                       The Attorney             General of Texas
                                       November 16,         1979
MARK WHITE
Attorney General


                   Honorable John I-I. Poerner, Chairman      Opinion No. RR- 8 6
                   Railroad Commission of Texas
                   P. 0. Drawer 12967                         Re: Duty of Railroad Commission
                   Austin, Texas 767ll                        to set rates over carriers operating
                                                              under seasonal agricultural licenses
                                                              issued under section 5b of article
                                                              9Ilb, V.T.C.S.

                   Dear Mr. Poerner:

                        You have asked the following question:

                              In the administration of H.B. 1418 (new section 5b in
                              the Motor Carrier Act), is it the Commissionb duty to
                              set rates to be charged by persons transporting
                              property    under the authority      of a seasonal
                              agricultural license?

                          Article 9llb, V.T.C.S., authorizes the Railroad Commission to regulate
                   specialized motor carriers, defined as persons who operate any motor
                   propelled vehicle to transport “over irregular routes or irregular schedules,
                   for compensation      and for the general public . . . property requiring
                   specialized equipment in the transportation and handling thereof.. . .” Sec.
                   l(i). Specialized motor carriers also include “those carriers who engage or
                   desire to engage exclusively in the transportation        of . . . agricultural
                   products in their natural state. . . .” E

                          House Bii No. 1418, enacted by the sixty sixth legislature, amends
                   article 9Rb to permit issuance of a seasonal agricultural license to persons
                   transporting eligible agricultural commodities in their natural state over
                   limited distances. Sec. 5b. The holder of a seasonal agricultural license is
                   not required to obtain a certificate  of convenience and necessity, and the
                   license may be issued without notice, hearing, or proof of public convenience
                   and necessity.

                       Section 4 of article 9Rb states the powers and duties of the Railroad
                   Commission with respect to motor carriers:




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Honorable John H. Poerner    -     Page Two   (Mw-86)



           The Commission is hereby vested with power and authority and it is
           hereby made its duty to supervise and regulate the transportation
           of property for compensation or hire by motor vehicle on any public
           highway in this State, to fix, prescribe or approve the maximum or
           minimum or maximum and minimum rates, fares and charges of
           each motor carrier in accordance with the specific provisions
           herein contained. . . .

Since specialized motor carriers are “motor carriers” as defined by section l(g), they are
subject to regulation under section 4. Cf. Attorney General Opinion O-3994 @9411(“motor
carrier” in section 4 includes common carriers and contract carriers). House Bill No. 1418
does not exempt persons transporting property under a seasonal agricultural license from
regulation under section 4. Repeals by implication are not favored. Hankins v. ConnaRy,
206 S.W.%d 89 (Tex. Civ. App. - Waco 1947, writ ref’d n.r.e.1. In our opinion, the Railroad
Commission still has the authority and the duty “to fix, prescribe or approve” rates
ehareed bv soecialized motor carriers under a seasonal axricultural license. Although the
rate; are ‘bftkn fixed by the certificates of convenience &d necessity, see Transporiation
League, Inc. v. Morgan Express, 436 S.W.2d 378 (Tex. Civ. App. - Dallas 1969, writ ref’d
n.r.e.1, the RaiIroad Commission is not limited to that method of prescribing them. See
Sproles Motor Freight Lines v. Railroad Commission, 157 S.W.2d 949 (Tex. Civ. App.=
Galveston 1941, writ ref’d w.o.m.1.

       It has been suggested that rate-making is inappropriate since the purpose of House
BIB 1418was to avoid lengthy proceedings and inflexible regulatory schemes; however, the
rate-making    duties of the Commission provide great flexibRity.      It is authorized to
establish either maximum or minimum rates or both. Its discretion is sufficiently broad to
permit it to establish rates which will avoid the onerous burdens the bill was designed to
prevent.

      In our opinion, it is your duty to set rates to be charged by persons transporting
property under the authority of a seasonal agricultural license.

                                       SUMMARY

           The Railroad Commission has the authority and the duty under
           article 9llb, section 4, to set rates for a specialized motor carrier
           operating under the authority of a seasonal agricultural license.




                                              MARK     WHITE
                                              Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General




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Honorable John H. Poerner    -   Page Three     (NW-8 6 )



TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Susan Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Susan Garrison
Rick Gilpin
David Hughes
William G Reid
Lambeth Townsend




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