DocketNumber: V-814
Judges: Price Daniel
Filed Date: 7/2/1949
Status: Precedential
Modified Date: 2/18/2017
AUSTIN. TEXAS Ap~ll 27* 1949 Hon. W. J. Murray, Jr., Chairman Railroad Commission of Texas Austin, Texas Opinion Ho0 V-814 Re: The authority of the Railroad Commleslon to set an application for a oertiflcateof con- venlenoe and necessity for hearing during a legialatfvesession, an interested party hav- ing requested postpon- ment because his attor- neg Is a member of the Dear Sir: Legislature. Your Petter requeatfng the opinion of the Attorney General on the above question sets forth certain facts which, for brevitg, ue have condensed as followas On January 29, 194gp there was flled with the Motor Transportation~Dlvlsfonof the Railroad Commlaslon,an applicationfor a certificateof con- venience and necessity to opeP&te a motor bus com- pany between certain cltlee, The applfcatlonwas filed by a firm of attorneys, one of whom 1~ a mem- ber of the slat Legfslature,now fn session, On the call of the do&et on February 1, 1949, a protesting motor bus company filed ba amd through Its Qenersl Manager and lta attorney, also a member of the Slat Legislature,a motion that the appllcatlonnot be set for hearing until ten days after adjournmentof the 51st Leglslattwe,on the grounds that its attor- ney was a member of the 51et Legislatureand raa pres- ently In actual attendance on fts regular seaefoa. A notation was then made by the Commission on the dock- et sheet to "Paas fop duration of Legislature." On March 25* 1949, the applicant, bjrand thcough its at- torneys, filed a motion that the order or notation on Eon. ii.J. Murray, Jr., Page 2 (v-814) the docket sheet passing the applicationuntil ad&mm- rant of the 5lst legislature be set aside and said ap- pllcaat be given an early hearing, Your speclflc question Is as follows: ‘Wndec the above fasts does the Rall- road Commlsslon of Texas have authority to set said applicationfor hearing prior to ten days after the adjournmentof the slat Legislaturetm mder the provisions of Article glla, V.C.S., the Railroad Corlsslon Is given authority to set and hold hearings on applleatlonsfor oertlfleatesof coa- venlence and neoemlty for bus routes. Hothing Is coa- talned In Its provisions which llmlts the authority of the Railroad Comslsslomto set hearings. It Is erident that the applicationfor con- tinuance In this Instance was made pursuant to the provIsIona of Article 21680, B.C.&, which reads as follous: "In all suits, either clvll or crlm- Inal, or ln matters of probate, pending in any court of thin State at any time within ten (10) days of a date when the Leglsla- ture is to be In sessloa, or at ay time the LegislatureIs In se8slon, It shall be mandatory that the court continue 6ueh cause if It shall appear to the court, by affidavit, that an7 party appljing for such aontinuaace,or sny attorney for w party to such cause, is a member of elth- er branch of the Legislature,and till be or Is in actual atteadanae on a sesslo~ of the ssme. Where a party to amy cause is a member of the Leglerlature, his affl- davlt need not be corroborated. On the filing of such affidavit,the oourt shall continue the cause until ten (10) days af- ter the adJournrent of the Legislature and such affidavit shall be proof of the nec- essity for such continuance,and such con- tinuance shall be deemed one of right and shall not be charged against the party re- celvlng such continuanceupon any aubse- quent applicationfor contInuame. :ItIs . Hon. W. J. Murray, JP~, Page 3 (~-814) hereby declared to be the intention of the Legfalatupethat the provlsfons of this section shall be deemed mandatory and not dlscretlonary,* It wifp1be noted that the above Statute is expressed In clear and unambiguous language and Its meaning Is clear and obvious.. It Is well set- tled la this State that such a statute must be ap- plied and enforced as it reads, regardless of fts poller or purpose or the Justice of its effect. 39 Tex. Jur. 161, Statutes, See0 88, By its express provlslons,the Statute applies only to "suftsB either cfvll or criminal, or In matters of probate, pending In any court of this State.* Sectfon 1, Article V, Conatltutionof Tex- as, provides In part8 -he Judfclal power of this State shall be vested In one Supreme Court, fn Courts of ClvfP Appeals, in a Court of CrlmlnaP Appeals, In Dlstrfet Courts, in County Court8, fn CoaosfsaloneraCourts, In Courts of Justfoes of the Peace, and In ;zzh other courts as may be provided by 0 4 . 0 0 "The LegPsla%uremay establish guch other courts 88 ft may deem necessary and prescribe the Qurfsdfctfonand opganfza- tlon thereof, and may eonfo~m the .+~fs- diction of the Distrfct and other fnferfor courts thereto,' It till be noted that.the Raflroad Comm%s- slon Is not named fn the above provfalons. IncaPr v. Strl ep 171 S,W,2d 920 (Tex, Mr. App. 194-r- &iOrne) the court stateda %e have observed that the @gudfcial power of the Sta%e” fs vested by the Con- stltutfon fn named courts and such other courts as the Legfslature shall oreate and prescribe their Jurlsdlctlon8. CePtalnly la the creation of the Railroad Commission Hon. W. J, Murray, Jr,, Page 4 (v-814) the Legislaturedid not attempt to create any other court than those named ln the ConstltutloaO O O O "We think the Rallroad Commlsslon la an administrativebody OP board, and although It Is empowered to summon witnes- ses and hear evidence before passing upon admlnlstratlvematters, such acts are not 'In the exercise of the judicial power".' That case further held that a layman was not guilty of Illegally practicing law (practicing without a license) because appearing before the Com- mlaslon did not constitute the practice of law wlth- la the meaning of those statutes relating to the prac- tice of law, It la recognized that the Railroad Commls- slon, In acting upon appllcatlonsfor certlflcatesof eoavenlenceand necessity "exercisesfta powers and authority merely as an arm of the Legislatureand as an admlnlstratlvebody!. Railroad Colllnisslon of Texas v. Winkle, 57 S.W,2d 285 (Tex. clv, App. 1933) e In SouthwesternQreyhouna Lines v. Railroad Coksnlsslon, 08 S W 26 593 (T Cl A 1948 f.n,r.e.) It was kpressiy h% th% t~~ORallr~a~,"&p,"slonof Texas Is not a court. In view of the above decisions It fs clear that the provisions of Article 2P68a do not apply to hearings before the Railroad Commlsslonupon appll- cations for certlflcatesof eonvenlenceand necessity, We have been able to find no statute flmltlng the auth- ority of the Railroad Commlsslon to set such hearlngs during a leglslatlvesessfon. Therefore, an interested party having made appfleatlon for a contlnuaneeupon the grounds that its attorney la a member of the Leg- islature, It Is wlthfn the sound dlacretion of the Rall- road Commlsslon to determine whether the hearing will be thus continued or set at an earlier date., SUMWARY The Railroad Commlsslon of Texas Is not a court0 Carp v, Str@gerP 17l S,' W,2a LPP.1 3 I error ref, wOo,m,), 920 (Tex. Cfv.T__ SouthwesternGreyhound Lines vO Railroad . Hon. W. J. J&ray, Page 5 (v-814) Commlasion, 208 S.w.2d 93 (Tex, Clv. App. 'IIJsaerror ref. n.r.e.7 Acoordlnglythe pro&Ions of Artlole 2$8a, V.C,S*, do not apply to~hearlngsbefore It. The question of uhether a Railroad Cosmlaslon hearing shall be set during OP after a LegislativeSession, an interested party having requested postponmentbecause Its attorney is a member of the Leglsla- ture, is a matter wholly within the sound dlaaretlon of the Comalsslon. Yours very truly, ATTORREYffERRRALOFTlZAS DBRk1g:mr.j ~y&.g..J ATTORHRYQRRERAL