                       THE                OIWJEY             GENE-
                                        OF           XAS
                                       L%cIS~     BB. TEXAW

   FvmLL     WILSOiQJ
AT-TORNEY        GENERAL
                                       August     4, 1961

  Honorable   Robert S. Calvert                     Opinion     No.    WW-1103
  Comptroller    of Pub1ic Accounts
  Capitol   Station                                 Re:~     Whether, under the facts
  Austin,   Texas                                            stated,   the Comptroller
                                                             can legally   pay the claim
                                                             for a refund of tax on
  Dear Mr. Calvert:                                          motor fuel.

             You have requested an opinion  as to whether or not you can
  legally     pay a claim filed for refund of motor fuel tax paid on
  gasoline     used on a farm under a stated set of facts.

             We quote      from your    letter     request     the    following       statement
  of   facts:

                     "The foreman stated that the Jeep
                 which bears 1960 highway license    was
                 used to haul hay, feed and fertilizer
                 from the meadow to the farm, a dis-
                 tance of seven-tenths   (7/10)of a mile
                 over the highway, as well as the other
                 travel  over the highway from one en-
                 trance  gate to another as set out in
                 the letter.

                     "The claim was rejected   for fail-
                 ure to keep a record    of the travel
                 over the highway and failure     to de-
                 duct the fuel used on the highway in
                 such travel   and a copy of Opinion
                 WW-199, holding   that where no such
                 record  is kept and such motor fuel
                 is not deducted   from the claim a tax
                 refund is not authorized."

          The claimant  has submitted               a brief     as to the         facts   and law
  in connection   with this claim.

          In his statement of facts he states that the farm is                              crossed
  by a county road running East and West through the farm.

             We quote      from the    brief     submitted     as follows:
Honorable   Robert   S. Calvert,   Page 2         Opinion   No. WW-1103


               1)
                 * .    .Upon a more careful     examina-
            tion,    the jeep is located     in a garage
            on the north side of the road that
            runs east and west.        It crosses   the
            road to that part of the farm on the
            south side of the road in front of
            the residence,     in doing so using the
            public    highway for a distance      of some
            twenty (20) steps or yards,         and this
            is the main and principal        use, in the
            crossing     of the public   road.

                “A second use:   the jeep proceeds
            from the same garage down to the same
            road and turns east one hundred and
            twenty (120) steps or yards,     and then
            leaves  the road.   This is used perhaps
            on an average once a week during the
            year, and the first   one is used on the
            average of at least   once daily.

                “A third entrance   into the farm
            south of the road, about six hundred
            (600) yards west of the residence     and
            garage.    This is used only semi occa-
            sionally   on an average of once a week.

                “A fourth entrance about 900 yards
            west of the garage from the public
            road is a gate that is kept locked.
            This is wholly used by the jeep,   possi-
            bly at times during the winter months.”

         To merely cross the road is not “being      operated”    upon the
highways within the meaning of the statutes       in our opinion     and
it is our understanding    that the Comptroller’s     Office    has so
construed   the law in the past.    When a person enters the highway
with a motor vehicle    at one point and then travels       along the road-
way for any distance    the person is operating     a motor vehicle    upon
the highway within the meaning of our statutes.

        If it can be said that traveling    along the roadway for one
hundred yards is not operating   a motor   vehicle on the highway then
it could be said that two hundred yards is acceptable      and so on
and on.   There would be no stopping   point.

         The Courts have uniformly~ held that tax exemptions    are to
be strictly   construed.  Refunds of gasoline   taxes in a manner of
speaking is a tax exemption.      Quoting from 40 Tex. Jur. 109, Taxa-
tion,   8 74:
s.   -




         Honorable   Robert   S. Calvert,    Page   3            Opinion   No. WW-1103



                         "It is a universal   rule,   applicable
                     to constitutional    and statutory    provi-
                     sions exempting property     from taxation,
                     that

                         "'when an exemption is found to exist
                     it shall not be enlarged        by construction.
                     On the contrary,       it ought to receive     a
                     strict   construction;     for the reasonable
                     presumption     is that the state has granted
                     in express    terms all it intended       to grant
                     at all,   and that unless      the privilege     is
                     limited   to the very terms of the statute,
                     the favor would be extended beyond what
                     was meant.'

                         "Furthermore,      the exemption of cer-
                     tain property      throws a greater       tax bur-
                     den on property       that is taxable:       there-
                     fore,    any exemption derogates         from the
                     common right     of equality      of burden, and
                     for this reason,       also,   both the consti-
                     tutional    provision     authorizing      the
                     exemption and the statute          granting     it
                     must be found to cover a claimed exemp-
                     tion unambiguously.          For if the construc-
                     tion of the law be doubtful,           the doubt
                     will be resolved       in favor of the taxing
                     power and against        the claim."      Morris v.
                     Lone Star Chapter No. 6, R. A. Masons,
                     68 Tex. 698, 702, 5 S.W. 519 (1887).

                 Opinion No. WW-199 answers almost an identical             set of facts.
         About the only material     difference     is the distance     traveled   on
         the public   road.    In Opinion WW-199 the distance        traveled    was 22
         miles and in this case the longest         distance  traveled     was 7/10 of
         a mile.    As previously   pointed    out, however,    the distance     is not
         the determining    factor.

                 It is therefore  our opinion   that in compliance  with         the
         former opinion   above mentioned,   a copy of which is enclosed          here-
         with, under the facts   stated in this request   the claim for          refund
         was properly   denied.

                                        SUMMARY

                     Under the facts stated the         operation of a
                 jeep over the highway of this          state as a matter
Honorable   Robert   S. Calvert,   Page 4               Opinion   No. WW-1103



         of convenience  to get from one point on the
         roadway to another does not permit a tax
         refund for gas used on farm where no record
         is kept of amount used in jeep while traveling
         on roadway or of distance  traveled  on roadway.

                                            Yours   very    truly,

                                            WILL WILSON
                                            Attorney General          of    Texas




                                            Assistant      Attorney        General

JHB:jp

APPROVED:

OPINION COMMITTEE:
W. V. Geppert, Chairman

Iola Wilcox
Gilbert  Hargrave
Henry Braswell

REVIEWEDFOR THE ATTORNEYGENERAL
By:  Morgan Nesbitt
