Untitled Texas Attorney General Opinion ( 1979 )

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:
P. 262
. .. .
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
P. 263
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
P. 264