                                                 January 23, 1939

Honorable Geo. H. Shepperd
Comptroller of Public Accounts
Austin, Texas
Dear Mr. Sheppard:                        Oplnon No. 1.68
                                          Re: Right of ,refundof gaso-
                             .,               line taxes paid where
                                              trucks operatesbehind
                                              barriers on public roads.
          This Office is in receipt of your letter of Jan-
uary     16,     1939,
               inquiring, first, whether a refund of gaso-
line tax should be made where the trucks used by a contractor
are operated solely behind barriers in the constructionof
roads between pointswhere there has never been a public
highway and, second, where ~suchtrucks are used behind bar-
priersand the old road crisscrossesthe constructionof the
new.
          You des.irethese questions to be answered~when
trucks are involved which had been driven to the place of
constructionon the highways as well as trucks which had
been shipped by railway to the place of construction.
          Article 7065a, Section 2(a), Revised Civil Sta-
tutes, provides:
              “There is hereby imposed an occupation or excise
         tax of four (4) cents on each gallon of motor fuel or
         fractional part thereof. . . .
                  Article 7065a,   Section 13(a), Revised Civil Sta-~
tutes,         provides:
              “Any person who purchases motor f~uelin the State
         of Texas and any distributor who appropriatesmotor
         fuel for use, when such motor’fuel purchased by such
         person or used by such distributor for operating or
         propellingany stationarygas engine or tractor used
         for agriculturalpurposes, motor boats, air craft or
Hon. Geo. Ii.Sheppard, January 23,   1939, Page 2 (168)


     for any other nurpose other than use in a motor
     vehicle operated or intended to be operated in whole.
     or in part uoon any of the public highways. roads
     and streets of the State of Texas, on which motor
     fuel tax has been paid either directly or indirectly,
     shall be refunded the amount of such taxes so paid
     by the distributor,exclusive of the deduction for
     evaporationand loss in the manner and subject to $he
     limitationsand conditionsdescribedherein. . . .
          Article 7063,   Section 13(c), Revised Civil Sta-
tutes, provides:
          "go refund of the tax shall be allowed on motor
     fuel used in any registered or licansed motor vehicle
     or in any motor vehicle operated or intended to be
     operated in whole or in part upon any of the highways,
     roads and streets of this State."
         Article 667%;    Sec. 2;Revised Civil Statutes, re-
quiresthat:
          "Every owner of a motor vehicle, trailer or semi-
     trailer,usedorto be used upon the public highways of
     this State,~and each chauffeur,shall apply each year
     to the State Highway Department through the County
     Tax Collector of the County in which he resides for
     the registrationof each such vehicle owned or controlled
     by him, or for ~achauffeur'slicense, for the ensuing
     or current calendar year or unexpiredportion thereof;
     provided,however, that owners of farm tractors, farm
     trailers, farm-semi-trailers,and implementsof hus-
     bandry, operated or moved temporarilyupon the highways
     shall not be required to register such farm-tractors,
     farm-trailers,farm-semi-trailers,or implementsof hus-
     bandry;. . .I'
          Article 6675a, Section l(m), Revised Civil      Statutes,
defines a "public highway" as follows:
           "lPublic Highway' shall include any road, street,
      way, thoroughfareor bridge in this State not privately
      owned or controlledfor the use of vehicles over which
      the State has legislative jurisdictionunder its pOliCe
      power."
Hon. Geo. IL Sheppard,,January 23, ~1939,~
                                         Page .3:,,
                                                .(1,68),

          Prom the above statutes, it is seen that a t'axof
four .centsis &evied,on'each;gallon~of .motor.
                                             fuel, with %er-
tain exemptions setforth in'.7065a,~,Section_13(a]. Fr0m.a
study of the,.exemptiona,
                        -it becomea.apparent that the.truck
operators you mention cannot hope to,claima refund unless.
they bring themselves within the exemption provided when
the mot,orfuel Is aot..foruse ?-ina.motor.vehicle operated
oreintended,~tobe ,bperatedia,whola..or in,~~t.upon any o,f
the public highraysc etc."    ,~ ,:  ,.
              ‘Article706&i, Section l(g), 'RevisedCivil Sta-
tutes,     defines a "public highway" as.follows: ,,
             "*Public Iiignway'.&all mean a&include every
         vay-orplqye -ofwhatever nature,;open  to the use of
      ',the,public.as..a   matter..ofright for,the,:purpose~of
        vehicular travel.”                                .,

          We thinka fair constructionof.Article.6674a
Revised'CivilStatutes, shows a right:inthe State~High~ay:~:~,
Department and Countg.Commissioners~  Courts to close"seg~
meats .ofpublic hlgbwaya~duringconstruct ion and repair
work.  This may appear to Invite the argument that when
such a-road,@ ao q~osed~~~~it~isnot a 'public hlghvay" as
defined in Article 7065a, Section l(g), slaae the road so
closed is not open to the use of the public as a matter of
right, and that the operation of a 'truckupon such closed
segmeatvo.uld,therefore, not be upon a public highvay.
            Hovever, assuming for the time being that-such a
closed road Is not a public hi&way within Article 7065a,,.:.
Section l(g), that fact alone does not gain a refund. 'we
truck must be unlicensed.for. as noted above. Articlei7965a.
Section 13(c), refuses a-refund of the tax.:paidon gasoil& T
going Into,a.licensed motor vehicle, zyqe,rQless  of.its .p$aab.~
of operation, and Article 6675a, Sections 1 and 2, requires
the registrationof any suchvehicles used or to be used
upon the public highways of this State, and the closed road
falls clearly   within the definltioa of a public highvag con-
tained in Article 6675a, Section l(m). The road certainly
Is not privately owned, and the-State undoubtedlyhas,leg-
lslative jurisdictionover It. Hence, the vehicle must be
registered to operate in the closed road, and being reglsi
tered, It's ovaer cannot claim the tax refund.~ Of course,
a truck which Is wrongfully operated without license would
not stand in a better position than it would be if properly
registered.
               He have read Allred vs. Engelman, 61 S.W. (2) 75,
123      Tex. 205, but same has to do with trucks used in farming
Eon. Geo. H. Sheppard, January 23, 1939, Page 4 (168)


operations,vhichare expresaly allowed to use the highways
tenporarilywithout_license._ (Art.
                                 . 6675a,
                                    -     Sec. 2), and the
case 1s not-regardedas authorltg   for such use of the hlgh-
ways by a vehicle not given such privilege.
          It is believed that a fair reading of all the sta-
tutes cited above leads to the conclusionthat the definition
of public highway contained in Article 7065a, Section l(g),
did not mean to.:excludefrom its meaning such temporarily
closed segments of road, but meant only to exclude private
property, so that a man could travel thereon without buying
a license and without forfeitinghis right of exemption.
          Any other interpretationthan that made herein
would render meanin ess the underscoredportion of Article
7063a, Section 13(ce"
                    , quoted above.
         The answer is that a refund is not due in any of
the situationsoutlined by you.
                                    Yours   very truly
                                ATTORRJZYGERERALOF TEXAS




GRL:R:jl
APPROVED
/s/ Oerald C. Mann
ATTGRRIE GEZERAL OF TEXAS
