                   THEATTORNEY                       GENERAL
                            OFTEXAS
                           Aus-rxiv   II.   ‘lbxas

   WVILL  WILSON
AlTORNEYGENERAL                July 28, 1958


  Hon. Robert S. Calvert              Opinion No.        WW-479
  Comptroller of Public Accounts
  Capitol Station                     Re: Whether Comptroller can ap-
  Austin 10, Texas                        prove motor fuel tax refund
                                          claim form signed in blank
                                          by claimant and later filled
                                          in by notary public with
                                          executed jurat, and whether
                                          notary's act in filling in
                                          the form and executing the
                                          jurat constitutes a felony
                                          within the provisions of
                                          Section 37(m), Article 706513,
                                          V.C.S.
  Dear Mr. Calvert:
           We quote the following excerpt from your letter request-
  ing our opinion on the above captioned matters:
            "This department has become concerned with
       the practice among certain notaries public of
       accepting tax refund claim forms signed in blank
       by the claimant and then filling in the informa-
       tion on the form and the notary's jurat after the
       claimant has gone. One notary public contends
       that he obtains from the claimant an oral state-
       ment or a written memorandum, aa to all material
       information to be inscribed in the claim, which
       information he (the notary) thereafter fills in
       on a claim form which has been signed in blank,
       executes his jurat and files the claim wl'chthe
       Comptroller; in other instances the notaries
       maintain a permanent card file on each claimant
       they serve showing the kind of tractor or tractors
       owned, the acreage farmed and the kind of crops,
       and acreage usually planted to each, from which
       general information he prepares, notarizes and
       files the claim form signed in blank and left with
       him by the claimant.
            "We have recently Snterviewed eighty-eight
       (88)farmer-claimants   whose claims were prepared
       by four notaries public in S,outhEast Texas, of
Hon. Robert S. Calvert, page 2,       w-479


    which 57 of them (64%) stated in affidavits that
    the claim form was signed in blank and left with
    the notary public to complete later.
        "Investigation showed that a number of the
   claimants had used different kind of tractors or
   equipment from that stated in the claim form. In
   other instances the actual acreage tilled and the
   crops grown were different from that shown on the
   claim as filed. In a few instances -the claimant
   admitted that a part of the motor fuel upon which
   claim for tax refund was shown as used in tractors
   was actually used for taxable purposes on the
   highways.
        "The claims, when they reached the Comptroller,
   all appeared to be regular and in proper form and
   would have been pald had not they been Investigated.
         "1 . Will you therefore please advise whether
       -in view of the requirement In Section 13(f)
        . e .fif Article 7065b, V.C.SJ that a refund
       claim  . . . shall be verified by affidavit of
       the claimant - the Comptroller can legally
       approve a tax refund claim form signed in
       blank by a claimant and left with a notary
       public who, at a later time and after the
       claimant has departed from his presence, fills
       in the gallonage and other requisite infor-
       mation from a memorandum OP oral information
       previously supplied by the claimant, after
       which he executes his jurat and files the claim
       with the Comptroller without further contact
       with the claimant?"
   Article 7065b-13(a) reads as follows:
        "(a) In all refund claims filed under this
   section the burden shall be on the claimant to
   furnish sufficient and satisfactory proof to the
   Comptroller of the claimant's compliance with all
   provisions of this Article; otherwise, the refund
   claim shall be denied."
   Article 7065b-13(f) reads, in part, as follows:
        II     The refund claim, . . . shall be verified
   by affidavit of the claimant, or a duly authorized
   agent of the claimant, and shall show the quantity
   of refund motor fuel acquired and on hand at the be-
Hon. Robert S. Calvert, page 3,


    ginning and closing dates of the period covered
    in the refund claim filed.
         II. 0 . The claim for tax refund shall include
    a statement that the information shown in each dupli-
    cate invoice of exemption attached to the tax refund
    claim is true and correct, and that deductions have
    been made from the tax refund claim for all motor
    fuel used on the public highway of Texas and for all
    motor fuel used or otherwise disposed of in any man-
    ner in which a tax refund is not authorized here-
    in....
        "If the refund motor fuel for which tax refund
   is claimed was used on a farm or ranch or for any
   agricultural purpose the claim shall show the make,
   model, and year of manufacture of each tractor,
   combine and other vehicle in which any refund motor
   fuel included in the claim was used and the actual
   work performed, showing the different kinds of crops
   planted and the acreage used or set aside for each
   crop, during the period of the refund claim, and
   showing complete information of all other work per-
   formed by each such tractor, combine or other ve-
   hlcle used by the claimant during the period of the
   claim. The claim shall likewise show the make, kind
   and horse power of each stationary engine or motor
   in which refund motor fuel was used by the claimant
   and the purposes for which it was used, and if any
   of the motor fuel included in the claim was used
   other than in the operation of motors or engines,
   the claim shall show complete information as to the
   manner of use and the purpose for which the motor
   fuel was used. The claim shall also state the number
   of automobiles, trucks, pickups and other licensed
   vehicles operated regularly by the claimant or his
   employees, on or in connection with the farm, ranch
   or other agricultural project, and shall show the
   name and address of the dealer or dealers from whom
   taxable motor fuel was purchased for use in such
   licensed vehicles during the period of the claim.
        ,I* . . . . s

         "It shall be the duty of every person claiming
    tax refund to verify the contents of the claim filed
    and any such person who shall file claim for tax re-
    fund on any motor fuel which has been used to propel
    a motor vehicle, tractor or other conveyance upon
    the public highway of Texas for any purpose for which
Hon. Robert S. Calvert, page   4,      w-479


    a tax refund is not authorized herein, or who shall
    file any duplicate Invoice of exemption in a claim
    for tax refund on which any date, figure or other
    material information has been falsified or altered
    after said duplicate Invoice of exemption has been
    duly issued by the refund dealer and delivered to
    the claimant, shall forfeit his right to the entire
    amount of the refund claim filed."
         The statute also makes detailed provisions for tax re-
funds on motor fuel used in vehicles traveling both on and off
the highway, but these provisions are pertinent only as they
further reflect the detailed procedure which must be followed in
order to obtain a tax refund.
         In view of the specific requirement that the refund
claim shall be verified by the affidavit of the claimant, and in
view of the express impostion upon the claimant of a duty to
verify the contents of the claim filed, the Comptroller cannot
approve a tax refund claim prepared In the manner that the claims
described by you were prepared.
         We quote the following additional question which you
have submitted to us:
         "2. When a Notary Public executes and signs
    a notary's jurat certifying that a claim for tax
    refund has been subscribed and sworn to before him
    by the claimant, when in truth and in fact said
    claimant had signed the claim form in blank and
    left it with the Notary Public, who at a later
    time and after the claimant had departed from his
    presence filled in the requisite information, ex-
    ecuted his jurat and filed the claim with the
    Comptroller, will such certification In his jurat
    constitute the making of a false statement by said
    notary public in a claim for tax refund delivered
    to and filed with the Comptroller, as contemplated
    by Section 27(m), cited above?"
    Article 7065b-27 reads, in part, as follows:
    I,
     . . .(m) whoever shall wllfully and knowingly make
    any false statement in any claim for a tax refund
    delivered to or filed with the Comptroller, shall
    be guilty of a felony e . .'
         We do not think that the notaries' acts in the cases you
have described to us come within the above quoted provision of
Article 7065b-27. We think that this provision pertains to false
Hon. Robert S. Calvert, page   5,      w-479


statements made by claimants for tax refunds and that the false
statements contained in the notaries' jurats are not covered by
this provision. However, we call your attention to Article 361,
Penal Code. Article 361reads as follows:
         "If any officer authorized by law to take depositions
         or administer oaths in this State, shall falsely
         certify that any deposition was sworn to before him,
         or any oath made,'or shall with fraudulent intent
         place his certificate, signature or seal to any
         affidavit which is drawn with blanks as to any other
         matter of substance, he shall be imprisoned in the
         penitentiary not less than two nor more than five
         years. Within the meaning of this article shall be
         included the case of an officer who, with design
         that the same may be filled up and used for fraudulent
         purposes attaches his signature or seal of office to
         any paper wholly blank."
                           SUMMARY
         The Comptroller cannot approve motor fuel tax
    refund claim signed in blank by claimant and later
    filled in by notary public with executed jurat, and
    notary's act in filling in the form and executing
    the jurat does not constitute a felony within the
    provisions of Section 27(m) of Article 7065b, V.C.S.
                                Very truly yours,
                                WILL WILSON
                                Attorney General of Texas
                                By s/Marietta McGregor Payne
                                     Marietta McGregor Payne
                                     Assistant
MMP/bs/wc
APPROVED:
OPINION COMMITTEE:
Geo . P. Blackburn, Chairman
Jay Howell
J. Milton Richardson
Edward Casares
Riley R. Fletcher
REVIEWEBFOR THEATTORNEYGENERAL
By: W. V. Geppert
