Railroad       Commission        of Texas
Austin,      Texas

Gentlemen:                                   Opinion   No. O-3558
                                             Re: ~Effect of a carrier’s            partially     ceas-
                                                   ing operations.

                       You have submitted   to us for           our   opinion     the following       six
questions      with    accompanying  explanation:

                    “After    due notice      to all interested         parties,     and to
       the public     generally,      the Commission,            on August      28, 1939,
       approved      the application       of Ralph Labutis,           R. M, Hansen,
       and Paul E. Dahlman.             doing business         as Texas      Film      Ser-
       vice, to amend        and consolidate          certain    certificates       authoriz-
       ing the operation        of a restricted         common      carrier      motor       car-
       rier   service    transporting         moving      picture   films     and supplies
       only between       Dallas,      Texas,    and San Antonio.          Texas,      via Wax-
       ahachie,     Midlothian.       Venus,    Alvarado,        Grand    View,      Itasca,
       Hillsboro.     Waco,      Georgetown,        Austin,     and New Braunfels;              and
       between     San Antonio.        Seguin.     and New Braunfels,            serving       all
       intermediate       points;     providing      for a schedule        of one round
       trip daily between          Dallas   and San Antonio.           Texas,     via Waxa-
       hachie,    Midlothian.       Venus,     Alvarado.       Grand     View,     Itasca.
       Hillsboro.      Waco,     Georgetown,        Austin,     and New Braunfels;
       and for irregular          schedules      from     San Antonio      to Seguin        to
       New Braunfels,         and between         Dallas     and Midlothian,         via Dun-
       canville    and Cedar        Hill over State Highway             No. 67; and an ir-
       regular     schedule      from     Waxahachie        to Hillsboro,       via Italy,
       over State Highway           No. 77.

                       “In authorizing     such service,     the Commission        found,
           from   the evidence,      that the movement       of motion   picture    films
           and supplies     requires     an especially    expedient   service,    and that
           public   convenience      and necessity     demand    and require     the grant-
           ing of such application.

                       “The service     rendered    by Texas  Film    Service  under
           the certificate    issued   by the Commission     is only to motion     pic-
           ture houses     and distributors,     and such certificate    is so express-
           ly restricted.

                        “The    Commission      is   informed    that ther~e are only two
           motion     picture    establishments       in Seguin,   Texas;   and that, for
                         $2                                         .!?
                                                                    *,,, 8



Railroad      Commission       of Texas,     Page   2 (O-3558)




       some    months     past, the operator    of such establishments        has
       not availed     himself   of the service    offered   by the holders     of
       the certificate     under consideration.        As a consequence,      the
       holders    of such certificate     have failed    to run their trucks
       to Seguin at anything       like regular   intervals,    although  the
       holders    of such certificates     have continued      to serve  inter-
       mediate    towns between       San Antonio    and Seguin.

                   “The holders      of said certificate do not desire   to
       abandon    any portion     of their route permanently    and offer   to
       continue    to serve    Seguin and all other points on their irreg-
       ular   schedules    if and whenever     there is any necessity   or re-
       quest for their doing so from         the persons  whom they are au-
       thorized    to render    such service    to.

                       “Upon the basis  of that above  set out, we respect-
           fully ask   that you give your opinion   upon the following  ques-
           tions:

                      “(1)  Whether     the holders     of the certificate    referred
           to have so abandoned       that portion    of their certificate     authoriz-
           ing operations    upon irregular      schedules.    so as to require      that
           the Commission      take affirmative       action to amend      the certifi-
           cate in question    and restrict    it to those routes which are be-
           ing operated    on regular     schedules,    and revoke     those portions
           of such certificate    authorizing     irregular     schedules.
,

                         “(2)    Whether     it is necessary     for the holders    of such
           certificate,       in order    to comply    with the applicable     statutes
           and to legally        retain   the portion    of their certificate    which  is
           being operated         upon regular      schedules,     to apply to the Com-
           mission      and obtain permission          for fhe amendment       of their cer-
           tificate   to eliminate       those portions      of the routes which     are not
           operated      on regular      schedules.

                         “(3)   Where  heretofore    the Commission     has issued     a
           certificate      of public convenience     and necessity   authorizing    ir-
           regular     service    and irregular   schedules   and no fixed routes
           (intrastate),      does the Commission       have any power    and authori-
           ty to amend        such a certificate  for the purpose    of bringing   it
           outside     of the field of invalidity   recently  pointed   out in your
           opinion ?

                         “(4)   Where   heretofore    the Commission      has issued
           a certificate       of public convenience     and necessity    authorizing
           irregular      service    and irregular    schedules   and no fixed     routes
           (interstate),      does the Commission        have any power     and authori-
           ty to amend        such a certificate   for the purpose     of bringing    it
           outside    of the field of invalidity     recently   pointed   out in your
           opinion ?
._.   .


          Railroad       Commission       of Texas,     Page    3 (O-3558)




                              “(5)   Where     an applicant     presents    proof of public
                  convenience      and necessity       and of inadequacy      of existing    fa-
                  cilities  and thereby      obtains    a certificate    of public conven-
                  ience and necessity        (intrastate)    on the theory     that he is go-
                  ing to render     a regular      service   and then renders      irregular
                  service,   is it mandatory        upon this Commission         in such case
                  to cancel    his certificate     7

                                 “(6) Where an applicant           presents    proof of public
                     convenience     and necessity       and of inadequacy       of existing     fa-
                     cilities  and thereby      obtains    a certificate    of public conven-
                     ience and necessity        (interstate)    on the theory     that he is go-
                     ing to render     a regular     service    and then renders       irregular
                     service,   is it mandatory        upon this Commission         in such case
                     to cancel    his certificate     7”

                                 Sec. 12 (b) of Article        911b,    Vernon’s    Annotated      Statutes,
          the Motor        Carrier   Act of this State,        reads:

                                 “(b)   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 or-
                     der revoke,      suspend    or amend     any certificate      or permit     is-
                     sued under the provisions          of this Act, where       in such hearing
                     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 regulatia        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.”

                               We do not believe        that a carrier’s       failure     always     to operate
          its certificate      over a particular      part of its line in accordance               with the
          terms     of the certificate      will always     necessarily       require       the Commission
           to~enter an order revoking,           suspending       or amending        the same,      regardless
           of reasons     which might      exist to justify      such failure.        There     is left in the
           Commission        at least a certain      amount      of discretion      in respect      to such
          ~rnatters.     The statute does not say that such a failure                  will automatically
          work    a forfeiture      of the right to operate        a line in connection          with which
           such failure     occurs,     nor does it say that the Commission                   must enter an
           order    of revocation,      suspension     or amendment.           In the insmcase.             if it
           be found that the carrier         actually    stands     ready to serve         the operator       of
           the picture     establishments       in Seguin,     that it was the failure          of the picture
           show operator       and not of the carrier         which has caused          the cessation        of
           service,    and that the action       of the carrier        is reasonable        under   the circum-
           stances,    it is our opinion that revocation,             amendment        or suspension        is not
           mandatory.       We believe      this also    sufficiently     disposes      of your second         ques-
           tion.
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    Railroad    Commission       of Texas,    Page     4 (O-3558)




                         Your second     and third questions       evidently    refer  to our
    opinions    Nos.   O-2608 and O-3147, addressed           to members        of the Railroad
    Commission.         Our answer     to your third question        is an affirmative     one,
    conditioned     upon the holder’s      making    proper    application     and a finding    of
    public   necessity     and of the sufficiency     of the highways        to be traversed.
    We answer      your fourth    question     in the affirmative,      conditioned    upon the
    operator’s    filing   a proper    application,   and if after     hearing    it be found
    that the roads      proposed    to be used will bear      the traffic.

                       We answer   your fifth question   in much the same way as
    the first.    The substitution  of irregular  schedules   in practice  would not
    necessarily     make it incumbent    upon the Commission     to cancel  the certi-
    ficate.    The circumstances    might be such as to warrant      the Commission’s
    not cancelling    the same.

                       Your    sixth question     is answered    in the negative.   The Com-
    mission’s   jurisdiction      in the first   instance   extended   only to the protection
    of the highways.

                                                     Yours         very   truly

                                                     ATTORNEY                GENERAL       OF   TEXAS




                                                     By      /s/     Glenn    R. Lewis

                                                                                   Glenn     R. Lewis
                                                                                            Assistant

    GRL:AMM/cm



    APPROVED          JUN    5, 1941

    /s/ Grover   Sellers
    FIRST  ASSISTANT
    ATTORNEY      GENERAL

                                                                                APPROVED
                                                                                   Ooinion
                                                                                 C-ommittee
                                                                               By /s/ BWB
                                                                                  Chalrman
