                               May 19,      1948

                                                                              .
     Hon. George H. Sheppard
     Comptroller    of Public Accounts
     Austin,   Texas

                                          Opinion   No. v-583
                   .                      Re:   The applicability    of the
                                                Texas motor fuel tax to
                                                motor fuel purchased by
                                                the U. 9. Government and
                                                ultimately    used by the
     Dear Sir:                                  Texas National    Guard.

                  Your   request    for    an opinion   on the above
     question    reads   in part:

                  “We have requests  from Texas motor
           fuel distributors    for approval by this de-
           partment of tax exempt sales of motor fuel
           to the United States Government for use ul-
           timatelg   by the Texas National  Guard,

                   “An inqulrg     addressed     to Lieutenant
.’          Colonel   Burton E, Miles of the Texas Na-
            tional   Guard who is also serving            in the
            capacity   of acting United States Property-
            Disbursing    Officer,     reflects     that the Fed-
            eral Government has In fact been purchasing
            the motor fuel used by the Texas National
            Guard under Supply Contracts            of the Pro-
            curement Division,       United States Treasury
            Department,    which contracts         provide    for the
        ,,.exclusion     of State taxes,        but include      Fed-
            eral taxes 0 The motor fuel is paid for
           ,with U, S, Treasury        checks or vouchers         pro-
            cessed by the Fort Worth Finance Office,
            United States Army, Fort Worth, Texas.
            Lieutenant    Colonel    Miles stated that all
            of the Motor fuel purchased           with Federal
            funds is used in Federal vehicles               owned by
            the Federal Government and bearing               War De-
            partment Registration         numbers.      It appears,
            however,   that these vehicles          are assigned
            to and used by the Tex8s National               Guard.
Han, George    Ii,   Sheppard,   Page 2,   (V-583)



            “We are enclosing    the letter  from
     Lieutenant    Colonel  Miles explaining    the
     transactions     O a j

           “We shall appreciate   your advice as
     to whether or not the motor fuel used by
     the Texas National   Guard is subject   to the
     Texas tax. ”

           Lieutenant       Colonel   Miles0    letter   discloses:
              11   1 All units of the Texas Natfon-
     al Guard are Federally    recognized  In the Ba-
     tlonal   Guard of the UnItei   States before any
     purchases   are made a m c

           Article      7065b    - 2 provides    in partz

             “(a) There shall be and is hereby le-
     vied and imposed (except           as hereinafter
     provided)      upon the first      sale,   dlstrlbu-
     tlon,    or use of motor fuel la this State
     an occupational         or excise    tax of Four (4)
     cents per gallon         or fractional     part there-
     of so sold,       distributed,     or used in this
     State.      Rvery distributor        who makes a
     first    sale or distribution          of motor fuel
     in this State for any purpose whatsoever
     shall,     at the time of such sale or dlstri-
     bution,     collect     the said tax from the pur-
     chaser or recipient          of said motor fuel,     In
     addition     to his selling       price,   and shall
     report     aud pay to the State of Texas the
     tax so collected         at the time and in the
     manner as hereinafter          provided    a O O

             “(d) No tax shall be imposed upon
     the sale,     use, or distribution        of any mo-
     tor fuel,     the imposing of which would con-
     stitute     an unlawful    burden on interstate
     commerce and which is not subject             to be
     taxed under the Constitution            of the State
     of Texas and the United States,             In the
     event this Article        Is in conflict     with
     the Constitution        or any law of the United
     States with respect        to the tax levied      up-
     on the first      sale,   distribution,     or use
    Hon.   George   H, Sheppard,    Page 3, [V-583)



           of motor fuel in this State,     then it Is
           hereby declared   to be the Intention    of
           this Article   to impose the tax levied     here-
           in upon the first    subsequent  sale,  distrl-
           bution,  or use of said motor fuse1 which
           may be subject   to being taxed.

               It is noted that purchases         of motor fuel
    are made for only those units of the Texas National
    Guard that are federally      recognized,       Such units are
    a part of the National     Guard of the United States         (32
    U. Se C. A. Sec. 4a) which in turn Is a part of the
    Army of the United States       (10 U, 3, C, A. Sec. 2)*
    The United States   is empowered by its Constitution           to
    maintain and operate    its armed forces        (Art,  l,Sec,  8)
    of which the federally     recognized     units   of, the Texas
    Rational  Guard are a part o

                   Since the early case of
     1 nd 4 Wheat” 316, it h&s been t
    +s *tes cannot exercise        the right   of taxation      in res-
    pect to any of the instrumentalities             which the govern-
    ment may create        for the performance     of its constitu-
     tional    functions.      It Is true that the trend of our
    decisions      is not to extend governmental         immunity from
     state taxation       and regulation   beyond the national        gov-
     ernment itself       and governmental    functions    performed b
     Its officers,        Penn. Dairies   v, Milk Control       Comm, 31 s
    U, so 261s        However, It Is still     the law that any law-
     ful function      of the federal    government Fn the perform-
     ance of which the United States acts direct1                 is con-
     3tltutionally       immune from State taxation,       un 3 ess Coa-
       ress consents,        U. So v. State of New Ysrk, 140 F (2)
     808, pff;lrmed     326 N, So 572,

                Congress has not given consent      to the scv-
    era1 states   to exact   a tax oa motor fuel    purchased by
    the United States    for ultlma%e   we by units     @f the
    Army of the United States,      nor l&as it give5 it8 con-
    sent for the states     to place the tu    upe~ the use lf
    such fuel by said units,       We must, therefare,    answer
    your question    in the negative,




”
Hon.   George   H, Sheppard,   Page 4,     (V-583)




             The Texas Motor Fuel Tax (Art.    7065b,
       V. C. 3,) is not applicable     to motor fuel
       purchased  by the United States 5overnmeat
       for use by the Federally    recognized  Texas
       National  Quard.


                                   Your3     very    truly,

                               ATTORNHYGENERALOF TEXAS




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