Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas
August 30, 1979
tAAK WHITE
.ttorney General
Honorable RR1 Clayton Opinion No. MW-5 0
Speaker of the House
House of Representatives Re: Obligation of a feedlot owner
Austin, Texas to list for taxation purposes cattle
owned by another.
Dear Speaker Clayton:
You have requested our opinion regarding the obligation of a
commercial feedlot owner to list for taxation cattle owned by another. In
Attorney General Opinion M-469 (19691, Attorney General Crawford Martin
construed article 7152(2), V.T.C.S., to require a feedlot owner to furnish to
the tax assessor-collector a list of all cattle not owned by him but in his
custody on January 1 of each year. You suggest that’ the opinion should be
clarified so as to limit the application of article 7152(2) to those cattle
which the feedlot owner controls as “agent, attorney or fiduciary.”
Article 7152 provides, in pertinent part:
AH property shnll be listed or rendered in the manner
following:
(I) Ry the owner. Every person of full age and sound
mind, being a resident of this State, shall list all of
his real estate, moneys, credits, bonds or s:ock of
joint stock or other companies (when the property of
such company is not assessed in this State), moneys
loaned or invested, annuities, franchises, royalties,
and all other property,
(2) As agent. He shall also list all lands or other real
estate, moneys and other personal property invested,
loaned or otherwise controlled by him as agent or
attorney, or on account of any other person,
company, or corporation, whatsoever, and all moneys
deposited subject to his order, check, or drafts and
credits due from or owing by any person, body
corpora tr or politic.
P. 153
Honorable Bill Clnyton - Page Two (MW-50)
The relationship between a commercial feedlot. such as that under considerntion
here and in Opinion M-469, and those rattle owners whose stork is “finished out” for
market at the fecdlot, involves a parliculnr kind of bailment known as an “agistmcnt.”
Barclay v. Burge, 245 S.W.2d 1021 (Tcx. Civ. .Ipp. - Reaumonr 1952, no writ). Although a
bailee does not act as his hailor’s agent, nnd title to bailed property remains in the bailor,
Forson v. State, 282 S.W.2d 385, 387 (Tex. Crim. App. 1955): Erwin v. State, 212 S.W.2d
183, 184 (Tex. Crim. App. 1948), the relationship between the two parties arises by
contract, McAshan v. Csvitt,
- 227 S.W.2d 340 (Tex. Civ. App. -- El Paso 1949), aff’d, 229
S.W.2d 1016 (Tex. 1950), and the bailee may be said to act for the benefit of hisailor,
Erwin v. State, w, al 184.
Article 7152(2) requires a feedlot owner to list two distinct kinds of property not his
own: (1) thnt which is “controlled by him as agent or attorney”; and (2) that which is
“controlled by him . . . on account of any other person, company, or corporation,
whatsoever. . . .‘I (emphasis added). Relying on a Supreme Court decision, Attorney
General Martin construed “on account of” to mean “on behalf of.” Thus, a bailment, in
whi&,the bailee acts for the benefit of the bailor, is clearly embraced within the ambit of
article 7152(2).
We believe that Opinion M-469 correctly construes article 7152(2j. In the ten years
since the issuance of the opinion, the legislature has not ntncnded any portion of the
statute. See Tax Code, S 22.04 to be effective January 1, 1982. In view, therefore, of the
long contmued acquiescence of the legislature in the conclusion of M-469, we cannot say
thnt the application of article 7152(2) should be limited to those cattle which a feedlot
owner controls as agent, attorney or fiduciary. Rather, a commercial feedlot owner
should also list for taxation purposes all cattle in his custody under a contract of bailment.
Of course we do not suggest that a listing of personal property by a bailee. would have the
same binding effect as a rendition of the properly by the owner. See Pfeiffer v. City of
San Antonio, 195 S.W. 932. 933 (Teu. Civ. App. - San Antonio 1917. writ refd).
SUMMARY
Pursuant to erticle 7152. V.T.C.S., a commercial feedlot owner
should list for taxntion all cattle in his possession on Januury 1 of
each year, whether the custody is pursuant to a contract of agency
or one of bailment. Such a listing by a bailee would not have the
same effect as a rendition by the owner.
JOtlN W. FAINTER, JR.
First Assistfint ntlorney General
P. 154
Honorable Bill Clayton - page ‘l’hrec (!lW-5b I
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Rick Cilpin
Assistant Attorney General
APPROVED:
OPINION COM3llTTEE
C. Robert Heath, Chairman
Jim Allison
David B. Brooks
Walter Davis
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood