GENEXAL E AT-B-OIECNEY

OF TEXAS

WILL W1lL80N AITORNEYGENER*I. AUSTXN aa. Trcxas

September 18, 1961

HonorableRobert S. Calvert OpinionNo. WW-1140 Comptroller of Public Accounts Capitol Station Re: Three questionsrelating Austin, Texas to Sec. 2 of Senate Bill No. 10, Acts 1961, 57th
~~-,;;~~~a~;, ;7;;wp* SectionNo. (6a) to Art. 9.13 of Title 122A, Tax.- Gen., R.C.S., which is Dear Mr. Calvert: theMotor Fuel Tax Law.

You request the opinion of the Attorney General in answer to three questionsrelating to Senate Bill No. 10, Acts 1961, R.S., 57th Legislature,which ismore 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 ArticleVIII 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 TexasAeronautics Commission Fund for the purposes provided in Section (6a), cited above?"

Our answer is "Yes".

Your second question Is:
II *willpersonswho are entitled to file claims for refund of the tax paid on motor fuel used in aircraft be required to file such claimswithin sixmonths to complywith the sixmonths limitation period indicated In Section (6a) of Senate Bill 10, or will such persons be entitled to file claimwithin the period of one year as provided In Subsection (6) of Article 9.13, as amended by House Bill 129?".. .

HonorableRobert S. Calvert, Page 2 Opinion No. WW-1140

House Bill 129 to which you refer was passed at the same Regular Session of the Legislaturewhich 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 claimsmust be filed within sixmonths, as requiredby Section (6~) of Senate Bill 10.

Your third question, stated in alternate inquirieswhich
we designate as subdivisions (a) and (b) is as follows:

"(a) Is the Comptroller correct in construingSenate Bill No. 10, as intended by the Legislature, tomean that the Comptrollermust first receive themonthly reports and schedules,required in Section 5 above, from the distributors showing complete informationof all sales ofmotor fuelmarketed by such distributorsas aviation or aircraft fuel, from which to determine the total quantitiesavailable for refund during themonth reported, and thenmust wait until the limitation for filing refund claims on the purchases shown has expired (sixmonths or one year whichever you determine to be the law) beforemaking the determinationof the number of gallons used in aircraft upon which refund of the tax thereonhas not been made and against which a limitationhas run for filing claim for refund of said tax as provided in Section (6a)above cited?

"(b) does the provision in Section (61) stating, sEachmonth the Comptroller.

. a shall determine as accurately as possible the number of such gallons.

. .'require or authorize the Comptroller tomake such determinationas accurately as possible -- which would necessarilybe an estimate -- and make the allocations eachmonth after the effectivedate of the Act, subject to correctionon allocationsmade after the limitationhas 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 OpinionNo. WW-1140

Provisions of the Texas Constitution and Statutes under Consideration

The pertinent portion of Sec. 7-a of Art. VIII of the Texas Constitutionreads as follows:

"Subject to legislativeappropriation, allocation and direction, all net revenues remaining after payment of all refunds allowedby law and expenses of collection derived frommotor vehicle registration fees, and all taxes, except gross production and ad valorem taxes, onmotor fuels and lubricantsused to propelmotor vehicles over public roadways, shallbe used for the sole purpose of acquiring rights-of-way, constructing,maintaining, and policing suchpublic roadways, and for the administrationof such laws asmay be prescribedby the Legislature pertaining to the supervisionof traffic and safety on such roads; and for the payment of the principal and intereston county and road districtbonds 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 themotor fuel tax shallbe allocated to the Available School Fund;.

. . .'
Section 1 of this Senate Bfll No. 10 adds to theMotor 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, (underChapter 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 eachmonthly report required by law to be filed with the Comptrollerby each distributora schedulewhich shall become a part of such report and shall show completeHonorableRobert S. Calvert, Page 4 OpinionNo. WW-ll40

informationof all sales of motor fuel marketed by such distributoras aviation
or aircraftmotor fuel in such form as the Comptrollermay require. The Comptroller is hereby authorized to prescribe records to be kept and reports to be made by distributorsand 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 cancellationof the permit or refund of dealer's license of thosewho 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 j 6a 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, (underChapter 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 CommissionFund. Each month the Zomptroller,aftermaking the deductions for refund purposes as provided in Article 9.13, Section (13)of this Chapter, shall determineas accurately as possible the number of gallons ef motor fuel used in aircraft upon which themotor fuel tax has been paid to this state, and upon which refund of the tax thereonhas not beenmade and againstwhich a six (6)months limitatationhas r-unfor filing claim for refund of said tax (called "unclaimedrefunds"), and from the number of gallons so determined the Comptroller shall compute the amount of taxes thatwould have been refunded under the law had claims for samebeen filed in accordance with the law, and shall allocate and deposit such unclaimed refunds as follows: twentyfive per cent (25%)of such revenues shallbe allocated, deposited, and set aside in the State Treasury placed to the credit of theHonorableRobert S. Calvert, Page 5 OpinionNo. WW-1140

Available School Fund. The remaining seventy-fiveper cent (75%) of such
revenues shallbe allocated,deposited, and set aside in the State Treasury in
a special fund to be called the Texas Aeronautics CommissionFund and the same shallbe credited to, and is hereby appropriated to, the Texas Aeronautics Commission for the purposes set forth in this Section, and which said Texas Aeronautics CommissionFund shall be administeredby the TexasAeronautics Commission, togetherwith any other funds appropriatedby 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 prescribedby law, and also for the payment of the Commfssfoners,the director, assistant director, the staff, and for equipment and supplies, includingaircraft and automotive equipment as authorizedby law. Any unexpendedportion of the Texas Aeronautics CommissionFund 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 shallbe returned to the Comptroller of Public Accounts and he shall place the same to the credit of the Texas Aeronautics CommissfonFund for the
use of the Texas Aeronautics Commission for the purposes statedherein.'"

House Bilk No. 129,Acts 1961, 57th Legislature,Re ular Session, chapter 453> at page 1026, amends Subsection (67 of saidArt. 9.13, Title 122A, Tax.-Gen.,R.C.S. This subsection (6) in its pertinentportion as so amended reads as follows:

"(6) Any person entitled to file claim for tax refund under the terms of thisArticle shall file such claim with the Comptroller
on a form prescribedby the Comptrollerwithin
one (1) year from the date themotor fuel was delivered to him,. D .andno 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 themotor fuel was made more than one (1)year prior to the date the refund claimwas actually received in the Comptroller8soffice. 0 0 *'HonorableRobert S. Calve&, Page 6 OpinionNo. NW-1140

We note also that the same Regular Session of the 57th Legislature enlargedboth the personnel and the powers and duties of the Texas Aeronautics Commissionby SenateBill No. 76, Acts 1961, chapter 379, page 850.
Also, we mention that Art. 9.25 of Title 122A, as amendedby Sec. 5 of this Senate Bill No. 10 was subsequently amended byARTICLE V of House Bill No. 20, Acts 1961, 57th Legislature,First Called Session, Chapter 24, page 71 (at page 102). Your inquirieswhich are the subject of this opinion relate only to claims for refunds of themotor fuel tax paid
on fuel purchased for use in aircraft. Art. 9.25 relates to allocation of the remainder of themotor fuel tax collected aftermaking deductions for refund purposes and for enforcement of theMotor Fuel Tax Act. This Art. 9.25 as amended by this House Bill No. 20 states, in part:

"Eachmonth the Comptrollerof Public Accounts shall, aftermaking 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 collectedunder the provisions of this Chapter in the proportions as follows: ~ . <" scoring added). (UnderWe find no conflictbetween 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 QuestionsAsked
First Question: Section 7-a of Art. VIII of our Texas Constitutionreauires that the net revenues from the Motor Fuel Tax "D

. .onmot‘orfuels and lubricantsused to propelmotor vehicles over public roadways, shallbe used for. ~ *' (underscoring added) specifiedpurposes 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 of this net revenue shall be allocated to theAvailable School Fund.
Section (6ajadded 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 conflictbetween Sec. 7-a of Art. VIII of the Constitutionand this new Section (6a)of Art, 9.13.HonorableRobert S. Calvert, Page 7 OpinionNo. WW-1140

Second Question: We believe that Section 5) added to Art. 9.03 of theMotor Fuel Tax Law, and Section (6af 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 themotor fuel tax paid on such fuel used in aircraft
are to be filed as requiredby themore specificprovisions of
new Sec. (6a) of Art. 9.13 (addedby Sec. 2 of S,B. 10) instead of by the eneral provisions of amended Subsection (6) of this Art. 9.13 7as 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 tomake the general provisions of House Bill 129 control over the specificprovisions of Senate Bill 10.
Section (5) of Art. 9.03 (being Section 1 of this Senate Bill No. 10) requires each distributor sellingmotor fuel for use in aircraft to file eachmonth a special schedul:prescribedby the State Comptroller to enable the Comptroller

. . . to determine the amount ofmotor fuel, used or sold for use in aircraft on which claim for refund of the tax is notmade.

. 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 fundamentalrule that where

the general statute, if standingalone, would include the samematter as the special act, and thus conflictwith 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 statutewill be construedas remaining an exception to its terms, unless it is repealed in expresswords 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:HonorableRobert S, Calvert, Page 8 OpinionNo. WW-1140

11 -andagainstwhich a six (6) months limitationhas 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 samebeen filed

~ in accordancewith the law,.

. 0' scoring added) (Underthat the Comptroller first receive themonthly reports and schedulesrequired in new Section (5) of Art. 9.03 (being Section 1 of this SenateBill No. 10) and then to wait until the six (6) months limitation set forth in this new Section (6a) of Art. 9.13 has expiredbefore he makes determinationeachmonth of the quantity of fuel used in aircraft and upon which a claim for refund of the taxes has not been made for the immediatelypreceding sixmonths.

SUMMARY

Sec. 2 of Senate Bill No, 10, Acts 1961, R.S. (codifiedas 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 sixmonthslimitationperiod; 3) Requires the Comptroller to wait until this sixmonths limitationperiod has expiredbefore he determines eachmonth the amount of motor fuel used in aircraft upon which a claim for ref-und of themotor fuel tax has not been made for the immediately preceding sixmonths,

Yours very truly,

WILL WILSON 1 of Texas

(l&&L AssiitantAttorney GeneralHonorable Robert S. Calvert,Page 9 OpinionNo. 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.