Untitled Texas Attorney General Opinion ( 1974 )

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The Honorable CL8yton T. Garrison Opinion No. H- 303
Executive Director
Texrs Parks & Wildlife Department Re: Are sale8 of gravel, etc.,
John H. Reagan Building by Parka and Wildlife Dept.
Auatin, Tcx8r 78701 subject to s8lee taxes under
Article 20.01, T8x8tion-Gener81,
Dcrr Mr. Glrrieon: 8nd Article 1066~. V. T. C.S. ?
Article 4053d, V. T. C. S., give0 to the P8rks rnd Wildlife Department
ruthority to rell 8t8te owned marl, grrvel, nand rnd ehell. And 8ee 8100
Article 4053, V. T. C. S.
Your question is whether sales made under Article 4053d 8re subject
to taxation under the Limited Saleo, Exci8e and Uae T8x Act provided by
Chrpter 20 of Tax8tiOn-General, V. T. C. S. The brsic provision impoaing
the tax is found in Ar title 20.02 which provides:
“There is hereby imposed a limited sales t8x
at the rate of four per cent (4%) on the receipts from
the sale at ret8il of all taxable itema within this State.”
The terms employed in this Article are defined in Article 20.01. From
those definitions there c8n be little doubt but that the S8le of state ownedmarl,
gr8ve1, sand and ahell by the Texan Parka rnd Wildlife Dep8rtment pursusnt
to ‘Article 4053d is a sale at retail and the question then is whether the marl,
gravel, sand rnd shell ccnstitute tax8ble items.
Article 20.01(W) defines tax8ble item8 to mean “tangible perron prop-
erty. If Tangible person81 property, on the other hand, is defined in Article
20.01(P) 8a “perronrl property which m8y be seen, weighed, me8eured. felt
or touched. or which ia in any other runner perceptible to the rrenaea. ” The
Act does not define “perron property. ” In Sutton v. Wright & S8ndere. 280
p. 1407
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The Honor8ble Clayton T. Glrrison, p8ge 2 (H-303)
S. W. 908 (Tex. Civ. App. , S8.n Antonio, 1926, no writ), 8 suit for bre8ch
of m or81 contr8ct to purchrse,and sell gr8vel in pl8Ce, the court held
that the a8le of gravel to be removed from the soil w8a 8 sale of 8 chrttel
and not 8 sale of real property.
In Cooper v. Cocke. 145 S.W.2d 275 (Tex. Civ.App., Anurillo,
1940, no writ), the court held th8t on rgreement for the a8le of crliche
from 8 homeste8d to the St8te Highway Dep8rtment at 8 price per cubic
yrrd did not constitute 8 sale of homestead or of any portion thereof in
such manner as to be exempt from garnishment under this st8tute.
These two cases lead ua to conclude thrt marl, grrvel, rrnd 8nd
shell, when the subject of a contr8ct of eale separate from the real prop-
erty, are person81 property within the meaning of Article 20.01(P) and
constitute tangible property, the equivrlent of t8x8ble itema, so 8s to make
their s8le subject to the t8X imposed by the Limited Slles, Excise 8nd Use
Tw Act.
Your second question. asked in the event of an affirmative 8nlWer
to the first,is whether such aales sre subject to the LOC81 S8Le8 md Uoe
Tax Act, Article 1066~. V. T. C.S. Section 2B of Article 1066~ provides
th8t the a8lea t8x portion of my 10~81 a8ler 8nd use t8x adopted under th8t
Article is imposed within rny city 8dopting such tu upon items which 8re
subject to t8x8tion by the St8te under the provisions of the Limited S8les,
Excise and Use Tax Act. For that reason we conclude th8t the s8leof
marl. gravel. s8nd and shell by the Texas Parka and Wildlife Deportment
conaummrted “within any city adopting such t8x” in subject to tbe 10~81
ssles 8nd use t8x if one hrs been adopted by th8.t city. Your second question,
therefore, is rnswered in the affirmrtive.
The third question asks where such s8leS 8re consummrted for the
purpose of the lOC81 s8Ies t8x.
Sutton v. Wright & Sanders, suprr, rnd Cooper v. Cocke, supr8,
would seem to compel the conclusion th8t the aale of tangible person81
property, including mrrl. gravel, sand Andyshell, is consumm8ted 8t the
pI8ce where the personal property is severed from the real est8te.
p. 1408
The Honorable Cl8ytOn’ T. G8rrison, page 3 (H-303)
SUMMARY
s8ies of marl, gravel, rrnd and shell by the
Texas Parks 8nd Wildlife Department, pursuant to
Article 4053d, V. T. C.S., 8re subject to t8x8tion
by the Shte under the Limited Sales, Excise 8nd
Use Tu Act rnd by 8ppropri8te cities under the
Locrl S8le6 rnd Uoe Tax Act. For the purpose Of
10~81 s8leS t8xes, the arle is conaumm8ted 8nd the
tmx ir p8yable to 8ny city in which the msrl, grrvel,
s8nd 8nd shell 8re nevered frcanre81 est8te.
Very truly youra,
~c/ Attorney Generrl of Texas
f&w
DAVID M. KENDALL, Chrirmsn
Opinion Committee
p. 1409