Mr. Jerry N. Shurley                   Opinion     No. WW-1105
County Attorney
Sutton County                          Re:     Whether Sutton County, as a
Sonora, Texas                                  user of "special      fuels",   must
                                               execute,the     bond reauired     by
                                               Art. 10.10(l),     Title    122A,
                                               Taxation-General,      Revised
                                               Civil   Statutes   of Texas, to
                                               secure payment of taxes due
                                               the State of Texas on such
Dear Mr. Shurley:                              fuel.

         YOU request the opinion    of the Attorney   General of Texas
in answer to two questions    relative    to the Special  Fuels Tax Law,
Chapter 10 of Title   122A, Taxation-General     of the Revised Civil
Statutes   of Texas.

       You recite    the   following   facts     as a basis   for   your   questions.

               "Sutton     County road equipment con-
           sists    of bull-dozers,      maintainers,
           shovels,     etc. which are exclusively
           used for the construction           and main-
           tenance     of County roads throughout
           the County.       In connection      with the
           use of this equipment,          it is necee-
           sary to avoid unnecessary           delay in
           the moving of this equipment from one
           location     to another;     therefore,    the
           County also has a truck-trailer            unit
           called     a 'low boy' used for trans-
           porting     the bull-dozer      and shovel
           from one location        to another.      This
           truck necessarily,       travels    upon the
           State highways.

               "In all of the above equipment,
           diesel  oil is used for fuel.       This
           fuel is denominated    a 'special    fuel'
           and comes within Chapter 10 of Title
           122A, Acts 1959, 56th Leg.,       3rd C.S.,
           p. 187, ch. 1, so far as the taxation
           of this special   fuel is concerned.
                                                                                             r   .




f4r. Jerry        N. Shurley,,     Page 2                      Opinion   No. WW-1105



                   “Recently,   the Comptroller     of Public
              Accounts     of Texas has advised the sup-
              plier    who has been selling     this special
              fuel to Sutton County that it would be
              necessary     for Sutton County to execute
              a bond payable to the State of Texas
              since:     (1) The ‘low-boy1    truck used by
              Sutton County is operated       upon the State
              highways,     and (2) due to the fact.      . .
              Sutton County would not be eligible          to
              simply execute     an affidavit    that all of
              such fuel was used off of the State high-
              ways thus coming under exemption from the
              tax imposed upon the special         fuel.”

           You ask:

                     1)   Whether Sutton County is a
                          ”per son” within contemplation
                          of the Special   Fuels Tax Law;

                     2)   Whether the county may lawfully
                          execute  a bond to secure payment
                          by ~lt to the State of the tax
                          incurred  by the county upon its
                          use of “special   fuels”  as defined
                          in Art. 10.02(l)   of this law.

           We answer       both    your       questions   “Yes”.

           Art.     10.02(g)      of   this     law defines    a “person”   as follows:

                      ” ‘Person’    means every individual,
                  firm, association,        joint stock company,
                  syndicate,     partnership,      copartnership,
                  corporation      (public,    private,    or muni-
                  cipal),    trustee,     agency or receiver.     ”

           Art.     10.10(l) of this law requires               a bond to insure pay-
ment of     the     tax by every~ person who uses              specLa1 fuels,  as follows:

                      “Every person who is authorized         by
                  permit or requlred      by law to make re-
                  mittances     or payments directly    to this
                  State.    . , of taxes incurred    upon the
                  use of said products      shall  file   with
                  his application      for permit a bond. . . .’

           We believe “person”   as defined in the Special                   Fuels Tax Law
includes     Sutton County.    This law is a general law.                    We find in it
Mr. Jerry~ N. Shurley,            Page 3                   Opinion      No. ww-1105



no exemptions          from its    provision   of   any user   of   special   fuels.

                  "The term 'person'        as extended to
              include    tcorporationl      may include     the
              State (thereby,       obviously,    including
              all State components or 'functioning
              arms')   where such an intention         is
              manifest."

The quoted language was used in Opinion of the Attorney                General
of Texas No. ww-821 (1960);         we believe     this language is also
applicable   in determining      the meaning of "person"        as defined   in
the statutes    relating     to special   motor fuels.       Opinion No. WW-821
held that the State Parks Board was a person within contemplation
of Art. 23.03,     V.A.T.S.,    Tax.-Gen.    which requires     a person owning,
operating,   managing or controlling         any hotel    to collect   and pay'
over to the State a hotel        occupancy    tax.     A copy of that opinion
is herewith    enclosed.

          Further,   "person"     as defined    in Art. 10.02(g)      (supra
I,     .means every.      . . corporation     (public,.    . .or municipal j . . . ."
The-term ' municipal       corporation"     in its broad meaning includes
counties.      Tex. Const. Art. XI; Galveston           v. Posnainsb       62 Tex.
118 (1884);     Johnson v. Llano County, 39 S.W. 995 (Civ.Aip.                1897);
Brite v. Atascosa       County     247 S.W. 878 (Civ.App.        1923, error dism.);
30-A Tex.Jur.      (Rev.)   27,'Municipal      Corporations,     Sec. 6.     Also,
the Legislature      has declared       each county to be a body corporate           in
Art. 1572, V.C.S.,        which reads as follows:

                  "Each county, which now exists     or
              which may be hereafter    established,
              shall be a body corporate     and politic."

           We pass now to a consideration    of whether Sutton                County   may
lawfully     execute the bond required    in Art. 10.10(l).

           Our Texas Constitution,           Art. V, Sec. 18 is the constitu-
tional     source and limitation           of the powers of the County Commis-
sioners     Court of each county           in the State.  In its pertinent    pro-
visions     it reads:
                  II
                    .  .   .The County Commissioners     so
              chosen,     with the County Judge as pre-
              siding     officer,   shall compose the
              County Commissioners        Court, which shall
              exercise      such powers and jurisdiction
              over all county business,         as is con-
              ferred     by this Constitution     and the laws
              of the State,       or as may be hereafter
              prescribed."
Mr. Jerry   N. Shurley,   Page 4             Opinion   No. WW-1105



         Articles  6740 and 6741, V.A.C.S.,     require  the Commissioners
Court to build,    work and repair    county roads and authorize       it to
I, . . .purchase  or hire all necessary     road machinery.    . .as may be
needed.    . . ."  The purchase    and use of fuel to operate     road machin-
ery and the necessarily     related   equipment is necessarily      incident
to this statutory    duty.

          Incident   to the use of special     fuel the Legislature    has
required     of every user a bond to secure to the State the tax im-
posed upon such user.       Article  10.10(l)     supra.   Counties  were not
exempted from this requirement       and said Article      in our opinion
authorizes     counties  to make such bond.       This requirement   is clear-
ly within the scope of "county       business"     contemplated   by the above
provisions     of the Constitution   and statutes.

                              SUMMARY

                Sutton County, is a "person"     within con-
            templation   of Art. 10.02(g)    and is required
            to execute   the bond required     by Art. 10.10(l),
            both of the Special    Fuels Tax Law, Chapter 10
            of Title   122A, Taxation-General,     Revised Civil
            Statutes.

                                            Yours   very   truly,

                                            WILL WILSON
                                            Attorney General        of    Texas




                                            W. E. Allen
                                            Assistant   Attorney         General

WBA:jp

APPROVED:

OPINION COMMITTEE:
W. V. Geppert, Chairman

W. Ray Scruggs
Elmer McVey~
John C. Steinberger
Sam Wilson

APPROVEDFOR THE ATTORNEYGENERAL
Bye: Morgan Nesbitt
