Honorable Geo. H. Shep ard

Comptroller ofPublic ccounts ii Austin, Texas

Dear Sir: Opinion No. 

### O-1492 Be: Time allowed for filing with Comptroller of Public Accounts ofmotor fuel t_axrefund claims, under Section 13 (d),Article 

### 7065 (a),Vernon's Annotated Civil,Statutes; asamended 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 andholidays.

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 avery definite date in connection with establishing a time of filing ofMotor Fuel TaxRefund Claims. A claimant will mail his c,laimon Saturday when the limitation date, according to the following excerpt of the Statutes, occurs on Sunday. Such claimant will then take theposition that having placed.the claim in the mails ,that he should beprotected even though this office was not open for business and the reception ofmail **on** Sunday.

"The same question arises when claims aremailed on a date prior to a legal holiday.

"To give a specific case Iwill submit the following: Purchase was made, accordingto the Invoice of

### Exemption,on March 17th, 

### 1939, and theAffidavitof Claim to which such Invoice of Exempti,onwas 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

### Comptroller18office until Monday, September 18th.Honorable Geo. Ii.Sheppard, page 2, O-1492

"Is claimant allowed six (6) months exclusive of date of purchase inwhich tofile 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
usemotor fuel upon which a refund of the taxmay be due, he shall within six (6) months from the date ofpurchase ofmotor fuels upon which a refund is claimed, and not thereafter, file with the Comptroller an affidavit, on such forms asmay be prescribed by th8COmptrOIl8r. Said affidavit shall include a statement as to the source or place ofpurchase or acquisition of suchmotor fuel used for purposes other. than inpropelling motor vehicles over the highways of this State; that the information stated in the attached duplicate copy of the invoice ofexemption is true and correct, and themanner inwhich saidmotor fuel was used, and that no part of said motor fuel was used inpropelling 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 ,lnsuchform and time ashe may deem advisable, and ifhe finds that such claims are just, and that the taxes cla~imedhave actually been paid, then he shallwithin sixty (60) days issue warrant or warrants for the amounts due claimant, but nowarrant shall be paid by the State Treasurer after twelve (12)months from the date thereof, claimant shall forfeit his right tothe refund.

"No refund shall bemade where motor fuel isused later than six (6) months from the date of purchase, or appropriation, andno refund shall ever bemade Where it appears from the invoice, or from the affidavits, or other evidence submitted, that thesale or purohase wasmad8 more than six (6) months prior to the date of filing ofthe 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, inproviding that amotor fuel tax refund claim shall be filed with the'comptroller "within sixmonths from the date of purchase of motor fuels upon which the refund Isclaimed," makes a "month" the unit for computing the time indicated,.itbecomes first necessaryHonorable Geo~ H, Sheppard, page 3, O-&92

to determine justwhat period of time is embraced within the term "month". The modern authorities recognize but two types ofmonths, 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" tomean a calendarmonth. The calendar month, sometimes called "civil" or "solar" month, means amonth as isdesignated,in the caiendar,-without regard to the number of days itmay contain, in contradiatinction toa lunarmonth, composed of 28 days; thecalendar month bears the name and contains the length of days fixedby 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 amore specific COnaideration.of your inquiry, that isto say, whether ornot the date ofpurchase 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, #Inapproaching

we first point out the settled general rule that fractions of a day,are not considered in the computation of time, and the day onwhich an act is donemust be entirely BXclUded or included. 41 Tex; Juris. 34.5, and cases cited; 62 Corpus Juris. 978-979.

Moreover, in computing adesignated period of time for the purpose of ascertaining'the first or last day 

### onwhich an act may ormust 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 daysunless-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 toremove 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 onwhich the act is tobe-done, is included.~ 62 corpus Juris. 984,

### 41 Tex. Jtiris. 346, and cased cited.

We find no language in 'thestatute 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 thisHonorable 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 sixmonths from the date ofpurchase ofmotor fU8l upon which arerun= 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 onwhich 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?ixedby th8 statute is the day or date on which suchdaim should be filed with theComptroller, and under the stated rule, such day ordate is tobe included in computing the six-months period allowed by atetut for filing suchmotor 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.' ,Forinstance, ftwas applied in computing the term of a lease which was t6 run "from"~a oertaln day for a certain number ofyears, Hakelwood V. Bogan, 67 S.W. 80; in computing the time within which objections may be filed to a commissioner's report, assessing'qfunagoe~forthe oondemnation of land wafter the samehas been filed with,the county Hardy v. City ofThrockmorton, 70 S.W. (2d) 775; and injudge,"
computing the:.timewithin which aw;it "from the renditionof the oferror may be taken jud Cases, Vol. 3, Texas furls: 2 9. r- Appeal and Error - Civil

But another question ispresented when the last day of the period, included in the computation under the abOV8 stated rule, falls on a Sunday orholiday, andyou give a specific instance in your letter where t&hishas occurred. Again we find nothing in the statutes or decisions toremove the instant case from,.theoperation of the general rule which,
as stated by ~_unneroils authorities inTexas, is that when the last dayfor the performance of an act falls on Sunday
or onaholiday, the day is excluded in the computation of time, and performance may,be postponed until the following secular orbusiness day.. 62 Corpus Juris. 1000, 41 Tex. Juris. 350, and cases cited. Sundag 1s dies non juridious inregard to official acts and proc;?edingS,and itwas not within the contemplation of the Le~:slature, in requiring certain papers and records tobe-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, inconstructing an actHonorable Geo. H. Sheppard, page 5/O-1492

directing the Commissioner of theGeneral Land Office to open bids for the purchase of school lands on the day following the date when the land comes on themarket, held that the word "day" does not mean thenext calendar day, but the next day onwhich the Land Office is'required tobe open; andwhere thenextcalendar daywas a legalholida proper tomake the opening on theday following, $' it was he court said:

“It seem,stous that no onewould seriously contend that the Legislature intended torequire these officers toperform a duty so contrary to the s irit of our laws. Article 2939 of ourRevised Statutes of 1 E95 declares the 21at ofApril to be one of the legal holidays of the 'statemay.be closed," 'onwhich all the public offices and ithasbeen the practice of the state departments to~close upon every such day. In thematter of opening thebids for thepurchase of school lands there isnourgency for immediate action, and the~refore
we donot think the purpose of the Legislature was to change the general rule, and torequire the commissioner of the general land office toopen 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 soproviding the Legislature took cognizance of the general rule above stated regarding Sundays andholidays, 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 dayfor the performance of the act of filing the claim with the Comptroller falls on Sunday
oraholiday. Inholding such day tobe excluded in the computation of time, under these circumstances, we donot hold that Sundays andholidays intervening during the sixmonths period between thepurchase of the .motorfuel in question and the filing of a refund claim, are tobe excluded. Per contra, the general rule is that, unless the time allowed for doing the act isvery short, orunless Sundays orholidays
are expressly excepted, such intervening Sundays orholidays will be included in computing tiletime 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