    Honorable Robert S. Calvert      Opinion No. WW-1020
    Comptroller of Public Accounts
    Capitol Station                  Re:   Whether the Comptroller
    Austin, Texas                          of,Public Accounts has the
c                                          authority to promulgate a
                                           certain rule and regulation
                                           to be used In ascertaining
                                           the taxable gallons of Special
                                           Fuels used for lncldental
i   Dear Mr. Calvert:                      highway travel.
         You-have asked this Department for an opinion as L? whether
    a proposed rule and regulation, a copy of which Is hereto attached,
    can be legally promulgated by the Comptroller under authority vested
    in him by Artlcle,10.21,Ch. 10, Title 122A, Vernon's Civil Statutes
         This proposed rule or regulation provides for computing the
    amount of special fuels used on the highway and off of the.highway
    in the same manner as is provided for motor fuels (gasoline)In
    Chapter 9, Title.l22A, Article 9.13, V.C.S.
         Article 10.08, V.C.S., provides a method for accounting
    for the tax on a mileage basis and reads as follows:
              "In the event the tax herein imposed
            on special fuels Imported Into this State
            In the fuel supply tanks of motor vehicles
            and the tax on special fuels used In motor
            vehicles owned or operated by llcensed
            suppliers or other persons acting as users
            can be more accurately determined on~a
            mileage basis (that is by determining and
            using the total number of miles traveled
            and the total gallons of fuel consumed),
            or In caue It IS more practicable to so
            determine the tax, the Comptroller Iti
            hereby authorized to approve and adopt
            such basis."
        Article 10.14, V.C.S., Section 1, reads, In part, as
    follows:
              "(1) Except as otherwise provided by
            Article 10.15 of this Chapter, any licensed
            dealer who shall have patithe tax Imposed
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    Honorable Robert S. Calvert, Page 2     Opinion No. WW-1020


             by this Chapter upon.any liquefied
             gas or distillate fuel which has been
             used or sold for use by such dealer for
             any purpose other than propelling a motor
             vehicle upon the public highways of this
             State, or which has been sold to 'the
             United States Government for the exclusive
             use of said government,and any licensed
             user who shall have paid said tax upon any
             liquefied gas or distillate fuel which has
             been used by such user for any purpose
             other than propelling a motor v&lcle upon
             said public highways, may file claim for
             a rerun: of the tax or taxes so paid,
             . . . .
         Section 1 of Article 10.14, V.C.S., further &=ovldes that
    claims for refund shall be filed with the Comptroll-...
                                                          on forms
    prescribed by the Comptrollerand reads, In part, as follows:
                      and shall show such other facts
             and'l&&mation as the Comptrollermay
             by rule and regulation require. . . . '
         Article 10.21, Ch. 10, Title 122A, V.C.S., provides, In
    part, as follows:
               "It Is hereby made the duty of the
             Comptroller to collect,-supervise, and
             enforce the collectionof all taxes,
             penal'les, Interest and costs, due or
             that d[
                   ay become due under the provisions
             of this Chapter, and to that end the
             Comptroller Is hereby vested with all
             of the power and authority conferred by
             this Chapter. The Comptrollershall
             also have the power and authority to
             promulgate rules and regulations,not
             Inconsistentwith this law or the Constl-
             tutlons of this State or the United States,
             for the enforcement of the provisions of
             this Chapter and the collection of all
             taxes, penalties, Interest and costs pro-
             vided In this Chapter."
         Chapter 9 of Title 122A, V.C.S., provides for taxes on
    motor fuels or gasoline as defined therein and Chapter 10 of
    Title 122A, V.C.S., provides for tax on special fuels, such
    as L.P. gas and diesel fuels which are defined In Chapter
    10. Your request Is as to whether or not you are authorized
    to promulgate a rule or regulation allowing the same method
    of computing ,thetaxes due on spedal fuels as defined In
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              Honorable Robert S. Calvert, Page 3    Opinion No. WW-1020


              Chapter 10, as Is authorized In the computing of taxes on
              gasoline as provided In Chapter 9 of Title 122A, V.C.S.
                    Chapter 10 does not provide any method making It mandatory
               to compute the tax In any particular manner but provides a
              method that may be used. Article 10.21, V.C.S., authorizes
               the Comptroller to make rules and regulations for the enforcement
              of the provisions of this Chapter and the collection of all taxes,
             'penalties, Interest and costs provided In this Chapter. Article
             I 10.14, above set forth, also provides for the Comptrollermaking
              rules and regulations In connection with the computing of the
              taxes and refunds of special fuels.
                  It Is the opinion of this Department that the Comptroller of
             Public Accounts has authority under Articles 10.14 and 10.21
             of Chapter 10, Title 122A, V.C.S., to promulgate the -ule and
             regulation, a copy of which Is attached, for the compv.~ng of
             taxes levied by Chapter 10.

                                     SUMMARY

                           The Comptrollerof Public Accounts
                      Is authorized by Chapter 10, Title 122A,
                      V.C.S, to promulgate a certain rule and
                      regulation (copy attached) to be used
                      In ascertaining the taxable gallons of
                      spe'clalfuels used for Incidental highway
                      travel.
                                          Yours very truly,
                                          WILL WILSON
                                          Attorney General of Texas


             JHB:cm
         :   APPROVED:
             OPINION COMMITTEE:
             W. V. Geppert, Chairman
             W. Ray Scruggs
             Grundy Williams
             Joe Osborn
             Lawrence Hargrove
             REVIEWED FOR THE ATTORNEY GENERAL
             By: Morgan  Nesbltt
