Let's talk about how to properly charge red diesel theft/use on the highway. What could be more fun!

Here's the main question I have: what's the proper use of Tax Code 162.403(37)? The text reads: "...a person commits an offense if the person imports, sells, uses, blends, distributes, or stores motor fuel within this state on which the taxes imposed by this chapter are owed but have not been first paid to or reported by a license holder, another user, or any other person required to hold a license under this chapter."

In my mind, this section doesn't apply to red diesel fuel, since red diesel is an untaxed fuel to be used only for agricultural purposes. Therefore, I'm thinking, a person who uses red diesel for driving on the highway wouldn't be violating this particular section, since red diesel is not a "fuel on which taxes are owed". It seems to me that 162.403(37) is for other types of violations. Am I right on this?

Moving on to other questions: If someone is driving on the highway with red diesel in their tank, the correct section to charge them under appears to be 162.403(8), which is a Class C misdemeanor. If you could charge them under (7), though, you'd have a third degree felony. In order for that to work, you'd have to show that the person did "sell or deliver dyed diesel fuel for the operation of a motor vehicle on a public highway." But how broad is the definition of "deliver" in that section? Pumping the fuel into your tank doesn't count as "delivering", does it? That would seem to be too broad a definition, and would virtually negate the need for a separate section for the offense of operating (who drives without filling their own tank?). So, is a Class C really all you can charge unless you can prove another act, such as a theft?

How are other jurisdictions treating their red diesel cases?

I always thought "Red Diesel" was a drink: Red Bull + Diesel 190. Shaken, not stirred. And then vomited, more times than not.

I don't know the answer, but I know the Comptroller's office has some motor fuels tax gurus on board--have you tried them yet? The Travis Co. DA's Office also does (or did, before the funding veto) some of that work.

Unless they have their tank labelled, I charge them with the Class A misdemeanor offense of concealing motor fuel under 162.403(19). If the comptroller's office sends a case to me for prosecution, that's generally my best charge. My theory is once the fuel is dispensed into the vehicle's tank, it is concealed. There is no way to tell from a visual inspection dyed motor fuel is being used.

If you are looking for a felony charge, instead of looking at charging under 162.403(7), I would suggest looking at 162.403(35). That is a second degree felony for purchasing with the intent to evade the tax. Or maybe even 162.403(34). From my limited dealings, it appears as though there are multiple ways to charge most offenses. How you want to charge it is up to you.