Untitled Texas Attorney General Opinion ( 1958 )

Mr. D. C. Greer Oplnlon No. WW-487
State Highway Engineer
Texas Highway Department Re: Whether or not the Civil
Austin, Texas Defense and Disaster Re-
lief, Vocational Schools,
Civil Air Patrol and
Texas Turnpike Authority
are exempt from the regis-
tration fees of vehicles
Dear Mr. Greer: owned and used by them.
We quote from your request for an opinion as follows:
"Article 6675a-3, Section c, R.C.S., authorizes this
Department to issue fee exempt license plates to 'Owners
of motor vehicles, trailers and semi-trailers which are
the property of and used exclusively In the service of
the United States Government, the State of Texas, or
any county, city or school district thereof, . . .l,
upon proper application to this Department as provided
in Section 3-aa of this Act.
II. . .
II Within the last few years. many other agencies
have been created and we respectfuily request your ad-
vice as to whether the following agencies are exempt
from the registration fees of vehicles owned and used
by them:
"Civil Defense and Disaster Relief
Vocational Schools
Civil Air Patrol
Texas Turnpike Authority"
GENERAL DISCUSSION RELATIVE TO
"STATE AGENCIES"
The only case Involving a construction of the exemption
afforded the State of Texas by Article 6675a-3(c) as presently
enacted which has reached the Court of Civil Appeals is State
Highway Commission et al v. Harris County Flood Control District
et al 247 S.W.2d 135 (Tex.Clv.App. 1952 N.R.E.). The court
decided that the Harris County Flood Control District, and the
Mr. D, C. Greer, page 2, Opinion No. w~A87
Harris County Navigation District were both exempt from payment
of the vehicle registration fee. No clear cut tests were es-
tablished; however, the last paragraph of the court's opinion
sets forth,three requirements for exemption:
1. The institution seeking the exemption must own the
vehicles involved.
2. The vehicles must be exclusively used In the
service of such institution.
3. The institution must exist solely as an agent of
the State of Texas.
The first two matters are nothing more than fact questions;
but inview of the ,controversythat has centered around ;he
third requirement, the qualifications of a "State agent for
purposes of the exemption afforded by Article 6675a-3(c7 need
more specific definition.
Heretof0r.ethere has been considerable emphasis placed
on the distinction between a "political subdivision" and a
"State agency" in dealing with questions of this nature. The.
theory has been advanced that since Article 6675a-3(c) specifi-
cally exempts vehicles belonglng to any county; city,or school
district, which are political subdivisions, all other political
subdivisions are thereby excluded from benefits of the act.
This conclusion employs the maxim of construction expresslo
unius eat exclusio alterius, which means "expression of one
thing rthe exclusion of another."
This position is untenable. It pre~sumesthat pol'tical
subdivisions other than those named may not be inc,lude
&I
.within
the term "the State of Texas" as used In Article 6675a-3(c).
This is tantamount to taking one of the following positions:
1, Political subdivisions are not State agencies
or governmental instrumentalities.
This proposition has been expressly,overruled by two
notable cases. The first is Harris County Flood Control District
v. Mann, 140 S.W.2d 1098 (Tex.Sup.Ct. 19403, in which the
Supreme Court, speaking through Justice Crits, stated that it
was too plain to admit of debate.that the Harris County Flood
Control District was a political subdivision which functioned
as an arm of the State government --'that is, a.State govern-
mental'agency. The second is the case of Wilson v. Abilene
Independent School District, et al, 190 S.W.,2d 406 (Tex.Civ.
App. 19&!5Ref. w:'m.)in which,the court, quoting37 Tex.Jur.
I
Mr. D. C. Greer, page 3, Opinion No. wW187
864, 865, sec. 16, stated "School districts are quasi public
corporations. . . which derive their powers by delegation from
the State. They are State agencies, erected and employed
for the purpose of administering the State's system of public
schools."
2. Political subdivlslons even though instrumental-
ities of the State government, are not exempted by
the provisions of Article 6675a-3(c) unless ex-
pressly named.
This construction puts your department in the anomalous
position of according the exemption to one agency but denying it
to another of equal dignity as a governmental instrumentality
simply because the second agency was created with some measure
of autonomy. The inconsistency of this position is heightened
by the fact, which has been judicially recognized, that for a
long time the Highway Department has issued exempt license
plates to the Lower Colorado River Authority and the Brazos
River Reclamation and Conservation District, on the theory
that these districts are "State asencies." State Hizhwav Com-
mission v. Harris County Flood Control District 247 S.W.-2d
135 (Tex.Civ.App. 19.52,N.R.E.).
The case of Allis-Chalmers Mfg. Co. v. Curtis Electrical
Co. 259 S.W. 2d, 918, (Tex.Clv.App. 1953), aff'd 264 S.W.2d
700 (Tex.Sup.Ct. 1954) contains language which rebuts the con-
tention that the olitical subdivisions expressly named by
Article 6675a-3(c7 are the only ones entitled to the exemption
therein prescribed. This case involves a construction of the
term "this State" used in Article 5160 V.A.C.S. requiring any
firm contracting with "this State or its counties or school
districts or other subdivisions thereof or any municipality
therein" to execute bond for payment of labor and material
supplies. The court at page 921 stated:
"If all the various branches of the State Government
were beyond the scope of Article 5160 then there would
be little of the State to be included within its terms.
The Legislature was certainly aware, when it enacted
Art. 5160, that the State consisted of many branches
and agencies. To-----
name them all not only would have been
quite ambs~ probably woum have had the effect of
excluding State agencies later created." (Emphasis added.)
The case of State Highway Commission v. Harris County
Flood Control District, supra, was decided in 1952. In 1955,
Article 6675a-3 was amended and re-enacted by the Fifty-fourth
Legislature. It is a well-settled principle of law that upon
Mr. D. C. Greer, Page 4, Opinion No. ~-487
re-enactment of a statute without material change, a presumption
arises that the Legislature knew and adopted or approved the
interpretation placed upon the original act, Amaimo v. Carter
212 S.W.2d 950 (Tex.Civ.App. 194.8Ref. N.R.E.); Lane v. Ross
151 T. 268, 249 S.W.2d 591 (1952).
prom the foregoing authorities It is apparent that a State
agency created and operating for the purpose of performing or
carrying out a State governmental function or duty is entitled
to have fee exempt licenses issued to vehicles owned by it
and used exclusively in its service, whether such agenc
labelled "branch ' "commission>' "board>" ' agency,U or x sub-
is
division." '
This conclusion is also supported by the theory that
collection of the license fee from State governmental agencies
amounts to the State of Texas engaging In the senseless process
of taxing itself, in derogation of Article XI, Sec. 9, and
Art. VIII, Sec. 2, Texas Constitution, and Article 7150, Sec. 4,
V.A.C.S. This theory is ably propounded in Attorney General's
Opinion No. V-955, written by Mr. W. V. Geppert of this office.
In $he hopes that your position in,,regardto "State
and the term "State of Texas, as used in Article
``;';2",~c) will be clarified, you are respectfully advised
that in order to qualify for issuance of fee-exempt license
plates, the following requirements must be present:
1. The agency seeking the exemption must have been
created by the laws of the State of Texas and be
functioning pursuant thereto.
2. The agency must have been creat:edfor the purPose
of performing governmental functions or duties0
3. The vehicles for which exemption is sought m,ustbe
owned by such agency.
4. The vehicles must be used exclusively by the agency.
TEXAS TURNPIKE AUTHORITY
Sec:ion 3 of Article 6674~, V.A.C.S., states:
"There is hereby created an authority to be known
as the !Texas Turnpike Authority,l hereinafter some-
times referred to as the 'Authority,' Ey and in its
namesthe Authority may sue'and be sued, and plead snd
Mr. D. C. Ureer~,page 5, Opinion No. Wk-487
be impleaded. The Authority.ishereby~constitutedan
agency.of the.State,of.Texas,.and.the exercise by the
Authority.of the.powers~conferred.by,thisAct.in~the
construction,.operation.and,maintenance.of.turnpike
projects,shall.be.deemed,and,held to.be an.essential
governmental,function.of the State." (Emphasis added.)
It is clear from the provisions of the Act creating the
Turnpike Authority that it is designed to exist and function
as a body corporate, separate, independent and distinct within
itself. Among other autonomic features, the Authority has
the power granted to Subdivisions of the State by Article III,
Section 52 of the Texas Constitution, to issue turnpike revenue
bonds for the purpose of paying all or any part of the cost of
a Turnpike project. Article 6674V, Section 9, V.A.C.S.
It is equally clear from the Act creating the Authorlty
and defining its nature, purposes and powers, that it is an
arm of the State government - that is, a State governmental
agency - performing a governmental function. As such it is
included in the provision of Article 6675a-3(c) exempting
vehicles which are the property of and used exclusively in the
service of the "State of Texas" from payment of the registra-
tion fee therein prescribed.
CIVIL DEFENSE AND DISASTER RELIEF
The "Texas Civil Protection Act of 1.951,"Article 6889-4,
V.A.C.S., creates the State Defense and Disaster Relief Coun-
cil. Whether or not this particular agency is entitled to the
exemption will not be discussed since you state in your letters,
"The State headquarters, which is a part of the Governor's
Office is not an issue."
Section 4(f) of Article 6889-4 provides that the Governor,
or upon his designation, the State Defense and Disaster Relief
Council, is authorized, and empowered to assist in providing
for adequate local defense organizations under the authority
of duly constituted local officials.
It is obvious that local civil defense and disaster
relief organizations are not agencies of the State even though
the Governor or the Defense and Disaster Relief Council may
have assisted in establishing such organizations. Therefore,
vehicles belonging to local defense and disaster relief organ-
izations are not covered by the exemption provision in Article
6675a-3(c) V.A.C.S. This is true even though the officials
of the organization may also be county or municipal officers
or officials.
Mr. D. C. Greer, page 6, Opinion No. WW-487
There is one possibility whereby vehicles used in the
service of local defense and disaster relief organizations
would be entitled to the exemption. This is in cases where
such organizations are created by and operate entirely pur-
suant to the organic law of a county or municipality. Actually,
however, this point is moot, since In such cases the vehicles
would be owned by the county or the municipality and would
already be entitled to the exemption.
VOCATIONAL SCHOOLS
The question regarding vocational schools is one that
is extremely difficult to answer, since the subject is so
broad, and we are not called upon to decide any particular
set of facts.
We have carefully checked the statutes on this point,
and find that "vocational education" is specifically provided
for in several instances. These statutory provisions estab-
lish four categories of institutions which are entitled to
the exemption by Article 6675a-3(c).
1. Those offering courses in or in conjunction with
Texas Public High Schools.
It is apparent that any institution falling within this
classification forms a component part of a "school district"
of the State. Vehicles belonging to such a school and used
exclusively in its service are therefore entitled to the
exemption provided in Article 6675a-3(c). (For example of
statutory authorization of this type of vocational education,
see Article 2680, V.A.C.S.)
2. Institutions made a division of any State College
or University and placed under the direction and control of
the President and Board of Regents of any such colleges or
university.
It need hardly be said that such schools are included
within the term "the State of Texas," and vehicles belonging
thereto are entitled to the exemption afforded by Article
6675a-3(c) on exactly the same basis as vehicles belonging
to the parent college or university.
3. Public Junior Colleges. Vehicles belonging to Voca-
tional Divisions of Public Junior Colleges are entitled to
fee-exempt license plates for the same reasons as stated in
Number 2 above.
Mr. D. C. Greer, page 7, Opinion No. W-487
4. Special schools established by the Legislature
. for
.
the purpose __
of administering
_ vocational eaucation unaer tne
direction of local school trustees or officials. These schools
are covered by Article 6675a-3(c) by virtue of being made a
part of a "school district" by special statute. At present
the only school falling into this category are the "special
schools for veterans" created pursuant to Article 2683b, V.A.C.S.
If any of the vocatlonal schools to which you have refer-
ence are not institutions of one of the types listed above,
we know of no basis by which it can be accorded the exemption
in Article 6675a-3(c).
In our recent conversation, you expressed partic'ilar
interest in whether or not vehicles used by vocational school
"coordinators" are entitled to fee exempt license plates. YOU
are respectfully advised that unless such vehicles belong to
vocational institutions of one of the foregoing types, or to
the Texas Department of Education, and are used exclusively
In the service thereof, they are not so entmd.
CIVIL AIR PATROL
The Civil Air Patrol was created by the Act of July 1,
1956, 8 60 Stat. 346, which is codified in Title 36, 8 201
through 2 208 u.S.C.A. It was declared to be a body corpor-
ate, with perpetual succession. The purposes of the act were
to provide an organization to encourage civilian contribution
of efforts, services and resources in the development of
aviation and maintenance of air supremacy; and to provide
aviation, education and training and to foster civil aviation
in local communities to assist in meeting local an" national
emergencies. 8 202, Title 36, U.S.C,A,
Section 626`` Title 5, U.S.C,A., as amended, established
the Civil Air Patrol as a volunteer civilian auxiliary of the
Air Force, authorized the Secretary of 3b.eAir Force to make
available to the Civil Air Patrol obsolete or surplus aircraft,
materials and supplies, permitted utilization of Air Force
facilities, provided for liaison offices and for detail of Air
Force military and civilian personnel.
This section was repealed, and the provisions thereof
substantially re-enacted in Section 9441, Title 10, U.S.C.A.
by the 84th Congress. In speaking of this change, Senate
Report 1278, 83rd Cong. 2nd Sess., U. S. Code Cong. and Adm.
News 1954, p0 2271 states:
Mr. D, C. Greer, page 8, Opinion No. WW-487
"Under Public Law 557, cection fi26h,Title 5,
U.S.C.AJ the Air Force could make available to the
Civil Air Patrol surplus aircraft materiel and equip-
ment. Under this arrangement Civil Air Patrol ob-
tained surplus equipment directly from the Air Force.
With the passage of the Federal Property and Adminis-
trative Services Act of 1949, however, surplus property
was defined to mean property excess to the needs of all
Federal agencies, with-the result that.Civil Air Patrol
came afterall,Federal agencies inacquiring AirForce
surplus property. Section 1 of the bill would permit
the Civil Air Patrol to acquire equipment excess to the
needs of the Army, Navy, and Air Force without regard
to the Federal Property and Administrative Services Act
of 1949." (Emphasis added.)
Accordingly, subsection (b) (1) of Section 9441, Title 10,
U.S,C.A., gave the Secretary of the Air Force the power to
give, lend or sell to the Civil Air Patrol without regard to
the Federal Property Administrative Services Act. This was
the only appreciable change made by the repeal and reenactment
of Section 626~, Title 5, U.S.C.A.
The foregoing provisions compel the conclusion that the
Civil Air Patrol was chartered as an independent, non-govern-
mental entity. "The Control of the Congress over this Corpor-
ation is only such as is common to virtually all private
corporations granted federal charters - merely requirj.ngthe
.L
,,ransmittalto Congress each year of a report of its proceed-
ings and activities for the preceding calendar year. ~ , the
conclusion is inescapable that the (Xvi1 Air Patrol under its
charter,,should not be classified as a corporation 'primarily
acting as fig instrumentality of the UnLted States.8 Since
it is not a part of the executive department nor an 'independen;
establishment of the United States o it is not a federal agent
Pearl v. TJnitedStates, 230 F.2d 243 (U.S. C,t.of App. 19.56.7'
Since the Civil Air Patrol is not a federal governmental.
agency, it is not covered by the provision of Article 6675a-_?(c)
exempting vehicles owned and used in the service of the "United
Sta,tesGovernment" from the payment of registration fees.
SUMMARY
Venicles belonging to the Texas Turnpike Authority
and used exclusively in its service are entitled .to fee-
exempt license plates by reason of its being a "State
agency..
"
_ . .
Mr. D. C. Greer, Page 9, Opinion No. WW- 487
Vehicles belonging to local Civil Defense and Disaster
Relief organizations are not covered by the provisions
of Article 6675a-3(c) since such organizations are not
"State agencies"; license plates should not be issued to
such vehicles without payment of the prescribed fees.
Vehicles belonging to and used exclusively in the
service of Vocational Schools falling into one of the
four categories listed above are entitled to fee-exempt
license plates.
The Civil Air Patrol is not a United States govern-
mental agency. It is not entitled to the exemption pro-
vided in Article 6675a-3(c).
Very truly yours,
WILL WILSON
Attorney General of Texas
ByTiiiZkrkew
Assistant
APPROVED:
OPINION COMMITTEE:
Geo. P. Blackburn, Chairman
Linward Shivers
William E. Allen
Wayland C. Rivers, Jr.
J. Arthur Sandlin
REVIEWED FOR THE ATTORNEY G.ENERAL
By: W. V. Geppert