               E        0        EY    GENERAL
                      0~     TEXAS
                     AUSTIN~~.TEXAS



                            November 2, 1960

Honorable Robert S. Calvert           Opinion No. WW-955
Comptroller of Public Accounts
Capitol Station                       Re:   Disposition of fees
Austin, Texas                               collected for water used
                                            in measuring tanks or
                                            containers of vehicles
                                            transporting taxable motors
Dear Mr. Calvert:                           fuels,
     As your recent letter requesting our opinion upon the
referenced question sets out certain pertinent facts and
provisions bearing upon the situation, we quote it in full
as follows:
       "Article 9.19 of the Motor Fuel Tax Law - Chapter
    9, House Bill 11, 3rd Called Session of the 56th
    Legislature, requires the Comptroller to test,
    measure and mark the correct capacity of every
    vehicle tank, and every compartment thereof, which
    is used in transporting taxable motor fuels, blend-
    ing materials and other taxable liquid fuels in
    Texas.   (The taxes are paid to the State on the
    capacities so determined and marked on said tanks.)
      "The Bureau of Standards, U. S. Department of'
    Commerce recommends the use of water as the most
    accurate medium of measuring the capacities of
    such vehicle tanks, and water is used in the State
    measuring racks or stations, eight (8) of which
    have been established and are In operation over
    the State. This Article - 19.19 (1) - carries
    the following provisions:
            'The owner of any vehicle tank or
          othe,rcontainer tested and measured may
          be required to pay a reasonable fee
          to any city or any person for water used
          in the measurement of such tank or con-
          tainer.'
       "Except at the measuring rack located on city pro-
     perty at Arlington, Texas, where the city collects
     for the water used directly from the vehicle tank
     owners, it has been necessary for the Comptroller's
Honorable Robert S. Calvert, Page 2     Opinion No. WW-995


    rack supervisors to collect such water charges
    for the account of such cities and such collec-
    tions have been turned over to the City Water
    Department for which receipts of payment have
    been secured. When the collections exceeded
    the amount due at the fixed rates per thousand
    gallons charged by most of the cities - which
    often happens when collections are made on
    fractions of a thousand gallons used - the excess
    funds were mailed in to the Austin Office and
    deposited by the Comptrollerto the same funds to
    which motor fuel tax collections are allocated.
      "The question has now arisen as to whether the
    Comptroller may be precluded by provisions of the
    Constitution or by the laws of this State from
    collecting funds for the account of the cities
    in payment of water usedinsuLt)msasuringoperations
    without depositing the funds so collected in the
    State Treasury and remitting to the cities by
    State warrant for the payment of the water bills
    accruing.
      "In the absence of any statutory allocation of
    such collections, the Comptroller could not be
    reimbursed for the payment of such water bills
    which obviously would have to be paid out of the
    Comptroller's appropriation for miscellaneous
    operating expense and contingencies.
      "Our first two-fold question is therefore as
    follows:
           I'(a) Is the Comptroller required by
         law or Constitutional prescription to
         deposit in the State Treasury any funds
         collected by his employees as a water bill
         for the account of a city selling such water
         as above described? Or (b) may such employees
         act as an agency or collecting medium for
         such cities by collecting and paying over to
         them such water charges without channelling
         such payments through the State Treasury?
      "If you should find that the Comptroller's actions
    in collecting water charges and paying such collections
    over to the cities is barred only by lack of statutory
    authority or sanction, will a rule and regulation
    authorizing such procedure promulgated under the power
.   .




        Honorable Robert S. Calvert, Page 3     Opinion No. WW-955


            specifically conferred upon the Comptroller by
            Article 9.19, above cited, validate such actions?
            For ready reference this provision reads as follows:
            'The Comptroller is hereby given the power and
            authority to promulgate and enforce any rules and
            regulations, which he may deem necessary to the
            best enforcement of the provisions of this Article."'
             We answer your first question as follows:
                  (a) The Comptroller is not required by law
                      or constitutional prescription to deposlt
                      in the State Treasury funds collected
                      by his employees as a water bill for the
                      account of a city selling such water, as
                      described;
                                /'
                  (b) such emplo'yeesmay act as collectors
                      for such cities by collecting and paying
                      over to them such water charges without
                      channelling such payments through the
                      State Treasury.
             It is obvious from the above quoted language of Art. 9.19
        (1) of the Motor Fuel Tax Law, that the Legislature intended
        that the actual costs of water used in measuring vehicle tanks
        or other containers used to transport taxable liquid fuels
        should be paid by the owner of such tanks. The failure to
        provide specific machinery for so doing in no way changes the
        purpose of this provision. The fee paid under this Section by
        the owner of the tank or container measured IS paid to the
        "City or other person" furnishing the water used in measurement.
        The phrase "or other person" obviously refers to any supplier
        of water other than a city. The fee provided does not belong
        to the State of Texas; the State as such can normally have no
        interest it it. The owner of the tank or container is responsible
        directly to the city (or othergerson) supplying the water for a
        fee. The only conceivable instance in which the State itself
        could have a claim upon the fee is in the event State-owned water
        was used in the measuring process. It would then become the "other
        person" supplying the water. In the situation you describe,
        however, no such question is presented.
             From the facts you set out, it is apparent that the Comp-
        troller's employees have been acting as de facto agents of the
        cities involved in collecting these fees. We assume that no
        compensation has been paid these employees by the cities for
        their services. We also understand from conferences with you
        that in each case a receipt is given the owner of the tank (or,
        more usually, the driver of the transport vehicle) indicating
Honorable Robert S. Calvert, Page 4      Opinion No. WW-955


the fee collected, at the time he is given his copy of the
official measurement certificate. A receipt is then obtained
from the city or other supplier when the fee is turned over
to it. Copies of both receipts are then forwarded to your
Austin Office.
     The practicality of this method of collection is obvious
when contrasted with the impracticality of requiring the
vehicle driver to leave his truck at the measuring rack, which
we understand is invariably located well away from the heart
of each city, travel to the water department office, pay the
required fee, then return to the measuring rack for his vehicle
and measurement certificate. The only other alternative would
be for the city itself to station its own employee at the rack
to make such collections. Such an arrangement would of course
eliminate any question of agency, but the city can certainly
not be put under obligation to station an employee at this
post.
     It is obvious that any supplier could at any time refuse
to make water available for measurement purposes, should the
proper fee not be paid over to it. This would make it impossible
to carry out the measurement process contemplated by Art. 9.19,
Title 122-A, R.C.S., which is an integral part of the system
of motor fuel taxation under Chapter 9 of Title 122-A. As you
point out, Art. 9.19 empowers the Comptroller to promulgate any
rule or regulation which may be necessary for enforement of its
provisions. It is our opinion that no statutory, Constitutional,
or other impediment exists which would prevent such a rule or
regulation permitting employees of that office to act as collec-
ting agents for cities or other water suppliers, assuming, of
course, the city or supplier designates him as agent for this
purpose.
       However,,we are of the further opinion that -
                                                   all fees
collected in this connection should be turned over to the city
or other supplier of water, including any over-payments which
occur.    As pointed out above, the State of Texas has no claim
whatsoever to any part of these fees; therefore, the deposit
of any portion of them to the funds to which motor fuel tax
collections are allocated, the General Fund, or any other
State fund would be erroneous.
                     SUMMARY

          Fees paid by or on behalf of owners of
     motor fuel tanks or containers for water used
     in measuring such tanks or containers, as pro-
     vided in Art. 9.19, Title 122-A, R.C.S., should
Honorable Robert S. Calvert, Page 5    Opinion No. WW-955


    not be deposited in the State Treasury.
    Under a rule or regulation of the Comptroller
    of Public Accounts, employees of that office
    may act as Agents, when duly appointed, of
    the City, or other supplier of water in
    collecting and turning over such fees, without
    channelling such payments through the State
    Treasury.
                          Yours very truly,
                          WILL WILSON
                          Attorney General of Texas




APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
William Hemphill
Thomas Burrus
Lawrence Hargrove
REVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore
