Case Information
*1 THZ ATTORNEY GENERAL OF 3?ExAs AUSTIN. 1,. TEXAS
Gerald C. Mann
Railroad Commission Opinion No. O-3419
of Texas Ret Validity of order of BaFlroad Com- Austin, Texas mlssion amending the special commodity
permit of J. R. Lingo without notice Gentlemen: or hearing.
Your letter of April 9, 1941, sets forth the following facts:
“On the 11th day of January, $936, the Railroad Com- mission of Texas in response to an application of J. R.~ Lingo, issued to said Lingo after pro er notice and hear- .Special Commoddlty Permit No. 13 35 ing, f a copy of which is attached hereto and marked Exhibit ‘I.-i*‘.
“On the 6th day of April, 1936, the Railroad Commis- sion to an application of J. R. Lingo granted one additional truck to be operated under Special Commod- ity Permit No. 13435, a copy of which order is attached hereto and marked Exhibit “B”.
“On the 22nd day of September, 1936, the Railroad Commission entered its order cancelling the additional truck granted J. R. Lingo under Special Commodity Permit a copy of which order is attached hereto and marked Exhibit We.
“On the 19th day of September, 1938, the Railroad Commission entered its order amending Special Commodity Permit No. 13435, a copy of which order is attached hereto and marked Exhibit “D” .
“On the 5th day of September, 1939, 3. R. Lingo, ap- plied to the Commission for a rehearing and a restitution of his Special Commodity Permit No. 13435~, as it was origi- nally issued to him and for the Commission to set aside its order of September 19, 1938, amending said permit, a copy of which application is attached hereto and marked Exhibit “E” .
Wn the 21st day of December, the Railroad Commission entered its order denying application ,of J. R. Lingo, which is attached hereto and marked Exhibit “g”. Said order of denial “p .
.: . .
“On the 10th day of February, 1941, J. R. Lingo filed a new application for a restoration of his Permit No. 13435, issued by the Commission on y original
the 11th day of January, 1936, and a copy of that appli- cation “G”. “As will be revealed to you by these various &hi- bits, the Railroad Commission made an error on the 11th day of January, 1936, and granted J. R. Lingo far more authority than they intended or that has ever been the policy of this Commission to grant anyone,”
.4s shown by the exhibits mentioned in your letter, the permit authorized the hauling of certain commodities “to and from all points in Texas” and the We have inspected the applica- permit was issued accordingly. tion upon which such order and permit were based and we find that the application sought the authority to thus operate. The order of September 19, purported to correct and amend the permit theretofore granted and directed issuance of an amended permit to transport such commodities “from Fort Worth to all points in Texas and from all points in Texas to Fort Worthe. An amended permit was issued in accordance with such order of September 19, 1938. In Exhibits “Et’ and “G” mentioned in your letter the permit holder contends that he was never noti- fled of any such contemplated action on the part of the Commis- sion and that he was never given an opportunity to be heard upon the question of thus amending and restricting to him. You request our which had been theretofore granted opinion to this question:
‘#Did the Railroad Commission have authority and jur- isdiction to amend its order and the permit of January 11, 1.936, thus taking from J. R. Lingo authority, which he from January 11, 1936 to September 19, 19381" had enjoyed We also have a letter from your Mr. B. L. Templeton, Examiner, under date of June 5, advising us as follows:
“I am unable to find from our records that J. R. Lingo had notice of the proposed action of the Commission with respect to the amendment of his Permit, which was dated September 19, 1938. I am unable to find that a hearing was held or that evidence was taken.
“Mr. Bryan Bell; who wrote this Order is employed by the Railroad Commission, and I have discussed the mat- ter with him and it is his memory that be wrote the Order of September 19, 1938, amending Special Commodity Permit 13435 on instructions of the Railroad Commission with- out notice or hearing and no evidence of any nature was *3 a’ -
.
Railroad Commission, page 3
taken. -. “It is my judgment that you should assume that J.R.
Lingo had no notice of the proposed action by the Commls- sion with respect to the amendment, that no hearing was held and that no evidence was taken.”
The record seems to indicate the correctness of the conclusion drawn in the last paragraph of Mr. Templeton’s let- ter and for the purpose of this opinion we shall assume that J. R. Lingo had no notice of the proposed action by the Commis- that no hearing was held, sion with respect to the amendment, and that no evidence was taken. Section 12(b) of Article 911b, Vernon’s Annotated Civil Statutes, the Texas Motor Carrier Act, reads as follows:
“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 order revoke, suspend or amend any certificate or permit issued under the provisions of this Act, where in such hear- ing 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 regulations 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.”
The attempted amendment of the permit was not made in pursuance of Section 12(b) and cannot be sustained thereunder. In that section certain grounds are set out upon which the Com- mission may amend a permit or certificate. But, even where the grounds therein mentioned are believed and are alleged to exist, an amendment is not authorized without giving holder an opportunity to be heard on the subject of such pro- posed amendment. Obviously the purport of the amended permit was to greatly restrict the operation in question, it was re- duced to perhaps a rather small fraction of its former extent. Likening the permit to a judgment, it could not be so materially altered without notice after See 34 C.J. 246; 25’ expiration of so long a time, if at all. Tex.Jur. 538-539.
Assuming the validity of the original permit, it is our opinion that the order dated September 19, 1938, attempt- ing to amend the permit was erroneous and that it would be set
V , aside upon an appeal conducted in accordance with Section 20 -.of said ktlcle 911b.
Yours very truly ATTORNEY GENERAL OF TEXAS By /s/ Glenn R. Lewis Glenn R. Lewis, Assistant APPROVED JUN 1941
/s/ Grover Sellers
FIRST ASSISTANT ATTORNRY GENERAL
APPROVED: OPINION COMMITTEE MB, CHAIRMAN
BY:
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