Could the Texas Aeronautics Commission regulate an interstate air carrier that also operated flights entirely within Texas?

Texas AG Opinion JM-868: Interstate Air Carriers

Plain-English summary

The chairman of the Texas Aeronautics Commission asked whether the Texas Aeronautics Act applied to carriers operating interstate or international service. He also asked about carriers that had originally received Texas certification for intrastate operations but later began serving destinations outside the state.

Article 46c-1(e) defined an air carrier but expressly excluded carriers transporting passengers or property for hire between a place in Texas and a place outside Texas. The Attorney General read that language as excluding interstate carriers from every provision of the Act.

The exclusion covered article 46c-6's certification and economic-regulation provisions. It also applied to a carrier that had begun as an intrastate operator and later added interstate service. Once the carrier transported passengers or property between Texas and another place, the Commission had no jurisdiction under the Act.

The opinion added that the Commission could neither impose burdens nor extend statutory benefits to an interstate carrier, even when that carrier also offered service entirely between points in Texas.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the Texas Aeronautics Act apply to interstate air carriers?

No. The opinion concluded that article 46c-1(e) expressly placed carriers serving routes between Texas and another place outside the Act.

Could the Commission regulate the Texas-only flights of an interstate carrier?

No. The exclusion applied to the carrier as an entity, even if some of its service operated wholly within Texas.

What if the carrier originally operated only intrastate routes?

The opinion said a carrier that later began interstate operations was no longer an "air carrier" covered by the Act.

Could the Commission require an interstate carrier to keep its Texas certificate?

No. The Commission's certification authority under article 46c-6 did not apply to a carrier excluded by article 46c-1(e).

Could the Commission grant benefits to an interstate carrier under the Act?

No. The opinion said the Commission lacked authority both to impose burdens and to extend benefits under the Act.

Background and statutory framework

Article 46c-1(e) defined "air carrier" as a person operating aircraft as a common carrier for compensation or hire with operations in Texas. The same definition twice excluded carriers operating in commerce between a place in Texas and a place outside Texas.

Article 46c-6, subdivision 3, gave the Texas Aeronautics Commission economic-rulemaking and certification authority over air carriers covered by the Act. Because interstate carriers did not fall within the statutory definition, none of those powers reached them.

The opinion also reviewed the bill analysis for the 1981 amendment that added the exclusion. The stated purpose was to exempt carriers transporting passengers or property for compensation between Texas and a place outside Texas.

Citations

Statutory and legislative materials:

• V.T.C.S. article 46c-1(e)
• V.T.C.S. article 46c-6, subdivision 3(a)-(g)
• Acts 1981, 67th Legislature, chapter 767, section 1
• Committee Substitute Senate Bill No. 403, 67th Legislature, bill analysis

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-868
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0868.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

March 4, 1988

Mr. Steven E. Cone, Jr. Opinion No. JM-868
Chairman
Texas Aeronautics Commission Re: Whether an air carrier
P.O. Box 12607 operating on an interstate
Austin, Texas 78711 or international basis is
exempt from the provisions
of article 46c-6, V.T.C.S.,
and related questions
(RQ-1201)

Dear Mr. Cone:

You ask our opinion on several questions concerning the authority of the Texas Aeronautics Commission over interstate air carriers. We follow each of your questions with our answer. In view of our answers to your first two questions, we need not address any of the others.

Question One: Does the definition of the term "air carrier" in the Texas Aeronautics Act, article 46c-1 et seq., V.T.C.S., exempt air carriers operating on an interstate or international basis from the provisions and requirements of carriers subject to the Aeronautics Act as set forth in subdivision 3(a)-(g) of article 46c-6, V.T.C.S.?

Answer to Question One: Article 46c-1(e) of the Texas Aeronautics Act defines "air carrier" to mean

every person owning, controlling, operating or managing any aircraft as a common carrier in the transportation of persons or property for compensation or hire which conducts all or part of its operations in the State of Texas; provided that the term 'air carrier' as used in this Act shall not include, and this Act does not apply to, air carriers carrying passengers or property as common carriers for compensation or hire in commerce between a place in this state and a place outside of this state. (Emphasis added.)

V.T.C.S. art. 46c-1(e).

Thus, no provision of the Texas Aeronautics Act applies to entities carrying passengers or property as a common carrier for hire between any point in Texas and any point outside of the state. The statute quoted above twice states that interstate carriers are beyond the reach of the Texas Aeronautics Act. None of the provisions of subdivision 3 of article 46c-6 of the Act, which grants the Aeronautics Commission the power to "promulgate and administer economic rules and regulations over air carriers," including the authority to provide the certification necessary to operate an air carrier, apply to such entities. See generally V.T.C.S. art. 46c-6, subdiv. 3(a)-(g).

Question Two: Does the following provision in subdivision 3(b) of article 46c-6 apply to air carriers originally granted certification by the Texas Aeronautics Commission to operate solely on an intrastate basis but that are now operating on an interstate basis:

No air carrier shall operate as such, after this Act goes into effect, without having first obtained from the Commission a certificate; provided, however that all operating rights and privileges granted to any air carrier by the Commission prior to the passage of this Act shall continue in effect, authorizing the same service under the same terms and conditions as previously granted by the Commission.

Answer to Question Two: We assume that your question is based on a factual situation involving an air carrier which begins operations only to serve intrastate points, but later begins service between points inside and outside of the state. Again, the statute is unambiguous. Any entity that at any time carries passengers or property as a common carrier for hire between a place in Texas and a place outside of Texas is not an "air carrier" as defined by the Act. It is not subject to any provision of the Act.

We note that the redundant language in article 46c-1(e) of the Act is not accidental. A section-by-section analysis of the legislation adding the language to the Aeronautics Act (see Acts 1981, 67th Leg., ch. 767, § 1, at 2858) notes that the precise purpose of the amendatory phrase was to "exemp[t] air carriers who carry passengers or property for commercial compensation between Texas and a place outside of Texas." Bill Analysis to C.S.S.B. No. 403, prepared for Senate Committee on Government Organization, 67th Leg. (1981).

Thus, the Act does not reach entities offering interstate air service. They are outside of the jurisdiction of the Commission even if they offer some service solely between points within Texas. The Commission has no jurisdiction over interstate carriers and has no authority to impose any burden on or extend benefits to them under the Texas Aeronautics Act.

SUMMARY

The Texas Aeronautics Act, article 46c-1 et seq., V.T.C.S., does not apply to entities carrying passengers or property as common carriers for compensation or hire in commerce between a place in this state and a place outside of this state. The Commission has no jurisdiction over interstate carriers and has no authority to impose any burden on or extend any benefit to them under the Act.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU McCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Don Bustion
Assistant Attorney General