Honorable Robert S. Calvert Opinion No. C-414
Comptroller of Public Accounts
Austin, Texas Re: Whether a department
of State government
must furnish the bond
required by Article
10.10(l) of persons
who make remittances
or payments of special
fuels taxes directly
Dear Mr. Calvert: to this State.
We quote the following from your letter requesting the
opinion of this office on the above captioned question.
"We desire the opinion of your office
as to whether or not a department of
State Government will be required to
furnish the bond required by Article
10.10(l) by the Special Fuels Tax Law
of persons who make remittances or pay-
ments directly to this State of taxes
incurred upon the use of special fuels.
'For example: the Texas Department
of CorrectionsIS now engaged in the use
of special fuels (diesel fuel) pre-
dominantly to operate tractors and other
equipment off the public highway but
with lesser quantitiesused to operate
diesel trW2k8 upon the public highways,
which operation by private persona
would require a bonded user permit and
the payment of taxes directly to the
State.
"There is no exemption from the tax
on the highway use of special fuels or
motor fuel accorded by these laws, . . ,
1,
. . .
"The Comptrollerhas requested
counties, cities and other political
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Honorable Robert S. Calvert, Page 2 Opinion No. C-414
sub-divisionsof State government
to furnish the bond If they purchase
and use special fuels in a manner
that requires a bond of others.
This policy was influenced by Attorney
General Opinion O-2305, in which it
was held that a political subdivision
of State government Is required to
furnish the bond required by Article
4365, V. A. C. S., to receive a
duplicate of a warrant issued to such
applicant which has thereafterbecome
lost.
"This Is the first application
thisDivision has received from a
department of State government for a
permit for which the law provides
that a bond shall be furnished,and
the Texas Department of Corrections
has advised that It has no appropriation
for the payment of the premium to a
surety company should a bond be required.
"Will you, therefore,please advise
this Department whether it can issue a
permit classified by law (Art. 10.11) as
a bonded user's permit to the Texas
Department of Correctionsand waive the
bond required by the law?"
Section (1) of Article 10.10, Title 122A, Chapter 10,
Vernon's Civil Statutes, which we deem determinativeof the
question under consideration,reads a8 follows:
"Every person who Is authorizedby
permit or required by law to make
remittances or payments directly,to this
State of taxes collectedupon the sale
or delivery of special fuels or of taxes
incurred upon the use of said products
shall file with his applicationfor
permit a bond in an amount to be set by
the Comptrollerat not less than three
(3) times the amount of taxes that will
accrue or may be expected to accrue
during any month of the calendar year,
but which bond shall never be less than
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Honorable Robert S. Calvert, Page 3 Opinion No. C-414
One Thousand Dollars ($1,000) If
filed by a supplier nor less than
Plve Hundred Dollars ($500) If filed
by a dealer or user.
"Every such bond shall be executeti
by a surety company authorize:; to do
business In this State, payable to
the State of Texas, and shall remain
in force from the date it is malie
effective to the end of the calendar
year, unless released by the Comptroller
as herein provided. Such bond shall be
conditionedupon the full, complete,
and faithful performance by the person
for whom It Is issued of all of the
conditions and reqUiI?ementS bpOSed On
said person by this Chapter, or by
rules and regulationspromulgated by
the Comptroller,and shall expressly
guarantee the remittance or payment to
the State of Texas within the time
prescribed by law of all taxes,
penalties, interest, and costs required
herein to be remitted or paid to this
State by sai6 person. Any such bond
which is continuous in form may be
continued in effect for a succeeding
calendar year by a renewal certificate,
which certificate shall have all the
force and effect of an original bond."
'Person' is defined In Section (9) of Article 10.02 as
follows:
"'Person'means every individual,
firm, association, joint stock company,
syndicate,partnership, copartnership,
corporation (public,private, or
municipal), trustee, agency or receiver."
We do not think that the Texas Department of Corrections
can be deemed an "agency" within the contemplationof the
definition of "person" above quoted. We further think that
the provision of Section (1) of Article 10.10 which requires
that a bond shall be Issued by a surety company and made
payable to the State of Texas demonstratesthat the Legislature
never intended that a Department of the State Government
would be required to secure bond made payable to, in effect,
itself. The result would be that the Government, or more
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Honorable Robert S. Calvert, Page 4 Opinion No. C-414
specificallya Department thereof, would be expressly
guaranteeingthe remittance or payment to Itself of all the
taxes, penalties, interest and costs required under the
provision of the Special Fuels Tax Act. Additional evidence
of this lack of Legislative Intent lies in the fact that no
appropriationhas been made by the Legislature for the pay-
ment of a bond premium.
You are therefore advised that In the instant case you
may issue the permit classifiedby Article 10.11 as a bonded
user's permit without requiring a bond.
SUMMARY
-e-s---
The Texas Department of Cor-
rections, a department of the
State government, need not
furnish the bond required by
Article 10.10(l) In order to
receive a permit classified
by Article 10.11 as a bonded
user's permit.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
Assistant
MMcGP:dl
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Frank Sooth
John Banks
Gordon Rouser
Robert Norris
APPROVED FOR TRE ATTORNEY GENERAL
By: Stanton Stone
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Untitled Texas Attorney General Opinion
Combined Opinion