Untitled Texas Attorney General Opinion

574 OFFICE OF THE A’ISORNEY GENERAL OF TEXAS AUSTIN Xonorable George II. Sheppard Goqtroller of Pub110 Aooounta Austin, Tsxaa Deer Sir: We are In reoelp 194G, requesting the opini letter reads ln part as fo Motor -&ml Tar Law Session ot the Fort "In the edminletrf&tlon and enrorooment of the r+Tund motes- fuel laws the GomptmLLer iinde it moemary, in hts dlsoretLon, to vigomualy proaeoute oertain suits,,uepsllly in cooperation witzh the IJistriot Attorney. ,475 Honorable George K. Sheppard, Page 2 In one particular ocse, the Goniptroller, within his discretion. find8 it neoessary to inour the expenses or a photographer to take pioturos ol e oertaln soem, which plotures are to be used ln eri- den08 In the prosaoutlon 0r the ease. The photographer himself will be used ea a wltneaa. The Comptroller finds It neoeerrery also to pay the fees of a phyelolan to erslGine a oertaln defendant whloh physlolan all1 be used In the trlai or the case. "1s the Wptroller authorized to incur euoh expenses against this appro- priation? Would there be any dlffsrenoe in inourrlng this expense berore or after lndiotmsnt?* We ruled In opinion No. G-11356 that the above quoted prov1slon oonstltutes an approprlatlon to the Gomp- troller ror the purposes therein authorized and la avall- able ror the blemlum. hots 1933, p. 75, oh. 44 es amended 1935, 44th LQ3 ., p. 558, oh. S4G (Artlole7065a, Vernon's Texas Glvll Statutes) Impose8 an ocoupatlon or exe16e tar upon mater fuel, the tax to ecorue upon the flret sale in Texas. Detailed 'prov1elon6 are made for report@, lnspeo- tlons, $nvest$gat$onaand the colleatlon of th@ tax, and Imposes the prlnolpal dutle6 ln oonnactlonrlththe ool- lectlon of t~he tax and the adm$nlstration and enforoe!ttent or the dot upon the Comptroller of Pub110 Amounts. we shall snot enumerate these varioaa provlslona In detail. Sections 13, 7 aml 12 of the above enaotxaents were mended by Aota 1939, 6. B. 190. 179, p. 507, the quotation In your letter being taken frozt amended Seetlon 13. That section provides for rerund or the motor rue1 tax paid by licensed distributors when the motor fuel upon which the tar was paid $8 devoted to certain uses; the provision betng $3 the nature or an sxeauptloa. In order to safeguard agelnst abuass end to facilitate the enforcement of the Act, distributors desiring to eeaure 576 Hczorable Ceor?;e IX. Sheppard, YaGe 3 the authorized refund must ‘rirst secure a liaenee from the Comptroller, rile en oath, end furnish oertaln $n- formation. The Act makes it a m$ademeanor to sell motor fuel upon whloh a refund may be authorized, orb;;g;tm- 66, without first having obtained a license. $;;;;;lon Is mede for makiny 8hd keeping redords - claims, eta., subject to the er,proval an& it- speetl& of the Comptroller and a lloenss may be revoked ror violation or the provisions or the Aot. Various Poms ere to be presorlbed and furnished by the Oomp- troller. Section8 13 (g) and (h) direct the payment of the taxe8 oolleoted Into the State Treasury end eppro- prlate e speolrled amount for making rerunds. Tbs last mentioned subsection authorlsea the Ueduotlon of the $1.00 flllng~fee.w~lah Is appropriated to the u8e of the Comptroller "In the cdmlnlstrat$on end enforoement* of the Act and In furnishing the form of~lnvolce of exezption. Section 15 or the Bat of 1935 makes It a relony, to vlolnte verioua provisions or the Aot, or to reruse,to permit lnspeotion of 9roduote and premlaea, or to ~"wllful- ly forge or rdlsiry any ,$nvolce 0r exez&lon* or si1fuU.y and knowingly make any f&lse statement in any ola$m for refund made or riled es~,to any material teat requfred to be i;iven.* Venue, for proseoutlone under this eeotlon is pleoed in Tm~ls County or the aounty In whfeh the vlola- tion 0 oeurs. It Is olear from a consideration of the motor fueltaxlaw as awhole that the pr$=~ duty ofedmia- $s;si;;g and enforoing the aot 16 Imposed upon the Gomp- . The Le&lslature ha8 attempted to strengthen the retund pzo~$elon8 or the law, to Insure adequate means and mtbods ror the prevention end proseoutlon ~of un- authorized refunde, and to promote a more effective en- foroesent end prevent abuses. The nature of the duties $mposed upon the Comptroller require a.vlgllant. $nveatl- gatlon and examinetion of the rmords, prem$Sss and oom- merolal. aotlvltlss or those engaged In tho produotlon, sale and use of motor fuel, to deterreine whether vfola- tions have oaourred, and ts prevent violetlona of the re- fund provisions of the law a8 well a6 its other terms. An errloienti enforcement of the motor fuel. law uould re- quire the @therIng end preservation of evldenes in suoh form thtit It mightbe properly and effeatfvely presented in the trial of o&se8 or prosecutions arising under th6 AM,. Evlde~ntly the Legislature oontemplated that the GomptroZler should vigorously prosecrute suah aults ~8 577 &onorabls George B. Sheppard, Page 4 might be proper or neCeSSary, and that he should cooperate with the distriot or prosecuting atsorneg and furnish suoh data or evidence as .zight be at his dis?oaal to ln- sure a sucasseful prosecution of violatione. This departmat had before It a related question in a Conrerence 0 lnfon, dated September 27, 1921, ad- dressed to Honora f le Len A. smith, Book 56, p. 6. In that opinion the Legislature had made an ap- propriation to the Live Stook Sanitary Commission, *'for the enrorcemnt or all laws coming under the supervision .-oxthe Live Steak Sanitary Commlsslon, and all expenees 'inoident thereto." The Commlssion had employed an attor- ney to be paid out of this appropriation and the DOIS~- %roller had refused to issue a warrant for the elaia. This department’s ruling was In the following la-age: ?I We do not think the Laglslature 1ntendid.b; making this appropriation that the Live Stot?k Sanitary Comaission s~uld eniploy or appoint a lawyer to travel over the State of Texas for the purimae or aesiet- ing oounty attorneys in the prosecution or those aharged with vlohtlons of the IAve Steak Sanitary Laws. The appmprlation ie n6t one neoesaarily ror that purpose. Th'hie appropriation may be 1.188dfor the purpoee 0r oonduehg investigatfons, in uonneotion with the proseoutfozl 0r violations or the Live Stock Sanitary Laws and in the payment or various and neaessary ~%SM or expense that may properly be inaukpd orthe pert 0r the Live Stook sanitarf”Cadssian in preparing to institute proseuutions.* Bleoess~arllyeaoi:case or Investigation will. pn- sent its indivfdual problems, and require diZferent types at evidenoe to be obtained and preserved in sueh manner ad the aireumstanoes zaayrarrant. We oan rea$ll,p undo- stand, that in some oases, expenses 0r the nature nention- sd In your letter.nmy be alaioot eaeentlal to the proper preparation of oafs88 and their prosecution in the enforee- raeat or the rsrund groviefona 6r tht3motor fuel lami. The previelon appropriating money for the +M?ce- nent or the A&, In our opinioni is not W&ted to ,@n ln- veetigation designed to bring about the lnetitution 578 flonorable George fI. Sheppard, Page 5 0r a prosaaution. Suits or prosecutions may be iastitut8d at a time when the preparetion of the oaae is incomplete, or after the comxencenent of the aotion additional aata may oome,to the attention of the Comptroller, or addition- al material may become neoessery In the light of subse- quent developments. To asaribe ta the Legislature the intention that the tapprGpriatiOn la qusetion should cease tebe available once e proeeaution. is instituted; would, in many lnetenoes, praatioally de&&at the purposes of the appropriation Itself and Soster an inerfeotual eniorcemmt . It is our opinion that the Comptroller, in the enroroezrent of the motor fuel refund law, is authorized to inour expenses of tie nature mentioned in the letter of request, when reasonably neoesaary in the enroroement ot suah law, including the preparation and proseoution of oases arising thereunder, and that suoh expenses are preperlp chargeable against the $1.00 refunding filing fee appropriation oontained 3.nSeotion I$ 9. B. No. 179, Aete 1939, 9. 507. ii'8are further of the opinion that such erpeneee may be properly inourred matwithstanding the institution of a suit or proseoution. Yoursverytru1y Assistant CGGtGO APPROVEDAPR 27, 1940