. ,

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 onmotor fuels under House Bill 504, Acts 1989, 71st Leg., ch. 1033, at 4156 (RQ-1904)

Dear Mr. Bullock:

You ask about the proper construction ofHouse Bill 504, which was enacted by the 71st Legislature and 9overns the sale of certain mixtures ofgasoline and alcohol. The bill requires that the comptroller administer and enforce a program of labelling pumps through which fuel containing ethanol ormethanol issold.

You appear to askwhether the imposition of the fee authorized by subsection (c)of section 9ofarticle 8614, V.T.C.S., may reach only dealers that deliver or sell motor fuels containing ethanol ormethanol orwhether itmay reach all dealers that deliver or sell motor fuels, regardless of whether those fuels contain ethanol ormethanol. However, because both subsections (b)and (c)of section 9 authorize the imposition of fees, wewill address both subsections.

We conclude that afee authorized by subsection (b) of section 9of the actmay reach all persons required to hold apermit asadistributor ofmotor 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 9of the act may reach only those dealers who deliver or sell motor fuels containing ethanol or methanol inthe amount specified in the article.

1. Codified as article 8614, V.T.C.S.

p. 6692Honorable Bob Bullock -Page 2 (JM-1256)

Section 9ofarticle 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 ofmotor fuels containing ethanol andmethanol.
(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 int&

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 amotor 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 orby arule 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 beuse: onlv for the a&&nistration and enforcement of this 

### Act bv the comntroller and shall be deoosited inthe 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 tohold apermit as a distributor ofmotor fuels under chapter 153 of the Tax Code

P. 6693Honorable Bob Bullock -Page 3 (JM-1256)

forwhom services are performed under that subsection, regardless of whether the fuel thus distributed contains ethanol or methanol. Sections 1and 2of 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 inthe state. Section 2of the act provides:

Inorder todetermine compliance with the standards and for the enforcement of rules adopted under Sections 3, 4,and 5of this Act, the comptroller ofpublic accounts oran authorized representative of the comptroller, any law enforcement officer at the direction of a prosecuting attorney, or the attorney genera.1may test anv motor fuel sold in this state, with orwithout acomplaint 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 ofamotor vehicle." Thus, since every licensed distributor issubject to testing, inspection, a, every licensed distributor may be subject to the subsection 0) fee, regardless ofwhether the motor 

### fuelso distributed contains ethanol ormethanol. 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 isemphasized that the underscored phrase of subsection (c)of section 9permits afee tobe 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, 52,at 550.

p. 6694Honorable Bob Bullock -Page 4 (JM-1256)

deals inamotor 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 isargued, 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 ofmotor fuel are subject to testing: wedo 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 tomean

I. to fix, establish orcontrol; to adjust 

### by rule method or established mode; to direct by rule or restriction: to subject to governing principles or laws.

; nv **U** Passaic, 308A.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 inthis instance to comprise a part of "regulation.@* Rather, we construe positive testing for ethanol and methanol gasoline mixtures to constitute a prerequisite that must bemet in order for the regulatory provisions of the act tobe 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 ormethanol. For example, the caption ofHouse Bill 504 described the bill as anact "relating to the sale of certain mixtures ofgasoline and alcohol; providing penalties." Section 11of 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, pfmotor fuels containina ethan 1 prmethanol that occur on orafter that datt. (Emphasis added.)
Sections 3, 4, 5, 6, 7, and 8of the act refer only to those motor fuel dealers selling motor fuel containing a certain

P. 6695Honorable Bob Bullock -

### Page5 (JM-1256)

specified mixture ofethanol ormethanol. Subsection (a)of section 9confers specific authority on the comptroller to adopt rules not inconsistent with the act 'for the regulation of the sale ofmotor fuels containing ethanol and methanol." 

### Andfinally, 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 inthis state asmixtures 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 tomotor fuels sold in sufficient quantity towarrant reaulation. (Emphasis added.)
Language repeatedly used inastatute will be presumed tohave 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 inwhich 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 noauthority topromulgate 

### rules governing the sale ofmotor fuels m containing ethanol or methanol: therefore, such transactions are **not** Vegulated" by the act.
Second, it isargued that aconstruction limiting the reach of the 

### subsection 9(c)fee to only those dealers whose fuel contains **ethanol** ormethanol would have the effect of subverting the purpose forwhich the,act was passed. It is argued that requiring only those dealers whose **motbr** fuels 

### contain the requisite amount of ethanol ormethanol to bear the burden ofpaying the subsection 9(c) feewill have the effect of creating such economic disincentives that the sale ofgasoline containing ethanol ormethanol would be dis

### couraged. For two reasons, we **disagree.** We are unconvinced that such 

### aconstruction wouldhavesuchaneffect. 

### First,wedonotbel,ievethatourinterpretation ofthe statute 

### vi11subvertthepurposeoftheact. An examination of the legislative history 

### ofEouseBill504inr%icates that the legislature sought to

### require that 

### alldealers that sell motor fuel 

### containing a~specified amount of ethanol or

-

p. 6696Honorable Bob Bullock -Page 6 (JM-1256)

methanol must label pumps dispensing the fuel so that the mixture will be indicated to consumers: inother words, the evident purpose of the bill istoprotect the consumers of motor fuel.
The "Background Information10 section of the bill analysis forHouse Bill 504provides inrelevant 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 ifthemotor 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 isto require dealers selling amotor fuel mixture ofgasoline 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 2of the bill inthe 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 aresult that disproportionately burdens those dealers who sell motor 

### fuelcontaining ethanol ormethanol. The act, as itwas introduced, contained a provision limiting anyfee charged to the actual cost of the service tobe 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 ofadministering the act. V.T.C.S. art.

P. 6697Honorable Bob Bullock -Page 7 (JM-1256)

8614, 59(e). We note that anadministrative agency, though vested by statute with discretion in its actions, may 

### not exercise **its** powers inanarbitrary or capricious manner, and the reasonableness of its orders issubject to judicial review. m strial Accident Bd. v. O'Dowd, 303 S.W.Zd 763 (Tex. 1957)iUBrown v.Humble Oil 61Ref. Co<, 83 S.W.Zd 935 (Tex. 1935). Finally, it isargued 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 ormethanol, 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 asdiesel and Liquified Petroleum Gas, which were not sold incombination with ethanol andmethanol. Itwas the intention of the Legislature tohave this feeplaced on all distributors of gasoline, in order to spread the economic effect ofthe regulations across all gasoline inthe market.

Letter from Jim Horn, State Representative, toHonorable Bob Bullock (Oct. 17, 1989) (discussing H.B. 504).

For two reasons, wedonot conclude that the letters are inany 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 atall 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 asa whole:

Astatute isanact of the legislature as an

organized body, and expresses the collective will of that body. No single member can be heard to say what themeaning of a statute is. It **must** speak for and be construed by itself.

p. 6698Honorable Bob Bullock -Page 8 

### (JM-1256)

Commissioners' Court of El Paso Cuntv 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 toan act's passage.." 2A Sands, Sutherland Stat. Const. 548.15 (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) ofHouse Bill 504 reaches all persons required tohold a permit as adistributor ofmotor 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) ofHouse Bill 504 reaches only those 

### dealers ofmotor fuel, asdefined inthe act, that contain 

### ethanol
ormethanol incertain specified amounts.

SUMMARY

**I**
The fee authorized by subsection 9(b) of House Bill 504 reaches all persons required tohold a permit asa 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 ofmotor fuel, asdefined inthe act, that contain ethanol ormethanol.

Very truly yo 

# LJAt!cttk

/c;, 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 byJim Moellinger Assistant Attorney General



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