Honorable Robert S. Calvert 

Comptroller of Public Accounts 

Austin, Texas 

Dear Mr. Calvert: 

Opinion No. C-414 

Re: Whether a department 

of State government 

must furnish the bond 

required by Article 

10.10(l) of persons 

who make remittances 

or payments of special 

fuels taxes directly 

to this State. 

We quote the following from your letter requesting the 

opinion of this office on the above captioned question. 

"We desire the opinion of your office 

as to whether or not a department of 

State Government will be required to 

furnish the bond required by Article 

10.10(l) by the Special Fuels Tax Law 

of persons who make remittances or payments directly to this State of taxes 

incurred upon the use of special fuels. 

'For example: the Texas Department 

of Corrections IS now engaged in the use 

of special fuels (diesel fuel) predominantly to operate tractors and other 

equipment off the public highway but 

with lesser quantities used to operate 

diesel trW2k8 upon the public highways, 

which operation by private persona 

would require a bonded user permit and 

the payment of taxes directly to the 

State. 

"There is no exemption from the tax 

on the highway use of special fuels or 

motor fuel accorded by these laws, . . , 

1, 

. . . 

"The Comptroller has requested 

counties, cities and other political 

-1949- 
_-- . . 

Honorable Robert S. Calvert, Page 2 Opinion No. C-414 

sub-divisions of State government 

to furnish the bond If they purchase 

and use special fuels in a manner 

that requires a bond of others. 

This policy was influenced by Attorney 

General Opinion O-2305, in which it 

was held that a political subdivision 

of State government Is required to 

furnish the bond required by Article 

4365, V. A. C. S., to receive a 

duplicate of a warrant issued to such 

applicant which has thereafter become 

lost. 

"This Is the first application 

this Division has received from a 

department of State government for a 

permit for which the law provides 

that a bond shall be furnished, and 

the Texas Department of Corrections 

has advised that It has no appropriation 

for the payment of the premium to a 

surety company should a bond be required. 

"Will you, therefore, please advise 

this Department whether it can issue a 

permit classified by law (Art. 10.11) as 

a bonded user's permit to the Texas 

Department of Corrections and waive the 

bond required by the law?" 

Section (1) of Article 10.10, Title 122A, Chapter 10, 

Vernon's Civil Statutes, which we deem determinative of the 

question under consideration, reads a8 follows: 

"Every person who Is authorized by 

permit or required by law to make 

remittances or payments directly, to this 

State of taxes collected upon the sale 

or delivery of special fuels or of taxes 

incurred upon the use of said products 

shall file with his application for 

permit a bond in an amount to be set by 

the Comptroller at not less than three 

(3) times the amount of taxes that will 

accrue or may be expected to accrue 

during any month of the calendar year, 

but which bond shall never be less than 

-1950- 
Honorable Robert S. Calvert, Page 3 Opinion No. C-414 

One Thousand Dollars ($1,000) If 

filed by a supplier nor less than 

Plve Hundred Dollars ($500) If filed 

by a dealer or user. 

"Every such bond shall be executeti 

by a surety company authorize:; to do 

business In this State, payable to 

the State of Texas, and shall remain 

in force from the date it is malie 

effective to the end of the calendar 

year, unless released by the Comptroller 

as herein provided. Such bond shall be 

conditioned upon the full, complete, 

and faithful performance by the person 

for whom It Is issued of all of the 

conditions and reqUiI?ementS bpOSed On 

said person by this Chapter, or by 

rules and regulations promulgated by 

the Comptroller, and shall expressly 

guarantee the remittance or payment to 

the State of Texas within the time 

prescribed by law of all taxes, 

penalties, interest, and costs required 

herein to be remitted or paid to this 

State by sai6 person. Any such bond 

which is continuous in form may be 

continued in effect for a succeeding 

calendar year by a renewal certificate, 

which certificate shall have all the 

force and effect of an original bond." 

'Person' is defined In Section (9) of Article 10.02 as 

follows: 

"'Person' means every individual, 

firm, association, joint stock company, 

syndicate, partnership, copartnership, 

corporation (public, private, or 

municipal), trustee, agency or receiver." 

We do not think that the Texas Department of Corrections 

can be deemed an "agency" within the contemplation of the 

definition of "person" above quoted. We further think that 

the provision of Section (1) of Article 10.10 which requires 

that a bond shall be Issued by a surety company and made 

payable to the State of Texas demonstrates that the Legislature 

never intended that a Department of the State Government 

would be required to secure bond made payable to, in effect, 

itself. The result would be that the Government, or more 

-1951- 
Honorable Robert S. Calvert, Page 4 Opinion No. C-414 

specifically a Department thereof, would be expressly 

guaranteeing the remittance or payment to Itself of all the 

taxes, penalties, interest and costs required under the 

provision of the Special Fuels Tax Act. Additional evidence 

of this lack of Legislative Intent lies in the fact that no 

appropriation has been made by the Legislature for the payment of a bond premium. 

You are therefore advised that In the instant case you 

may issue the permit classified by Article 10.11 as a bonded 

user's permit without requiring a bond. 

-e-s--- SUMMARY 

The Texas Department of Corrections, a department of the 

State government, need not 

furnish the bond required by 

Article 10.10(l) In order to 

receive a permit classified 

by Article 10.11 as a bonded 

user's permit. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

Assistant 

MMcGP:dl 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Frank Sooth 

John Banks 

Gordon Rouser 

Robert Norris 

APPROVED FOR TRE ATTORNEY GENERAL 

By: Stanton Stone 

-1952-