Hon. Robert S.~ Calvert Opinion No. S-174 

Comptroller'of .Public Accounts - 

Capitol Station Re: 

Austin, Texas 

Construction of Subsections (a) and (b) of Section 2 of Article 7065b, 

V.C.S., as to the application of the 1% evaporation and handling deduction to the fifth cent 

~of the'gasoline tax; and 

construction of Section 

14s. as to the application 

of then increased.fuel tax 

on fuels used by non- 

.p&ssenger carrying vehicles 

‘of tran'sit dompanie.s. 

; ,. 

Bear Mr. CaIvert: 

You request the opinion of this office upon three 

questions stated'in~yov letter 'of August 8, 1955; which we 

shall answer id the-twder..in whi& you. h&e stated them inyour request. .: : 

. ..I. ':-,. _. 

i. Your questions are, in substance, as follows: 

,; ~_ 

i. In view of the ~acttbat;' Section I-of'.: 

Article II of House.Blll 660; Cha&& 404,~:: .' 

Regular Session of the '54th~Legislature; amended" 

Subsection (a) of Section 2, of the motor fuel 

tax'lau--Article' 7065b+ Vernon's -Clv,il~ Statutes-- 

to increase the' excise tax imposed on the first i 

sale, distribution or use,of motor fuel from four 

cents (4#)'to. five c'ents (5#) 'per. 

Subsection (b) of said Section 2 7 

allon, but 

'& .,i!;ig~;;p&e izes 'a.deducfion of the':tax dn 1 

gallonage to be thereafter apportionedamong (1)'. 

distributors,' (2) wholesaler-jobbers,~ and. (.3) 

retailers, for the expense of 'collection; accounting for, and reporting the tax collected,)~ 

cites the tax rate at 44% per gall.on and in view 

. o:f She., fact ,that this subs.ection~'. (.bj was not 

amended, will you please give me'.your opinion as 

to whether the,distributor, wbo:is~'requiEed: to 

collect the tax, be authorized to deduct the ' ..- 

on 1% of the total taxable gallonage at 5 CE 
Hon. Robert S. Calvert, page 2 (S-174) 

per gallon or at 4 cents per gallon? 

2. If you hold that the tax on 1s of the 

total taxable gallonage at 5 cents per gallon 

may be deducted, will the .distributor who makes 

the first sale and the wholesaler-jobber who 

makes subsequent sales of said motor fuel, be 

required to set up the.tax on the manifest and s 

compute the 'deductions to be distributed, ona 

basis of.fivecents (5#), or on a basis of four 

cents (-4qi)? :I 

3. .Are company automobiles, pickups and 

:trucks .operated by,transit companies to supervise. and maintain the conveyances transporting 

passengers at fixed.rates, subject to the higher 

.,_ tax rates prescribed In subsection (a) of.Sectlon2.,and Sectlon~14 of the law as now amended; or arethey subject to the lower rates lmDosed by the new Section 14a? 

_: .: 

The.answer.to your first question &q that the ais. 

tributor is authorized .to deduct the tax ( on 1% ofthetotal 

taxable gallonage at 5 cents per gallon. The answer to your 

tiecond qnestion"ls "on .the basisof 5.cents.per gallon." 

The answer to your third question&: -the fuel consumed In 

such vehicles will be subject~to the.highertax rates prescribed in Subsection (a) of Section 2, and Section 14 of 

the law as now amended. 

Our answers to your first and second questions are 

arrived at by what-we conceive to~:be the Intention of the 

Legislature and this is arrived at by.the application of wel: 

known rules of statutory constructi.on. 

In Shipley v. Floydada Indeuendent School Dist., 

250 S.W. 159, (comm. App. 1923). the court held: 

when~a new section has been introduced into a law, it.must be construed in view of the 

original statute as it stands.after the amendment is introduced, and it and all the sections 

of the old law must.be regarded as a harmonious 

whole,- all sections mutually acting upon each 

other." 

A similar holding is roundin American Suretg.Co. 

of New York v. Axtell Co., 120 Tex. 166, 36~'S.W.2d.,715 (193 

wherein the~court stated: 
Ron. Robert S. Calvert, page 3 (S-174) 

"To arrive at the intention of the Legislature, in enacting the amendment of 1927, to 

Art'. 5~160; which was the original act of the 

Legislature.on this subject, it is the duty, of 

course, tom look primarily to the act itself as 

an entirety; and to understand~.the legal effect 

of then amendment enacted by the Legislature, it 

must be~considered'in connectionwith the 

original act, and that.which had. been done thereunder. A particular section of an act of the 

Legislature, when enacted, must be construed in 

view of the.existence of the original statute 

as it stands after the amendment is introduced: 

itand all sections of the old law must be regarded a:s~ aharmonious~ whole, as c~onnected'with 

and'naturally actingupon each." 

See also .Cernoch v,. Colorado CountV, 48 S.W.2d. 

470 (Tex.Civ.App. 1932) and MarWell'v;. Galveston County 

186 S.W.2d 273 .(Tex.Civ:App. 1945; error re,f.)~. This is in 

accord with.the general rule that ali acts 'and 'parts of acts 

In pari materia are to be-construed together..:~ Cain v. State, 

20 Tex. 355 (1857). :, .' ., :- 

-Auother+ule of construction is that; when a 

is amended effectmust'be given to'the'amended'law in a 

law 

mauner consistent wSth the 'amendment. 'Pett v. Cook, 115 Tex. 

205, 281 s-w. 837 (1926); Mitctiell:v. Citp'of Terrell;.g& 

S.W.2d. ,556 (Tex.,Civ.App. 1936 error ref.) if the acts are 

so inconsistent that the provi&ons cannot .ie harmonized, 

the provisions of.prior acts in conflict.with'the intention 

of the .last act are lmpl~iedlg repealed. In'Townsenc-v. 

Terrell, 118 Tex.' 463, .16 S.W.2di 1063 (1%97, the court upheld'tbe last of two acts.; .stating:. 

"Itis wel.1~.settled thatrepeale by implicationare not-favored, and that all acts and 

parts of acts .in @ari'materia are to.be~construed 

'as a ~whole and interpreted in.such mariner~as that 

all may stand'where~ such'may r'eas'onablg be done. 

It is'only where acts are so...inconsisteiitas to 

be irreconcilable that a repeal by implicati.on 

will be indulged.' If there exists such conflict, 

then'there is a presiimption.of the intention to 

repeal all lawsand parts of laws in conflict with 

the clcr?r,,intention'of the lastact. This is 

.'necess~arily~ true where~both'actscannot ;stand as 

valid enactments;". '~ ... 
Hon. Robert S. Calvert, page 4 (S-174) 

In Whittenberg v. Craven, 258 S-W. 152 (Comm. Ap 

1924), the court stated the rule as follows: 

"In the construction of a particular statute 

or in the interpretation of its provisions, all 

acts relating to the same subject, or having the 

same general purpose, should be read in connection 

with it, as together constituting one law. Such 

statutes, being in pari materia and relating to 

the same subject are to be 'taken together and so 

construed, in reference to each other, as that, if 

practicable, effect may be given to the entire provisions of each. The object of the rule is to 

ascertain and carry into effect the intention of 

the Legislature, and it proceeds ~upon the supposition that the several statutes relating to one 

,subject were governed by one spirit and policy, 

and were intended to be consistent and harmonious 

in their several parts and provisions. If they 

cannot be construed so as to be consistent and 

',ha??monfons in their several parts and provisions, 

._ then .either~ the hypothesis that they'relate~ to 

the same subject must be abaudonedor else the 

-‘laterstatute, in so far as it cannot be reconciled and made consistent and harmonious with 

the earlier, all1 be construed.as repealing those 

‘. provisions.of the earlier.'statute between uhich 

and the provisions of~the later' statute irreconcilable ~rspugaancy:exis~~,.'~', 

We think it manifest that It was.the,intention o 

the Legislature that the deduction of 1-s be computed on 

the actual tax rate as set out in the manifest, namely the 

5 cents., and that the reference 'in the unamended Subsectic 

(b) to the prior tax.rate of 4 cents pei- gallon should be 

disregarded. It is necessary'to construe Section 1 of 

Article 2 of House Bill 660, amending Subsection (a) of 

Section 2 of the.Motor Fuel Tax Law,,Article 7065b, V.C.S. 

to avoid a conflict wlth,,the unamended section which refer 

to the 4 cents per gallon, if possible. We do not regard 

the apparent conflict as material. The manifest will bear 

the 5 cent tax rate/and the l-&% deduction should be allc 

upon this. 

With-respect to your third question, we think it 

was the intent of the Legislatux%to accord the lower tax 

rate to transit companies in the operation of their facili 

ties actually used in the transportation of passengers in 

incorporated cities and towns under a franchise from such 

cities or towns which regulate the rates. We think the 
Ron. Robert S. Calvert, page 5 (S-174) 

automobiles and pickup trucks used to supervise and maintain the facilities of transportation companies do not come 

under the provisions of the statute according a lower tax 

rate. Such automobiles and pickup trucks are not actually 

a part of the facilities used for transporting passengers 

for hire under a franchise and under rates fixed by such 

city or town. No fares are charged as to the use made of 

such automobiles and pickup trucks. 

Under the motor fuel tax law, as 

amended, Article 7065b, V.C.S., a distributor is authorized to deduct the 

tax on 1% of the total taxable gallonage at 5 cents per gallon. The distributor who makes the first sale and the 

wholesaler-jobber who makes subsequent 

sales of motor fuel will be required to 

set up the tax on the manifest and compute the deductions to be distributed 

to the purchasers on a basis of 5 cents 

per gallon. 

Company automobiles, pickups and 

trucks operated by transit companies to 

supervise and maintain the conveyances 

transporting passengers at fixes rates 

will~be subject to the hi 

prescribed in Subsection 7 

her tax rates 

a) of Section 

~2,.and Section 14 of the law as now 

amended. 

APPROVED: Yours very truly, 

Davis Grant JOHN BEN SEIEPPERD 

Reviewer Attorney General 

L. W. Gray 

Reviewer 

Will D. Davis 

Special Reviewer Assistant 

John Atchison 

Acting First Qsistant 

John Ben Shepperd 

Attorney General