Honorable Robert S. Calvert          Opinion No. C-414
Comptroller of Public Accounts
Austin, Texas                        Re: Whether a department
                                         of State government
                                         must furnish the bond
                                         required by Article
                                         10.10(l) of persons
                                         who make remittances
                                         or payments of special
                                         fuels taxes directly
Dear Mr. Calvert:                        to this State.
     We quote the following from your letter requesting the
opinion of this office on the above captioned question.
               "We desire the opinion of your office
           as to whether or not a department of
           State Government will be required to
           furnish the bond required by Article
           10.10(l) by the Special Fuels Tax Law
           of persons who make remittances or pay-
           ments directly to this State of taxes
           incurred upon the use of special fuels.
               'For example: the Texas Department
           of CorrectionsIS now engaged in the use
           of special fuels (diesel fuel) pre-
           dominantly to operate tractors and other
           equipment off the public highway but
           with lesser quantitiesused to operate
           diesel trW2k8 upon the public highways,
           which operation by private persona
           would require a bonded user permit and
           the payment of taxes directly to the
           State.
               "There is no exemption from the tax
           on the highway use of special fuels or
           motor fuel accorded by these laws, . . ,
               1,
                . . .
                "The Comptrollerhas requested
            counties, cities and other political
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Honorable Robert S. Calvert, Page 2       Opinion No. C-414


           sub-divisionsof State government
           to furnish the bond If they purchase
           and use special fuels in a manner
           that requires a bond of others.
           This policy was influenced by Attorney
           General Opinion O-2305, in which it
           was held that a political subdivision
           of State government Is required to
           furnish the bond required by Article
           4365, V. A. C. S., to receive a
           duplicate of a warrant issued to such
           applicant which has thereafterbecome
           lost.
               "This Is the first application
            thisDivision has received from a
           department of State government for a
           permit for which the law provides
           that a bond shall be furnished,and
           the Texas Department of Corrections
           has advised that It has no appropriation
           for the payment of the premium to a
           surety company should a bond be required.
               "Will you, therefore,please advise
           this Department whether it can issue a
           permit classified by law (Art. 10.11) as
           a bonded user's permit to the Texas
           Department of Correctionsand waive the
           bond required by the law?"
     Section (1) of Article 10.10, Title 122A, Chapter 10,
Vernon's Civil Statutes, which we deem determinativeof the
question under consideration,reads a8 follows:
                "Every person who Is authorizedby
            permit or required by law to make
            remittances or payments directly,to this
            State of taxes collectedupon the sale
            or delivery of special fuels or of taxes
            incurred upon the use of said products
            shall file with his applicationfor
            permit a bond in an amount to be set by
            the Comptrollerat not less than three
            (3) times the amount of taxes that will
            accrue or may be expected to accrue
            during any month of the calendar year,
            but which bond shall never be less than


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Honorable Robert S. Calvert, Page 3        Opinion No. C-414


           One Thousand Dollars ($1,000) If
           filed by a supplier nor less than
           Plve Hundred Dollars ($500) If filed
           by a dealer or user.
               "Every such bond shall be executeti
           by a surety company authorize:;  to do
           business In this State, payable to
           the State of Texas, and shall remain
           in force from the date it is malie
           effective to the end of the calendar
           year, unless released by the Comptroller
           as herein provided. Such bond shall be
           conditionedupon the full, complete,
           and faithful performance by the person
           for whom It Is issued of all of the
           conditions and reqUiI?ementS bpOSed   On
           said person by this Chapter, or by
           rules and regulationspromulgated by
           the Comptroller,and shall expressly
           guarantee the remittance or payment to
           the State of Texas within the time
           prescribed by law of all taxes,
           penalties, interest, and costs required
           herein to be remitted or paid to this
           State by sai6 person. Any such bond
           which is continuous in form may be
           continued in effect for a succeeding
           calendar year by a renewal certificate,
           which certificate shall have all the
           force and effect of an original bond."
     'Person' is defined In Section (9) of Article 10.02 as
follows:
                "'Person'means every individual,
            firm, association, joint stock company,
            syndicate,partnership, copartnership,
            corporation (public,private, or
            municipal), trustee, agency or receiver."
     We do not think that the Texas Department of Corrections
can be deemed an "agency" within the contemplationof the
definition of "person" above quoted. We further think that
the provision of Section (1) of Article 10.10 which requires
that a bond shall be Issued by a surety company and made
payable to the State of Texas demonstratesthat the Legislature
never intended that a Department of the State Government
would be required to secure bond made payable to, in effect,
itself. The result  would be that the Government, or more

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Honorable Robert S. Calvert, Page 4         Opinion No. C-414


specificallya Department thereof, would be expressly
guaranteeingthe remittance or payment to Itself of all the
taxes, penalties, interest and costs required under the
provision of the Special Fuels Tax Act. Additional evidence
of this lack of Legislative Intent lies in the fact that no
appropriationhas been made by the Legislature for the pay-
ment of a bond premium.
     You are therefore advised that In the instant case you
may issue the permit classifiedby Article 10.11 as a bonded
user's permit without requiring a bond.

                    SUMMARY
                    -e-s---
             The Texas Department of Cor-
             rections, a department of the
             State government, need not
             furnish the bond required by
             Article 10.10(l) In order to
             receive a permit classified
             by Article 10.11 as a bonded
             user's permit.
                              Yours very truly,
                              WAGGONER CARR
                              Attorney General of Texas




                                Assistant
MMcGP:dl
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Frank Sooth
John Banks
Gordon Rouser
Robert Norris
APPROVED FOR TRE ATTORNEY GENERAL
By:      Stanton Stone



                          -1952-
