Untitled Texas Attorney General Opinion ( 1961 )

Mr. Jerry N. Shurley Opinion No. WW-1105
County Attorney
Sutton County Re: Whether Sutton County, as a
Sonora, Texas user of "special fuels", must
execute,the bond reauired by
Art. 10.10(l), Title 122A,
Taxation-General, Revised
Civil Statutes of Texas, to
secure payment of taxes due
the State of Texas on such
Dear Mr. Shurley: fuel.
YOU request the opinion of the Attorney General of Texas
in answer to two questions relative to the Special Fuels Tax Law,
Chapter 10 of Title 122A, Taxation-General of the Revised Civil
Statutes of Texas.
You recite the following facts as a basis for your questions.
"Sutton County road equipment con-
sists of bull-dozers, maintainers,
shovels, etc. which are exclusively
used for the construction and main-
tenance of County roads throughout
the County. In connection with the
use of this equipment, it is necee-
sary to avoid unnecessary delay in
the moving of this equipment from one
location to another; therefore, the
County also has a truck-trailer unit
called a 'low boy' used for trans-
porting the bull-dozer and shovel
from one location to another. This
truck necessarily, travels upon the
State highways.
"In all of the above equipment,
diesel oil is used for fuel. This
fuel is denominated a 'special fuel'
and comes within Chapter 10 of Title
122A, Acts 1959, 56th Leg., 3rd C.S.,
p. 187, ch. 1, so far as the taxation
of this special fuel is concerned.
r .
f4r. Jerry N. Shurley,, Page 2 Opinion No. WW-1105
“Recently, the Comptroller of Public
Accounts of Texas has advised the sup-
plier who has been selling this special
fuel to Sutton County that it would be
necessary for Sutton County to execute
a bond payable to the State of Texas
since: (1) The ‘low-boy1 truck used by
Sutton County is operated upon the State
highways, and (2) due to the fact. . .
Sutton County would not be eligible to
simply execute an affidavit that all of
such fuel was used off of the State high-
ways thus coming under exemption from the
tax imposed upon the special fuel.”
You ask:
1) Whether Sutton County is a
”per son” within contemplation
of the Special Fuels Tax Law;
2) Whether the county may lawfully
execute a bond to secure payment
by ~lt to the State of the tax
incurred by the county upon its
use of “special fuels” as defined
in Art. 10.02(l) of this law.
We answer both your questions “Yes”.
Art. 10.02(g) of this law defines a “person” as follows:
” ‘Person’ means every individual,
firm, association, joint stock company,
syndicate, partnership, copartnership,
corporation (public, private, or muni-
cipal), trustee, agency or receiver. ”
Art. 10.10(l) of this law requires a bond to insure pay-
ment of the tax by every~ person who uses specLa1 fuels, as follows:
“Every person who is authorized by
permit or requlred by law to make re-
mittances or payments directly to this
State. . , of taxes incurred upon the
use of said products shall file with
his application for permit a bond. . . .’
We believe “person” as defined in the Special Fuels Tax Law
includes Sutton County. This law is a general law. We find in it
Mr. Jerry~ N. Shurley, Page 3 Opinion No. ww-1105
no exemptions from its provision of any user of special fuels.
"The term 'person' as extended to
include tcorporationl may include the
State (thereby, obviously, including
all State components or 'functioning
arms') where such an intention is
manifest."
The quoted language was used in Opinion of the Attorney General
of Texas No. ww-821 (1960); we believe this language is also
applicable in determining the meaning of "person" as defined in
the statutes relating to special motor fuels. Opinion No. WW-821
held that the State Parks Board was a person within contemplation
of Art. 23.03, V.A.T.S., Tax.-Gen. which requires a person owning,
operating, managing or controlling any hotel to collect and pay'
over to the State a hotel occupancy tax. A copy of that opinion
is herewith enclosed.
Further, "person" as defined in Art. 10.02(g) (supra
I, .means every. . . corporation (public,. . .or municipal j . . . ."
The-term ' municipal corporation" in its broad meaning includes
counties. Tex. Const. Art. XI; Galveston v. Posnainsb 62 Tex.
118 (1884); Johnson v. Llano County, 39 S.W. 995 (Civ.Aip. 1897);
Brite v. Atascosa County 247 S.W. 878 (Civ.App. 1923, error dism.);
30-A Tex.Jur. (Rev.) 27,'Municipal Corporations, Sec. 6. Also,
the Legislature has declared each county to be a body corporate in
Art. 1572, V.C.S., which reads as follows:
"Each county, which now exists or
which may be hereafter established,
shall be a body corporate and politic."
We pass now to a consideration of whether Sutton County may
lawfully execute the bond required in Art. 10.10(l).
Our Texas Constitution, Art. V, Sec. 18 is the constitu-
tional source and limitation of the powers of the County Commis-
sioners Court of each county in the State. In its pertinent pro-
visions it reads:
II
. . .The County Commissioners so
chosen, with the County Judge as pre-
siding officer, shall compose the
County Commissioners Court, which shall
exercise such powers and jurisdiction
over all county business, as is con-
ferred by this Constitution and the laws
of the State, or as may be hereafter
prescribed."
Mr. Jerry N. Shurley, Page 4 Opinion No. WW-1105
Articles 6740 and 6741, V.A.C.S., require the Commissioners
Court to build, work and repair county roads and authorize it to
I, . . .purchase or hire all necessary road machinery. . .as may be
needed. . . ." The purchase and use of fuel to operate road machin-
ery and the necessarily related equipment is necessarily incident
to this statutory duty.
Incident to the use of special fuel the Legislature has
required of every user a bond to secure to the State the tax im-
posed upon such user. Article 10.10(l) supra. Counties were not
exempted from this requirement and said Article in our opinion
authorizes counties to make such bond. This requirement is clear-
ly within the scope of "county business" contemplated by the above
provisions of the Constitution and statutes.
SUMMARY
Sutton County, is a "person" within con-
templation of Art. 10.02(g) and is required
to execute the bond required by Art. 10.10(l),
both of the Special Fuels Tax Law, Chapter 10
of Title 122A, Taxation-General, Revised Civil
Statutes.
Yours very truly,
WILL WILSON
Attorney General of Texas
W. E. Allen
Assistant Attorney General
WBA:jp
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
W. Ray Scruggs
Elmer McVey~
John C. Steinberger
Sam Wilson
APPROVEDFOR THE ATTORNEYGENERAL
Bye: Morgan Nesbitt