The Honorable Bill Clayton         Opinion No. H-,631
Speaker of the HoWe
State Capitol                      H0: Whether the Railroad
Autstin,Texas 78711                Cmirrion ia required to
                                   issue certificatorof con-
                                   venience and necem8ity to
                                   qaa utilities.
Uear Mr. Speaker:
     YOU have requested our opinion regarding whether the
Railroad Conuaie8ionim required to iaeue certificatesOf
convenrenceand neoemsity to qam utilities under the provi-
eione of article lllbc, V.T.C.S., tha Public utility Regulatory
Act. Article 1446a pravidea in pertinent partr
            sec. 49. For the,purporerof ,thi&
         articltionly: (a) *Retail public utility'
         means any person, corporation,municipality,
         political eubdiviaionor agency, or cooper-
         ative corporation,now ar hereafter operating,
         maintaining,or controlling in Texae facilities
         for providing retail utility service. W
         'Public utility' does not include any person,
         corporation,municipality,political nubdivi:
         &on or agency, or cooperativecorporation
         under the juriedictionof the Railroad
         Commisaian.
             Sec. 50. Beginning one year after the
          effective date of this Act, unlese otherwi8e
          specified:




                             s. 3509
The Honorable Bill Clayton - page 2 (H-831)


              (1) No public utility may in any way
         render service directly or indirectly to
         the public under any franchise or permit
         without first having obtained from the com-
         mission a certificate that the present or
         future public convenience and necessity
         require or will require such installation,
         operation, or extension.
              (2) Except as otherwise provided in
         this article no retail public utility may
         furnish, make available, render, or extend
         retail public utility service to any area to
         which retail utility service is being lawfully
         furnished by another retail public utility on
         or after the effective date of this Act, without
         first having obtained a certificate of public
         convenience and necessity that includes the
         area in which the consuming facility is located.

     It is apparent that a gas utility under the jurisdiction
of the Railroad Commission is exempt from the prohibition of
subdivision (1) of section 50, which is applicable only to a
"public utility." The statute does not, however, exclude
such gas utilities from the definition of "retail public
utility." In Attorney General Opinion H-812 (1976), we held
that the term "public utility" does not "include the more
broadly defined 'retail public utility' found in section
49." The statute could thus be construed as suggesting that
a gas utility which is a "retail public utility" as defined
by section 49(a) must obtain a certificate of convenience
and necessity before it may "furnish, make available, render,
or extend retail public utility service to any area to
which retail utility service is being lawfully furnished by
another retail public utility on or after the effective
date" of the statute. Sec. 50(2).
     However, subsection (1) of section 50 specifies that
certificates of convenience and necessity are to be obtained
“from the commission," which means the Public Utility
Commission. Sec. 3(e). Although subsection (2) iS silent
as to the issuing authority, it is our opinion that the
certificates required therein must also be obtained from the




                         p. 3510
The Honorable Bill Clayton - page 3 (H-831)


Public Utility Commission. Article VII, which is the only
part of the statute dealing with certificates of convenience
and necessity, repeatedly refers to issuance of certificates
by the "commission," and makes no provision for their issuance
by the Railroad Commission. In any event, a total absence
of any statutory guidelines would preclude the Railroad
Commission from issuing certificates of convenience and
necessity. See Gerst v. Jefferson County Savings & Loan
Asso., 390 S.w.2-,520      (Tex. Civ. App. -- AustinmS,
wr~itref'd n.r.e.1.
     It accordingly is our opinion that the Railroad Commission
is neither required nor authorized to issue certificates of
convenience and necessity.to,gas utilities.
                       SUMMARY
            The Railroad Commission is not authorized
            or required to issue certificates of
            convenience and necessity to gas utilities
            under the Public Utility Regulatory Act.
                                 Aery truly yours,



                                 Attorney General of Texas
APPROVED:




Opinion Committee
jwb




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