.   ,




                                     December     11,   1990




        Honorable   Bob Bullock               opinion     No.   JM-1256
        Comptroller   of public
           Accounts                           Re: Imposition    of fees on motor
        L.B.J. Building                       fuels   under   House   Bill  504,
        Austin, Texas    78774                Acts 1989, 71st Leg., ch. 1033,
                                              at 4156    (RQ-1904)

        Dear   Mr.   Bullock:

              You ask   about the     proper construction      of House    Bill
        504, which was enacted by       the 71st Legislature      and    overns
        the sale of certain mixtures       of gasoline and alcohol. 9       The
        bill requires that the comptroller        administer   and enforce     a
        program of    labelling   pumps    through which     fuel   containing
        ethanol or methanol     is sold.

              You appear to   ask whether   the imposition    of the     fee
        authorized  by subsection   (c) of   section 9 of article     8614,
        V.T.C.S.,  may reach only dealers that deliver or sell        motor
        fuels containing   ethanol or methanol    or whether it may reach
        all dealers that deliver or sell motor fuels, regardless          of
        whether those fuels contain     ethanol or methanol.      However,
        because both subsections    (b) and (c) of section 9 authorize
        the imposition   of fees, we will address both subsections.

              We conclude   that a fee authorized    by subsection     (b)   of
        section 9 of the act may reach all persons required          to    hold
        a permit as a distributor       of motor fuels under chapter        153
        of the Tax Code for     whom services are performed      under     that
        subsection.    We   further conclude     that the   additional      fee
        authorized   by subsection     (c) oft section 9 of    the act      may
        reach only those     dealers who    deliver or    sell motor     fuels
        containing   ethanol or    methanol   in the  amount specified        in
        the article.




                1.    Codified   as article     8614,   V.T.C.S.




                                                p. 6692
Honorable     Bob   Bullock   - Page   2    (JM-1256)




        Section 9 of article   8614, V.T.C.S.,  the section           with
which    you are concerned,  provides the following:

                (a) The comptroller  may  adopt rules    not
            inconsistent  with this Act for the regulation
            of the sale of motor fuels containing   ethanol
            and methanol.

                (b) The cq(@troller       bv rule   mav    imnose
            fees for    testina.   insoection.    statement     or
            record    forms,     sale    of  sians.     or    the
            performance    of OthgE-Services   nrovided    in t&
                   stration of this Act.

                (c) Jn add&ion      to the fees authorized     by
            Subsection    (b) of    this section      the   comp-
            troller bv     rule  may    impose   a' fee    to  be
            collected-on    a periodic basis determined        by
            the   comptroller      from    each    distributor,
            supplier,   wholesaler,   and jobber who deals in
            a motor fuel subiect to reaulation        under this
            &g.    The comptroller    by rule shall prescribe
            the form for reporting      and remitting   the fees
            imposed by and under this section.

                (d) The fees' and       penalties     imposed   by
            this Act or by a rule of the comptroller          made
            pursuant   to this Act shall be subject to         the
            provisions    of   Chapter      111   and    Sections
            153.006,    153.007,    and    153.401,    Tax   Code,
            except to the     extent those      sections are     in
            conflict with this Act.

                (e) The total   amount of    fees   collected
            pnder this Act   mav not exceed     the costs   of
            mnisterina     and enforcina  the orovisions    of
            this Act.

                (f)   Th   fees collected     under this section
            mv    be use: onlv     for the a&&nistration      and
            enforcement    of   this Act    bv the   comntroller
            and shall be      deoosited   in the   C Dt    ller's
            Ooeratina    Fund 062.     (Emphasis adEd.;

      We turn first to subsection   (b). There can be no doubt
that the fee authorized    by subsection (b) of section 9 of
the act reaches every person required to hold a permit as     a
distributor  of motor fuels under chapter 153 of the Tax Code




                                           P. 6693
Honorable     Bob   Bullock   - Page   3     (JM-1256)




for whom   services     are   performed    under    that    subsection,
regardless  of   whether the      fuel thus    distributed      contains
ethanol or    methanol.     Sections    1 and   2 of    article     8614,
V.T.C.S.,   taken    together,     confer   explicit     authority     on
certain specified    public officers~ or their authorized         agents
to test 5~y motor fuel sold in the state.           Section 2 of      the
act provides:

                In order to determine    compliance   with   the
            standards   and   for the   enforcement   of   rules
            adopted under Sections      3, 4, and    5 of   this
            Act, the comptroller     of public accounts    or an
            authorized   representative    of the comptroller,
            any law enforcement    officer at the     direction
            of a prosecuting     attorney,    or the   attorney
            genera.1 may test anv motor fuel sold in        this
            state, with or without a complaint       about   the
            fuel.    (Emphasis added.)

      Subsection    (2) of    section     1 of    the    act    provides:
"\Motor fuel' has      the meaning     given that     term by      Section
153.001(17),   Tax Code."2       That subsection     of   the Tax      Code
provides:   "'Motor    fuel*    includes    gasoline,     diesel      fuel,
liquified    gas,    and  other    products     that    are    usable     as
propellants   of a motor vehicle."        Thus, since every licensed
distributor   is subject to      testing,   inspection,     a,        every
licensed distributor     may    be subject to     the subsection         0)
fee, regardless      of whether    the motor     fuel so distributed
contains ethanol or methanol.         However,   imposition     of a    fee
under subsection     (b)   is limited to     those distributors         for
whom services are performed       under that subsection.

      We turn now     to subsection     (c).    Three arguments     have
been   adduced    in   support    of   the   construction     that   the
subsection   9(c)    fee reaches     all   dealers of    motor    fuels,
regardless     of  whether    those    fuels    contain   ethanol      or
methanol.    We find none of the arguments        convincing,

      First, it is emphasized   that the underscored  phrase  of
subsection   (c) of section 9 permits a fee to be imposed upon
"each distributor,
       _              supplier,   wholesaler,   and  jobber  who



       2.   Section    153.001   was  amended    during   the          71st
Legislature:    subsection   (17) was renumbered   subsection         (16).
Acts 1989, 71st Leg., ch. 168, 5 2, at 550.




                                           p. 6694
Honorable     Bob Bullock   - Page   4     (JM-1256)




deals in a motor fuel gubiect to reoulatio            under this Act."
(Emphasis added.)        It is   argued that     al? dealers      of  all
motor fuels are "regulated"       under the act, because the motor
fuel   of   all   distributors,     suppliers,      wholesalers,      and
jobbers is subject to       testing under section 2.         Therefore,
it is argued, the act by its terms permits the imposition              of
the subsection      9(c)   fee on &&       distributors,      suppliers,
wholesalers,    and   jobbers    of   motor    fuels.     At   issue    is
whether such     persons are     "regulated*@    under the     act.    We
agree that all dealers of motor fuel are subject to testing:
we do not agree that       that factor, standing alone,         supports
the assertion    that    all motor fuel     dealers are "subject       to
regulation"   under the act.

      Generally,      the term Vegulate"    has been defined to mean
                   I.
            to fix, establish     or control;   to adjust   by
            rule method or established     mode; to direct by
            rule or restriction:    to subject to   governing
            principles   or laws.

;                                            nv               U         of
Passaic,   308 A.2d ZO, is 63 (N.J. 1973); see also Farmina ton
River Co. v. Town      Plan & Eonina    Comm#n of Farminaton,          197
A.2d 653 (Conn. 1963); Iowa PO er & Liaht Co.              Iowa     State
Hiahwav Comm'n       117  N.W.2d 415     (Iowa   1962):' We      do   not
construe   test&      in this   instance to     comprise   a part       of
"regulation.@*    Rather,   we   construe    positive     testing      for
ethanol and     methanol   gasoline    mixtures     to   constitute      a
prerequisite    that must   be met in     order for the      regulatory
provisions   of the act to be triggered.

      Even  a cursory     reading    of  the    act  supports     the
assertion  that VegulationV1    is limited only to those dealers
who sell   motor fuel    containing   ethanol    or methanol.     For
example, the caption of House Bill 504 described         the bill as
an act "relating  to the sale of certain mixtures        of gasoline
and alcohol; providing    penalties."      Section 11 of the     act,
governing  the effective   date of the bill, provides:

            This act takes     effect January   1, 1990,    and
            applies    only   to  deliveries  or   sales,    as
            applicable,   pf motor fuels containina    ethan 1
            pr methanol    that occur on or after that datt.
            (Emphasis added.)

Sections 3, 4, 5, 6, 7, and 8 of the act refer only to those
motor fuel dealers selling  motor fuel containing  a certain




                                         P. 6695
Honorable     Bob Bullock   - Page 5     (JM-1256)




specified  mixture of ethanol or methanol.       Subsection   (a) of
section 9 confers specific     authority   on the comptroller     to
adopt   rules   not  inconsistent     with   the   act   'for    the
regulation   of the sale of motor fuels containing      ethanol and
methanol."    And finally, subsection    (e) of section 4 of     the
act provides:

                If the comptroller    determines    that certain
            types   of  motor    fuel,    such   as   diesel    or
            liquified  petroleum   gas, are not sold in this
            state as mixtures with alcohol in         sufficient
            quantities
                .    .  to   war]: nt   recrulation     of  those
            delivering  under    &is   Act,    the   comptroller
            may limit   the application       of Section    3 of
            this Act and this section to motor fuels sold
            in sufficient   quantity to warrant reaulation.
            (Emphasis added.)

      Language repeatedly      used in a statute will be         presumed
to have    the same    meaning     throughout,    unless    the   context
shows   that    another   meaning       is   intended.      Paddock      v.
Siemoneit,    218 S.W.2d 428 (Tex. 1949); Greenwood          v. Citv     of
El Paso, 186 S.W.Zd 1015 (Tex. Civ. App. - El Paso 1945,                 no
writ).    In   every  instance     in,  the  act   in  which    the   term
"regulateql or "regulation"      appears,     the term is limited        to
apply only to those dealers         who sell motor fuel        containing
ethanol    or   methanol    in     the   prescribed     amounts.       The
comptroller    has no authority      to promulgate     rules governing
the sale of motor fuels m          containing    ethanol or     methanol:
therefore,    such transactions     are not Vegulated"       by the act.

      Second,   it is argued     that a construction   limiting     the
reach of the subsection 9(c) fee to only those dealers whose
fuel contains    ethanol   or methanol     would have the effect     of
subverting    the purpose for which the,act was passed.         It   is
argued that requiring      only   those dealers whose motbr      fuels
contain the requisite amount of ethanol or methanol to bear
the burden of paying the        subsection   9(c) fee will have     the
effect of creating such economic disincentives         that the sale
of gasoline     containing   ethanol    or methanol   would be     dis-
couraged. For two reasons, we disagree.           We are unconvinced
that such a construction would have such an effect.

      First, we do not bel,ieve that our interpretation              of the
statute vi11 subvert the purpose of the act. An examination
of the legislative  history of Eouse Bill 504 inr%icates that
the legislature  sought to require that all dealers that sell
motor fuel   containing a~ specified amount   of   ethanol or
                    -



                                       p. 6696
Honorable     Bob Bullock   - Page   6     (JM-1256)




methanol must label   pumps dispensing   the   fuel so that                the
mixture will be indicated to consumers:     in other words,                the
evident purpose of the bill    is to protect the consumers                  of
motor fuel.

      The     "Background  Information10           section   of the       bill
analysis     for House Bill 504 provides           in relevant part:

            At this   time,    the   State of    Texas    has   no
            regulations   irequiring the    labeling of     motor
            fuel pumps    at   service    stations    or   retail
            outlets that     dispense mixtures     of    gasoline
            and alcohol.             s motorist.      therefore,
            Gannet determine     if the motor fuel he or       she
            3    our ha&no     has   a substantial        alcohol
            &tent:      (Emphasis added.)

Bill Analysis,  H.B. 504, 71st           Leg. (1989).   The    "Purpose     of
the Bill" section of the bill            analysis states:

            The purpose of the bill is to require dealers
            selling a motor fuel mixture of gasoline    and
            alcohol to  label the   pumps dispensing   this
            fuel so that the mixture will be indicated   to
            consumers .  (Bmphasis added.)

Lg,   The    Y9ection   by Section Analysis"         of the bill    analysis
describes     section   2 of the bill in the         following  way:

            Grants the Comptroller   of Public Accounts           or
            an inspector  employed by the Comptroller            the
            authority  to inspect guy   motor fuel sold           in
            the state of Texas.    (Emphasis added.)

XL

      And second, we    do not agree     that our construction        of
subsection   9(c) will compel a result that disproportionately
burdens those dealers who sell motor fuel containing            ethanol
or methanol.    The   act, as   it was    introduced,    contained      a
provision  limiting any fee charged to the actual cost of the
service to be performed.      Bill Analysis,     H.B. 504, 71st Leg.
(1989).    The   committee    substitute     Version,     inter alia,
deleted the    provision.     Instead,    section     9 of    the    act
confers discretion    upon   the comptroller      to allocate     costs
among the several fees     that he can      impose, subject to       the
limitation   that the total amount     of fees collected      may    not
exceed the costs     of administering    the   act.    V.T.C.S.     art.




                                         P. 6697
Honorable     Bob Bullock   - Page   7   (JM-1256)




8614, 5 9(e).   We note that an administrative       agency, though
vested by statute    with discretion    in   its actions, may     not
exercise its  powers    in an arbitrary    or capricious     manner,
and the reasonableness    of its orders is subject to       judicial
review.  m    strial Accident Bd.     v. O'Dowd, 303 S.W.Zd       763
(Tex. 1957)iUBrown   v. Humble Oil    61 Ref. Co<, 83 S.W.Zd      935
(Tex. 1935).

      Finally,    it is argued that letters submitted       by the two
legislators    who   sponsored    the   bill   indicate    legislative
intent that     all   dealers    of motor    fuel,   not   just   those
dealers who     sell fuel    containing   ethanol    or methanol,     be
subject to     the subsection     9(c) fee.     One of   the    letters
states the following:

               The words    'subject   to   regulation    under
            this Act' were intended only to exclude motor
            fuels such as diesel and Liquified       Petroleum
            Gas, which were not sold in combination        with
            ethanol and methanol.      It was the    intention
            of the Legislature    to have this fee placed on
            all distributors    of   gasoline,   in  order    to
            spread the economic effect of the regulations
            across all gasoline    in the market.

Letter from Jim Horn, State Representative,  to Honorable           Bob
Bullock (Oct. 17, 1989) (discussing  H.B. 504).

      For two reasons,     we do not     conclude that the     letters
are in any way controlling.        First, following   our receipt of
these letters,     we   examined    the   legislative   history     for
statements   in   the public     record   that would   confirm    that
construction    of subsection    9(c).   Our search was    fruitless.
Neither    the   bill   analysis    nor   the   tapes  of   committee
hearings   contain any reference      at all to the subsection     9(c)
fee.    Bill Analysis,   H.B. 504, 71st Leg. (1989).

      Second, determination    of legislative        intent   focuses,
not on an individual   legislator,  but on the       legislature   as a
whole:

            A statute is an act of the legislature      as  an
            organized  body, and expresses    the  collective
            will of that body.     No single member can     be
            heard to say    what the meaning    of a statute
            is.   It must   speak for and    be construed   by
            itself.




                                     p. 6698
Honorable     Bob Bullock     - Page      8     (JM-1256)




Commissioners'     Court of     El Paso    C untv v.     El Pa      Countv
Sb riff's Denuties       Ass'n    620    S.Wy2d 900      902 (EX.     Civ.
AP; . - El   Paso   1981,   wrii   ref'd   n.r.e.).'    Sutherland    sets
forth the following        rule:    "Postpassage     remarks by     legis-
lators,    however     explicit,     cannot    serve    to   change    the
legislative    intent expressed      prior to an act's passage.."        2A
Sands, Sutherland       Stat.    Const.    5 48.15     (4th   ed.   1984).
Therefore,   we cannot consider        the letters submitted       by  the
bill's legislative      sponsors.

      We conclude that the fee authorized      by subsection    9(b)
of House Bill     504 reaches    all persons required    to hold    a
permit as a distributor     of motor fuels under chapter 153      of
the Tax    Code for    whom services   are performed    under   that
subsection.     We further conclude that the fee authorized       by
subsection   9(k) of House Bill 504 reaches only those dealers
of motor fuel, as defined       in the act, that contain     ethanol
or methanol    in certain specified   amounts.


                                SUMMARY

                                                                                         I

                  The fee authorized   by subsection    9(b) of
            House Bill 504    reaches all persons      required
            to hold a permit as a distributor        of   motor
            fuels under chapter 153     of the Tax Code      for
            whom services are    performed   under that     sub-
            section.   The  fee authorized     by  subsection
            9(c) of   House Bill    504 reaches   only     those
            dealers of motor fuel, as defined     in the act,
            that contain ethanol or methanol.




                                                LJ At!cttk
                                                   Very   truly   yo


                                                        /c;,
                                                   JIM      MATTOX                  '-
                                                   Attorney  General   of   Texas

MARYKELLER
First Assistant      Attorney     General

LQU MCCREARY
Executive  Assistant        Attorney      General




                                              p. 6699
    .~ ,.   .   Iionorable Bob Bullock   - Page    9   (JM-1256)
I




                JUDGE ZOLLIE STEAKLEY
                Special Assistant  Attorney      General

                RBNEA HICKS
                Special Assistant    Attorney    General

                RICK GILPIN
                Chairman,  Opinion   Committee

                Prepared by Jim Moellinger
                Assistant Attorney General




                                                  P- 6700
