. ,
December 11, 1990
Honorable Bob Bullock opinion No. JM-1256
Comptroller of public
Accounts Re: Imposition of fees on motor
L.B.J. Building fuels under House Bill 504,
Austin, Texas 78774 Acts 1989, 71st Leg., ch. 1033,
at 4156 (RQ-1904)
Dear Mr. Bullock:
You ask about the proper construction of House Bill
504, which was enacted by the 71st Legislature and overns
the sale of certain mixtures of gasoline and alcohol. 9 The
bill requires that the comptroller administer and enforce a
program of labelling pumps through which fuel containing
ethanol or methanol is sold.
You appear to ask whether the imposition of the fee
authorized by subsection (c) of section 9 of article 8614,
V.T.C.S., may reach only dealers that deliver or sell motor
fuels containing ethanol or methanol or whether it may reach
all dealers that deliver or sell motor fuels, regardless of
whether those fuels contain ethanol or methanol. However,
because both subsections (b) and (c) of section 9 authorize
the imposition of fees, we will address both subsections.
We conclude that a fee authorized by subsection (b) of
section 9 of the act may reach all persons required to hold
a permit as a distributor of motor fuels under chapter 153
of the Tax Code for whom services are performed under that
subsection. We further conclude that the additional fee
authorized by subsection (c) oft section 9 of the act may
reach only those dealers who deliver or sell motor fuels
containing ethanol or methanol in the amount specified in
the article.
1. Codified as article 8614, V.T.C.S.
p. 6692
Honorable Bob Bullock - Page 2 (JM-1256)
Section 9 of article 8614, V.T.C.S., the section with
which you are concerned, provides the following:
(a) The comptroller may adopt rules not
inconsistent with this Act for the regulation
of the sale of motor fuels containing ethanol
and methanol.
(b) The cq(@troller bv rule mav imnose
fees for testina. insoection. statement or
record forms, sale of sians. or the
performance of OthgE-Services nrovided in t&
stration of this Act.
(c) Jn add&ion to the fees authorized by
Subsection (b) of this section the comp-
troller bv rule may impose a' fee to be
collected-on a periodic basis determined by
the comptroller from each distributor,
supplier, wholesaler, and jobber who deals in
a motor fuel subiect to reaulation under this
&g. The comptroller by rule shall prescribe
the form for reporting and remitting the fees
imposed by and under this section.
(d) The fees' and penalties imposed by
this Act or by a rule of the comptroller made
pursuant to this Act shall be subject to the
provisions of Chapter 111 and Sections
153.006, 153.007, and 153.401, Tax Code,
except to the extent those sections are in
conflict with this Act.
(e) The total amount of fees collected
pnder this Act mav not exceed the costs of
mnisterina and enforcina the orovisions of
this Act.
(f) Th fees collected under this section
mv be use: onlv for the a&&nistration and
enforcement of this Act bv the comntroller
and shall be deoosited in the C Dt ller's
Ooeratina Fund 062. (Emphasis adEd.;
We turn first to subsection (b). There can be no doubt
that the fee authorized by subsection (b) of section 9 of
the act reaches every person required to hold a permit as a
distributor of motor fuels under chapter 153 of the Tax Code
P. 6693
Honorable Bob Bullock - Page 3 (JM-1256)
for whom services are performed under that subsection,
regardless of whether the fuel thus distributed contains
ethanol or methanol. Sections 1 and 2 of article 8614,
V.T.C.S., taken together, confer explicit authority on
certain specified public officers~ or their authorized agents
to test 5~y motor fuel sold in the state. Section 2 of the
act provides:
In order to determine compliance with the
standards and for the enforcement of rules
adopted under Sections 3, 4, and 5 of this
Act, the comptroller of public accounts or an
authorized representative of the comptroller,
any law enforcement officer at the direction
of a prosecuting attorney, or the attorney
genera.1 may test anv motor fuel sold in this
state, with or without a complaint about the
fuel. (Emphasis added.)
Subsection (2) of section 1 of the act provides:
"\Motor fuel' has the meaning given that term by Section
153.001(17), Tax Code."2 That subsection of the Tax Code
provides: "'Motor fuel* includes gasoline, diesel fuel,
liquified gas, and other products that are usable as
propellants of a motor vehicle." Thus, since every licensed
distributor is subject to testing, inspection, a, every
licensed distributor may be subject to the subsection 0)
fee, regardless of whether the motor fuel so distributed
contains ethanol or methanol. However, imposition of a fee
under subsection (b) is limited to those distributors for
whom services are performed under that subsection.
We turn now to subsection (c). Three arguments have
been adduced in support of the construction that the
subsection 9(c) fee reaches all dealers of motor fuels,
regardless of whether those fuels contain ethanol or
methanol. We find none of the arguments convincing,
First, it is emphasized that the underscored phrase of
subsection (c) of section 9 permits a fee to be imposed upon
"each distributor,
_ supplier, wholesaler, and jobber who
2. Section 153.001 was amended during the 71st
Legislature: subsection (17) was renumbered subsection (16).
Acts 1989, 71st Leg., ch. 168, 5 2, at 550.
p. 6694
Honorable Bob Bullock - Page 4 (JM-1256)
deals in a motor fuel gubiect to reoulatio under this Act."
(Emphasis added.) It is argued that al? dealers of all
motor fuels are "regulated" under the act, because the motor
fuel of all distributors, suppliers, wholesalers, and
jobbers is subject to testing under section 2. Therefore,
it is argued, the act by its terms permits the imposition of
the subsection 9(c) fee on && distributors, suppliers,
wholesalers, and jobbers of motor fuels. At issue is
whether such persons are "regulated*@ under the act. We
agree that all dealers of motor fuel are subject to testing:
we do not agree that that factor, standing alone, supports
the assertion that all motor fuel dealers are "subject to
regulation" under the act.
Generally, the term Vegulate" has been defined to mean
I.
to fix, establish or control; to adjust by
rule method or established mode; to direct by
rule or restriction: to subject to governing
principles or laws.
; nv U of
Passaic, 308 A.2d ZO, is 63 (N.J. 1973); see also Farmina ton
River Co. v. Town Plan & Eonina Comm#n of Farminaton, 197
A.2d 653 (Conn. 1963); Iowa PO er & Liaht Co. Iowa State
Hiahwav Comm'n 117 N.W.2d 415 (Iowa 1962):' We do not
construe test& in this instance to comprise a part of
"regulation.@* Rather, we construe positive testing for
ethanol and methanol gasoline mixtures to constitute a
prerequisite that must be met in order for the regulatory
provisions of the act to be triggered.
Even a cursory reading of the act supports the
assertion that VegulationV1 is limited only to those dealers
who sell motor fuel containing ethanol or methanol. For
example, the caption of House Bill 504 described the bill as
an act "relating to the sale of certain mixtures of gasoline
and alcohol; providing penalties." Section 11 of the act,
governing the effective date of the bill, provides:
This act takes effect January 1, 1990, and
applies only to deliveries or sales, as
applicable, pf motor fuels containina ethan 1
pr methanol that occur on or after that datt.
(Emphasis added.)
Sections 3, 4, 5, 6, 7, and 8 of the act refer only to those
motor fuel dealers selling motor fuel containing a certain
P. 6695
Honorable Bob Bullock - Page 5 (JM-1256)
specified mixture of ethanol or methanol. Subsection (a) of
section 9 confers specific authority on the comptroller to
adopt rules not inconsistent with the act 'for the
regulation of the sale of motor fuels containing ethanol and
methanol." And finally, subsection (e) of section 4 of the
act provides:
If the comptroller determines that certain
types of motor fuel, such as diesel or
liquified petroleum gas, are not sold in this
state as mixtures with alcohol in sufficient
quantities
. . to war]: nt recrulation of those
delivering under &is Act, the comptroller
may limit the application of Section 3 of
this Act and this section to motor fuels sold
in sufficient quantity to warrant reaulation.
(Emphasis added.)
Language repeatedly used in a statute will be presumed
to have the same meaning throughout, unless the context
shows that another meaning is intended. Paddock v.
Siemoneit, 218 S.W.2d 428 (Tex. 1949); Greenwood v. Citv of
El Paso, 186 S.W.Zd 1015 (Tex. Civ. App. - El Paso 1945, no
writ). In every instance in, the act in which the term
"regulateql or "regulation" appears, the term is limited to
apply only to those dealers who sell motor fuel containing
ethanol or methanol in the prescribed amounts. The
comptroller has no authority to promulgate rules governing
the sale of motor fuels m containing ethanol or methanol:
therefore, such transactions are not Vegulated" by the act.
Second, it is argued that a construction limiting the
reach of the subsection 9(c) fee to only those dealers whose
fuel contains ethanol or methanol would have the effect of
subverting the purpose for which the,act was passed. It is
argued that requiring only those dealers whose motbr fuels
contain the requisite amount of ethanol or methanol to bear
the burden of paying the subsection 9(c) fee will have the
effect of creating such economic disincentives that the sale
of gasoline containing ethanol or methanol would be dis-
couraged. For two reasons, we disagree. We are unconvinced
that such a construction would have such an effect.
First, we do not bel,ieve that our interpretation of the
statute vi11 subvert the purpose of the act. An examination
of the legislative history of Eouse Bill 504 inr%icates that
the legislature sought to require that all dealers that sell
motor fuel containing a~ specified amount of ethanol or
-
p. 6696
Honorable Bob Bullock - Page 6 (JM-1256)
methanol must label pumps dispensing the fuel so that the
mixture will be indicated to consumers: in other words, the
evident purpose of the bill is to protect the consumers of
motor fuel.
The "Background Information10 section of the bill
analysis for House Bill 504 provides in relevant part:
At this time, the State of Texas has no
regulations irequiring the labeling of motor
fuel pumps at service stations or retail
outlets that dispense mixtures of gasoline
and alcohol. s motorist. therefore,
Gannet determine if the motor fuel he or she
3 our ha&no has a substantial alcohol
&tent: (Emphasis added.)
Bill Analysis, H.B. 504, 71st Leg. (1989). The "Purpose of
the Bill" section of the bill analysis states:
The purpose of the bill is to require dealers
selling a motor fuel mixture of gasoline and
alcohol to label the pumps dispensing this
fuel so that the mixture will be indicated to
consumers . (Bmphasis added.)
Lg, The Y9ection by Section Analysis" of the bill analysis
describes section 2 of the bill in the following way:
Grants the Comptroller of Public Accounts or
an inspector employed by the Comptroller the
authority to inspect guy motor fuel sold in
the state of Texas. (Emphasis added.)
XL
And second, we do not agree that our construction of
subsection 9(c) will compel a result that disproportionately
burdens those dealers who sell motor fuel containing ethanol
or methanol. The act, as it was introduced, contained a
provision limiting any fee charged to the actual cost of the
service to be performed. Bill Analysis, H.B. 504, 71st Leg.
(1989). The committee substitute Version, inter alia,
deleted the provision. Instead, section 9 of the act
confers discretion upon the comptroller to allocate costs
among the several fees that he can impose, subject to the
limitation that the total amount of fees collected may not
exceed the costs of administering the act. V.T.C.S. art.
P. 6697
Honorable Bob Bullock - Page 7 (JM-1256)
8614, 5 9(e). We note that an administrative agency, though
vested by statute with discretion in its actions, may not
exercise its powers in an arbitrary or capricious manner,
and the reasonableness of its orders is subject to judicial
review. m strial Accident Bd. v. O'Dowd, 303 S.W.Zd 763
(Tex. 1957)iUBrown v. Humble Oil 61 Ref. Co<, 83 S.W.Zd 935
(Tex. 1935).
Finally, it is argued that letters submitted by the two
legislators who sponsored the bill indicate legislative
intent that all dealers of motor fuel, not just those
dealers who sell fuel containing ethanol or methanol, be
subject to the subsection 9(c) fee. One of the letters
states the following:
The words 'subject to regulation under
this Act' were intended only to exclude motor
fuels such as diesel and Liquified Petroleum
Gas, which were not sold in combination with
ethanol and methanol. It was the intention
of the Legislature to have this fee placed on
all distributors of gasoline, in order to
spread the economic effect of the regulations
across all gasoline in the market.
Letter from Jim Horn, State Representative, to Honorable Bob
Bullock (Oct. 17, 1989) (discussing H.B. 504).
For two reasons, we do not conclude that the letters
are in any way controlling. First, following our receipt of
these letters, we examined the legislative history for
statements in the public record that would confirm that
construction of subsection 9(c). Our search was fruitless.
Neither the bill analysis nor the tapes of committee
hearings contain any reference at all to the subsection 9(c)
fee. Bill Analysis, H.B. 504, 71st Leg. (1989).
Second, determination of legislative intent focuses,
not on an individual legislator, but on the legislature as a
whole:
A statute is an act of the legislature as an
organized body, and expresses the collective
will of that body. No single member can be
heard to say what the meaning of a statute
is. It must speak for and be construed by
itself.
p. 6698
Honorable Bob Bullock - Page 8 (JM-1256)
Commissioners' Court of El Paso C untv v. El Pa Countv
Sb riff's Denuties Ass'n 620 S.Wy2d 900 902 (EX. Civ.
AP; . - El Paso 1981, wrii ref'd n.r.e.).' Sutherland sets
forth the following rule: "Postpassage remarks by legis-
lators, however explicit, cannot serve to change the
legislative intent expressed prior to an act's passage.." 2A
Sands, Sutherland Stat. Const. 5 48.15 (4th ed. 1984).
Therefore, we cannot consider the letters submitted by the
bill's legislative sponsors.
We conclude that the fee authorized by subsection 9(b)
of House Bill 504 reaches all persons required to hold a
permit as a distributor of motor fuels under chapter 153 of
the Tax Code for whom services are performed under that
subsection. We further conclude that the fee authorized by
subsection 9(k) of House Bill 504 reaches only those dealers
of motor fuel, as defined in the act, that contain ethanol
or methanol in certain specified amounts.
SUMMARY
I
The fee authorized by subsection 9(b) of
House Bill 504 reaches all persons required
to hold a permit as a distributor of motor
fuels under chapter 153 of the Tax Code for
whom services are performed under that sub-
section. The fee authorized by subsection
9(c) of House Bill 504 reaches only those
dealers of motor fuel, as defined in the act,
that contain ethanol or methanol.
LJ At!cttk
Very truly yo
/c;,
JIM MATTOX '-
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
LQU MCCREARY
Executive Assistant Attorney General
p. 6699
.~ ,. . Iionorable Bob Bullock - Page 9 (JM-1256)
I
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RBNEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
P- 6700