                                                    574


    OFFICE OF THE A’ISORNEY GENERAL     OF TEXAS
                           AUSTIN




Xonorable George II. Sheppard
Goqtroller of Pub110 Aooounta
Austin, Tsxaa

Deer Sir:




          We are In reoelp
194G, requesting the opini
letter reads ln part as fo


     Motor -&ml Tar Law
     Session ot the Fort




         "In the edminletrf&tlon and enrorooment
    of the r+Tund motes- fuel laws the GomptmLLer
    iinde it moemary,    in hts dlsoretLon, to
    vigomualy  proaeoute oertain suits,,uepsllly
    in cooperation witzh the IJistriot Attorney.
                                                               ,475

Honorable George K. Sheppard, Page 2



     In one particular ocse, the Goniptroller,
     within his discretion. find8 it neoessary
     to inour the expenses or a photographer
     to take pioturos ol e oertaln soem,
     which plotures are to be used ln eri-
     den08 In the prosaoutlon 0r the ease.
     The photographer himself will be used
     ea a wltneaa.   The Comptroller finds It
     neoeerrery also to pay the fees of a
     phyelolan to erslGine a oertaln defendant
     whloh physlolan all1 be used In the trlai
     or the case.

          "1s the Wptroller   authorized to
     incur euoh expenses against this appro-
     priation?

          Would there be any dlffsrenoe in
     inourrlng this expense berore or after
     lndiotmsnt?*

          We ruled In opinion No. G-11356 that the above
quoted prov1slon oonstltutes an approprlatlon to the Gomp-
troller ror the purposes therein authorized and la avall-
able ror the blemlum.

           hots 1933, p. 75, oh. 44 es amended 1935, 44th
LQ3 ., p. 558, oh. S4G (Artlole7065a, Vernon's Texas
Glvll Statutes) Impose8 an ocoupatlon or exe16e tar upon
mater fuel, the tax to ecorue upon the flret sale in
Texas. Detailed 'prov1elon6 are made for report@, lnspeo-
tlons, $nvest$gat$onaand the colleatlon of th@ tax, and
Imposes the prlnolpal dutle6 ln oonnactlonrlththe ool-
lectlon of t~he tax and the adm$nlstration and enforoe!ttent
or the dot upon the Comptroller of Pub110 Amounts.    we
shall snot enumerate these varioaa provlslona In detail.

          Sections 13, 7 aml 12 of the above enaotxaents
were mended by Aota 1939, 6. B. 190. 179, p. 507, the
quotation In your letter being taken frozt amended Seetlon
13. That section provides for rerund or the motor rue1
tax paid by licensed distributors when the motor fuel
upon which the tar was paid $8 devoted to certain uses;
the provision betng $3 the nature or an sxeauptloa. In
order to safeguard agelnst abuass end to facilitate the
enforcement of the Act, distributors desiring to eeaure
                                                               576

Hczorable Ceor?;e IX. Sheppard,   YaGe 3



the authorized refund must ‘rirst secure a liaenee from
the Comptroller, rile en oath, end furnish oertaln $n-
formation. The Act makes it a m$ademeanor to sell motor
fuel upon whloh a refund may be authorized, orb;;g;tm-
66, without first having obtained a license.
$;;;;;lon Is mede for makiny 8hd keeping redords      -
        claims, eta., subject to the er,proval an& it-
speetl& of the Comptroller and a lloenss may be revoked
ror violation or the provisions or the Aot.   Various
Poms ere to be presorlbed and furnished by the Oomp-
troller. Section8 13 (g) and (h) direct the payment of
the taxe8 oolleoted Into the State Treasury end eppro-
prlate e speolrled amount for making rerunds.   Tbs last
mentioned subsection authorlsea the Ueduotlon of the
$1.00 flllng~fee.w~lah  Is appropriated to the u8e of
the Comptroller "In the cdmlnlstrat$on end enforoement*
of the Act and In furnishing the form of~lnvolce of
exezption.

            Section 15 or the Bat of 1935 makes It a relony,
to vlolnte verioua provisions or the Aot, or to reruse,to
permit lnspeotion of 9roduote and premlaea, or to ~"wllful-
ly forge or rdlsiry any ,$nvolce 0r exez&lon*   or si1fuU.y
and knowingly make any f&lse statement in any ola$m for
refund made or riled es~,to any material teat requfred to
be i;iven.*   Venue, for proseoutlone under this eeotlon is
pleoed in Tm~ls County or the aounty In whfeh the vlola-
tion 0 oeurs.

           It Is olear from a consideration of the motor
fueltaxlaw    as awhole that the pr$=~     duty ofedmia-
$s;si;;g and enforoing the aot 16 Imposed upon the Gomp-
         . The Le&lslature ha8 attempted to strengthen the
retund pzo~$elon8 or the law, to Insure adequate means
and mtbods ror the prevention end proseoutlon ~of un-
authorized  refunde, and to promote a more effective en-
foroesent end prevent abuses.    The nature of the duties
$mposed upon the Comptroller require a.vlgllant. $nveatl-
gatlon and examinetion of the rmords, prem$Sss and oom-
merolal. aotlvltlss or those engaged In tho produotlon,
sale and use of motor fuel, to deterreine whether vfola-
tions have oaourred, and ts prevent violetlona of the re-
fund provisions of the law a8 well a6 its other terms.
An errloienti enforcement of the motor fuel. law uould re-
quire the @therIng    end preservation of evldenes in suoh
form thtit It mightbe   properly and effeatfvely presented
in the trial of o&se8 or prosecutions arising under th6
AM,. Evlde~ntly the Legislature oontemplated that the
GomptroZler should vigorously prosecrute suah aults ~8
                                                                577

&onorabls George B. Sheppard, Page 4



might be proper or neCeSSary, and that he should cooperate
with the distriot or prosecuting atsorneg and furnish
suoh data or evidence as .zight be at his dis?oaal to ln-
sure a sucasseful prosecution of violatione.

          This departmat    had before It a related question
in a Conrerence 0 lnfon, dated September 27, 1921, ad-
dressed to Honora f le Len A. smith, Book 56, p. 6.
            In that opinion the Legislature had made an ap-
 propriation to the Live Stook Sanitary Commission, *'for
 the enrorcemnt    or all laws coming under the supervision
.-oxthe Live Steak Sanitary Commlsslon, and all expenees
'inoident thereto." The Commlssion had employed an attor-
 ney to be paid out of this appropriation and the DOIS~-
%roller had refused to issue a warrant for the elaia.
 This department’s   ruling was In the following la-age:
           ?I     We do not think the Laglslature
     1ntendid.b; making this appropriation that
     the Live Stot?k Sanitary Comaission s~uld
     eniploy or appoint a lawyer to travel over
     the State of Texas for the purimae or aesiet-
     ing oounty attorneys in the prosecution or
     those aharged with vlohtlons of the IAve
     Steak  Sanitary Laws. The appmprlation ie
     n6t one neoesaarily ror that purpose. Th'hie
     appropriation may be 1.188dfor the purpoee
     0r oonduehg    investigatfons, in uonneotion
     with the proseoutfozl 0r violations or the
     Live Stock Sanitary Laws and in the payment
     or various and neaessary ~%SM    or expense
     that may properly be inaukpd orthe pert
     0r the Live Stook sanitarf”Cadssian in
     preparing to institute proseuutions.*

           Bleoess~arllyeaoi:case or Investigation will. pn-
sent its indivfdual problems, and require diZferent types
at evidenoe to be obtained and preserved in sueh manner
ad the aireumstanoes zaayrarrant. We oan rea$ll,p undo-
stand, that in some oases, expenses 0r the nature nention-
sd In your letter.nmy be alaioot eaeentlal to the proper
preparation of oafs88  and their prosecution in the enforee-
raeat or the rsrund groviefona 6r tht3motor fuel lami.

          The previelon appropriating money for the +M?ce-
nent or the A&, In our opinioni is not W&ted       to ,@n ln-
veetigation designed to bring about the lnetitution
                                                                 578

flonorable George fI. Sheppard, Page 5



0r a prosaaution.   Suits or prosecutions may be iastitut8d
at a time when the preparetion of the oaae is incomplete,
or after the comxencenent of the aotion additional aata
may oome,to the attention of the Comptroller, or addition-
al material may become neoessery In the light of subse-
quent developments.   To asaribe ta the Legislature the
intention that the tapprGpriatiOn la qusetion should cease
tebe available once e proeeaution. is instituted; would,
in many lnetenoes, praatioally de&&at the purposes of
the appropriation Itself and Soster an inerfeotual
eniorcemmt .
          It is our opinion that the Comptroller, in the
enroroezrent of the motor fuel refund law, is authorized
to inour expenses of tie nature mentioned in the letter
of request, when reasonably neoesaary in the enroroement
ot suah law, including the preparation and proseoution
of oases arising thereunder, and that suoh expenses are
preperlp chargeable against the $1.00 refunding filing
fee appropriation oontained 3.nSeotion I$ 9. B. No. 179,
Aete 1939, 9. 507.

          ii'8are further of the opinion that such erpeneee
may be properly inourred matwithstanding  the institution
of   a suit   or proseoution.

                                          Yoursverytru1y




                                                     Assistant


CGGtGO
                      APPROVEDAPR 27,   1940
