. , 

December 11, 1990 

Honorable Bob Bullock 

Comptroller of public 

opinion No. JM-1256 

Accounts 

L.B.J. Building 

Austin, Texas 78774 

Re: Imposition of fees on motor 

fuels under House Bill 504, 

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 

9 

overns 

the sale of certain mixtures of gasoline and alcohol. 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 

troller bv rule may impose a' 

the compfee 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 

Passaic, 308 A.2d ZO, is 63 (N.J. 1973); see also Farmina 

of 

ton 

River Co. v. Town Plan & Eonina Comm#n of Farminaton, 197 

A.2d 653 (Conn. 1963); Iowa PO er & Liaht Co. 

Hiahwav Comm'n 

construe test& 

117 N.W.2d 415 (Iowa 1962):' 

Iowa State 

We do not 

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 discouraged. 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 

&tent: 

has a substantial alcohol 

(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 

Sb riff's Denuties Ass'n 620 S.Wy2d 900 

Countv 

AP; . - El Paso 1981, wrii ref'd n.r.e.).' 

902 (EX. Civ. 

Sutherland sets 

forth the following rule: "Postpassage remarks by legislators, 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 subsection. 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. 

Very truly yo LJ /c;, At!cttk 

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