Hon. Robert S.~ Calvert OpinionNo. S-174 Comptroller'of.PublicAccounts - 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 ~ofthe'gasoline tax; and construction of Section 14s. as to the application of thenincreased.fuel tax
on fuels used by non- .p&ssengercarrying vehicles ‘oftran'sit

dompanie.s. ; ,.

Bear Mr. CaIvert:

You request the opinion of this office upon three questions stated'in~yov letter 'ofAugust 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 7allon, but
'& .,i!;ig~;;p&e izes 'a.deducfionof 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 ,thatthis subs.ection~'. (.bj was not amended, will you please give me'.youropinion 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 CEHon. 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-jobberwho 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~14of the law as now amended; or arethey subject to the lower rates lmDosed by the new Section 14a?

_: .: The.answer.toyour first question &q that the 

### ais. tributor is authorized .to deduct the tax (

on 1% ofthetotal taxablegallonage at 

### 5 cents per gallon. The answer to your tiecond qnestion"ls "on .the basisof 5.cents.pergallon." The answer to your third question&: -the fuel consumed In suchvehicleswill be subject~tothe.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 Legislatureand this is arrived at by.the application of wel: known rules of statutoryconstructi.on.

In Shipleyv. 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.mustbe 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 sectionsmutually acting upon each other."

A similarholding 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)

"Toarrive 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, tomlook primarily to the act itself as an entirety; and to understand~.the legal effect of then

amendment enactedby the Legislature, it must be~considered'inconnectionwith the original act, and that.whichhad. 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~

a harmonious~

whole, as c~onnected'with and'naturally actingupon each."

See also .Cernochv,. 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 accordwith.the general rule that ali acts 'and'partsof 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 alaw

mauner consistentwSth the 'amendment.'Pett v. Cook, 

### 115Tex. 

### 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 .ieharmonized, the provisions of.prior acts in conflict.with'the intention of the .lastact are lmpl~iedlg repealed. In'Townsenc-v. Terrell, 118 Tex.'

### 463, .16S.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 'asa~wholeand interpreted in.such mariner~asthat all may stand'where~ such'may r'eas'onablg be done. It is'onlywhere acts are so...inconsisteiitas to be irreconcilablethat 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 ;standas valid enactments;". '~

...Hon. Robert S. Calvert,page 4 

### (S-174)

InWhittenberg v. Craven, 258 S-W. 

### 152 (Comm.Ap 1924), the court stated the rule as follows:

"In the constructionof a particular statute
or in the interpretationof its provisions, all acts relating to the same subject, or having the
same general purpose, shouldbe read in connection with it, as togetherconstituting one law. Such statutes,being in parimateria and relating to the same subjectare to be 'takentogether and so construed, in reference to each other, as that, if practicable,effectmay be given to the entire provisions of each. The object of the rule is to ascertainand carry into effect the intention of the Legislature,and it proceeds ~uponthe supposition that the several statutesrelating to one ,subject

were governed by one spirit and policy, and were intended to be consistent and harmonious in their severalparts and provisions. If they cannotbe 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 subjectmust be abaudonedor else the -‘laterstatute,in so far as it cannot be reconciled and made consistentand harmoniouswith the earlier,all1 be construed.asrepealing those ‘. provisions.ofthe earlier.'statute between uhich and the provisionsof~the later'statute irreconcilable~rspugaancy:exis~~,.'~',

We think itmanifest 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 'inthe unamended Subsectic (b) to the prior tax.rateof 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.MotorFuel Tax Law,,Article 7065b,V.C.S. to avoid a conflictwlth,,the unamended sectionwhich 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 actuallyused in the transportation of passengers in incorporatedcities and towns under a franchise from such cities or townswhich regulate the rates. We think theRon. Robert S. Calvert, page 5 (S-174)

automobiles and pickup trucks used to supervise and maintain the facilities of transportationcompanies 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 facilitiesused 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-jobberwho makes subsequent sales of motor fuelwill be required to set up the tax on the manifest and compute the deductions to be distributed to the purchaserson a basis of 

### 5 cents per gallon.

Company automobiles,pickups and trucks operatedby transit companies to supervise and maintain the conveyances transportingpassengersat fixes rates will~be subject to the hi prescribed in Subsection 7her tax rates a) of Section ~2,.andSection 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 SpecialReviewer Assistant

John Atchison Acting First Qsistant

John Ben Shepperd Attorney General