Untitled Texas Attorney General Opinion ( 1960 )

THEAYTOFXNEY GENERAL
OFTEXAS
AUSTIN ``.TExAs
WILL WILSON
ATFORNEY C4ENERAI.
June 15, 1960
Honorable Robert S. Calvert Opinion No. WW-855
Comptroller of Public Accounts
Capitol Station Re: Interpretation and
Austin, Texas administration of Art.
19.01(T), Title 122A,
R.C.S.,,imposing an occupa-
tion tax and other duties
Dear Mr. Calvert: upon dealers in pistols.
Your recent request for an opinion of this Officescontains
several questionsrelating to Article 19.01(T), Title 122A,
R.C.S., which we here set out in part:
"(7) Tax on Dealers in Pistols. There
shall be collected from every person,
firm or corporation engaging in the
business of bartering, leasing, selling,
exchanging, or otherwise dealing in
pistols for profit, whether by wholesale
or retail, an annual occupation tax of
Ten Dollars ($10) to be paid on or before
January 1st of each year, and to be paid
before continuing said business. Before
engaging in said business, each such
dealer shall obtain a license therefor,
to be issued by the County Tax Collector
of each county in which the applicant has
a place of business, and for each separate
place of business. The Comptroller of
Public Accounts shall furnish said forms
to the Tax Collectors."
The three questions under paragraph 1 of your letter are
interrelated,and we will therefore discuss them together.
We set them out as follows:
"(a) Do you interpret this article as
requiring a dealer in pistols to first pay
to the Comptroller of Public Accounts an
annual occupation tax of Ten Dollars?
"(b) Before engaging in said business,
must a dealer in pistols obtain a license
from the County Tax Collector to engage in
that business?
Honorable Robert S. Calvert, Page 2 Opinion NO. ``-855
"(c) If the answer to (a) and (b) above
is in the affirmative, what fee, if any, is
due the Count! Tax Collector for issuing
such license?
It is our opinion that a dealer must (a) pay the $10.00
occupation tax and (b) obtain a license from the County Tax
Collector before engaging in this business. It is our further
opinion that (c) no fee is due the County Tax Collector for
issuing such license.
Some of the wording of this subdivision of Art. lg.01 is
rather obscure, probably due in part to its having been taken,
with minor change, from the previously existing Art. 70478,
V.C.S., which assessed the same tax and imposed the same
duties upon dealers in pistols. The phrase ". . . and to be
paid before continuing said business,,. . . ." was doub,tlessly
inserted in the original act (coupled with the phrase
within thirty (30) days from the effective date hereof"j to'
insure its application to those dealers who were engaged in the
business at the time of its passage, and hence would appear to
be mere surplusage in the present Art. lg.Ol(7).
The first paragraph of the subdivision does two things:
it levies an occupation tax payable to the State for
Erenue purposes and (2) it imposes a licensing requirement,
presumably to asiist regulation and supervision of a potential~ly
dangerous enterprise. See 27 Tex.Jur., Licenses, Sets. 45, 48.
The occupation tax is levied by the first sentence of the
subdivision. The second sentence imposes the 'licenserequire-
ment as a prerequisite to engaging in the business. However,
Art. lg.04 of the same chapter specifies that
"No individual,'company, corporation
or association, failing to pay all taxes
imposed by this Chapter, shall receive
a permit, when such is required, to do
business in this State, or continue to do
business in the State, until the tax hereby
imposed is paid. The receipt of the State
Treasurer shall be evidence of the payment
of such tax, and such receipt shall be
construed as a permit to do business when
a separate permit is not otherwise required
by law."
We believe that the "license" required by Art. lg.Ol(7)
is a "permit to do business" within the meaning of Art. 19.04.
See 27 Tex.Jur., Licenses, sees. 1, 10, 48. Since issuance
of the license is specifically made a condition precedent to
Honorable Robert S. Calvert, Page 3 Opinion No. W-855
engaging in the business of dealing in pistols, and since,
under 19.04, no license can issue until the occupation tax is
paid, it necessarily follows that the tax must be paid before
pursuing the occupation.
No fee may be collected by the Tax Collector for issuing
the prescribed license, since none is provided by the Article.
McCalla v. City of Rockdale, 112 Tex. 209, 246 S.W. 654 (1922);
Nueces County v. Currinnton 139 Tex. 299, 162 S.W.2d 687 (Tex.
Comm.App. 1942; Op. Adopted).
Part 2 of your request reads as follows:
"The question also has arisen as to the
definition of a (pistol). Will you please
give us a definition that we may use in
administering this tax. Specifically, we
would like to know if the following are
classed as'pistols under this law:
"When it is an instrument that is
intended or designed to be aimed or fired
from one hand ,fromwhjch a missile, dart,
pellet or shot is expelled or discharged
from;
"(a) By power exerted by a rubber band.
"(b) By power exerted by a spring.
"(c) By power exerted by air pr,essure
where one stroke of pump creates the
maximum pressure.
"(d) By power exerted by air pressure where
it is compressed by repeated strokes
of the pump.
"(e) By power exerted by a cartridge of air
or gasI commonly referred to as a Co2
gun."
It is our opinion that none of these items are "pistols"
w~ithinthe meaning of the Article.
We refer you to the definition of a pistol provided by
Art. lg.Cl('i')(c),
as follows:
us``cj,er~.sntol
defined. 'Pistol,'as
> shall include every kind of
I .
-- -
Honorable Robert S. Calvert, Page 4 Opinion No. W-855
pistol, revolver, automatic, semiautomatic,
magazine pistol, and every other short
firearm intended or designed to be aimed
or fired from one hand."
Note that following the en$meration of specific types
of pistols there is the phrase . and every other short
firearm." The word "firearm" necessarily modifies the term
"pistol". A firearm is ordinarily,defined as any weapon
which discharges a shot by force of gunpowder. Harris v.
Cameron, 81 Wis. 239; 51 N.W. 437; Atwood v. State, 53 Ala.
508. This would limit the scope of Art. 19.01(T) to include
only "pistols" which are "firearms," as'defined above, thereby
excluding all the items which you listed in your request
from the operation of the Article.
SUMMARY
Art. 19.01(7), Title 122A, requires
a dealer in pistols to pay the occupation
tax levied and procure the license
-. -required
before engaging In business. The County
Tax Collector may not charge a fee for
issuing the license. The term "pistol"
used in the Article refers only to "firearms"
and items other than firearms are not included
therein.
Yours very truly,
WILL WILSON
Attorney General of Texas
JRI:ctn
APPROVED:
OPlNION COMMITTEE:
W. V. Geppert, Chairman
Wallace Finfrock
J. Arthur Sandlin
Fred B. Werkenthin
Marietta McGregor Payne
REVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore