The Comptroller was without authority to promulgate Rule 3.406, as enacted in 1975, since it was contrary to the plain language of the statute. See Brown Express, Inc. v. Railroad Commission, 415 S.W.2d 394, 397 (Tex. 1967); Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587, 298 S.W.2d 93 (1957). It is noted in the comments to § 2.01 of the Texas Business Corporation Act that the Texas Franchise Tax is broader because it applies to those corporations to which the Texas Business Corporation Act would not apply. Tex.Bus.Corp.Act § 2.
The complaint charges a violation by possession over the limit. Therefore, in order for the judgments to be affirmed, the Legislature must have delegated the authority to regulate possession to the Parks and Wildlife Department. Brown Express Inc. v. Railroad Commission, 415 S.W.2d 394 (S.Ct.Tex. 1967); Kelly, supra. Our review of the Parks and Wildlife Code reveals no delegation of authority to regulate possession of channel catfish.
Though departmental interpretation of a statute may be helpful when the statute is ambiguous, Cf. Walker v. Mann, 143 S.W.2d 152, 156 (Tex.Civ.App. — Austin 1940, writ ref'd), such interpretation will not be followed when contrary to the words of the statute. Brown Express, Inc. v. Railroad Commission, 415 S.W.2d 394 (Tex. 1967); Eddins-Walcher Butane Company v. Calvert, 156 Tex. 587, 298 S.W.2d 93 (1957). The judgments of the courts below are reversed and the cause is remanded to the trial court for rendition of judgment consistent with this opinion.
Accordingly, motor carriers performing an authorized existing service with which the proposed service will be competitive have the statutory right to appear and protest the granting of a new service on the ground that their service, and that of other existing carriers, is adequate, and hence the proposed service is not required by the public convenience and necessity. A carrier in this position also has a statutory right of appeal to the courts from an adverse order of the Commission. Sec. 20 of Art. 911b, supra. This concept, that interested parties in a proceeding involving motor carrier operating rights are `carriers (that) operate over the routes and serve the points' in question, was recognized by this Court in Brown Express, Inc. v. Railroad Commission, 415 S.W.2d 394 (Tex. 1967), citing Railroad Commission of Texas v. Red Arrow Freight Lines, 96 S.W.2d 735 (Tex.Civ.App. 1936, writ ref'd). Necessarily, the right of appeal provided by the statute presupposes that an appealing carrier is authorized to perform, and is performing, the character of service authorized by the Commission; thus the appealing carrier is in a position to show not only that the new service will impair its existing service by the loss of sustaining revenues, but also by reason of the availability of the existing services, there is not a public need for the newly authorized service.
Although a departmental interpretation of a statute may be useful when the statute is ambiguous, the interpretation will not be followed when it is contrary to the plain words of the statute. Brown Express, Inc. v. Railroad Comm'n, 415 S.W.2d 394, 397 (Tex. 1967); Citizens Nat'l Bank v. Calvert, 527 S.W.2d 175 (Tex. 1975); see also Commissioner of Ins. v. Allstate Ins. Co., 579 S.W.2d 553, 557 (Tex.Civ.App.-Austin 1979, writ ref'd n.r.e). A clearly erroneous statutory construction by an administrative agency carries no weight. Texas New Orleans Railroad Co. v. Thompson, 284 S.W.2d 402 (Tex.Civ.App.-Austin 1955, writ ref'd n.r.e.). This is particularly true when the agency interpretation was contrary to an attorney general opinion issued to that agency.
Although you do not provide us with the rationale for your long-standing administrative practice of including some of the activities of restaurants within the meaning of "processing," if that term is generally understood to mean "manufacturing," your definitions are unlikely to be disturbed. See Calvert v. Kadane, supra; Brown Express, Inc. v. Railroad Commission, 415 S.W.2d 394 (Tex. 1967). See also Ziperstein v. Tax Commissioner, 423 A.2d 129 (Conn.
Tex.Rev.Civ.Stat.Ann. art. 911b, § 6(f) (1964). They also realized that scrutiny by the Commission might result in cancellation of all or a portion of the certificate for dormancy. Article 911b, § 12(b); Brown Express, Inc. v. Railroad Commission, 415 S.W.2d 394 (Tex. 1967); Herrin Petroleum Transport Commision, 19 S.W.2d 588 (Tex.Civ.App. 1981, writ ref'd n.r.e.). In order to avoid the transfer fee and possible cancellation of the certificate, the parties structured the transaction as a sale of stock.
Despite the fact that these rules have been in effect and have been followed by the agency for ten years, they are contrary to the plain meaning of the applicable statutes; and therefore, afford no basis for the continuation of this agency practice. See Brown Express, Inc. v. Railroad Commission, 415 S.W.2d 394 (Tex. 1967). We do not imply that the Commission is totally precluded from promulgating rules delegating its authority to hold hearings on permit applications.
While the construction given a statute (or portion thereof) by both an administrative agency and the attorney general may be important when a statute is ambiguous, the court may overturn such interpretation if contrary to the plain meaning of the statute. Citizens National Bank of Paris, Illinois v. Calvert, Page 213 S.W.2d 175 (Tex. 1975); Brown Express, Inc. v. Railroad Commission, 415 S.W.2d 394 (Tex. 1967); Columbia — Southern Chemical Corp. v. Corpus Christi Shell Co., 297 S.W.2d 191 (Tex.Civ.App.-San Antonio 1956, writ ref'd n.r.e.). Upon reviewing the provisions of Article 6687b concerning a licensee's right of appeal, we cannot support Appellant's interpretation of Section 22(f).
To qualify as a transferee of a motor carrier certificate within the contemplation of article 911b, section 5a(a), the recipient of the certificate must show, among other things, that it is capable of continuing service under the certificate. See Brown Express, Inc. v. Railroad Commission of Texas, 415 S.W.2d 394, 396 (Tex. 1967); Attorney General Opinion M-1201 (1972). That aspect of a taxable transfer is not an issue under the facts presented to us because the creditor holding the operating authority is willing and able to operate it until such time as it may be transferred to a third party.