Texas Aeronautics Commission v. Braniff Airways, Inc.

439 S.W.2d 699, 1969 Tex. App. LEXIS 2465
CourtCourt of Appeals of Texas
DecidedMarch 12, 1969
DocketNo. 11655
StatusPublished
Cited by1 cases

This text of 439 S.W.2d 699 (Texas Aeronautics Commission v. Braniff Airways, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas Aeronautics Commission v. Braniff Airways, Inc., 439 S.W.2d 699, 1969 Tex. App. LEXIS 2465 (Tex. Ct. App. 1969).

Opinions

PHILLIPS, Chief Justice.

In November, 1967, Air Southwest Co. applied to the Texas Aeronautics Commission for a Certificate of Public Convenience and Necessity authorizing Air Southwest to provide scheduled commuter air service between the Texas cities of Dallas/Fort Worth, Houston and San Antonio. Thereafter, Air Southwest filed two amendments to its application setting forth the names of additional directors and shareholders of the Company.

The Commission permitted Braniff Airways, Inc., Continental Airlines and Trans-Texas Airways, Inc., to intervene in opposition to the granting of Air Southwest’s application. A seven day hearing, beginning January 15, 1968, was then held before the Director of the Texas Aeronautics Commission. Upon motion of Braniff, Continental and Trans-Texas made orally at the conclusion of the hearing and subsequently submitted in writing, the Commission granted the parties leave to file briefs with the Commission and to argue the case orally before its members.

Each of the parties submitted a brief to the Commission, and, on February 20, 1968, oral argument took place before the Commission members sitting en banc in Austin.

The Chairman of the Commission thereafter announced that the six members of the Commission had unanimously determined to award a Certificate of Public Convenience and Necessity to Air Southwest in the form prayed for and requested that an appropriate order and certificate be prepared. Before this could be achieved, however, Braniff, Continental and Trans-Texas filed suit against the Commission, its members and Director in the District Court of Travis County, Texas, praying that the order of the Texas Aeronautics Commission be set aside and seeking the issuance of, respectively, a temporary restraining order, temporary injunction and permanent injunction prohibiting the Commission, its members and Director from issuing a Certificate of Public Convenience and Necessity to Air Southwest. The trial court granted the temporary restraining order.

Subsequently, with the Court’s permission, the Commission entered its order with a form of Certificate annexed thereto, but did not actually issue the Certificate. Air Southwest intervened in the appeal as a defendant, and the temporary restraining order was continued in effect by agreement of the parties and upon the condition that the hearing on appeal would commence at an early date.

The hearing began on March 25, 1968 and continued through May 10, 1968. At its conclusion, the court announced his decision to vacate the order of the Commission and to grant a permanent injunction restraining the Commission, its members and Director from issuing a Certificate of Public Convenience and Necessity to Air Southwest.

Judgment in the cause was entered on August 6, 1968, and this appeal by the State of Texas and Air Southwest is from that judgment.

We affirm this judgment.

I.

Appellants are before this Court with seven points of error, however, as we sustain Appellees’ first counterpoint, we need not notice these points of error1 with the [702]*702exception of points VI and VII which complain, respectively, of evidence excluded and evidence admitted.

Appellees’ first counterpoint is that the trial court correctly set aside the order of the Commission 2 because of the absence of substantial evidence that there is a public necessity for the service proposed by Air Southwest and that the inauguration of such service would be in the public interest.

We sustain this counterpoint.

Air Southwest intends to provide scheduled air service among and between the cities of Dallas/Fort Worth, Houston and San Antonio, Texas. At least initially, it would serve only these cities, utilizing four Electra turbo-jet aircraft purchased from American Airlines and seating 90 passengers each in a single class configuration. These are the same aircraft used by Braniff in these markets, except that Braniff’s Electras are configured for both first class and coach seating.

Air Southwest places considerable emphasis on accommodating the “commuter” passenger who wishes to depart from one of the cities that it serves and to return thereto on the same day. It proposes to begin operations with eight flights per day between Dallas and Houston, six flights per day between San Antonio and Dallas/Fort Worth and four flights per day between Houston and San Antonio. As the air passenger market becomes stimulated by the addition of Air Southwest’s service and the Company increases its penetration of that market, it intends to add additional flights so that by the end of its first year of operation it will be providing sixteen flights per day between Dallas/Fort Worth and Houston, twelve, flights per day between San Antonio and Dallas/Fort Worth and eight flights per day between Houston and San Antonio. These will be its basic weekday schedules which will depart be[703]*703tween 7:00 a. m. and 9:00 p. m., with emphasis on flights in the prime commuter hours of 7:00 a. m. to 9:00 a. m. and 4:00 p. m. to 7:00 p. m. Additional flights will be added on Friday afternoons and Sunday afternoons, which are historically periods of heavier than normal air travel.

The stage lengths sought to be flown by Air Southwest are 194 statute miles between Houston and San Antonio; 246 statute miles between Dallas/Fort Worth and Houston; and 260 statute miles between San Antonio and Dallas/Fort Worth. The average flying time between these pairs of cities will be 33 minutes on the Houston-San Antonio leg; 46 minutes on the Dallas/Fort Worth-Houston leg; and 46 minutes on the San Antonio-Dallas/Fort Worth leg. Air Southwest’s aircraft in their 90 passenger seating configuration will provide more leg room and seat width than the coach sections of jets competing in the same markets.

The Company seeks to maintain a reservations service operating from a single central location in San Antonio to which all reservation calls, including those placed in Dallas, Forth Worth and Houston, will come directly. These calls will be monitored by an automatic call director which stacks the calls, shows how many are waiting, and would enable Air Southwest to promptly vary the number of reservations personnel in accordance with demand.

It desires to sell tickets through independent travel agents in Texas, who will be paid a 7% commission on each sale, which is 2% higher than the commissions paid by competing airlines. Prepunched IBM tickets will be issued to regular customers. These tickets may simply be presented at the passenger boarding gate, and they do not require that any information be written thereon. At the end of each month, the prepunched tickets, identified by customer code number and destination, are processed through an IBM computer which computes the customer’s bill for that month. Moreover, tickets could be purchased at airport counters, at the passenger boarding gate or on the airplane itself in flight. Tickets at the airport counters could be issued by a cash register utilizing two different colors of tape, so that the counter agent need only punch the destination and hand the passenger his ticket, which is cut off the tape by the register in the manner of a ticket for a bus trip. All credit cards, except the universal air trav'el card, would be honored for the purchase of tickets.

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Related

Texas Aeronautics Commission v. Braniff Airways, Inc.
454 S.W.2d 199 (Texas Supreme Court, 1970)

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Bluebook (online)
439 S.W.2d 699, 1969 Tex. App. LEXIS 2465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-aeronautics-commission-v-braniff-airways-inc-texapp-1969.