Honorable Geo. H. Shep ard 

Comptroller of Public ii ccounts 

Austin, Texas 

Dear Sir: Opinion No. O-1492 

Be: Time allowed for filing with 

Comptroller of Public Accounts 

of motor fuel t_ax refund claims, 

under Section 13 (d), Article 

7065 (a), Vernon's Annotated 

Civil,Statutes; as amended by 

Senate.Bill 17 

Session, 46th ~;g?~4~t~,'e~'% 

particular reference to the 

inclusion or exclusion of the 

day of purchase and the day of 

filing, and Sundays and holidays. 

By your letter of September 22, 1939, you submit for the opinion 

of this department the following question and supporting factual 

statement: 

"This department has occasion to draw a very definite date in 

connection with establishing a time of filing of Motor Fuel 

Tax Refund Claims. A claimant will mail his c,laim on Saturday 

when the limitation date, according to the following excerpt 

of the Statutes, occurs on Sunday. Such claimant will then 

take the position that having placed.the claim in the mails ,that 

he should be protected even though this office was not open for 

business and the reception of mail on Sunday. 

"The same question arises when claims are mailed on a date 

prior to a legal holiday. 

"To give a specific case I will submit the following: 

Purchase was made, accordingto the Invoice of Exemption, on 

March 17th, 1939, and the Affidavitof Claim to which such 

Invoice of Exempti,on was attached showsby the ;;er; to 

have been received in the Austln postoffioe at !i 

September 17th, 1939. September 17th being a Sunday, The 

. -9 

Comptroller's Offloe was closed, and the claim could not have 

been received in the Comptroller18 office until Monday, 

September 18th. 
Honorable Geo. Ii. Sheppard, page 2, O-1492 

"Is claimant allowed six (6) months exclusive of date of 

purchase in which to file his claim with the Comptroller, 

and also six (6) months exclusive of the date received ln 

this department?" 

Section 13 (d), Article 7065 (a), Vernon's Annotated Civil 

States, as amended by Senate Bill 179, Acts, Regular +ession, 

46th Legislature, concerning the constructionof which this 

opinion turns, provides as follows: 

"Section 13 (d). When a claimant purchases or acquires for 

use motor fuel upon which a refund of the tax may be due, 

he shall within six (6) months from the date of purchase 

of motor fuels upon which a refund is claimed, and not 

thereafter, file with the Comptroller an affidavit, on such 

forms as may be prescribed by th8COmptrOIl8r. Said 

affidavit shall include a statement as to the source or 

place of purchase or acquisition of such motor fuel used for 

purposes other. than in propelling motor vehicles over the 

highways of this State; that the information stated in the 

attached duplicate copy of the invoice of exemption is true 

and correct, and the manner in which said motor fuel was 

used, and that no part of said motor fuel was used in propelling motor VehicI8s over the highways of this State. Said 

affidavit shall be accompanied by the duplicate copy of the 

invoice of exemption above referred to, and the Comptroller 

may require other affidavits ,ln such form and time as he 

may deem advisable, and if he finds that such claims are 

just, and that the taxes cla~imed have actually been paid, 

then he shall within sixty (60) days issue warrant or 

warrants for the amounts due claimant, but no warrant shall 

be paid by the State Treasurer after twelve (12) months from 

the date thereof, claimant shall forfeit his right to the 

refund. 

"No refund shall be made where motor fuel is used later 

than six (6) months from the date of purchase, or 

appropriation, and no refund shall ever be made Where it 

appears from the invoice, or from the affidavits, or other 

evidence submitted, that the sale or purohase was mad8 more 

than six (6) months prior to the date of filing of the 

application for refund. The date of filing shall be the day 

such claim is actually received in the Comptroller's Office." 

Inasmuch as the foregoing statute, in providing that a motor 

fuel tax refund claim shall be filed with the'comptroller 

"within six months from the date of purchase of motor fuels 

upon which the refund Is claimed," makes a "month" the unit 

for computing the time indicated,. it becomes first necessary 
Honorable Geo~ H, Sheppard, page 3, O-&92 

to determine just what period of time is embraced within 

the term "month". The modern authorities recognize but 

two types of months, lunar and calendar, but with the first 

we have no concern here, because the Legislature, by Article 

23, Subdivision 15, Vernon's Annotated Civil Statutes, has 

specifically defined "month" to mean a calendar month. 

The calendar month, sometimes called "civil" or "solar" 

month, means a month as is designated,in the caiendar,-without 

regard to the number of days it may contain, in contradiatinction to a lunar month, composed of 28 days; the calendar month 

bears the name and contains the length of days fixed by 

the Gregorian calendar, 

:2WC.;Tqp. 968, 41 Tex. 

varying from 28 days to 31 days. 

Juris. 343, &Kinney v. State, 66 

. . . 

We pass now to a more specific COnaideration.of your inquiry, 

that is to say, whether or not the date of purchase of the 

motor fuel upon which a refund 1s cHimed, and the da&e of 

filing such claim with the Comptroller should be, either one 

,or both, included or excluded in the computation of the sixmonths limitation fixed by the foregoing statute, considering 

month in the calendar sense above discussed. 

7YFZFqquestion, 

#In approaching 

we first point out the settled general rule 

that fractions of a day,are not considered in the computation 

of time, and the day on which an act is done must be entirely 

BXclUded or included. 41 Tex; Juris. 34.5, and cases cited; 

62 Corpus Juris. 978-979. 

Moreover, in computing a designated period of time for the 

purpose of ascertaining'the first or last day on which an act 

may or must be done the general unquestioned rule is either 

to inc&ude the first day and exclude the last,,or to exclude 

the first and include the last, but not to include or exclude 

both terminal days unless-clearly indicated by the statute or 

contract under oonsideration.~ 62 Corpus Juris. 983. kl Tex. 

Juris. 345, and cases cited. 

Nothing appearing in the civil statutes under consideration 

here to remove it from the operation of the foregoing general 

rule, We next point to the rule corollary thereto,. adopted in 

most jurisdictions, including Texas, to the effect that in 

computing time "from" or "after" a specified day or event, 

the first day should-be excluded and the last day, that is, 

the day on which the act is to be-done, is included.~ 62 

corpus Juris. 984, 41 Tex. Jtiris. 346, and cased cited. 

We find no language in 'the statute involved here, nor in any 

of the decisions cited to the text of the above stated rule, 

which would remove such statute from the operation of this 
Honorable Gee. H. Sheppard, page 4, O-1492 

rule. We again direct to your attention the language of 

the controlling statute hereinabove quoted, directing that 

within six months from the date of purchase of motor fU8l 

upon which a rerun= claimed, such claim must be filed 

with the Comptroller of Public Accounts. The, specified day 

or event, within the language of the above.stated rule, is the 

date or day on which the motor fuel in question was purchased, 

and under such rule, such,day ordate is to be excluded in 

computing the six-months period. The other terminal date 

D?ixed by th8 statute is the day or date on which such daim 

should be filed with the Comptroller, and under the stated 

rule, such day or date is to be included in computing the 

six-months period allowed by atetut for filing such motor 

fuel tax refund claims. 

This rule of excluding the first day and including the last 

has been, by the Texas ~courts, applied to somewhat analogous 

situations.' ,For instance, ft was applied in computing the 

term of a lease which was t6 run "from"~ a oertaln day for a 

certain number of years, Hakelwood V. Bogan, 67 S.W. 80; in 

computing the time within which objections may be filed to a 

commissioner's report, assessing'qfunagoe~for the oondemnation 

of land wafter the same has been filed with,the county 

Hardy v. City of Throckmorton, 70 S.W. (2d) 775; and in 

judge," 

computing the:.time within which a w;it 

"from the rendition of the 

of error may be taken 

jud 

Cases, Vol. 3, Texas furls: 2 r- 9. 

Appeal and Error - Civil 

But another question is presented when the last day of the 

period, included in the computation under the abOV8 stated 

rule, falls on a Sunday or holiday, and you give a specific 

instance in your letter where t&his has occurred. Again we 

find nothing in the statutes or decisions to remove the 

instant case from,.the operation of the general rule which, 

as stated by ~_unneroils authorities in Texas, is that when 

the last day for the performance of an act falls on Sunday 

or on a holiday, the day is excluded in the computation of 

time, and performance may,be postponed until the following 

secular or business day.. 62 Corpus Juris. 1000, 41 Tex. 

Juris. 350, and cases cited. Sundag 1s dies non juridious 

in regard to official acts and proc;?edingS, and it was not 

within the contemplation of the Le~:slature, in requiring 

certain papers and records to be-filed Within a certain time, 

that the.affected state department should remain Open ,on 

Sundays Yoi;-. this purpose, when the last dayof filing falls 

upon SUCL. day. 

As illustrative of this, th8 Supreme COUrt of Texas in 

Fessenden v. Terrell, 98 S*'Jlr. li-1.0, in constructing an act 
Honorable Geo. H. Sheppard, page 5/O-1492 

directing the Commissioner of the General Land Office to 

open bids for the purchase of school lands on the day 

following the date when the land comes on the market, held 

that the word "day" does not mean thenext calendar day, but 

the next day on which the Land Office is'required to be open; 

and where the nextcalendar day was a legal holida 

proper to make the opening on the day following, $' 

it was 

he court 

said: 

“It seem,s to us that no one would seriously contend that the 

Legislature intended to require these officers to perform a 

duty so contrary to the s irit of our laws. Article 2939 of 

our Revised Statutes of 1 E 95 declares the 21at of April to 

be one of the legal holidays 

of the 'state may.be closed," 

'on which all the public offices 

and it has been the practice 

of the state departments to~close upon every such day. In 

the matter of opening the bids for the purchase of school 

lands there is no urgency for immediate action, and the~refore 

we do not think the purpose of the Legislature was to change 

the general rule, and to require the commissioner of the 

general land office to open his office on Sundays or legal 

holidays merely for the performance of this duty." 

We are fortified in this conclusion b the last sentence in 

the second paragraph of section 13 (d 7 of the Act, which 

provides: 

"The date of filing shall be the day such claim is actually 

received in the Comptroller's Office." 

By so providing the Legislature took cognizance of the general 

rule above stated regarding Sundays and holidays, and the 

uniformly~observed practice of state departments to remain 

closed on such days. 

But your question and our opinion thereon are limited to a 

situation when the last day for the performance of the act 

of filing the claim with the Comptroller falls on Sunday 

or a holiday. In holding such day to be excluded in the 

computation of time, under these circumstances, we do not 

hold that Sundays and holidays intervening during the sixmonths period between the purchase of the .motor fuel in 

question and the filing of a refund claim, are to be excluded. 

Per contra, the general rule is that, unless the time allowed 

for doing the act is very short, or unless Sundays or holidays 

are expressly excepted, such intervening Sundays or holidays 

will be included in computing tile time within which an act is 

;;zy.re;C;; be performed. 41 Tax. Juris. 342, 62 Corpus 

. . 
Honorable Get. H. Sheppard, page 6, O-1492 

Trustkg the foyegoing fully answers your question, we are, 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

s/ Pit M. Neff, Jti. 

BY 

Pat M. Neff, Jr. 

Assist ant 

APPROVED NOVEMBER 6, 1939 

s/ W. p. Moore 

FIRST ASSISTANTiATTORNEY GENERAL 

PMN:LW/cg 

APPROVED OPINION COMMITTEE 

By BWB, Chairman