Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas
April 18, 197’3
‘ARK WHITE
norney General
i .a”‘111 CoUrt nullalng Honorable Tim Von Dohlen Ooinion No. MW-11
Chairman
House Committee on Constitutional He: Authority of legislature to
Amendments permit taxing districts to exempt
State Capitol automobiles from property tax on a
Austin, Texas 78711 local option basis.
Dear Representative Von Dohlen:
You nsk whether the legislature may, pursuant to article VIII, section 1,
of the Texas Constitution, provide by general law that automobiles may be
exempted from ad valorem taxation except where local taxing jurisdictions
have determined within a specified time to impose a personal property tax
on nutomohiles on a “local option hasis.” Article VIII, section 1, as amended
effective Jnnunry 1, 1979, provides in pnrt:
. . . the Legislature by general law may exempt all or
part of the personal property homestead of a family
or a single adult, ‘personal property homestead’
meaning that personal property exempt by law from
forced sale for debt, from ad valorem taxation.
Article 3836, V.T.C.S., lists the personal property which is exempt
from attachment for deht. Section (ax31 of that statu!c exempts “any two
of the following categories of means of travel: . . . an Iaittomobile or station
wagon; . . . a truck; a, pickup truck.’ Thus artic~le VI& section 1, authorizes
the legislature to enact a general law exempting from rtd valorem taxation
personal property homestead which under current law includes ones
automobile or station wagon owned by a family or single adult. See Co hlan
v. Sullivan, 480 S.W.2d 229 (Tex. Civ. App. e El Paso 1972, no .wrlt .
---f--T
.
additional-automobiles were to bc exempted, :irtlcle 3836 would have to be
amended.
WC next consider whether the IOCHI option tax statute would
unconstitutionally deleg:lte~ legislative~ power to make or suspend law, in
violation of nrticle ill. seclion I or nrliclc I, section 28 of- the Texas
Constitution. Certnin locnl option laws hnve been held unconstitutional in
the absence of cxprcs< ronstitutional authority to enact them. In Rx parle
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Honorable Tim Von Dohlen - Page Two (MM-11)
Mitchell, 177 S.W. 953 (Tex 1915), the Supreme Court concluded that a statute authorizing
voters to decide whether pool halls should be prohibited in the county unconstitutionally
delegated the power to make laws. In nddition, the local option statute suspended a
general law which licensed the operation of pool halls. Accord, Lyle v. State, 193 S.W. 680
(Tex. Grim.. App. 1917); contra, Ex parte Mode, 180 S.W. 708 (Tex. Crim. App. 1915); Ex
parte Francis, 165 S.W. 147x. Crim. App. 1914). See also Brown Cracker & Candy CT
v. Citv of Dallas, 137 S.W. 342 (Tex. 19ll) (city ordinance permitting houses of prostitution
unconstitutionally suspended state law prohibiting them); State v. Swisher, 17 Tex. 441
(1856) (local option liquor control statute held an unconstitutional delegation of legislative
power).
Although the legislature may not authorize n political subdivision to make or suspend
state law, it may permit it to accept or reject a power which is consistent with general
law. Lyle v. State, m at 683. The people of a locality may be empowered to accept a
completely enacted general law relating to administration and local control. Ex parte
Francis, e at 171 (dissent). Relying on this principle, the courts have upheld numerous
statutes granting politicaI subdivisions power to be exercised only upon a favorable vote of
the governing body or the people. A statute leaving it discretionary with the
commissioners court to order the election of public weighers was upheld in Johnson v.
En, 12 S.W. 321 (Tex. 1889), while Stanfield v. State, 18 S.W. 577 (Tex. 1892) approved a
law suthorizing counties to crente and abolish the office of county superintendent of
puh!ic instruction. Statutes authorizing county school lrustces ‘to change the lines of
legislatively ‘created school districts did not violate article I, srction 28. Rdsebud 1.S.D. v.
Richardson, 2 S.W.2d 513 (Tcx. Civ. App. - Waco 1928, no wril). See also Spears v. City of
i;an Antonio, 223 S.W. I66 (Tex. 1920) (statute authorizing cities, on vote of the people, to
Improve streets and asqcss costs against abutting property did not unconstitutionally
~!c:legste legislative power!; Sullivan <. Roach-Manigan Paving (:o. of Texas, 220 S.W. 444
(Tcx. Civ. .4pp. -San Antonio 1920. writ dism’d) (street imarovement statute nulhorizine
>Icceptanc’c !$ city does not violate article III, section 1 or article I, section 28 of Texas
~ZonstituIian).
The more recent cases accept the principle that the legislature may ‘authorize a
political subdivision to accept the provisions of ‘general law by a vote of the people. The
statute permitting cities to provide a police and firemen’s civil service bystem, following
HII election. did not unconstitutionallv delegate the .wwer to susoend laws Citv of Fort
Worth v. Fire Departmeni of City of Fort Worth, 213 S.W.2d 347 (Tex. Civ.‘App. -- Fort
Worth 19481, aff’d,~in part, rev’d in part on other grounds, 217 S.W.2d 664 (Tex. 1949). ln
Rcy~nolds v. Dallas County. 203 S.W.2d 320 (Tex. Civ. Apt _ ->. -- Amarillo 1947, no writ), the
court upheld a statute autt iorizing counties to use voting machines on a local option basis
It held-rhtit the statute &d not unconstitutionally delegate the legislature’s power to
suyend :md make laws, stnting as follows:
Article 2997e is n general law Andy completes within itself. It
applies to 1111counties in the Stnte hut bccomcs operative in R
county only upon its adoption by the commissioners court of that
county. . . . [Tihc legislature ennnot dclcgate lo the people . . . its
p. :31.
Honorable Tim Von Dohleo - Page Three (MW-11)
authority to make laws; but that does not mean the legislature is
without authority lo confer a power upon a municipal corporation
or its governing body authority and power lo accept or reject the
benefits ,tnd provisions of a general law legally enacted by the
legislature.
203 S.W.2d al 324. It went on lo say that local au:tl:)rilics were helter nble than the
legislature to determine whether voling machines were: nccdt~c! in their districts, and under
such circumstances the legislature could delegate them lhe power to decide whether lhe
general law should become effective within their jurisdictions. See also Trimmier v.
Carllon, 296 S.W. 1070 (Tex. 1927) (legislature may enact law on matter of local concern to
become operative on vote of people lo be affected).
Additionally, unlike the early cases limiting the use of local option laws, the
legislature here is exercising a .specific permissive constitutional power which it has
chosen not to exercise to the fullest degree. The legislature has adopted a law which
effectively provides an exemption only when a certain condition is met. The condition
which the legislature has recognized is the determination by the local jurisdiction to tax
autotiobiles and is grounded in lhe constitutional authority of the various political
subdivisions to levy and collect taxes. Even if Mitchel!, Lvle and similar cases still are
correct statements of the law, we believe this situation i~tiamentally different from
those cases which involvd the local option prohibition of thr operation of pool halls.
In view of the huquage and holdings of the more recent cases on local~option laws
nnd in view of the fact that the constitutional provision allowing the legislature to exempt
is a permissive one, we believe the legislature can entlcl a local option lax law without
violating article I, section 28 or article 111, section 1 of the Texas Constitution. The
earlier ca.ses ~struck down local opl.ion laws which permitted polilical xxbdivisions to
excepr ;l!emselves frum general laws regarding the legnlity of ccrlain conduct and
occupalio,ls. We believe these cases must be limited to their :::?ls, and that their
,. rationale does not npr!y lo matters of local adminislrnlion.
Wc finally con:%ler tihether lhc tnx on nulorno!~ile~ will hc “equal and uniform”
within chr first sentcn1.c of article VIII, scclion 1, if :P::I(! trlxing jurisdictions provide the
cxrrnpl ion while oth~*rs do 1101. ‘I’axc*s rlrc “equal nnd Imiforrn” within tht* constitutional
nrovi+n w1k:11no on*. wilhin thr lnsinr Ilistricl is Irtr~*57 Tex. 635
(1882); set &so ``._!)fi~$, 42f S.W.2d 827 (Tex. l%~\c’cnlherlv
--- 1.S.l). v. Hughes, 41
S.W.2d 4-1:,x. (Xv. :\pp. ..- Amarillo 1931, no writ). I’hercfore. the stntulc permitlinE
taxin;: di:;lricts to t:~y. r&to!nobilcs will nolviolnle thv “equ:d and uniform” piovision of
arliclc VIII, section I. Of course, nny legislnlion should be slruclured to insure thal
ndoption of the proposed tnx by some connties but not others dots not cause the state ad
valorcm tax to be levied on vrlrying hnses in differenl counties
p. 32
Honornble Tim Von Dohlen - Page Four (XW-11.)
SUMMARY
The legislature may exempt certain automobiles from ad valorem
taxation. It may also permit local taxing authorities to determine
whether lo impose a tax on automobiles.
kmrwwg
MARK WHITE ’
Attorney General of Texas
JtiHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINlON COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Rick Gilpin
William G Reid
Martha Smiley
.
p. 33