Untitled Texas Attorney General Opinion ( 1969 )

THE ATIXBIA~NEW GENERAL
OF %kXAS
Mr. William W. Day Opinion No. M-355
County Attorney, Calhoun County
Port Lavaca, Texas Re: Whether Calhoun County
can levy an ad valorem
or a production or any
other kind of tax upon
Dear Mr. Day: ahell oc mud shell.
You aak our opinion in answer to the queetion whether
Calhoun County has authority to levy an ad valorem tax or a
produatlon tax or any other kind of tax on ahell or mud shell
taken by permit from the public waters ff this state, pursuant
to Articles 4051, 4052, 4053 and 4053d, and then bold to
private parties who immediatelyremove same out of the oounty.
Our opinion ia that Calhaun county hae no authority to
levy a production tax, or any other kind of tax, except an ad
valorem tax, upon the shell or mud shell which may be in the
county on January 1st of any calendar year and which hae
acquired a taxable situs In the county for ad valorem tax
purposes, pursuant to Artlges 7145, 7147 and 7151.
The State of Texas has full eoverigntyover and ownership
In full of all of the watera of the Gulf of Mexico and the arma
of the Qulf and of all lands that are covered by these water8
either at low or high tide within the boundaries of the State.
Art. 5415a.
Shell and mud shell may be removed from the publio
waters of this state by private partlee only under authority of
a permit granted them by the state aotlng through lta Parks and
Wildlife Department. Arts. 4051, 6052, 4053 and 40538.
1. All Articles are Vernon's Civil Statutes.
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Mr. William Wi Day, page 2 (M-355)
The counties of thls State have no Inherent taxing
power; they derive their taxing power solely from the
Constitutionand the Statutes. Mitchell County v. City National
s, 91 Tex. 361, 43 S.W. 880, 8b3 (1898) 54 T Jur.26 121-
122, Taxation, Sec. 10 and authorities theie cltzi: Counties,
through their CommlsslonersCourts, can exercise only such
powers as the Constitutionor the Statutes have specifically
conferred u on them. Canales v. Laughlin. 147 Tex. 169,
214 S.W.2d & 51 (1948).
Counties, however, are granted-authorityto levy ad
valorem taxes. Arts. VIII, Sec. 1, l-a and 9, Tex.Const. and
Arts. 7145, 7147 and 7151. We know of no authority for counties
to levy occupation taxes upon the taking of shell and mud shell.
Art. VIII, Sec. 1, Tex.Const.;State v. Galveston, H. & S. A.
100 Tex. 153 97 S.W. 71, 77-78, (1906, rev. on other
w;: 210 U.S. 217j.
Counties have no right to levy a tax or make any other
lmposltlon upon any". agency or lnstrumeiitalltywhich the
State has created for Chi purpoae of making effective and
administeringa part of Its laws." City of Dallas v. Texas
Employers' Ins. Ass'n., 245 S.W. 946 950 (T Cl A
error dlsm. 265 S W 1113). 54 Tex.iur.2d Is$-121j* %a
Sec. 11. Nor can'aiy county make an lmposltlonof'taxes
one who holds a license or permit from the State to take the
shell or mud shell, because that permit Is directly from the
State Itself. W. D. Haden Company v. Doduen, 158 Tex. 74,
308 S.W.2d 838 tlg>t3).
Calhoun County has no authority
to Impose a production tax or any other
kind of tax, upon shell or mud shell
taken by permit from the publla waters
of this State, pursuant to Articles
4051, 4052, 4053 and 40536, and then
sold to private parties who Immediately
remove same out of the county, except
an ad valorem tax upon the shell or mud
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Mr. William W. Bay, page 3 (M-355)
shell which has been severed and sold
and remains In the county on January 1st
of any calendar year, and has acquired
a taxable sltus therein.
,-
Y&s very truly,
Prepared by W. E. Allen
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns B. Taylor, Chairman
George M. Kelton, Vice Chairman
Robert Davis
John Grace
Fielding Early
Bill Craig
W. V. Qeppert
Staff Legal Assistant
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