E AT-B-OIECNEY GENEXAL 

OF TEXAS 

WILL W1lL80N 

AITORNEYGENER*I. 

AUSTXN aa. Trcxas 

September 18, 1961 

Honorable Robert S. Calvert Opinion No. WW-1140 

Comptroller of Public Accounts 

Capitol Station Re: Three questions relating 

Austin, Texas to Sec. 2 of Senate Bill 

No. 10, Acts 1961, 57th 

~~-,;;~~~a~;, ;7;;wp* 

Section No. (6a) to Art. 

9.13 of Title 122A, Tax.- 

Gen., R.C.S., which is 

Dear Mr. Calvert: the Motor Fuel Tax Law. 

You request the opinion of the Attorney General in answer 

to three questions relating to Senate Bill No. 10, Acts 1961, 

R.S., 57th Legislature, which is more fully referenced in the 

caption of this opinion. 

Your questions and our answers are as follows: 

Your first question is: 

"Will the provisions of Section 7(a) 

of Article VIII of the Constitution of 

the State of Texas permit the allocation 

and deposit of unclaimed aircraft fuel 

tax refunds to the Texas Available School 

Fund and to the Texas Aeronautics Commission 

Fund for the purposes provided in Section 

(6a), cited above?" 

Our answer is "Yes". 

Your second question Is: 

II *will persons who are entitled to 

file claims for refund of the tax paid on 

motor fuel used in aircraft be required 

to file such claims within six months to 

comply with the six months limitation 

period indicated In Section (6a) of Senate 

Bill 10, or will such persons be entitled 

to file claim within the period of one 

year as provided In Subsection (6) of 

Article 9.13, as amended by House Bill 129?" 
. . . 

Honorable Robert S. Calvert, Page 2 Opinion No. WW-1140 

House Bill 129 to which you refer was passed at the same Regular 

Session of the Legislature which passed Senate Bill No. 10. It 

is chapter 453, at page 1026 of the Acts of that Session. Our 

answer to the second question is that claims must be filed within 

six months, as required by Section (6~) of Senate Bill 10. 

Your third question, stated in alternate inquiries which 

we designate as subdivisions (a) and (b) is as follows: 

"(a) Is the Comptroller correct in 

construing Senate Bill No. 10, as intended 

by the Legislature, to mean that the Comptroller must first receive the monthly 

reports and schedules, required in Section 

5 above, from the distributors showing 

complete information of all sales of motor 

fuel marketed by such distributors as 

aviation or aircraft fuel, from which to 

determine the total quantities available 

for refund during the month reported, and 

then must wait until the limitation for 

filing refund claims on the purchases shown 

has expired (six months or one year whichever 

you determine to be the law) before making 

the determination of the number of gallons 

used in aircraft upon which refund of the 

tax thereon has not been made and against 

which a limitation has run for filing claim 

for refund of said tax as provided in Section 

(6a) above cited? 

"(b) does the provision in Section (61) 

stating, sEach month the Comptroller. . a 

shall determine as accurately as possible 

the number of such gallons. . .' require or 

authorize the Comptroller to make such 

determination as accurately as possible -- 

which would necessarily be an estimate -- 

and make the allocations each month after 

the effective date of the Act, subject to 

correction on allocations made after the 

limitation has run?" 

Our answer to this third question is that the Comptroller is to 

follow the procedure stated in subdivision (a) of this question. 
Honorable Robert S. Calvert, Page 3 Opinion No. WW-1140 

Provisions of the Texas Constitution 

and Statutes under Consideration 

The pertinent portion of Sec. 7-a of Art. VIII of the Texas 

Constitution reads as follows: 

"Subject to legislative appropriation, 

allocation and direction, all net revenues 

remaining after payment of all refunds 

allowed by law and expenses of collection 

derived from motor vehicle registration 

fees, and all taxes, except gross production 

and ad valorem taxes, on motor fuels and 

lubricants used to propel motor vehicles over 

public roadways, shall be used for the sole 

purpose of acquiring rights-of-way, constructing, maintaining, and policing such public 

roadways, and for the administration of such 

laws as may be prescribed by the Legislature 

pertaining to the supervision of traffic and 

safety on such roads; and for the payment of 

the principal and interest on county and road 

district bonds or warrants voted or issued 

prior to January 2, 1939, and declared 

eligible prior to January 2, 1945, for payment out of the County and Road District 

Highway Fund under existing law; provided, 

however, that one-fourth (l/4) of such net 

revenue from the motor fuel tax shall be 

allocated to the Available School Fund;. . . .' 

Section 1 of this Senate Bfll No. 10 adds to the Motor Fuel 

Tax Law a new Section 5 

I 1 

to Art. 9.03, Title 122A, Tax.-Gen., 

R.C.S. This new Sec. 5 reads as follows: 

"Section 1. That Section 5 be enacted 

and added as an amendment to House Bill 

No. 11, Acts 1959, 56th Legislature, 3rd 

Called Session, Chapter 9, (under Chapter 

1) Title 122A, Motor Fuel Tax (Article 9.03 

by adding a Secfon 5 thereto) the same to 

read: 

“‘(5) Reports. Every distributor selling 

motor fuel in this state for use in aircraft, or for resale for such purpose, shall 

attach to each monthly report required by 

law to be filed with the Comptroller by each 

distributor a schedule which shall become a 

part of such report and shall show complete 
Honorable Robert S. Calvert, Page 4 Opinion No. WW-ll40 

information of all sales of motor fuel 

marketed by such distributor as aviation 

or aircraft motor fuel in such form as 

the Comptroller may require. The Comptroller 

is hereby authorized to prescribe records 

to be kept and reports to be made by 

distributors and refund dealers in whatever manner and form he deems necessary to 

determine the amount of motor fuel, used or 

sold for use in aircraft on which claim for 

refund of the tax is not made, and the failure 

or refusal to keep any such records or to 

make any such reports shall constitute cause 

for the cancellation of the permit or refund 

of dealer's license of those who fail or 

refuse to comply therewith.'" 

Section 2 of this Senate Bill No. 10 adds to the Motor Fuel 

Tax Law a new Section 6a to Art. 9.13, Title 122A, Tax.-Gen., 

R.C.S. This new Sec. t 6a j reads as follows: 

"Sec. 2. That Section (6a) be enacted 

and added as an amendment to Article 9.13, 

House Bill No. 11, Acts 1959, 56th Legislature, 

3rd Called Session, Chapter 9, (under Chapter 1) 

Title 122A, Motor Fuel Tax, the same to read: 

"1(6a) Allocation of unciaimed aircraft 

fuel refunds to Available School Fund and 

to Texas Aeronautics Commission Fund. Each 

month the Zomptroller, after making the 

deductions for refund purposes as provided 

in Article 9.13, Section (13) of this 

Chapter, shall determine as accurately as 

possible the number of gallons ef motor 

fuel used in aircraft upon which the motor 

fuel tax has been paid to this state, and 

upon which refund of the tax thereon has not 

been made and against which a six (6) months 

limitatation has r-un for filing claim for 

refund of said tax (called "unclaimed refunds"), 

and from the number of gallons so determined 

the Comptroller shall compute the amount of 

taxes that would have been refunded under the 

law had claims for same been filed in accordance 

with the law, and shall allocate and deposit 

such unclaimed refunds as follows: twentyfive per cent (25%) of such revenues shall be 

allocated, deposited, and set aside in the 

State Treasury placed to the credit of the 
Honorable Robert S. Calvert, Page 5 Opinion No. WW-1140 

Available School Fund. The remaining 

seventy-five per cent (75%) of such 

revenues shall be allocated, deposited, 

and set aside in the State Treasury in 

a special fund to be called the Texas 

Aeronautics Commission Fund and the same 

shall be credited to, and is hereby 

appropriated to, the Texas Aeronautics 

Commission for the purposes set forth in 

this Section, and which said Texas Aeronautics 

Commission Fund shall be administered by the 

Texas Aeronautics Commission, together with 

any other funds appropriated by the Leglslature, for the support, maintenance and 

operation of the Texas Aeronautics Commission 

in the performance of its safety and all of 

its other functions, duties and responsibilities 

as may be now or hereafter delegated to such 

Commission as prescribed by law, and also for 

the payment of the Commfssfoners, the director, 

assistant director, the staff, and for equipment and supplies, including aircraft and 

automotive equipment as authorized by law. 

Any unexpended portion of the Texas Aeronautics 

Commission Fund allocated and placed to the 

credit of the Texas Aeronautics Commission, 

as herein prescribed, not used, and on hand, 

at the end of each fiscal year shall be 

returned to the Comptroller of Public Accounts 

and he shall place the same to the credit of 

the Texas Aeronautics Commissfon Fund for the 

use of the Texas Aeronautics Commission for 

the purposes stated herein.'" 

House Bilk No. 129, Acts 1961, 57th Legislature, Re ular 

Session, chapter 453> at page 1026, amends Subsection (6 7 of 

said Art. 9.13, Title 122A, Tax.-Gen., R.C.S. This subsection 

(6) in its pertinent portion as so amended reads as follows: 

"(6) Any person entitled to file claim 

for tax refund under the terms of this Article 

shall file such claim with the Comptroller 

on a form prescribed by the Comptroller within 

one (1) year from the date the motor fuel was 

delivered to him,. D .and no refund of tax 

shall ever be made where It appears from the 

invoice of exemption or other evidence submitted, that the sale or delivery of the motor 

fuel was made more than one (1) year prior to 

the date the refund claim was actually received 

in the Comptroller8s office. 0 0 *' 
Honorable Robert S. Calve&, Page 6 Opinion No. NW-1140 

We note also that the same Regular Session of the 57th 

Legislature enlarged both the personnel and the powers and 

duties of the Texas Aeronautics Commission by Senate Bill 

No. 76, Acts 1961, chapter 379, page 850. 

Also, we mention that Art. 9.25 of Title 122A, as 

amended by Sec. 5 of this Senate Bill No. 10 was subsequently 

amended by ARTICLE V of House Bill No. 20, Acts 1961, 57th 

Legislature, First Called Session, Chapter 24, page 71 (at 

page 102). Your inquiries which are the subject of this opinion 

relate only to claims for refunds of the motor fuel tax paid 

on fuel purchased for use in aircraft. Art. 9.25 relates to 

allocation of the remainder of the motor fuel tax collected 

after making deductions for refund purposes and for enforcement 

of the Motor Fuel Tax Act. This Art. 9.25 as amended by this 

House Bill No. 20 states, in part: 

"Each month the Comptroller of Public 

Accounts shall, after making the deductions 

for refund purposes as provided in Article 

9.15 of this Chapter, and for the enforcement 

of the provisions of this Chapter, allocate 

and deposit the remainder of the taxes 

collected under the provisions of this Chapter 

in the proportions as follows: ~ . <" 

scoring added). 

(UnderWe find no conflict between the provisions of this House Bill 

20 and the provisions of new Section (6a) to Art. 9.13, Title 

122A, which is the subject of your inquiries. 

Discussion of Questions Asked 

First Question: Section 7-a of Art. VIII of our Texas 

Constitution reauires that the net revenues from the Motor Fuel 

Tax " D . .on mot‘or fuels and lubricants used to propel motor 

vehicles over public roadways, shall be used for. ~ *' (underscoring added) specified purposes relating to the construction 

and policing of the public roadways and for the payment of 

specified indebtedness incident to public roads. This Sec. 7-a 

further provides that 1/4th o f this net revenue shall be allocated 

to the Available School Fund. 

Section (6aj added to Art:, 9.13 by Set, 2 of Senate Bill 

No. 10, which we are considering, allocates only unclaimed aircraft fuel refunds, and in addition allocates one-fourth (l/4) 

of these revenues to the Available School Fund. We find no 

conflict between Sec. 7-a of Art. VIII of the Constitution and 

this new Section (6a) of Art, 9.13. 
Honorable Robert S. Calvert, Page 7 Opinion No. WW-1140 

Second Question: We believe that Section 5) added to Art. 

9.03 of the Motor Fuel Tax Law, and Section (6a f added to Art. 

9.13 of that law, by Sections 1 and 2, respectively of the Senate 

Bill No. 10, manifest the legislative intent that claims for 

refund of the motor fuel tax paid on such fuel used in aircraft 

are to be filed as required by the more specific provisions of 

new Sec. (6a) of Art. 9.13 (added by Sec. 2 of S,B. 10) instead 

of by the eneral provisions of amended Subsection (6) of this 

Art. 9.13 7 as amended by H.B. 129). We do not consider the fact 

that House Bill 129 was passed by the Legislature one day subsequent to passage of Senate Bill No. 10 to make the general 

provisions of House Bill 129 control over the specific provisions 

of Senate Bill 10. 

Section (5) of Art. 9.03 (being Section 1 of this Senate 

Bill No. 10) requires each distributor selling motor fuel for use 

in aircraft to file each month a special schedul: prescribed by 

the State Comptroller to enable the Comptroller . . . to determine 

the amount of motor fuel, used or sold for use in aircraft on 

which claim for refund of the tax is not made. . e a' This 

schedule is required only of fuel the ultimate use of which is 

for use in aircraft. Also, new Section (6a) of Art. 9.13 (being 

Sec. 2 of this Senate Bill No. 10) relates only to fuel used in 

aircraft. 

"'It is a fundamental rule that where 

the general statute, if standing alone, 

would include the same matter as the special 

act, and thus conflict with it, the special 

act will be considered. as an exception to 

the general statute, whether it was passed 

before or after such general enactment. m . 

and where the general act is later, the special 

statute will be construed as remaining an 

exception to its terms, unless it is repealed 

in express words or by necessary implications." 

Hallum v, Texas Liquor Control Board, 166 S.W.2d 

175 (Civ.App. 1942, error ref.). Also: 

Fortinberry v. State, ex.rel. Myers, 283 S.W. 

146 (Comm.App. 1926); Culver v. Miears, 220 

S.W.2d 200 (Civ.App. lg4gs error ref. 

v. Broeter, 145 Tex. 142, 196 S0W.2d 

39 Tex.Jur. 149-151, Statutes, Sec. 81-82. 

Third Question: We believe that the Legislature intended 

by the provisions of new Sec. (6a) added to Art. 9.13 by Sec. 2 

of Senate Bill 10 which read: 
Honorable Robert S, Calvert, Page 8 Opinion No. WW-1140 

11 -and against which a six (6) months 

limitation has run for filing claim for 

refund of said tax (called 'unclaimed 

refunds'). . On 

and 

,I .and from the number of gallons so 

de&mined the Comptroller shall compute the 

amount of taxes that would have been refunded 

under the law ~ had claims for same been filed 

in accordance with the law,. . 0' 

scoring added) 

(Underthat the Comptroller first receive the monthly reports and 

schedules required in new Section (5) of Art. 9.03 (being Section 

1 of this Senate Bill No. 10) and then to wait until the six (6) 

months limitation set forth in this new Section (6a) of Art. 

9.13 has expired before he makes determination each month of 

the quantity of fuel used in aircraft and upon which a claim for 

refund of the taxes has not been made for the immediately preceding 

six months. 

SUMMARY 

Sec. 2 of Senate Bill No, 10, Acts 

1961, R.S. (codified as Sec. (6a) of Art. 

9.13, Title 122A, R.C,S,): 

1) Is constitutional; 

2) Requires claims for refund of the 

motor fuel tax paid on fuel used in aircraft to be filed within a six monthslimitation period; 

3) Requires the Comptroller to wait 

until this six months limitation period 

has expired before he determines each month 

the amount of motor fuel used in aircraft 

upon which a claim for ref-und of the motor 

fuel tax has not been made for the immediately 

preceding six months, 

Yours very truly, 

WILL WILSON 

1 of Texas 

(l&&L 

Assiitant Attorney General 
Honorable Robert S. Calvert, Page 9 Opinion No. WW-1140 

WEA:cm 

APPROVED: 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

Henry Braswell 

Riley Eugene Fletcher 

John Reeves 

Bill Robinson 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Houghton Brownlee, Jr.