THE OIWJEY GENEOF XAS 

L%cIS~ BB. TEXAW 

FvmLL WILSOiQJ 

AT-TORNEY GENERAL 

August 4, 1961 

Honorable Robert S. Calvert Opinion No. WW-1103 

Comptroller of Pub1 ic Accounts 

Capitol Station 

Austin, Texas 

Re:~ Whether, under the facts 

stated, the Comptroller 

can legally pay the claim 

for a refund of tax on 

Dear Mr. Calvert: motor fuel. 

You have requested an opinion as to whether or not you can 

legally pay a claim filed for refund of motor fuel tax paid on 

gasoline used on a farm under a stated set of facts. 

We quote from your letter request the following statement 

of facts: 

"The foreman stated that the Jeep 

which bears 1960 highway license was 

used to haul hay, feed and fertilizer 

from the meadow to the farm, a distance of seven-tenths (7/10) of a mile 

over the highway, as well as the other 

travel over the highway from one entrance gate to another as set out in 

the letter. 

"The claim was rejected for failure to keep a record of the travel 

over the highway and failure to deduct the fuel used on the highway in 

such travel and a copy of Opinion 

WW-199, holding that where no such 

record is kept and such motor fuel 

is not deducted from the claim a tax 

refund is not authorized." 

The claimant has submitted a brief as to the facts and law 

in connection with this claim. 

In his statement of facts he states that the farm is crossed 

by a county road running East and West through the farm. 

We quote from the brief submitted as follows: 
Honorable Robert S. Calvert, Page 2 Opinion No. WW-1103 

1) * . .Upon a more careful examination, the jeep is located in a garage 

on the north side of the road that 

runs east and west. It crosses the 

road to that part of the farm on the 

south side of the road in front of 

the residence, in doing so using the 

public highway for a distance of some 

twenty (20) steps or yards, and this 

is the main and principal use, in the 

crossing of the public road. 

“A second use: the jeep proceeds 

from the same garage down to the same 

road and turns east one hundred and 

twenty (120) steps or yards, and then 

leaves the road. This is used perhaps 

on an average once a week during the 

year, and the first one is used on the 

average of at least once daily. 

“A third entrance into the farm 

south of the road, about six hundred 

(600) yards west of the residence and 

garage. This is used only semi occasionally on an average of once a week. 

“A fourth entrance about 900 yards 

west of the garage from the public 

road is a gate that is kept locked. 

This is wholly used by the jeep, possibly at times during the winter months.” 

To merely cross the road is not “being operated” upon the 

highways within the meaning of the statutes in our opinion and 

it is our understanding that the Comptroller’s Office has so 

construed the law in the past. When a person enters the highway 

with a motor vehicle at one point and then travels along the roadway for any distance the person is operating a motor vehicle upon 

the highway within the meaning of our statutes. 

If it can be said that traveling along the roadway for one 

hundred yards is not operating a motor vehicle on the highway then 

it could be said that two hundred yards is acceptable and so on 

and on. There would be no stopping point. 

The Courts have uniformly~ held that tax exemptions are to 

be strictly construed. Refunds of gasoline taxes in a manner of 

speaking is a tax exemption. 

tion, 8 74: 

Quoting from 40 Tex. Jur. 109, Taxa- 
s. - 

Honorable Robert S. Calvert, Page 3 Opinion No. WW-1103 

"It is a universal rule, applicable 

to constitutional and statutory provisions exempting property from taxation, 

that 

"'when an exemption is found to exist 

it shall not be enlarged by construction. 

On the contrary, it ought to receive a 

strict construction; for the reasonable 

presumption is that the state has granted 

in express terms all it intended to grant 

at all, and that unless the privilege is 

limited to the very terms of the statute, 

the favor would be extended beyond what 

was meant.' 

"Furthermore, the exemption of certain property throws a greater tax burden on property that is taxable: therefore, any exemption derogates from the 

common right of equality of burden, and 

for this reason, also, both the constitutional provision authorizing the 

exemption and the statute granting it 

must be found to cover a claimed exemption unambiguously. For if the construction of the law be doubtful, the doubt 

will be resolved in favor of the taxing 

power and against the claim." Morris v. 

Lone Star Chapter No. 6, R. A. Masons, 

68 Tex. 698, 702, 5 S.W. 519 (1887). 

Opinion No. WW-199 answers almost an identical set of facts. 

About the only material difference is the distance traveled on 

the public road. In Opinion WW-199 the distance traveled was 22 

miles and in this case the longest distance traveled was 7/10 of 

a mile. As previously pointed out, however, the distance is not 

the determining factor. 

It is therefore our opinion that in compliance with the 

former opinion above mentioned, a copy of which is enclosed herewith, under the facts stated in this request the claim for refund 

was properly denied. 

SUMMARY 

Under the facts stated the operation of a 

jeep over the highway of this state as a matter 
Honorable Robert S. Calvert, Page 4 Opinion No. WW-1103 

of convenience to get from one point on the 

roadway to another does not permit a tax 

refund for gas used on farm where no record 

is kept of amount used in jeep while traveling 

on roadway or of distance traveled on roadway. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

Assistant Attorney General 

JHB:jp 

APPROVED: 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

Iola Wilcox 

Gilbert Hargrave 

Henry Braswell 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Morgan Nesbitt