Texas Aeronautics Commission v. Betts, B--2809
| Decision Date | 07 July 1971 |
| Docket Number | No. B--2809,B--2809 |
| Citation | 469 S.W.2d 394 |
| Parties | TEXAS AERONAUTICS COMMISSION and Southwest Airlines Co., Relators, v. Charles O. BETTS, District Judge et al., Respondents. |
| Court | Texas Supreme Court |
Crawford Martin, Atty. Gen., Thomas F. Sedberry, Asst. Atty. Gen., Austin, Oppenheimer Rosenberg & Kelleher, Herbert D. Kelleher, San Antonio, Jacobsen & Long, Joe Long, Austin, John Peace, San Antonio, for petitioners.
Clark, West, Keller, Sanders & Ginsberg, William B. West, III, Dallas, Fulbright, Crooker, Freeman, Bates & Jaworski, Jay W. Elston, Houston, Clark, Thomas, Harris, Denius & Winters, Mary Jo Carroll, Austin, for respondents.
ORIGINAL MANDAMUS
The Texas Aeronautics Commission and Southwest Airlines Co. seek a mandamus ordering the Judge of the 98th Judicial District of Travis County to vacate an order restraining relators and to grant no further injunctive relief which would interfere with this court's judgment upholding Certificate Number 22 issued by the Commission to Southwest on November 6, 1970.
Certificate Number 22 is a certificate of public convenience and necessity which authorizes Southwest to provide intrastate commuter service between Dallas/Fort Worth, Houston and San Antonio. Braniff Airways, Inc. and Texas International Airlines, Inc. contested Southwest's application for the certificate before the Commission, and challenged the Commission's order granting the certificate in the courts of this state. Ultimately, the order was upheld by a judgment of this court. Texas Aeronautics Commission v. Braniff Airways, Inc., 454 S.W.2d 199 (Tex.1970), cert. denied, 400 U.S. 943, 91 S.Ct. 244, 27 L.Ed.2d 247 (1971).
After the proceedings concerning Certificate Number 22 had run their full administrative and judicial course, but before Southwest could initiate commuter service, Braniff and Texas International filed a motion with the Texas Aeronautics Commission to reopen the certification hearing for the purpose of requiring Southwest to show cause why its authority to operate under the certificate should not be amended, suspended, conditioned or revoked. On May 13, 1971, the Commission denied the motion. On May 19, 1971, Braniff and Texas International appealed from the order denying their motion, and that appeal is now pending before the 98th District Court of Travis County. On June 3, 1971, Braniff and Texas International amended their pleadings in the District Court and asked that Southwest be restrained and enjoined from making any changes in its form of operation from that proposed in its application for the certificate. On June 16, 1971, Braniff and Texas International filed a second amended petition in which they requested, among other relief, an order restraining the Commission from taking certain actions in connection with Southwest's proposed changes in operation. That same day the Judge of the 98th Judicial District Court, without hearing or notice to relators, granted the requested restraining order.
The order restrained the Texas Aeronautics Commission 'from accepting for filing or from approving the rates heretofore sent to the Defendant Commission by Defendant Southwest Airlines Co. or any other rates, fares and charges which may hereafter be proposed by Defendant Southwest Airlines Co. unless such rates, fares and charges are identical with those proposed by Air Southwest Co. at the hearing upon the basis of which the order authorizing the issuance of the certificate was entered * * *.' The order also restrained the Commission from accepting for filing or from approving schedules which Southwest Airlines Co. had proposed unless they were identical with those proposed at the earlier hearing in 1968. The order further restrained the Commission from permitting Southwest Airlines Co. to offer any air service other than 'the same service under the same terms and conditions as previously granted by the Commission' to Southwest Airlines Co. Certificate Number 22, which the Commission issued and which has been upheld by this court, is now final. Its terms are stated in the margin. 1 The Commission accompanied the certificate with a separate order which stated four required operating specifications. 2 The certificate and the specifications contained in the order, when considered together, state the authority and conditions which Southwest is required to meet.
Braniff and Texas International, as a basis for enjoining Southwest's operations, urge that the conditions of operation contemplated by Southwest differ substantially from those required by the certificate and accompanying order. First, Southwest now plans to use new Boeing Model 737--200 jets acquired at a cost of $4,000,000 per aircraft, rather than the originally proposed second-hand Electra 188 turbo-jets. The certificate approved by this court requires only that Southwest utilize 'Federal Aviation Agency certificated aircraft of any gross takeoff weight.' The proposed aircraft meet this requirement, and any injunction or restraining order based on this change in aircraft would interfere with this court's judgment approving the certificate and its attendant conditions.
Next, Braniff and Texas International urge that the rates and schedules now proposed by Southwest substantially differ from those proposed in its initial application for certification back in 1967. The certificate approved by this court's judgment does not require as a condition or limitation that the rates and schedules contained in the 1967 application must be maintained. Nor are certificates for other carriers so conditioned. The practice of the Commission is not to burden the certificate of public necessity and convenience with listings of schedules and rates. The Texas Aeronautics Act authorizes the Commission to approve or disapprove rates, fares and charges and schedules filed by air carriers, but such items are not required to be included in nor made limitations upon certificated authority. Art. 46c--6, Sec. 3, Vernon's Ann.Tex.Civ.St. The practice of the Commission is that rates and schedules are matters of management which may be changed merely by filing notice with the Commission, subject to the Commission's subsequent approval or disapproval. This practice is consistent with that under which interstate carriers such as Braniff and Texas International operate. 49 U.S.C.A. Secs. 1371(e)(4) and 1373(c). The relief sought by Braniff and Texas International and granted by the trial court thus imposes upon Southwest conditions which are not contained in its certificate, which other air carriers are not required to follow and which are not required by our judgment or any rule or law relating to interstate or intrastate air carriers. The...
To continue reading
Request your trial
-
Clint Indep. Sch. Dist. v. Marquez
...a temporary injunction, is to maintain the status quo between the parties”); Cannan, 758 S.W.2d at 755 (citing Tex. Aeronautics Comm'n v. Betts, 469 S.W.2d 394, 398 (Tex. 1971) ; Janus Films, 358 S.W.2d at 589 ; Transp. Co. of Tex. v. Robertson Transps., Inc., 152 Tex. 551, 261 S.W.2d 549, ......
-
Nolo Press/Folk Law, Inc., In re
...v. Clark, 627 S.W.2d 146, 147 (Tex.1982) (per curiam); Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.1979); Texas Aeronautics Comm'n v. Betts, 469 S.W.2d 394, 398-399 (Tex.1971); Sparenberg v. Lattimore, 134 Tex. 671, 139 S.W.2d 77, 78, 80 (1940); Hovey v. Shepherd, 105 Tex. 237, 147 S.W. 224,......
-
In re Nolo Pres/Folk Law Inc.
...v. Clark, 627 S.W.2d 146, 147 (Tex. 1982) (per curiam); Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979); Texas Aeronautics Comm'n v. Betts, 469 S.W.2d 394, 398-399 (Tex. 1971); Sparenberg v. Lattimore, 139 S.W.2d 77, 78, 80 (Tex. 1940); Hovey v. Shepherd, 147 S.W. 224, 224 (Tex. 46 Chemic......
-
City of Arlington v. City of Fort Worth, 2-93-184-CV
...preserved by a temporary injunction is the last, actual, peaceable, noncontested status which preceded the suit. Texas Aeronautics Comm. v. Betts, 469 S.W.2d 394, 398 (Tex.1971) (orig. proceeding); Transport Co. of Texas, 261 S.W.2d at 553-54; Scott v. Rheudasil, 614 S.W.2d 626, 630 (Tex.Ci......