Honorable George H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir:           Opinion No. o-4819
                   Re:   (a) Is the CatheY & Carrel1
                         Truck Line liable for the tax
                         levled under Section 1 of Arti-
                         cle XIV, House Bill 8, Acts
                         of the Regular SessFon of the
                         Forty-Seventh LegFslature?
                         (b) If not, Fs the Comptroller
                         authorized to refund the tax
                         paid by this truck line under
                         protest?
          Your request for opinion, dated September 1, 1942,
has been received and considered by this department. We
quote from your letter of request as follows:
          "Catheg & Carrel1 Truck Line, operating as
     Interstate truck operators wi.than interstate
     certificate Contract Motor Carrier Permit, haul
     merchandise from out of State for A & P Tea Com-
     pany to the A & P Tea Company warehouse in Dal-
     las, Texas and from there the merchandise is re-
     loaded into a truck of Cathey & Carrel1 Truck
     Line and hauled to various stores wlthin the State
     of Texa's. The Cathey & Carrel1 Truck Line does
     not have a certificate of convenience and neces-
     sity from the Texas Railroad Commission.
          "The above named truck line contend they
     are not liable for the tax levied under Section
     1 of Article XIV, House Bill No. 8 of the Fortg-
     seventh Legislature, but have paid same under
     protest and now request that this tax be refunded,
     and in support of such request have filed their
     brief of the law.
Honorable George H. Sheppard, Page 2 (o-4819)


          "I am enclosing the brief for your considera-
     tion and respectfully request your opinion as to
     whether the tax accrues against this truck line
     and whether this department would be authorized
     to refund the tax paid by this truck line under
     protest before suit Is filed."
            Article 705713of Vernon's Annotated Civil   Statutes
provides:
           "Sec. 1. Any person, firm or corporation who
     may be required to pay to the head of any depart-
     ment of the State Government any occupation, gross
     receipt, franchise, license or bther privilege tax
     or fee, and who believes or contends that the same
     is unlawful and that such public official is not
     lawfully entitled to demand or collect the same shall,
     nevertheless, be required to pay such amount as such
     public officials charged with the collection there-
     of may deem to be due the State, and shall be en-
     titled to accompany such payment with a written pro-
     test,  setting out fully and in detail each and every
     ground or reason why it is contended that such de-
     mand is unlawful or unauthorized.
          "Sec. 2. Upon the payment of such taxes or
     fees, accompanied by such written protest, the
     tax-payer shall have ninety (90) days from said
     date within which to file suit for the recovery
     thereof in any court of competent jurisdiction
     in Travis County, Texas, and none other. Such suit
     shall be brought agalnst the public official charged
     with the duty of collecting such tax or fees, the
     State Treasurer and the Attorney General. The is-
     sues to be determined In such suit shall be only
     those arising out of the grounds or reasons set
     forth in such wrFtten protest as originally filed.
     The right of appeal shall exist as in other cases
     provided by law. . . -
          "Sec. 2a. After such suit is filed in a Court
     of competent jurisdiction in Travis County, and
     before such suit is tried by said Court, said tax-
     payer pays additional taxes under protest, the
     grounds of protest being the same as in the origi-
     nal petition filed in said Court, and the total of
Honorable George H. Sheppard, Page 3 (o-4819)


     said taxes exceeds the jurisdiction of said Court,
     then the tax-payer will be authorized to file suit
     within ninety (90) days after the payment of such
     additional taxes in a Court In Travis County which
     has jurisdiction of the t&al amount of said taxes
     paid under protest, and when such suit is flied
     it shall be deemed to have been filed in conformi-
     ty with the provisions of this Act; provided fur-
     ther, that a tax-payer may amend his original
     petition setting up such additional taxes paid un-
     der protest, and such amendment, if filed within
     ninety (90) days after the date of payment of such
     additional taxes under protest, shall not be con-
     sidered a new cause of action. Provided further,
     that if an appeal is taken from the final judgment
     rendered in such suit, the tax-payer will not be
     relieved of the duty of continuing paying said
     taxes under protest pendlng the appeal of said
     case; however, it will not be necessary for such
     tax-payer to file suit within ninety (90) days
     after the payment of such taxes, but the dispo-
     sition of such taxes shall be governed by the out-
     come of the original suit.
          "Sec. 2b. The provisions of this Act shall
     apply,to all taxes paid under protest, and which
     taxes have not been finally determined to belong
     to the State.
          "Sec. 3. It shall be the duty of such public
     official to transmit daily to the State Treasurer
     all money so received, with a detailed list of all
     those remitting same, and he shall inform the State
     Treasurer in writing that such money was paid un-
     der protest as hereinabove provided. A deposit
     receipt shall be issued by the Comptroller for the
     daily total of such remittances from each depart-
     ment; and the cashier of the Treasury Department
     shall keep a cash book to be called 'Suspense Cash
     Book', in which to enter such deposit receipts,
     Upon the receipt of such money by the State Trea-
     surer it shall be his duty and he is hereby re-
     quired to immediately and forthwith place the same
     in State depositories bearing interest in the same
     manner as any other funds of the State required to
     be placed in such deposFtorles,at interest, and the
                                                             . - ,



Honorable George H. Sheppard, Page 4 (O-4819)


     State Treasurer shall further be   required to allo-
     cate whatever interest is earned   on such funds
     and to credit the amount thereof   to such suspense
     account until the status of such   money is finally
     determined as herein provlded.
          "Sec. 4. If suit is not brought within the
     time and within the manner herein provided, or in
     the event It finally be determined in such suFt
     that the sums of money so paid or any portion
     thereof, together with the pro rata interest earned
     thereon, belong to the State, then and in that
     event it shall be the duty of the State Treasurer
     to transfer such money from the suspense account
     to the proper fund of the State by placing the
     portion thereof belonging to the State in such fund
     by the issuance of a deposit warrant. When such
     deposit warrant or warrants are issued, they shall
     be entered in the cash book, and the proper fund
     to which such money is so transferred shall be
     properly credited therewith. In the event, how-
     ever, that suit is brought by such taxpayer within
     the time and within the manner hereinabove provided,
     and it be finally determined that such money so
     paid by such taxpayer, or any part thereof, was
     unlawfully demanded by such public official and
     that the same belongs to such taxpayer, then and
     in that event it shall be the duty of the State Trea-
     surer to refund such amount, together with the pro
     rata interest earned thereon, to such taxpayer by
     the issuance of a refund warrant, the same to be
     issued in separate series and to be used for making
     such refunds, to be styled and designated "Tax Re-
     fund Warrants' and such warrants shall be written
     and signed by the Comptroller and countersigned by
     the State Treasurer and charged against the sus-
     pense account, as hereinabove provided, and shall
     then be returned to the Comptroller and delivered
     by him to the persons entitled to receive the same.
          ..        .


          At the time of the passage of the above statute,
the only pertinent statutory provision relating to refunds
was contained in the following portion of Article 4388:
          "The State Treasurer shall receive daily from
     the head of each Department, each of whom is spe-
     cifically charged with the duty of making same
,   .


        Honorable George H. Sheppard, Page 5 (0-4819)


             daily, a detailed list of all persons remitting
             money the status of which Is undetermined or which
             is awaiting the time when It can finally be taken
             into the Treasury, together with the actual remit-
             tances which the Treasurer shall cash and place
             in his vaults or in legally authorized depository
             banks, if the necessity arises. . . . A deposit
             receipt shall be issued by the Comptroller for the
             daily total of such remittances from each Depart-
             ment; and the cashier of the Treasurer's Department
             shall keep a cash book, to be called 'suspense cash
             book', in which to enter these deposit receipts,
             and any others issued for cash received for which
             no deposit warrants can be issued, or when their
             issuance is delayed. As soon as the status of
             money so placed with the Treasurer on a deposit
             receipt is determined, it shall be transferred
             from the suspense account by placing the portion
             of it belonging to the State in the Treasury by
             the issuance of a deposit warrant, and the part
             found not to belong to the State shall be refunded.
             When deposit warrants are Issued, they shall be
             entered in this cash book, as well as any refunds,
             and the balance shall represent the aggregate of the
             Items still in suspense. Refunds shall be made in
             a manner similar to that in present use, except
             that separate series of warrants shall be used for
             making such refunds, to~be called 'refund warrants',
             and such warrants shall be written and signed by
             the Comptroller and countersigned by the Treasurer
             and charged against the suspense funds to which
             they apply. Such warrants shall then be returned
             to the Comptroller and delivered by him to the
             person entitled to receive them."
                  Since Section 7 of Article 7057b provides that 'the
        provisions of this law shall be cumulative of all laws relat-
        ing to the payments of taxes or fees of undetermined status
        and for the holding thereof In the suspense account fund of
        the State Treasurer", this department has previously held in
        Conference Opinion No. 3048 (Opinion No. o-640), a copy of
        which is enclosed, that Article 705713did not repeal Article
        4388 and that the two Articles must be construed together.

                  In Article 4388 the Legislature provided for the
        handling of money "the status of which is undetermined". In
                                                                1   ,




Honorable George H. Sheppard,   Page 6 (O-4819)


Article 7057b, it furnished a method for determining the
status of taxes paid under protest and for disposing of such
taxes upon the culmination of a suit or upon the expiration
of the specified period of ninety days. Thus ~construed,the
two Articles are in complete harmony. As was said in the
above cited opinion, it Is true that:
          "Article 4388 covers a broader field than
     Article 7057b since the first statute relates to
     money of undetermined status while the latter art-
     icle deals only with money collected from the
     enumerated sources whose status has been placed
     in question bx the tax-payer through the statu-
     tory protest;
however, in the area occupied by both of these statues, i.e.
cases In which taxes are paid under protest, ths latter stat-
ute elaborates upon and complements the first statute by pro-
viding a mechanism whereby the status of such taxes is to be
ascertained. Apart from these two Articles there exists no
other pertinent statutory authorization for a refund of taxes
paid under protest. It is a familiar canon of construction
that:
           "    . the express mention or enumeration of
      one p&s&,   thing, consequence or class Is tanta-
     mount to an express exclusion of all others. And
     when it is applicable, affirmative words imply a
     negative of what is not affirmed; negative words im-
      ply an affirmative of what is not negative; and a
     provision limltlng a thing to be done in a particu-
      lar form or manner implies that it shall not be done
      otherwise." 39 Tex. Jur. 189.
          Consequently, It is our opinion that refunds of
taxes paid under protest may be accomplished only by compli-
ance with the provisions Article 705713,and that such re-
funds may be made only after a judgment favorable to the
taxpayer Is reached in a suit filed within ninety days from
the date of payment "In any court of competent jurisdiction
in Travis County, Texas, and none other".
          It is true that the Legislature may recognize the
right of reimbursement for taxes determined to have been :~
wrongfully demanded and collected under duress and may make
appropriations for a refund thereof, as was done in Union
Honorable George H. Sheppard, Page 7 (O-4819)


Central Life Insurance Company v. Mann, et al., 158 S. w.
(2d) 477 (19’rl), even though no suit is filed within the
ninety day period; but this additional remedy In no way
affects the authority of the Comptroller to make a refund
prior to a judicial determination that such taxes have
been wrongfully demanded and collected.
          In view of this answer to the second question
stated in the caption, it is neither necessary nor pr'oper
for us to answer the first question there stated. Even if
we should rule that the carrier In question is exempt from
the provisions of the tax statute in question, a suit in
which the llabllity of the carrier would be determined
anew by the court would still be necessary before a refund
could be made, and we deem it not fitting for us to pass
upon a question which will either become moot or will be
before the court within ninety days.
          Trusting that the foregoing fully answers your
Fnqulries, we are
                                  Very   truly   yours,

                             ATTORNEYGERERALOFTExAS
                             By   /s/R. Dean Moorhead
                                      R. Dean Moorhead
RDM:mp:mjs                                   Assistant
Encl.
APPROVED SEP 29, 1942
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED OPINIOR COMMITTEE
BY /s'/BRB, CHAIRMAN
