Untitled Texas Attorney General Opinion ( 1960 )

Ronorable Henry Wade opinion HO. ww-887
District Attorney
Records Building Re: Authority of counties to
Dallas, Texas Impose an occupation tax
upon Insurance adjustera,
Dear Mr. Wade: and related questlone.
Your recent request for an opinion of this office
sets forth three questions pertaining to Article 1.09,
Title 122A, Taxation-Qeneral, R.C.S. (H.B. 11, 3rd C.S.
56th Leg., hereafter referred to as H.B. 11). ?or clarity
we will consider the question8 In order.
”1 * Does Art. 1.09 forbid the lmporltlon
by counties of an occupation tax upon Insurance
adjusters?”
It fa our opinion that Art. 1.09 does forbtd the
imposition by counties of an occupation tax upon insulrance
adjusters. The Article reads as follows:
“MO city, county or other political sub-
division may levy an occupation tax levied by
thi,e Act unleaa apeclflcally permitted to do 80
by the Legislature of the State of Texas.”
Clearly the intent of the Legislature was to
prevent cities, counties and other political subdivlelons
from taxing any of the occupatioma upon which a State tax
Is levied by H.B. 11, unless specific authority to do so, $8
granted. There is an occupation tax levied upon lnsurano’e
adjusters by Art, lg.01 of H.B. 11. No authorlty~ t,o make a
slmllar levy 1s granted to counties; therefore, they are
prohibited from doing 80.
“2. what ceunty occupation taxes a30
permitted under Art D l.Og?"
As well pointed out In the brief accompanying your
request, the enactment of Art, L-09 did not reeolve all
confusion which existed in this area, Therefore, we ahall
not, in thi8 opinion, attempt to exhauetively analyze the
Honorable Henry Wade, Page 2 Opinion No. ww-887
entire field and history of state and local occupation taxes;
however, we will be glad to attempt to advise you concerning
any specific occupation tax about which you may wish to
inquire- In connection therewith, we do point out the
following:
I. Art 0 VIII Sec. 1, Constitution of Texas,
provides as follows:
*provided further that the occupation
t&‘levied by any county, city or town for
any year on persons or corporations pursuing
any profession or business, shall not exceed
one half of the tax levied by the State for
the same period on such profession or business.”
Consequently, a political subdivision may not tax an
occupation which Is not the subject of a State lev
Pierce v. City of Stephenville, 206 S.W.2d 848 (lgti, no
writ history) and authorities therein cited.
II. Article 7048, R.C.S.,l permits counties to
levy up to one-half the State tax on an occupation not
specifically exempted. This rule would be Irreconcilable
with Art. 1.09, H.B, 11, which prohibits a county from
taxing an occupation taxed In II-B, 11 unless specific
permission Is given. In one, the absence of prohibition
implies consent; in the other, the lack of permission lm-
plies prohibition. H.B. 11 did not directly repeal Art.
7048. It did contain a blanket repealer covering “all
laws or parts of laws In conflict herewith” (Sec. 7 (b’) ).
Therefore, if a conflict did arise between the provisions,
Art. 1.09 of R.B, 11 would govern.
III * Clearly, as you point out, counties may
levy an occupation tax on coin-operated machines Art.
13.14, H.B. 11) and pistol dealers (Art. 19.01 (7f , H;B.ll),
1
“Each commissioners court. s *shall have the
right to levy one-half of the occupation tax
levied by the State upon all occupations not
herein otherwise specifically exempted;. e *’
See State v. Calveston, HI. & S.A. Ry 100 Tex. 15
97 S.W. 71 (1906) revId on other grou%: 28 S. Ct. 63
210 U.S. 217 (1906)
. .
Ronorable Henry Wade, Page 3 Opinion No. ww-887
because specific permission to do so is granted by those
Articles,
"3. Is Art. 1.09 constitutional, Insofar
as it limits local occupation taxes, since such
limitation was not among the functions ,set out
in the title to the act, which is now new
Title 122-A?”
It is our opinion that Art. 1.0 does not violate
Art. III, Sec. 35, Constitution of Texas, 8 The caption of
R-B. 11 (Title 122A) Is of considerable length; perhaps
necessarily so, In view of the purpose and content of the
Act. Of consequence here is the portion reading “An Act
revising and rearranging certain Statutes of Title 122
*Taxation’ D 0 .; revising Statutes levying. . .mlscellane-
ous occupation taxes, . . .‘I Notice is thereby given that
Statutes contained in Title 122 will be revised; more par-
ticularly, that statutes levying miscellaneous occupation
taxes will be revised.
It is well settled that this section of the
Constitution should be liberally construed. Consolidated
Underwriters v. Klrby,Lumber Co., 267Ffiws 703 (T C
App. 1924 ; Shannon ;:k pi 2d
810 (1958 . It Is only necessaFjXEat riade notice’
of the subject-matter of an act be stated In the caption.
Stone v. Brown, 54 Tex, 330 (1881); Continental Bus System v.
Crney, 310 S.W.2d 676 (Tex.Clv.App. 195UJi error ref.).
T e caption of H.B. 11, when tested by these rules, is
sufficient to embrace the matter treated in Art. 1.09 thereof.
SUMMARY .
Art. 1.09, Title 122 A, R.C.S. (H-B.
11, 3rd C.S., 56th Leg. ), (a) forbids the
2 “No bill. 0 .shall contain more than one subject,
which,,shall be expressed in Its title.
. * D
. -
Honorable Henry Wade, Page 4 Opinion No. WW-887
lmposltlon by counties of an occupation
tax upon Insurance adjusters; (b) permits
counties to levy occupation taxes upon
coin-operated machines and pl?tol deal-
ers; (c) is constitutional.
Very truly yours,
WILL WILSON
Attorney General
JRI: jlp
APPROVED:
OPINION COMMITTEE:
W. V. Qeppert, Chairman
L. P. Lollar
Leon Pesek
Arthur Sandlln
Iola Wilcox
REVIEWED
FOR THE ATTORNFX GENERAL
Bg: Leonard Paasmore