Untitled Texas Attorney General Opinion ( 1939 )

Honorable Geo. H. Shep ard
Comptroller of Public ii
ccounts
Austin, Texas
Dear Sir: Opinion No. O-1492
Be: Time allowed for filing with
Comptroller of Public Accounts
of motor fuel t_ax refund claims,
under Section 13 (d), Article
7065 (a), Vernon's Annotated
Civil,Statutes; as amended by
Senate.Bill 17
Session, 46th ~;g?~4~t~,'e~'%
particular reference to the
inclusion or exclusion of the
day of purchase and the day of
filing, and Sundays and holidays.
By your letter of September 22, 1939, you submit for the opinion
of this department the following question and supporting factual
statement:
"This department has occasion to draw a very definite date in
connection with establishing a time of filing of Motor Fuel
Tax Refund Claims. A claimant will mail his c,laim on Saturday
when the limitation date, according to the following excerpt
of the Statutes, occurs on Sunday. Such claimant will then
take the position that having placed.the claim in the mails ,that
he should be protected even though this office was not open for
business and the reception of mail on Sunday.
"The same question arises when claims are mailed on a date
prior to a legal holiday.
"To give a specific case I will submit the following:
Purchase was made, accordingto the Invoice of Exemption, on
March 17th, 1939, and the Affidavitof Claim to which such
Invoice of Exempti,on was attached showsby the ;;er; to
have been received in the Austln postoffioe at !i . -9
September 17th, 1939. September 17th being a Sunday, The
Comptroller's Offloe was closed, and the claim could not have
been received in the Comptroller18 office until Monday,
September 18th.
Honorable Geo. Ii. Sheppard, page 2, O-1492
"Is claimant allowed six (6) months exclusive of date of
purchase in which to file his claim with the Comptroller,
and also six (6) months exclusive of the date received ln
this department?"
Section 13 (d), Article 7065 (a), Vernon's Annotated Civil
States, as amended by Senate Bill 179, Acts, Regular +ession,
46th Legislature, concerning the constructionof which this
opinion turns, provides as follows:
"Section 13 (d). When a claimant purchases or acquires for
use motor fuel upon which a refund of the tax may be due,
he shall within six (6) months from the date of purchase
of motor fuels upon which a refund is claimed, and not
thereafter, file with the Comptroller an affidavit, on such
forms as may be prescribed by th8COmptrOIl8r. Said
affidavit shall include a statement as to the source or
place of purchase or acquisition of such motor fuel used for
purposes other. than in propelling motor vehicles over the
highways of this State; that the information stated in the
attached duplicate copy of the invoice of exemption is true
and correct, and the manner in which said motor fuel was
used, and that no part of said motor fuel was used in pro-
pelling motor VehicI8s over the highways of this State. Said
affidavit shall be accompanied by the duplicate copy of the
invoice of exemption above referred to, and the Comptroller
may require other affidavits ,ln such form and time as he
may deem advisable, and if he finds that such claims are
just, and that the taxes cla~imed have actually been paid,
then he shall within sixty (60) days issue warrant or
warrants for the amounts due claimant, but no warrant shall
be paid by the State Treasurer after twelve (12) months from
the date thereof, claimant shall forfeit his right to the
refund.
"No refund shall be made where motor fuel is used later
than six (6) months from the date of purchase, or
appropriation, and no refund shall ever be made Where it
appears from the invoice, or from the affidavits, or other
evidence submitted, that the sale or purohase was mad8 more
than six (6) months prior to the date of filing of the
application for refund. The date of filing shall be the day
such claim is actually received in the Comptroller's Office."
Inasmuch as the foregoing statute, in providing that a motor
fuel tax refund claim shall be filed with the'comptroller
"within six months from the date of purchase of motor fuels
upon which the refund Is claimed," makes a "month" the unit
for computing the time indicated,. it becomes first necessary
Honorable Geo~ H, Sheppard, page 3, O-&92
to determine just what period of time is embraced within
the term "month". The modern authorities recognize but
two types of months, lunar and calendar, but with the first
we have no concern here, because the Legislature, by Article
23, Subdivision 15, Vernon's Annotated Civil Statutes, has
specifically defined "month" to mean a calendar month.
The calendar month, sometimes called "civil" or "solar"
month, means a month as is designated,in the caiendar,-without
regard to the number of days it may contain, in contradiatinc-
tion to a lunar month, composed of 28 days; the calendar month
bears the name and contains the length of days fixed by
the Gregorian calendar, varying from 28 days to 31 days.
:2WC.;Tqp. 968, 41 Tex. Juris. 343, &Kinney v. State, 66
. . .
We pass now to a more specific COnaideration.of your inquiry,
that is to say, whether or not the date of purchase of the
motor fuel upon which a refund 1s cHimed, and the da&e of
filing such claim with the Comptroller should be, either one
,or both, included or excluded in the computation of the six-
months limitation fixed by the foregoing statute, considering
month in the calendar sense above discussed. #In approaching
7YFZFqquestion, we first point out the settled general rule
that fractions of a day,are not considered in the computation
of time, and the day on which an act is done must be entirely
BXclUded or included. 41 Tex; Juris. 34.5, and cases cited;
62 Corpus Juris. 978-979.
Moreover, in computing a designated period of time for the
purpose of ascertaining'the first or last day on which an act
may or must be done the general unquestioned rule is either
to inc&ude the first day and exclude the last,,or to exclude
the first and include the last, but not to include or exclude
both terminal days unless-clearly indicated by the statute or
contract under oonsideration.~ 62 Corpus Juris. 983. kl Tex.
Juris. 345, and cases cited.
Nothing appearing in the civil statutes under consideration
here to remove it from the operation of the foregoing general
rule, We next point to the rule corollary thereto,. adopted in
most jurisdictions, including Texas, to the effect that in
computing time "from" or "after" a specified day or event,
the first day should-be excluded and the last day, that is,
the day on which the act is to be-done, is included.~ 62
corpus Juris. 984, 41 Tex. Jtiris. 346, and cased cited.
We find no language in 'the statute involved here, nor in any
of the decisions cited to the text of the above stated rule,
which would remove such statute from the operation of this
Honorable Gee. H. Sheppard, page 4, O-1492
rule. We again direct to your attention the language of
the controlling statute hereinabove quoted, directing that
within six months from the date of purchase of motor fU8l
upon which a rerun= claimed, such claim must be filed
with the Comptroller of Public Accounts. The, specified day
or event, within the language of the above.stated rule, is the
date or day on which the motor fuel in question was purchased,
and under such rule, such,day ordate is to be excluded in
computing the six-months period. The other terminal date
D?ixed by th8 statute is the day or date on which such daim
should be filed with the Comptroller, and under the stated
rule, such day or date is to be included in computing the
six-months period allowed by atetut for filing such motor
fuel tax refund claims.
This rule of excluding the first day and including the last
has been, by the Texas ~courts, applied to somewhat analogous
situations.' ,For instance, ft was applied in computing the
term of a lease which was t6 run "from"~ a oertaln day for a
certain number of years, Hakelwood V. Bogan, 67 S.W. 80; in
computing the time within which objections may be filed to a
commissioner's report, assessing'qfunagoe~for the oondemnation
of land wafter the same has been filed with,the county judge,"
Hardy v. City of Throckmorton, 70 S.W. (2d) 775; and in
computing the:.time within which a w;it of error may be taken
"from the rendition of the jud Appeal and Error - Civil
Cases, Vol. 3, Texas furls: 2r-9.
But another question is presented when the last day of the
period, included in the computation under the abOV8 stated
rule, falls on a Sunday or holiday, and you give a specific
instance in your letter where t&his has occurred. Again we
find nothing in the statutes or decisions to remove the
instant case from,.the operation of the general rule which,
as stated by ~_unneroils
authorities in Texas, is that when
the last day for the performance of an act falls on Sunday
or on a holiday, the day is excluded in the computation of
time, and performance may,be postponed until the following
secular or business day.. 62 Corpus Juris. 1000, 41 Tex.
Juris. 350, and cases cited. Sundag 1s dies non juridious
in regard to official acts and proc;?edingS, and it was not
within the contemplation of the Le~:slature, in requiring
certain papers and records to be-filed Within a certain time,
that the.affected state department should remain Open ,on
this purpose, when the last dayof filing falls
Sundays Yoi;-.
upon SUCL. day.
As illustrative of this, th8 Supreme COUrt of Texas in
li-1.0,
Fessenden v. Terrell, 98 S*'Jlr. in constructing an act
Honorable Geo. H. Sheppard, page 5/O-1492
directing the Commissioner of the General Land Office to
open bids for the purchase of school lands on the day
following the date when the land comes on the market, held
that the word "day" does not mean thenext calendar day, but
the next day on which the Land Office is'required to be open;
and where the nextcalendar day was a legal holida it was
proper to make the opening on the day following, $'he court
said:
“It seem,s to us that no one would seriously contend that the
Legislature intended to require these officers to perform a
duty so contrary to the s irit of our laws. Article 2939 of
our Revised Statutes of 1E 95 declares the 21at of April to
be one of the legal holidays 'on which all the public offices
of the 'state may.be closed," and it has been the practice
of the state departments to~close upon every such day. In
the matter of opening the bids for the purchase of school
lands there is no urgency for immediate action, and the~refore
we do not think the purpose of the Legislature was to change
the general rule, and to require the commissioner of the
general land office to open his office on Sundays or legal
holidays merely for the performance of this duty."
We are fortified in this conclusion b the last sentence in
the second paragraph of section 13 (d7 of the Act, which
provides:
"The date of filing shall be the day such claim is actually
received in the Comptroller's Office."
By so providing the Legislature took cognizance of the general
rule above stated regarding Sundays and holidays, and the
uniformly~observed practice of state departments to remain
closed on such days.
But your question and our opinion thereon are limited to a
situation when the last day for the performance of the act
of filing the claim with the Comptroller falls on Sunday
or a holiday. In holding such day to be excluded in the
computation of time, under these circumstances, we do not
hold that Sundays and holidays intervening during the six-
months period between the purchase of the .motor fuel in
question and the filing of a refund claim, are to be excluded.
Per contra, the general rule is that, unless the time allowed
for doing the act is very short, or unless Sundays or holidays
are expressly excepted, such intervening Sundays or holidays
will be included in computing tile time within which an act is
;;zy.re;C;; be performed. 41 Tax. Juris. 342, 62 Corpus
. .
Honorable Get. H. Sheppard, page 6, O-1492
Trustkg the foyegoing fully answers your question, we are,
Yours very truly
ATTORNEY GENERAL OF TEXAS
s/ Pit M. Neff, Jti.
BY
Pat M. Neff, Jr.
Assist ant
APPROVED NOVEMBER 6, 1939
s/ W. p. Moore
FIRST ASSISTANTiATTORNEY GENERAL
PMN:LW/cg
APPROVED OPINION COMMITTEE
By BWB, Chairman