Case Information
*1 January 23, 1939 Honorable Geo. H. Shepperd
Comptroller of Public Accounts Texas
Austin, Oplnon No. 1.68 Dear Mr. Sheppard: Re: Right of ,refund of gaso- line taxes paid where
trucks operates behind barriers on public roads.
This Office is in receipt of your letter of Jan- first, whether a refund of gaso- uary 16, 1939, inquiring, line tax should be made where the trucks used by a contractor are operated solely behind barriers in the construction of roads between pointswhere there has never been a public highway and, second, where ~such trucks are used behind bar- priers and the old road crisscrosses the construction of the new.
You des.ire these questions to be answered~ when trucks are involved which had been driven to the place of construction on 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- “There is hereby imposed an occupation or excise tax of four (4) cents on each gallon of motor fuel or fractional part thereof. . . . Section 13(a), Revised Civil Sta-~ provides:
tutes,
“Any person who purchases motor f~uel in the State of Texas and any distributor who appropriates motor fuel for use, when such motor’ fuel purchased by such person or used by such distributor for operating or propelling any stationary gas engine or tractor used for agricultural purposes, motor boats, air craft or *2 Hon. Geo. Ii. Sheppard, January 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 evaporation and loss in the manner and subject to $he limitations and conditions described herein. . . .
Article 7063, Section 13(c), Revised Civil Sta- "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." 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 registration of each such vehicle owned or controlled by him, or for ~a chauffeur's license, for the ensuing or current calendar year or unexpired portion thereof; provided, however, that owners of farm tractors, farm trailers, farm-semi-trailers, and implements of hus- bandry, operated or moved temporarily upon the highways shall not be required to register such farm-tractors, farm-trailers, farm-semi-trailers, or implements of 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, thoroughfare or bridge in this State not privately owned or controlled for the use of vehicles over which the State has legislative jurisdiction under its pOliCe power."
Hon. Geo. IL Sheppard,, January 23, ~1939,~ Page .3:,, .(1,68),
Prom the above statutes, it is seen that a t'ax of four .cents is &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,or fuel Is aot..for use ?-in a.motor. vehicle operated ore intended,~to be ,bperated ia,whola..or in,~~t.upon any o,f the public highraysc etc." ,~ ,: ,.
‘Article 706&i, Section l(g), 'Revised Civil Sta- tutes, defines a "public highway" as.follows: ,,
"*Public Iiignway' .&all mean a&include every plqye -of whatever nature,;open to the use of vay-or ', the,public.as..a matter..of right for,the,:purpose~of vehicular travel.”
We thinka fair construction of.Article.6674a Revised'Civil Statutes, shows a right: inthe State~High~ay:~:~, Department and Countg.Commissioners~ Courts to close"seg~ meats .of public hlgbwaya~during construct ion and repair This may appear to Invite the argument that when work. such a-road,@ ao q~osed~~~~it~is not 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 'truck upon 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.:paid on 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 registration of 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 Section l(m). The road certainly Is not privately owned, and the-State undoubtedly has,leg- lslative jurisdiction over 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. but same has to do with trucks used in farming *4 Eon. Geo. H. Sheppard, January 23, 1939, Page 4 (168) operations,vhich are expresaly allowed to use the highways tenporarily without license (Art. 6675a, Sec. case 1s not-regarded as authorltg 2), and the ._ . - _ 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 conclusion that the definition of public highway contained in Article 7065a, Section l(g), did not mean to.:exclude from 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 forfeiting his right of exemption.
Any other interpretation than that made herein would render meanin ess the underscored portion of Article 7063a, Section 13(c e" , quoted above.
The answer is that a refund is not due in any of the situations outlined by you.
Yours very truly ATTORRJZYGERERALOF TEXAS GRL:R:jl
APPROVED
/s/ Oerald C. Mann
ATTGRRIE GEZERAL OF TEXAS