Untitled Texas Attorney General Opinion ( 1976 )

The Honorable Ben Ramsey Opinion No. H-884
Chairman
Railroad Commission of Texas Re: Sub-delegation of
P. 0. Drawer 12967 authority vested in the
Austin, Texas 78711 Railroad Commission of
Texas.
Dear Chairman Ramsey:
On behalf of the Texas Railroad Commission you have
asked whether the following rule proposed by the Commission
would constitute a valid delegation of the duties of the
Commission:
The Director [of the Transportation Division]
is hereby expressly delegated the authority
to do all things necessary, reasonable, and
proper, including the signing of the necessary
orders, certificates and permits, in all
matters involving expedited processing or
uncontested proceedings in which the final
decision is not adverse to an applicant. Any
act of the Director, in his official capacity
under this delegation shall be reviewable by
the Commission upon receipt of a motion filed
with the Director, and no such act of the
Director shall be final for the purposes of
an appeal to any court until it has been
reviewed by the Commission.
The Railroad Commission has those powers expressly and
specifically delegated to it by the Legislature. Major powers
are not conferred upon it by implication. Railroad Commission
of Texas v& City of Austin, 524 S.W.Zd 262 (Tex. Sup. 1975).
m-i1 & Refi?& Co. v. Railroad Commission of Texas, i28
S.W.2d ~T~x~S~.- Legislative authority-is necessary to
p. 3724
The Honorable Ben Ramsey - page 2 (H-884)
empower a commission to appoint a general deputy who may
exercise discretionary or quasi-judicial powers. 2 Am.
Jur.Zd, Administrative Law S 221 at 51. In Moody v. Texas
Water Commission, 373 S.W.2d 793 (Tex. Civ. App. -FAustin
1964, writ ref'd n.r.e.), the Court wrote:
[Plublic duties must be performed and
governmental powers must be exercised
by the officials or body designated by
law and cannot be delegated to others.
See also Newsom v. Adams, 451 S.W.2d 948 (Tex. Civ. App. --
--
Beaumont,= z writ); Horne Zoological Arena Co. v. City
of Dallas, 45 S.W.Zd 714 (Tex. Civ. App. -- Waco mlTno
Eimtornev General Oninions WW-3 (1957): V-350 (1947).
We believe that the power-to delegate authority to the Director
is the kind of power that the Legislature must expressly
give the Railroad Commission, and that Texas courts would
not find it to exist by implication.
The Texas Railroad Commission is given regulatory
authority over motor carriers by article 911b, V.T.C.S.
It is its duty to consider and determine any public necessity
for a contemplated service and any public convenience that
would be promoted by granting an application to furnish the
service. V.T.C.S. art. 911b, S 8. This duty is imposed
without regard to whether the application is opposed or
contested. See V.T.C.S. art. 911b, 9 12. In section 14(a)
of article 9m it is provided:
The Commission, or any member thereof,
or authorized representative or Examiner of
the Commission, shall have power to compel
the attendance of witnesses, swear witnesses,
take their testimony under oath, make record
thereof, and if such record is made under the
direction of a Commissioner, or authorized
representative or Examiner of the Commission,
before a majority of the members of the Com-
mission. . . . (Emphasis added).
p. 3725
The Honorable Ben Ramsey - page 3 (H-884)
The effect of the proposed rule set out at the beginning
of this opinion is to delegate to the Director of the Trans-
portation Division all the power and authority and discretion
that the Railroad Commission itself might exercise, but only
"in all matters involving [ll expedited processing or [Z]
uncontested proceedings in which the final decision is not
adverse to an applicant," and [31 which are not appealed.
When the Legislature has allowed the Railroad Commission
to delegate duties and power to subordinates, it has done
so in clear language. In section 14(b) of article 911b, it
is specified:
To expedite the hearing and disposition of
applications, the Examiner or authorized
representative of the Commission shall have
authority under orders of the Commission to
hear applications which may be assigned to
him by the Commission . . . .
The Legislature has specified that the Commission, upon
a proper record, may render judgment and act through a
majority of its members even though the task of hearing the
evidence on a matter has been delegated to a subordinate, but
the act of a majority of the Railroad Commission members is
required to constitute a decision, order or action as the
act of the Commission, and this requirement is without regard
to whether the matter considered is contested or uncontested,
or whether the decision is favorable or adverse to an applicant,,
or whether an appeal is filed, or whether expeditious pro-
cessing is warranted. See Webster v- Texas i Pacific Motor
~;;w,or,',,"o,;tMo;~;
~;``t7~i````S``hn````)jsRou``o~d
fkI(Tex.Sup. Tn-n-.
In our opinion, the proposed rule would be held invalid
by the Texas Supreme Court if the question were presented to
p. 3726
The Honorable Ben Ramsey - page 4 (M-834)
SUMMARY
The Texas Railroad Commission may not
delegate to the Director of the Transporta-
tion Division unlimited discretionary
authority in all matters involving expedited
processing or uncontested proceedings, even
though the final decision is not adverse to
the applicant and is not appealed.
Very truly yours,
Attorney General of Texas
APPROVED:
LLiLL-+Y
DAVID M. KENDALL, First Assistant
Opinion Committee
jwb
p. 3727