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 eriden08 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 appropriation? 

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 Gomptroller ror the purposes therein authorized and la avallable ror the blemlum. 

hots 1933, p. 75, oh. 44 es amended 1935, 44th 

LQ3 ., p. 558, oh. S4G (Artlole 7065a, Vernon's Texas 

Glvll Statutes) Impose8 an ocoupatlon or exe16e tar upon 

mater fuel, 

Texas. 

the tax to ecorue upon the flret sale in 

Detailed 'prov1elon6 are made for report@, lnspeotlons, $nvest$gat$ona and the colleatlon of th@ tax, and 

Imposes the prlnolpal dutle6 ln oonnactlon rlththe oollectlon 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 $nformation. The Act makes it a m$ademeanor to sell motor 

fuel upon whloh a refund may be authorized, 

66, without first having obtained a license. 

orb;;g;tm- 

$;;;;;lon Is mede for makiny 8hd keeping redords - 

claims, eta., subject to the er,proval an& itspeetl& 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 Oomptroller. Section8 13 (g) and (h) direct the payment of 

the taxe8 oolleoted Into the State Treasury end epproprlate 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 ~"wllfully 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 vlolation 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 unauthorized refunde, and to promote a more effective enforoesent end prevent abuses. The nature of the duties 

$mposed upon the Comptroller require a.vlgllant. $nveatlgatlon and examinetion of the rmords, prem$Sss and oommerolal. aotlvltlss or those engaged In tho produotlon, 

sale and use of motor fuel, to deterreine whether vfolations have oaourred, and ts prevent violetlona of the refund provisions of the law a8 well a6 its other terms. 

An errloienti enforcement of the motor fuel. law uould require 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 lnsure a sucasseful prosecution of violatione. 

This departmat had before It a related question 

in a Conrerence 0 lnfon, 

dressed to Honora f 

dated September 27, 1921, adle Len A. smith, Book 56, p. 6. 

In that opinion the Legislature had made an appropriation to the Live Stook Sanitary Commission, *'for 

the enrorcemnt or all laws coming under the supervision 

.-ox the Live Steak Sanitary Commlsslon, and all expenees 

'inoident thereto." The Commlssion had employed an attorney 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 aesieting 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 1.188d for 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~arlly eaoi: case or Investigation will. pnsent 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 undostand, that in some oases, expenses 0r the nature nentionsd In your letter.nmy be alaioot eaeentlal to the proper 

preparation of oafs88 and their prosecution in the enforeeraeat or the rsrund groviefona 6r tht3 motor fuel lami. 

The previelon appropriating money for the +M?cenent or the A&, In our opinioni is not W&ted to ,@n lnveetigation 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 additional material may become neoessery In the light of subsequent 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.n Seotion I$ 9. B. No. 179, 

Aete 1939, 9. 507. 

ii'8 are 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