                   E   AT-B-OIECNEY      GENEXAL

                            OF   TEXAS
                            AUSTXN aa.Trcxas
  WILL W1lL80N
AITORNEYGENER*I.
                            September 18, 1961

     Honorable Robert S. Calvert         Opinion No. WW-1140
     Comptroller of Public Accounts
     Capitol Station                     Re:   Three questions relating
     Austin, Texas                             to Sec. 2 of Senate Bill
                                               No. 10, Acts 1961, 57th
                                               ~~-,;;~~~a~;,   ;7;;wp*
                                               Section No. (6a) to Art.
                                               9.13 of Title 122A, Tax.-
                                               Gen., R.C.S., which is
     Dear Mr. Calvert:                         the Motor Fuel Tax Law.
          You request the opinion of the Attorney General in answer
     to three questions relating to Senate Bill No. 10, Acts 1961,
     R.S., 57th Legislature, which is more fully referenced in the
     caption of this opinion.
          Your questions and our answers are as follows:
          Your first question is:
                "Will the provisions of Section 7(a)
              of Article VIII of the Constitution of
              the State of Texas permit the allocation
              and deposit of unclaimed aircraft fuel
              tax refunds to the Texas Available School
              Fund and to the Texas Aeronautics Commission
              Fund for the purposes provided in Section
              (6a), cited above?"
     Our answer is "Yes".
          Your second question Is:
                II   *will persons who are entitled to
              file claims for refund of the tax paid on
              motor fuel used in aircraft be required
              to file such claims within six months to
              comply with the six months limitation
              period indicated In Section (6a) of Senate
              Bill 10, or will such persons be entitled
              to file claim within the period of one
              year as provided In Subsection (6) of
              Article 9.13, as amended by House Bill 129?"
                                                                ..   .




Honorable Robert S. Calvert, Page 2     Opinion No. WW-1140


House Bill 129 to which you refer was passed at the same Regular
Session of the Legislature which passed Senate Bill No. 10. It
is chapter 453, at page 1026 of the Acts of that Session. Our
answer to the second question is that claims must be filed within
six months, as required by Section (6~) of Senate Bill 10.
     Your third question, stated in alternate inquiries which
we designate as subdivisions (a) and (b) is as follows:
           "(a) Is the Comptroller correct in
         construing Senate Bill No. 10, as intended
         by the Legislature, to mean that the Comp-
         troller must first receive the monthly
         reports and schedules, required in Section
         5 above, from the distributors showing
         complete information of all sales of motor
         fuel marketed by such distributors as
         aviation or aircraft fuel, from which to
         determine the total quantities available
         for refund during the month reported, and
         then must wait until the limitation for
         filing refund claims on the purchases shown
         has expired (six months or one year whichever
         you determine to be the law) before making
         the determination of the number of gallons
         used in aircraft upon which refund of the
         tax thereon has not been made and against
         which a limitation has run for filing claim
         for refund of said tax as provided in Section
         (6a) above cited?


           "(b) does the provision in Section (61)
         stating, sEach month the Comptroller. . a
         shall determine as accurately as possible
         the number of such gallons. . .' require or
         authorize the Comptroller to make such
         determination as accurately as possible --
         which would necessarily be an estimate --
         and make the allocations each month after
         the effective date of the Act, subject to
         correction on allocations made after the
         limitation has run?"
Our answer to this third question is that the Comptroller is to
follow the procedure stated in subdivision (a) of this question.
Honorable Robert S. Calvert, Page 3     Opinion No. WW-1140


            Provisions of the Texas Constitution
              and Statutes under Consideration
     The pertinent portion of Sec. 7-a of Art. VIII of the Texas
Constitution reads as follows:
           "Subject to legislative appropriation,
         allocation and direction, all net revenues
         remaining after payment of all refunds
         allowed by law and expenses of collection
         derived from motor vehicle registration
         fees, and all taxes, except gross production
         and ad valorem taxes, on motor fuels and
         lubricants used to propel motor vehicles over
         public roadways, shall be used for the sole
         purpose of acquiring rights-of-way, construct-
         ing, maintaining, and policing such public
         roadways, and for the administration of such
         laws as may be prescribed by the Legislature
         pertaining to the supervision of traffic and
         safety on such roads; and for the payment of
         the principal and interest on county and road
         district bonds or warrants voted or issued
         prior to January 2, 1939, and declared
         eligible prior to January 2, 1945, for pay-
         ment out of the County and Road District
         Highway Fund under existing law; provided,
         however, that one-fourth (l/4) of such net
         revenue from the motor fuel tax shall be
         allocated to the Available School Fund;. . . .'
     Section 1 of this Senate Bfll No. 10 adds to the Motor Fuel
Tax Law a new Section 5 to Art. 9.03, Title 122A, Tax.-Gen.,
R.C.S. This new Sec. I5 1 reads as follows:
           "Section 1. That Section 5 be enacted
         and added as an amendment to House Bill
         No. 11, Acts 1959, 56th Legislature, 3rd
         Called Session, Chapter 9, (under Chapter
         1) Title 122A, Motor Fuel Tax (Article 9.03
         by adding a Secfon 5 thereto) the same to
         read:
           “‘(5) Reports. Every distributor selling
         motor fuel in this state for use in air-
         craft, or for resale for such purpose, shall
         attach to each monthly report required by
         law to be filed with the Comptroller by each
         distributor a schedule which shall become a
         part of such report and shall show complete
Honorable Robert S. Calvert, Page 4     Opinion No. WW-ll40


        information of all sales of motor fuel
        marketed by such distributor as aviation
        or aircraft motor fuel in such form as
        the Comptroller may require. The Comptroller
        is hereby authorized to prescribe records
        to be kept and reports to be made by
        distributors and refund dealers in what-
        ever manner and form he deems necessary to
        determine the amount of motor fuel, used or
        sold for use in aircraft on which claim for
        refund of the tax is not made, and the failure
        or refusal to keep any such records or to
        make any such reports shall constitute cause
        for the cancellation of the permit or refund
        of dealer's license of those who fail or
        refuse to comply therewith.'"
     Section 2 of this Senate Bill No. 10 adds to the Motor Fuel
Tax Law a new Section 6a to Art. 9.13, Title 122A, Tax.-Gen.,
R.C.S. This new Sec. t6a j reads as follows:
           "Sec. 2. That Section (6a) be enacted
         and added as an amendment to Article 9.13,
         House Bill No. 11, Acts 1959, 56th Legislature,
         3rd Called Session, Chapter 9, (under Chapter 1)
         Title 122A, Motor Fuel Tax, the same to read:
           "1(6a) Allocation of unciaimed aircraft
         fuel refunds to Available School Fund and
         to Texas Aeronautics Commission Fund. Each
         month the Zomptroller, after making the
         deductions for refund purposes as provided
         in Article 9.13, Section (13) of this
         Chapter, shall determine as accurately as
         possible the number of gallons ef motor
         fuel used in aircraft upon which the motor
         fuel tax has been paid to this state, and
         upon which refund of the tax thereon has not
         been made and against which a six (6) months
         limitatation has r-unfor filing claim for
         refund of said tax (called "unclaimed refunds"),
         and from the number of gallons so determined
         the Comptroller shall compute the amount of
         taxes that would have been refunded under the
         law had claims for same been filed in accordance
         with the law, and shall allocate and deposit
         such unclaimed refunds as follows: twenty-
         five per cent (25%) of such revenues shall be
         allocated, deposited, and set aside in the
         State Treasury placed to the credit of the
Honorable Robert S. Calvert, Page 5     Opinion No. WW-1140


         Available School Fund. The remaining
         seventy-five per cent (75%) of such
         revenues shall be allocated, deposited,
         and set aside in the State Treasury in
         a special fund to be called the Texas
         Aeronautics Commission Fund and the same
         shall be credited to, and is hereby
         appropriated to, the Texas Aeronautics
         Commission for the purposes set forth in
         this Section, and which said Texas Aeronautics
         Commission Fund shall be administered by the
         Texas Aeronautics Commission, together with
         any other funds appropriated by the Legls-
         lature, for the support, maintenance and
         operation of the Texas Aeronautics Commission
         in the performance of its safety and all of
         its other functions, duties and responsibilities
         as may be now or hereafter delegated to such
         Commission as prescribed by law, and also for
         the payment of the Commfssfoners, the director,
         assistant director, the staff, and for equip-
         ment and supplies, including aircraft and
         automotive equipment as authorized by law.
         Any unexpended portion of the Texas Aeronautics
         Commission Fund allocated and placed to the
         credit of the Texas Aeronautics Commission,
         as herein prescribed, not used, and on hand,
         at the end of each fiscal year shall be
         returned to the Comptroller of Public Accounts
         and he shall place the same to the credit of
         the Texas Aeronautics Commissfon Fund for the
         use of the Texas Aeronautics Commission for
         the purposes stated herein.'"
     House Bilk No. 129, Acts 1961, 57th Legislature, Re ular
Session, chapter 453> at page 1026, amends Subsection (6 7 of
said Art. 9.13, Title 122A, Tax.-Gen., R.C.S. This subsection
(6) in its pertinent portion as so amended reads as follows:

           "(6) Any person entitled to file claim
         for tax refund under the terms of this Article
         shall file such claim with the Comptroller
         on a form prescribed by the Comptroller within
         one (1) year from the date the motor fuel was
         delivered to him,. D .and no refund of tax
         shall ever be made where It appears from the
         invoice of exemption or other evidence sub-
         mitted, that the sale or delivery of the motor
         fuel was made more than one (1) year prior to
         the date the refund claim was actually received
         in the Comptroller8s office. 0 0 *'
Honorable Robert S. Calve&,   Page 6     Opinion No. NW-1140


     We note also that the same Regular Session of the 57th
Legislature enlarged both the personnel and the powers and
duties of the Texas Aeronautics Commission by Senate Bill
No. 76, Acts 1961, chapter 379, page 850.
     Also, we mention that Art. 9.25 of Title 122A, as
amended by Sec. 5 of this Senate Bill No. 10 was subsequently
amended by ARTICLE V of House Bill No. 20, Acts 1961, 57th
Legislature, First Called Session, Chapter 24, page 71 (at
page 102). Your inquiries which are the subject of this opinion
relate only to claims for refunds of the motor fuel tax paid
on fuel purchased for use in aircraft. Art. 9.25 relates to
allocation of the remainder of the motor fuel tax collected
after making deductions for refund purposes and for enforcement
of the Motor Fuel Tax Act. This Art. 9.25 as amended by this
House Bill No. 20 states, in part:
           "Each month the Comptroller of Public
         Accounts shall, after making the deductions
         for refund purposes as provided in Article
         9.15 of this Chapter, and for the enforcement
         of the provisions of this Chapter, allocate
         and deposit the remainder of the taxes
         collected under the provisions of this Chapter
         in the proportions as follows: ~ . <" (Under-
         scoring added).
We find no conflict between the provisions of this House Bill
20 and the provisions of new Section (6a) to Art. 9.13, Title
122A, which is the subject of your inquiries.
               Discussion of Questions Asked
     First Question: Section 7-a of Art. VIII of our Texas
Constitution reauires that the net revenues from the Motor Fuel
Tax " D . .on mot‘orfuels and lubricants used to propel motor
vehicles over public roadways, shall be used for. ~ *' (under-
scoring added) specified purposes relating to the construction
and policing of the public roadways and for the payment of
specified indebtedness incident to public roads. This Sec. 7-a
further provides that 1/4th of this net revenue shall be allocated
to the Available School Fund.
     Section (6aj added to Art:,9.13 by Set, 2 of Senate Bill
No. 10, which we are considering, allocates only unclaimed air-
craft fuel refunds, and in addition allocates one-fourth (l/4)
of these revenues to the Available School Fund. We find no
conflict between Sec. 7-a of Art. VIII of the Constitution and
this new Section (6a) of Art, 9.13.
Honorable Robert S. Calvert, Page 7     Opinion No. WW-1140


     Second Question: We believe that Section 5) added to Art.
9.03 of the Motor Fuel Tax Law, and Section (6af added to Art.
9.13 of that law, by Sections 1 and 2, respectively of the Senate
Bill No. 10, manifest the legislative intent that claims for
refund of the motor fuel tax paid on such fuel used in aircraft
are to be filed as required by the more specific provisions of
new Sec. (6a) of Art. 9.13 (added by Sec. 2 of S,B. 10) instead
of by the eneral provisions of amended Subsection (6) of this
Art. 9.13 7as amended by H.B. 129). We do not consider the fact
that House Bill 129 was passed by the Legislature one day sub-
sequent to passage of Senate Bill No. 10 to make the general
provisions of House Bill 129 control over the specific provisions
of Senate Bill 10.
     Section (5) of Art. 9.03 (being Section 1 of this Senate
Bill No. 10) requires each distributor selling motor fuel for use
in aircraft to file each month a special schedul: prescribed by
the State Comptroller to enable the Comptroller . . . to determine
the amount of motor fuel, used or sold for use in aircraft on
which claim for refund of the tax is not made. . e a' This
schedule is required only of fuel the ultimate use of which is
for use in aircraft. Also, new Section (6a) of Art. 9.13 (being
Sec. 2 of this Senate Bill No. 10) relates only to fuel used in
aircraft.
           "'It is a fundamental rule that where
         the general statute, if standing alone,
         would include the same matter as the special
         act, and thus conflict with it, the special
         act will be considered.as an exception to
         the general statute, whether it was passed
         before or after such general enactment. m .
         and where the general act is later, the special
         statute will be construed as remaining an
         exception to its terms, unless it is repealed
         in express words or by necessary implications."
         Hallum v, Texas Liquor Control Board, 166 S.W.2d
         175 (Civ.App. 1942, error ref.). Also:
         Fortinberry v. State, ex.rel. Myers, 283 S.W.
         146 (Comm.App. 1926); Culver v. Miears, 220
         S.W.2d 200 (Civ.App. lg4gs error ref.
         v. Broeter, 145 Tex. 142, 196 S0W.2d
         39 Tex.Jur. 149-151, Statutes, Sec. 81-82.
     Third Question: We believe that the Legislature intended
by the provisions of new Sec. (6a) added to Art. 9.13 by Sec. 2
of Senate Bill 10 which read:
Honorable Robert S, Calvert, Page 8      Opinion No. WW-1140


           11
                -and against which a six (6) months
         limitation has run for filing claim for
         refund of said tax (called 'unclaimed
         refunds'). . On
         and
           ,I   .and from the number of gallons so
         de&mined   the Comptroller shall compute the
         amount of taxes that would have been refunded
         under the law ~
                       had claims for same been filed
         in accordance with the law,. . 0' (Under-
         scoring added)
that the Comptroller first receive the monthly reports and
schedules required in new Section (5) of Art. 9.03 (being Section
1 of this Senate Bill No. 10) and then to wait until the six (6)
months limitation set forth in this new Section (6a) of Art.
9.13 has expired before he makes determination each month of
the quantity of fuel used in aircraft and upon which a claim for
refund of the taxes has not been made for the immediately preceding
six months.
                        SUMMARY
              Sec. 2 of Senate Bill No, 10, Acts
         1961, R.S. (codified as Sec. (6a) of Art.
         9.13, Title 122A, R.C,S,):
           1)   Is constitutional;
           2) Requires claims for refund of the
         motor fuel tax paid on fuel used in air-
         craft to be filed within a six months-
         limitation period;
           3) Requires the Comptroller to wait
         until this six months limitation period
         has expired before he determines each month
         the amount of motor fuel used in aircraft
         upon which a claim for ref-undof the motor
         fuel tax has not been made for the immediately
         preceding six months,
                              Yours very truly,
                              WILL WILSON
                                              1 of Texas


                                              (l&&L
                                  Assiitant Attorney General
Honorable Robert S.     Calvert, Page 9   Opinion No. WW-1140


WEA:cm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Henry Braswell
Riley Eugene Fletcher
John Reeves
Bill Robinson
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee, Jr.
