E AT-B-OIECNEY GENEXAL
OF TEXAS
AUSTXN aa.Trcxas
WILL W1lL80N
AITORNEYGENER*I.
September 18, 1961
Honorable Robert S. Calvert Opinion No. WW-1140
Comptroller of Public Accounts
Capitol Station Re: Three questions relating
Austin, Texas to Sec. 2 of Senate Bill
No. 10, Acts 1961, 57th
~~-,;;~~~a~;, ;7;;wp*
Section No. (6a) to Art.
9.13 of Title 122A, Tax.-
Gen., R.C.S., which is
Dear Mr. Calvert: the Motor Fuel Tax Law.
You request the opinion of the Attorney General in answer
to three questions relating to Senate Bill No. 10, Acts 1961,
R.S., 57th Legislature, which is more fully referenced in the
caption of this opinion.
Your questions and our answers are as follows:
Your first question is:
"Will the provisions of Section 7(a)
of Article VIII of the Constitution of
the State of Texas permit the allocation
and deposit of unclaimed aircraft fuel
tax refunds to the Texas Available School
Fund and to the Texas Aeronautics Commission
Fund for the purposes provided in Section
(6a), cited above?"
Our answer is "Yes".
Your second question Is:
II *will persons who are entitled to
file claims for refund of the tax paid on
motor fuel used in aircraft be required
to file such claims within six months to
comply with the six months limitation
period indicated In Section (6a) of Senate
Bill 10, or will such persons be entitled
to file claim within the period of one
year as provided In Subsection (6) of
Article 9.13, as amended by House Bill 129?"
.. .
Honorable Robert S. Calvert, Page 2 Opinion No. WW-1140
House Bill 129 to which you refer was passed at the same Regular
Session of the Legislature which passed Senate Bill No. 10. It
is chapter 453, at page 1026 of the Acts of that Session. Our
answer to the second question is that claims must be filed within
six months, as required by Section (6~) of Senate Bill 10.
Your third question, stated in alternate inquiries which
we designate as subdivisions (a) and (b) is as follows:
"(a) Is the Comptroller correct in
construing Senate Bill No. 10, as intended
by the Legislature, to mean that the Comp-
troller must first receive the monthly
reports and schedules, required in Section
5 above, from the distributors showing
complete information of all sales of motor
fuel marketed by such distributors as
aviation or aircraft fuel, from which to
determine the total quantities available
for refund during the month reported, and
then must wait until the limitation for
filing refund claims on the purchases shown
has expired (six months or one year whichever
you determine to be the law) before making
the determination of the number of gallons
used in aircraft upon which refund of the
tax thereon has not been made and against
which a limitation has run for filing claim
for refund of said tax as provided in Section
(6a) above cited?
"(b) does the provision in Section (61)
stating, sEach month the Comptroller. . a
shall determine as accurately as possible
the number of such gallons. . .' require or
authorize the Comptroller to make such
determination as accurately as possible --
which would necessarily be an estimate --
and make the allocations each month after
the effective date of the Act, subject to
correction on allocations made after the
limitation has run?"
Our answer to this third question is that the Comptroller is to
follow the procedure stated in subdivision (a) of this question.
Honorable Robert S. Calvert, Page 3 Opinion No. WW-1140
Provisions of the Texas Constitution
and Statutes under Consideration
The pertinent portion of Sec. 7-a of Art. VIII of the Texas
Constitution reads as follows:
"Subject to legislative appropriation,
allocation and direction, all net revenues
remaining after payment of all refunds
allowed by law and expenses of collection
derived from motor vehicle registration
fees, and all taxes, except gross production
and ad valorem taxes, on motor fuels and
lubricants used to propel motor vehicles over
public roadways, shall be used for the sole
purpose of acquiring rights-of-way, construct-
ing, maintaining, and policing such public
roadways, and for the administration of such
laws as may be prescribed by the Legislature
pertaining to the supervision of traffic and
safety on such roads; and for the payment of
the principal and interest on county and road
district bonds or warrants voted or issued
prior to January 2, 1939, and declared
eligible prior to January 2, 1945, for pay-
ment out of the County and Road District
Highway Fund under existing law; provided,
however, that one-fourth (l/4) of such net
revenue from the motor fuel tax shall be
allocated to the Available School Fund;. . . .'
Section 1 of this Senate Bfll No. 10 adds to the Motor Fuel
Tax Law a new Section 5 to Art. 9.03, Title 122A, Tax.-Gen.,
R.C.S. This new Sec. I5 1 reads as follows:
"Section 1. That Section 5 be enacted
and added as an amendment to House Bill
No. 11, Acts 1959, 56th Legislature, 3rd
Called Session, Chapter 9, (under Chapter
1) Title 122A, Motor Fuel Tax (Article 9.03
by adding a Secfon 5 thereto) the same to
read:
“‘(5) Reports. Every distributor selling
motor fuel in this state for use in air-
craft, or for resale for such purpose, shall
attach to each monthly report required by
law to be filed with the Comptroller by each
distributor a schedule which shall become a
part of such report and shall show complete
Honorable Robert S. Calvert, Page 4 Opinion No. WW-ll40
information of all sales of motor fuel
marketed by such distributor as aviation
or aircraft motor fuel in such form as
the Comptroller may require. The Comptroller
is hereby authorized to prescribe records
to be kept and reports to be made by
distributors and refund dealers in what-
ever manner and form he deems necessary to
determine the amount of motor fuel, used or
sold for use in aircraft on which claim for
refund of the tax is not made, and the failure
or refusal to keep any such records or to
make any such reports shall constitute cause
for the cancellation of the permit or refund
of dealer's license of those who fail or
refuse to comply therewith.'"
Section 2 of this Senate Bill No. 10 adds to the Motor Fuel
Tax Law a new Section 6a to Art. 9.13, Title 122A, Tax.-Gen.,
R.C.S. This new Sec. t6a j reads as follows:
"Sec. 2. That Section (6a) be enacted
and added as an amendment to Article 9.13,
House Bill No. 11, Acts 1959, 56th Legislature,
3rd Called Session, Chapter 9, (under Chapter 1)
Title 122A, Motor Fuel Tax, the same to read:
"1(6a) Allocation of unciaimed aircraft
fuel refunds to Available School Fund and
to Texas Aeronautics Commission Fund. Each
month the Zomptroller, after making the
deductions for refund purposes as provided
in Article 9.13, Section (13) of this
Chapter, shall determine as accurately as
possible the number of gallons ef motor
fuel used in aircraft upon which the motor
fuel tax has been paid to this state, and
upon which refund of the tax thereon has not
been made and against which a six (6) months
limitatation has r-unfor filing claim for
refund of said tax (called "unclaimed refunds"),
and from the number of gallons so determined
the Comptroller shall compute the amount of
taxes that would have been refunded under the
law had claims for same been filed in accordance
with the law, and shall allocate and deposit
such unclaimed refunds as follows: twenty-
five per cent (25%) of such revenues shall be
allocated, deposited, and set aside in the
State Treasury placed to the credit of the
Honorable Robert S. Calvert, Page 5 Opinion No. WW-1140
Available School Fund. The remaining
seventy-five per cent (75%) of such
revenues shall be allocated, deposited,
and set aside in the State Treasury in
a special fund to be called the Texas
Aeronautics Commission Fund and the same
shall be credited to, and is hereby
appropriated to, the Texas Aeronautics
Commission for the purposes set forth in
this Section, and which said Texas Aeronautics
Commission Fund shall be administered by the
Texas Aeronautics Commission, together with
any other funds appropriated by the Legls-
lature, for the support, maintenance and
operation of the Texas Aeronautics Commission
in the performance of its safety and all of
its other functions, duties and responsibilities
as may be now or hereafter delegated to such
Commission as prescribed by law, and also for
the payment of the Commfssfoners, the director,
assistant director, the staff, and for equip-
ment and supplies, including aircraft and
automotive equipment as authorized by law.
Any unexpended portion of the Texas Aeronautics
Commission Fund allocated and placed to the
credit of the Texas Aeronautics Commission,
as herein prescribed, not used, and on hand,
at the end of each fiscal year shall be
returned to the Comptroller of Public Accounts
and he shall place the same to the credit of
the Texas Aeronautics Commissfon Fund for the
use of the Texas Aeronautics Commission for
the purposes stated herein.'"
House Bilk No. 129, Acts 1961, 57th Legislature, Re ular
Session, chapter 453> at page 1026, amends Subsection (6 7 of
said Art. 9.13, Title 122A, Tax.-Gen., R.C.S. This subsection
(6) in its pertinent portion as so amended reads as follows:
"(6) Any person entitled to file claim
for tax refund under the terms of this Article
shall file such claim with the Comptroller
on a form prescribed by the Comptroller within
one (1) year from the date the motor fuel was
delivered to him,. D .and no refund of tax
shall ever be made where It appears from the
invoice of exemption or other evidence sub-
mitted, that the sale or delivery of the motor
fuel was made more than one (1) year prior to
the date the refund claim was actually received
in the Comptroller8s office. 0 0 *'
Honorable Robert S. Calve&, Page 6 Opinion No. NW-1140
We note also that the same Regular Session of the 57th
Legislature enlarged both the personnel and the powers and
duties of the Texas Aeronautics Commission by Senate Bill
No. 76, Acts 1961, chapter 379, page 850.
Also, we mention that Art. 9.25 of Title 122A, as
amended by Sec. 5 of this Senate Bill No. 10 was subsequently
amended by ARTICLE V of House Bill No. 20, Acts 1961, 57th
Legislature, First Called Session, Chapter 24, page 71 (at
page 102). Your inquiries which are the subject of this opinion
relate only to claims for refunds of the motor fuel tax paid
on fuel purchased for use in aircraft. Art. 9.25 relates to
allocation of the remainder of the motor fuel tax collected
after making deductions for refund purposes and for enforcement
of the Motor Fuel Tax Act. This Art. 9.25 as amended by this
House Bill No. 20 states, in part:
"Each month the Comptroller of Public
Accounts shall, after making the deductions
for refund purposes as provided in Article
9.15 of this Chapter, and for the enforcement
of the provisions of this Chapter, allocate
and deposit the remainder of the taxes
collected under the provisions of this Chapter
in the proportions as follows: ~ . <" (Under-
scoring added).
We find no conflict between the provisions of this House Bill
20 and the provisions of new Section (6a) to Art. 9.13, Title
122A, which is the subject of your inquiries.
Discussion of Questions Asked
First Question: Section 7-a of Art. VIII of our Texas
Constitution reauires that the net revenues from the Motor Fuel
Tax " D . .on mot‘orfuels and lubricants used to propel motor
vehicles over public roadways, shall be used for. ~ *' (under-
scoring added) specified purposes relating to the construction
and policing of the public roadways and for the payment of
specified indebtedness incident to public roads. This Sec. 7-a
further provides that 1/4th of this net revenue shall be allocated
to the Available School Fund.
Section (6aj added to Art:,9.13 by Set, 2 of Senate Bill
No. 10, which we are considering, allocates only unclaimed air-
craft fuel refunds, and in addition allocates one-fourth (l/4)
of these revenues to the Available School Fund. We find no
conflict between Sec. 7-a of Art. VIII of the Constitution and
this new Section (6a) of Art, 9.13.
Honorable Robert S. Calvert, Page 7 Opinion No. WW-1140
Second Question: We believe that Section 5) added to Art.
9.03 of the Motor Fuel Tax Law, and Section (6af added to Art.
9.13 of that law, by Sections 1 and 2, respectively of the Senate
Bill No. 10, manifest the legislative intent that claims for
refund of the motor fuel tax paid on such fuel used in aircraft
are to be filed as required by the more specific provisions of
new Sec. (6a) of Art. 9.13 (added by Sec. 2 of S,B. 10) instead
of by the eneral provisions of amended Subsection (6) of this
Art. 9.13 7as amended by H.B. 129). We do not consider the fact
that House Bill 129 was passed by the Legislature one day sub-
sequent to passage of Senate Bill No. 10 to make the general
provisions of House Bill 129 control over the specific provisions
of Senate Bill 10.
Section (5) of Art. 9.03 (being Section 1 of this Senate
Bill No. 10) requires each distributor selling motor fuel for use
in aircraft to file each month a special schedul: prescribed by
the State Comptroller to enable the Comptroller . . . to determine
the amount of motor fuel, used or sold for use in aircraft on
which claim for refund of the tax is not made. . e a' This
schedule is required only of fuel the ultimate use of which is
for use in aircraft. Also, new Section (6a) of Art. 9.13 (being
Sec. 2 of this Senate Bill No. 10) relates only to fuel used in
aircraft.
"'It is a fundamental rule that where
the general statute, if standing alone,
would include the same matter as the special
act, and thus conflict with it, the special
act will be considered.as an exception to
the general statute, whether it was passed
before or after such general enactment. m .
and where the general act is later, the special
statute will be construed as remaining an
exception to its terms, unless it is repealed
in express words or by necessary implications."
Hallum v, Texas Liquor Control Board, 166 S.W.2d
175 (Civ.App. 1942, error ref.). Also:
Fortinberry v. State, ex.rel. Myers, 283 S.W.
146 (Comm.App. 1926); Culver v. Miears, 220
S.W.2d 200 (Civ.App. lg4gs error ref.
v. Broeter, 145 Tex. 142, 196 S0W.2d
39 Tex.Jur. 149-151, Statutes, Sec. 81-82.
Third Question: We believe that the Legislature intended
by the provisions of new Sec. (6a) added to Art. 9.13 by Sec. 2
of Senate Bill 10 which read:
Honorable Robert S, Calvert, Page 8 Opinion No. WW-1140
11
-and against which a six (6) months
limitation has run for filing claim for
refund of said tax (called 'unclaimed
refunds'). . On
and
,I .and from the number of gallons so
de&mined the Comptroller shall compute the
amount of taxes that would have been refunded
under the law ~
had claims for same been filed
in accordance with the law,. . 0' (Under-
scoring added)
that the Comptroller first receive the monthly reports and
schedules required in new Section (5) of Art. 9.03 (being Section
1 of this Senate Bill No. 10) and then to wait until the six (6)
months limitation set forth in this new Section (6a) of Art.
9.13 has expired before he makes determination each month of
the quantity of fuel used in aircraft and upon which a claim for
refund of the taxes has not been made for the immediately preceding
six months.
SUMMARY
Sec. 2 of Senate Bill No, 10, Acts
1961, R.S. (codified as Sec. (6a) of Art.
9.13, Title 122A, R.C,S,):
1) Is constitutional;
2) Requires claims for refund of the
motor fuel tax paid on fuel used in air-
craft to be filed within a six months-
limitation period;
3) Requires the Comptroller to wait
until this six months limitation period
has expired before he determines each month
the amount of motor fuel used in aircraft
upon which a claim for ref-undof the motor
fuel tax has not been made for the immediately
preceding six months,
Yours very truly,
WILL WILSON
1 of Texas
(l&&L
Assiitant Attorney General
Honorable Robert S. Calvert, Page 9 Opinion No. WW-1140
WEA:cm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Henry Braswell
Riley Eugene Fletcher
John Reeves
Bill Robinson
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee, Jr.