HonorableRobert S. Calvert

Comptrollerof Public Accounts Austin, Texas

Dear Mr. Calvert: OpinionNo. C-414
Re: Whether a department of State government must furnish the bond requiredby 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 requestingthe opinion of this office on the above captionedquestion.

"We desire the opinion of your office as to whether or not a departmentof State Governmentwill be required to furnish the bond requiredby Article 10.10(l)by the Special Fuels Tax Law of persons who make remittancesor payments directly to this State of taxes incurredupon the use of special fuels.
'For example: the Texas Department of CorrectionsIS now engaged in the use of special fuels (dieselfuel) predominantlyto operate tractors and other equipment off the public highway but with lesser quantitiesused to operate diesel trW2k8 upon the public highways, which operationby 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 accordedby these laws,

. . , 1,

. . . "The Comptroller

has requested counties, cities and other political

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HonorableRobert S. Calvert, Page 2 OpinionNo. 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 influencedby Attorney General Opinion O-2305, in which it was held that a political subdivision of State government Is required to furnish the bond requiredby Article 4365, V. A. C. S., to receive a duplicateof a warrant issued to such applicantwhich has thereafterbecome lost. "This Is the first application this Divisionhas received from a departmentof State government for a permit for which the law provides that a bond shall be furnished,and the Texas Departmentof Corrections has advised that It has no appropriation for the payment of the premium to a surety company should a bond be required. "Willyou, therefore, please advise this Departmentwhether it can issue a permit classifiedby law (Art. 10.11) as a bonded user's permit to the Texas Departmentof 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 determinativeof the questionunder consideration, reads a8 follows: "Everyperson who Is authorizedby permit or requiredby law to make remittancesor payments directly, to this State of taxes collectedupon the sale or delivery of special fuels or of taxes incurredupon the use of said products shall file with his applicationfor 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 calendaryear, but which bond shall never be less than

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One Thousand Dollars ($1,000)If filed by a suppliernor 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 releasedby the Comptroller as herein provided. Such bond shall be conditioned

upon the full, complete, and faithfulperformanceby the person for whom It Is issued of all of the conditionsand reqUiI?ementS bpOSed On said person by this Chapter, or by rules and regulations promulgatedby the Comptroller, **and** shall expressly guarantee the remittanceor payment to the State of Texas within the time prescribedby 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 calendaryear by a renewal certificate, which certificateshall have all the force and effect of an originalbond."
'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 Departmentof Corrections can be deemed an "agency"within the contemplation of the definitionof "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 demonstratesthat the Legislature never intended that a Departmentof the State Government would be required to secure bond made payable to, in effect, itself. The result would be that the Government, or more
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specifically

a Departmentthereof,would be expressly guaranteeingthe remittanceor payment to Itself of all the taxes, penalties, interest and costs requiredunder the provision of the Special Fuels Tax Act. Additionalevidence of this lack of Legislative Intent lies in the fact that no appropriation

has been made by the Legislaturefor the payment of a bond premium.
You are thereforeadvised that In the instant case you may issue the permit classifiedby Article 10.11 as a bonded user's permit without requiring a bond.

SUMMARY -e-s--- The Texas Departmentof Corrections, a departmentof the State government,need not furnish the bond requiredby 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-