air transportation undertaken by any person, in&ding
    the city i,tself, is not repugnant to the city’s power of local government.    While
    Article 11, Section 5 of the Constitution of Texas and Arti,cle 1175, Vernon’s
    Civil Statutes, confer broad governmental powers, both express and implied,
    upon the cities within our State, it is clear that those powers may be subordi-
    nated to general acts of the State Legislature.     Municipalities have no power
    to prohibit, restrain or otherwise impair the activities regulated by State law,
    City of Fort Worth v. McDonald, 293 S. W. 2d 256 (Tex. Civ. App., 1956, err.
    ref. n. r. e. ); City of Fort Worth v. Atlas ,Enterprises,  311 S. W. 2d 922 (Tex.
    Civ. App., 1958, err. ref. n.r. e. ); Prescott v. City of Borger, 158 S. W. 2d
    578 (Tex. Civ.App.,      1942, err.ref.   ).

         Your second question is also answered in the affirmative.    This affirma-
    tive response does not ari,se solely from the fact that there exists a possi-
    bility of encroachment upon any right or privilege granted a certificated    carrier
    by the Commission.      Rather, the power of the Commission to seek legal recourse
    against those who fail to comply with the act or any rules, regulations or orders
    promulgated by the Commi,ssion in pursuance of the act is specifically     set out
    in the statute.   Subdivision  3 (f) of Secti,on 6 provi,des that

            “Upon violation of any provision of this act or upon the
            violation of any rule, regulation,    order or decree of the
            Commission.         any district court of any county where
            such violation occurs shall have the power to restrain and
            enjoin the person.        so offending from further violating
            the provisi,ons of this act or from further vi.olating any
            rules, regulati.ons, orders and decrees of the Commi,ssi~on.
            Such mjunctive relief may be grant:ed upon the application
            of the Commission.     . .”

         While the rights conferred by a certificate      issued by the Commission to air
    carriers    may be considered,     it is clear that the power to mitiate legal proceed-
    ings to enforce the provisions of the Act i,s a plenary power granted the Com-
    mission in order that it might effectively regulate and control for-,hire air
    transportation    within this State. This power i,s not dependent, upon, or in any
    way related to, the protection of pri,vate ri,ghts or privileges conferred by a
    Certificate   of Public Convenience and Necessity~
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Mr.   Charles   Murphy, page 4 (M- 460)


                                   SUMMARY

    1. The Texas     Aeronautics Commission has jurisdiction     to regulate for-hire
air transportation   wholly confined within the limits of any city or town.

     2. The Texas Aeronautics Commission has the power to seek injunctive
relief against any person, as that term is defined within the act, who violates
any provision of the act, or who violates any of the rules, regulations or orders
promulgated by the Commission in pursuance of the act.
                                                ,7



                                                      D C. MARTIN
                                                     General of Texas

Prepared    by James M. Mabry
Assistant   Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
George Kelton, Vice-Chairman

Roland Allen
Sam Jones
Ralph Rash
Harold Kennedy

MEADE F. GRIFFIN
Staff Legal Assistant

HAWTHORNE PHILLIPS
Executive Assistant

NOLA WHITE
First Assistant




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