                   AUSTIN.     TEXAS




                  Ap~ll 27* 1949

Hon. W. J. Murray, Jr., Chairman
Railroad Commission of Texas
Austin, Texas
                             Opinion Ho0 V-814
                             Re: The authority of the
                                 Railroad Commleslon to
                                 set an application for
                                 a oertiflcateof con-
                                 venlenoe and necessity
                                 for hearing during a
                                 legialatfvesession, an
                                 interested party hav-
                                 ing requested postpon-
                                 ment because his attor-
                                 neg Is a member of the
Dear Sir:                        Legislature.
          Your Petter requeatfng the 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~Dlvlsfonof the Railroad
Commlaslon,an applicationfor a certificateof con-
venience and necessity to opeP&te a motor bus com-
pany between certain cltlee, The applfcatlonwas
filed by a firm of attorneys, one of whom 1~ a mem-
ber 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 attor-
ney was a member of the 51et Legislatureand raa pres-
ently In actual attendance on fts regular seaefoa. A
notation was then made by the Commission on the dock-
et sheet to "Paas fop duration of Legislature." On
March 25* 1949, the applicant, bjrand thcough its at-
torneys, filed a motion that the order or notation on
Eon. ii.J. Murray, Jr., Page 2 (v-814)


the docket sheet passing the applicationuntil ad&mm-
rant of the 5lst legislature be set aside and said ap-
pllcaat be given an early hearing,
           Your speclflc question Is as follows:
           ‘Wndec the above fasts does the Rall-
     road Commlsslon of Texas have authority to
     set said applicationfor hearing prior to
     ten days after the adjournmentof the slat
     Legislaturetm
           mder the provisions of Article glla, V.C.S.,
the Railroad Corlsslon Is given authority to set and
hold hearings on applleatlonsfor oertlfleatesof coa-
venlence and neoemlty for bus routes. Hothing Is coa-
talned In Its provisions which llmlts the authority of
the Railroad Comslsslomto set hearings.
           It Is erident that the applicationfor con-
tinuance In this Instance was made pursuant to the
provIsIona of Article 21680, B.C.&, which reads as
follous:
             "In all suits, either clvll or crlm-
      Inal, or ln matters of probate, pending in
      any court of thin State at any time within
      ten (10) days of a date when the Leglsla-
      ture 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 atteadanae on a sesslo~
      of the ssme. Where a party to amy cause
      is a member of the Leglerlature,  his affl-
      davlt need not be corroborated. On the
      filing of such affidavit,the oourt shall
      continue the cause until ten (10) days af-
      ter the adJournrent   of the Legislature and
      such affidavit shall be proof of the nec-
      essity for such continuance,and such con-
      tinuance shall be deemed one of right and
      shall not be charged against the party re-
      celvlng such continuanceupon any aubse-
      quent applicationfor contInuame. :ItIs
                                                          .
Hon. W. J. Murray, JP~, Page 3 (~-814)


     hereby declared to be the intention of
     the Legfalatupethat the provlsfons of
     this section shall be deemed mandatory
     and not dlscretlonary,*
          It wifp1be noted that the above Statute
is expressed In clear and unambiguous language and
Its meaning Is clear and obvious.. It Is well set-
tled la this State that such a statute must be ap-
plied and enforced as it reads, regardless of 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, Article V, Conatltutionof Tex-
as, provides In part8
          -he Judfclal power 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 CoaosfsaloneraCourts, In
     Courts of Justfoes of the Peace, and In
     ;zzh other courts as may be provided by
        0
          4 . 0 0

          "The LegPsla%uremay establish guch
     other courts 88 ft may deem necessary and
     prescribe the Qurfsdfctfonand opganfza-
     tlon thereof, and may eonfo~m the .+~fs-
     diction of the Distrfct and other fnferfor
     courts thereto,'
          It till be noted that.the Raflroad Comm%s-
slon 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 Con-
     stltutfon fn named courts and such other
     courts as the Legfslature shall oreate and
     prescribe their Jurlsdlctlon8.  CePtalnly
     la the creation of the Railroad Commission
Hon. W. J, Murray, Jr,, Page 4 (v-814)


     the Legislaturedid not attempt to create
     any other court than those named ln the
     ConstltutloaO O O O
           "We think the Rallroad Commlsslon
     la an administrativebody OP board, and
     although It Is empowered to summon witnes-
     ses and hear evidence before passing upon
     admlnlstratlvematters, such acts are not
     'In the exercise of the judicial power".'
           That case further held that a layman was
not guilty of Illegally practicing law (practicing
without a license) because appearing before the Com-
mlaslon did not constitute the practice of law wlth-
la the meaning of those statutes relating to the prac-
tice of law,
           It la recognized that the Railroad Commls-
slon, In acting upon appllcatlonsfor certlflcatesof
eoavenlenceand necessity "exercisesfta powers and
authority merely as an arm of the Legislatureand as
an admlnlstratlvebody!. Railroad Colllnisslon  of Texas
v. Winkle, 57 S.W,2d 285 (Tex. clv, App. 1933) e In
SouthwesternQreyhouna Lines 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 provisions of Article 2P68a do not apply to
hearings before the Railroad Commlsslonupon appll-
cations for certlflcatesof eonvenlenceand necessity,
We have been able to find no statute flmltlng the auth-
ority of the Railroad Commlsslon to set such hearlngs
during a leglslatlvesessfon. Therefore, an interested
party having made appfleatlon for a contlnuaneeupon
the grounds that its attorney la a member of the Leg-
islature, It Is wlthfn the sound dlacretion of the Rall-
road Commlsslon to determine whether the hearing will be
thus continued or set at an earlier date.,

                        SUMWARY
           The Railroad Commlsslon of Texas Is
     not a court0 Carp v, Str@gerP 17l S,' W,2a
                    LPP.1 3 I error ref, wOo,m,),
     920 (Tex. Cfv.T__
     SouthwesternGreyhound Lines vO Railroad
.




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


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

                                Yours very truly,
                            ATTORREYffERRRALOFTlZAS




     DBRk1g:mr.j


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