Aws- 11. TEXAS 

December 19, 1962 

Mr. Robert S. Calvert Opinion No. ~~-1502 

Comptroller of Public Accounts 

Austin, Texas Re: Whether motor fuel 

purchased for use 

of the Texas National 

Guard Is subject to 

the State excise tax 

Imposed by Ch. 9, 

Title 122A, TaxatlonQeneral, Revised Civil 

Dear Mr. Calvert: Statutes. 

You ask whether sales of motor fuel to the Texas 

National Guard are exempt from the Texas motor fuel excise 

tax imposed by Chapter 9 of Title 122A, Taxation-General, 

Revised Civil Statutes of Texas. 

Our answer is that all motor fuel purchased by the 

United States Property and Fiscal Officer and used by the 

Texas National Guard Is exempt, but that all such fuel purchased for use of the Guard while It is on active State duty 

under command of the Covernor of Texas Is subject to this tax. 

A letter to this office from Col. Carl F. Schupp II, 

the United States Property and Fiscal Officer for Texas, gives 

the following information relative to the three separate statuses 

of the Guard and the purchase of motor fuel for each. 

CoL Schupp states that the Guard may have the status 

for any particular duration of time of being on (1) Federal 

active duty'at which time it is on the active list of the U. S. 

Army, or (2) inactive Federal status, or (3) active State duty 

upon call-up by the Governor of Texas. 

He states, also, with reference to purchase of motor 

fuel for the Guard, that: 

1) while the Guard Is on active Federal duty all gasoline It uses Is furnished by the U. S. Department of Defense. 
Mr. Robert S. Calvert, Page 2 (Opinion No. ww-1502) 

2) while the Guard Is ^__ on inactive Federal status, all 

motor sue1 sor it Is purchased by the U. S. Property and Flscal Officer of Texas for the exclusive use of the Guard and 

paid for by funds furnished by Congress for operation and 

maintenance of its Army National Guard. This motor fuel is 

delivered into the exclusive possession of the U. S. Property 

and Fiscal Officer who is a commissioned officer on the active 

list of the United States Army detailed to, the National Guard 

Bureau. All petroleum products purchased by this office are 

paid for by the Finance and Accounting Officer, Fort Sam, 

Houston, Texas. Procurements are made on Federal contract 

form and/or purchase orders for the Texas National Guard, 

both Army and Air. This gasoline is delivered in kind to the 

various using units of the Guard for their exclusive use under 

U. S. Army regulations. 

3) while the Guard Is on active State duty, the motor 

fuel purchased for and used by It is purchased by the State of 

Texas with State funds. 

All vehicles which use motor fuel are owned by the United States. 

2. 

The case of McCulloch v. Maryland, 4 Wheaton 316 (1819), 

established the principle that no state .may tax any function or 

property of the United States. The Constitution of the United 

States, Art. 1, Sec. 7, grants to Ctngress the exclusive power 

"To raise and support Armies, The Army of the United 

States is composed'ln part of ;'.'.'.'the Army National Guard 

while In the service of the United States, . . L The "Army 

National Guard"2 Is composed in part of the Texas'Natlonal 

Guard. 

The motor fuel tax law,(Ch. 9, Title 122A, V.C.S.) 

expressly provides that motor fuel sold to the Federal Government for the exclusive use of the Federa 

sold tax-free.3 Further, these statutes 1: 

Government may be 

provide for a refund 

1 lo u.S.C.A. sec. 3062 (70 A. Stat. 166). 

2 32 U.S.C.A. Sec. 101 (72 Stat. 1542). 

3 Article 9.05 (1) and (3), V.C.S. 

4 Article 9.13 (8), V.C.S. 
Mr. Robert S. Calvert, Page 3 (Opinion No. WW-1502) 

of this tax upon all motor fuel sold to the United States 

Government for the exclusive use of the Government. These 

statutes5 require specific reports covering motor fuel sold 

to the United States Government. 

3. 

We now consider the reasons for our holding that motor 

fuel used by the Guard when It Is on active State duty under 

command of the Governor of Texas is subject to this tax. 

We know of no constitutional prohibition against the 

Legislature levying an excise tax to be paid by the State and 

its agencies. The law is settled that our State Constitution 

9, , is in no manner a grant of power. 

It operates solely as a limitation of 

power. All power which is not limited 

by the Constitution Inheres In the people, 

and an act of a state legislature Is lenal 

when the Constitution co%alns no prohibition against it." Watts v. Mann, 187 

S.W.2d 917, 923 (Civ.App. 1945, error 

ref.) 

See also State v. Wynne, 134 Tex. 455, 133 S.W.2d 951, 958 

(1939); 40 Tex.Jur. 20 -21, Taxation, Sec. 8. 

The tax under consideration Is an excise tax. State 

v. City of El Paso, 135 Tex. 359, 143 S.W.2d 366, 369 (m. 

We recognize the well-established general principle 

that usually the Legislature does not intend to tax property 

of the State. This principle is stated In Lower Colorado 

River Authority v. Chemical Rank & Trust Company, 144 Tex. 

City of Marlin v. State, 205 

However, we distinguish 

upon the fact that these 

authorities apply this principle to ad valorem taxes and 

not to excise taxes. Further, In the absence of express 

constitutional prohibition against such an excise tax as 

the one under consideration, this general principle is one 

of statutory construction only. Cooley on Taxation (4th. 

5 Articles 9.03 (1) and 9.05 (3), V.C.S. 
Mr. Robert S. Calvert, Page 4 (Opinion No. WW-1502) 

Ed. 1924), Vol. 1, p. 217, Sec. 91 and Vol. 2, pp. 1312-1317, 

Sec. 621; Eagle.Polnt Irr. Dlst. v. Cowden, 1 P.2d 605 (Ore. 

Sup. 1931). Several distinctions between an ad valorem tax 

and an excise tax are stated in State v. Wynne (supra at p. 956). 

The very broad and specific provisions of the motor 

fuel tax statutes (Ch. 9, Title 122A, V.C.S.) make clear that 

the Legislature did not intend to exempt from this tax the motor 

fuel purchased by the State for the Texas National Guard. We 

mention several provisions of these statutes which make-this 

Intent clear: 

1) 

2) 

3) 

4) 

5) 

The statutes are general In the&r appllcation and the Legislature certainly knew 

at the time of passage of these statutes 

and of their amendments that the State 

purchased and consumed large quantities 

of motor fuel in,motor vehicles operated 

by It. 

Article 9.02 (1) imposes the tax '. . . 

upon the first sale, distribution, or 

use of motor fuel in this State . . .' 

without any exceptions. 

While motor fuel and certain other 

petroleum derivatives may be sold taxfree to the Federal Government under the 

provisions of Article 9'.05, subd. (1) 

and (3), and while the tax paid upon 

motor fuel sold to the United States 

Government for the exclusive use of 

said Government is expressly sub ect 

to tax refund under Art. 9.13 (8 3 , yet 

in none of these statutory provisions 

which make specific reference to the 

Federal and United States Government 

is the State mentioned; nor may the 

State be'implied from the wording of 

any of these provisions. 

The State Is not mentioned in Article 

9.03 (1) wherein the United States Government Is specifically mentioned. 

The State Is neither mentioned nor implied 

in Article 9.02 (4) which makes certain 

specific exemptions from this tax. 
. 

Mr. Robert S. Calvert, Page 5 (Opinion No. ~~-1502) 

6 ) The provisions for refund of the tax contained In Article 9.13, subd. (2), (4), 

(6), (7) and (8) are both specific and 

comprehensive and make no provision for 

refund of the tax on motor fuel purchased by or for the State of Texas. 

Art. 9.02 (1) levies the tax upon the purchaser ore 

recipient of the first sale of motor fuel in the following 

language: 

"There shall be and is hereby levied and 

imposed (except as hereinafter provided) 

upon the first sale, distribution, or use 

of motor fuel,in this State an excise tax 

of five cents (5#) per gallon or fractional 

part thereof so sold, distributed, or used 

In this State. Every distributor who makes 

a first sale or distribution of motor fuel 

in this State For any purpose whatsoever 

shall, at the time of such sale or dlstributlon, collect the said tax from the purchaser or recipient of said motor fuel, in 

addition to his selling price . . .' 

(emphasis added). 

This statute levies the tax upon every "purchaser or recipient", 

and not upon only a "person" as defined in Art. 9.01 (6) of the 

motor fuel act. The definition of "first sale" in Art. 9.01 

(10) is not restricted to any particular kind of "purchaser or 

recipient". 

Also, you inform us that your departmental construction 

since 1941 has been that motor fuel ourchased by the State and 

used by-the Guard is subject to this-tax, and we feel that your 

departmental construction is entitled to great weight 

zhe 

Lyles, 142 Tex. 704, 181 S.W.2d 570, 573 (1944). Paytax by the State and Its agencies since 1941 Is a matter of 

financial-concern which, 'we have no doubt, has been well known 

to the several Legislatures which have convened since that 

date. The acauiesence in this statutorv construction should 

be given great weight. 

s.w.2d 322, 328-329 (civ 

Butler, 142 Tex. 692, 1.8 

Our holding that the State must pay to itself this tax 

is distinguished from the holdings in Attorney Generals' Opinions 

Numbers o-6791 (1945) and WW-721 (1959). The first of these 

opinions held that the State was not liable for ad valorem taxes 
1.. 

Mr. Robert S. Calvert, Page 6 (Cpinlon No. WW-1502) 

on lands owned by the Texas Prison System; the second held 

that the State was not liable for certain excise taxes on 

items purchased for Its use by the Board of Control. Roth 

opinions were based upon the ground that no appropriation had 

been made by the Legislature to cover such taxes. The last 

general appropriation to the Adjutant General's Department 

for the Texas National Guard6 is broad enough to cover payment of the State excise tax on motor fuel purchased by the 

State for use by the Texas National Guard. 

b Acts 1961, 57th Leg., lst.C.S., Ch. 62, p. 203. 

SUMMARY 

1. Motor fuel furnished by the 'U. S. Lkpartment of Defense and that purchased by the 

U. S. Property and Fiscal Officer for use 

of the Texas National Guard while the Guard 

is on active and Inactive Federal status Is 

exempt from payment of the motor fuel excise 

tax imposed by Ch. 9 of Title 122A, TaxatlonGeneral, Revised Civil Statutes. 

2. Motor fuel purchased by the State of Texas 

for use of the Guard while It is on active 

State duty under Command of the Governor 

of Texas Is subject to this motor fuel 

tax. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

By' W/4 &eti 

Assistant Attorney General 

WEA:pw 
. ,- 

Mr. Robert S. Calvert, Page 7 (Opinion No. WW-1502) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Joseph Trimble 

Grundy Wllllams 

W. 0. Shultz 

L. P. Lollar 

RhVI.EWED FOR THE ATTORNEY GENERAL 

By: Leonard Passmore