Untitled Texas Attorney General Opinion ( 1965 )

Honorable Ben Atwell, Chairman Opinion No. C-424
Revenue and Taxation Committee
House of Representatives Re: Constitutionality of
Austin, Texas House Bill 8, 59th
Legislature, Regular
Dear Representative Atwell: Session.
You have requested our opinion on the validity of House Bill
8 of the 59th Legislature. House Bill 8 amends Articles 9.14
and 10.03, Section (2) of Title 122A, Taxation-General, Revised
Civil Statutes of Texas, 1925, as amended. The provisions of
Article 9.14, as amended by House Bill 8, which are pertinent to
your inquiry, read as follows:
'!Whenmotor fuel is used or consumed,
or is to be used or consumed, for the pro-
pulsion of transit vehicles either owned
or operated, or both, by a transit company,
which meets the following requirements,
the transit company shall be entitled to a
refund of the taxes levied herein; except
that the one fourth of the taxes levied,
which is allocated to the Available School
Fund by the Constitution of the State of
Texas, shall not be refunded. . . 011
Similar provisions are contained in the amendment to Section
(2) of Article 10.03. Under the above quoted amendments, none of
the net revenues remaining after payment of all refunds allowed
by law and expenses of collection, derived from the tax levied on
a transit company meeting the requirements contained in the
amendment, are to be used for the purpose of acquiring rights-of-
way, constructing, maintaining, and policing such public roadways,
and the administration of such laws, and for the payment of
certain bonds or warrants. On the contrary, all the net revenues
remaining after payment of the refunds allowed by law and expenses
of collection, derived from the tax levied on transit companies
meeting the requirements of the amendment, are to be allocated to
the Available School Fund.
It is well settled that tax monies raised ostensibly for one
purpose cannot be expended for another pur ose. Carroll v.
Williams, 109 Tex. 155, 202 S.W. 504 (19187. Thus, where tax
Honorable Ben Atwell, Page 2 Opinion No. C-424
revenues are constitutionally directed to be spent for certain
purposes, the Legislature cannot authorize expenditures for other
purposes. Carroll v. Williams, supra; First State Sank & Trust
Company v. Starr County, 306 S.W.2d 246 (Tex.Civ.App., 19571.
Section 7-a of Article VIII of the Constitution of Texas
provides as follows:
"Subject to legislative appropriation,
allocation and direction, all net revenues
remaining after payment of all refunds
allowed by law and expenses of collection
derived from motor vehicle registration
fees, and all taxes, except gross pro-
duction and ad valorem taxes, on motor
fuels and lubricants used to propel motor
vehicles over public roadways, shall be
used for the sole purpose of acquiring
rights-of-way, constructing, maintaining,
and policing such public roadways, and
for the administration of such laws as
may be prescribed by the Legislature
pertaining to the supervision of traffic
and safety on such roads; and for the
payment of the principal and interest
on county and road district bonds or
warrants voted or issued prior to January
2, 1939, and declared eligible prior to
January 2, 1945, for payment out of the
County and Road District Highway Fund
under existing law; rovided, however,
that one-fourth (l/4P of such net revenue
from the motor fuel tax shall be allocated
to the Available School Fund; and, provlded,
however, that the net revenue derived by
counties from motor vehicle registration
fees shall never be less than the maximum
amounts allowed to be retained by each
County and the percentage allowed to be
retained by each County under the laws in
effect on January 1, 1945. Nothing contain-
ed herein shall be construed as authorizing
the pledging of the State's credit for any
purpose.
It is noted that the above quoted constitutional provision
requires that all net revenues remaining after the payment of all
refunds allowed by law and expenses of collection, derived from
taxes on motor fuels and lubricants used to propel motor vehicles
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', s
Honorable Hen Atwell, Page 3 Opinion No. C-424
over public roadways, shall be used for the sole purpose of
acquiring rights-of-way, constructing, maintaining, and policing
such public roadways, and the administration of such laws, and
for the payment of certain bonds or warrants. Following this
constitutional direction, an exception to such provision Is made
in the following language:
. . . provided, however, that one-
fourth (l/4 of such net revenue from
the motor fuel tax shall be allocated
to the Available School Fund; . . .'
In State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737
(1960), the Court stated:
t1
. . . Under the provisions of Arti-
cle VIII, Section 7-a, of the Constitution,
revenues received from these sources w
be used only for constructing Dublic
roadways and for other designated Furposes
which are not material here. . . .
(Emphasis added).
It is our opinion that House Bill 8 authorizes net revenues
from motor fuel tax to be spent for purposes contrary to the
provisions of Section 7-a of Article VIII of the Constitution of
Texas and is thus lnvalld.
The other controlling provisions of the Bill are so dependent
upon and so Inseparable from the allocation provision of the Bill
that the entire Bill in our opinion must be declared unconstitutional.
School Trustees of Orange County v, District Trustees of Prairie
View Common School Dist. No. 8 137 Tex. 125, 153 S.W.2d 434 (
Empire Gas & Fuel Co. v. State: 121 Tex. 138, 47 S.W.2d 265 (li$;!'
SUMMARY
-------
House Bill 8 of the 59th Legis-
lature authorizes an allocation
of net revenues derived from
motor fuel tax, contrary to the
provisions of Section 7-a of
Article VIII of the Constitution
of Texas and is, therefore,
ipvalid. Carroll v. Williams,
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.I.
Honorable Ban Atwell, Page 4 Opinion No. C-424
109 Tex. 155, 202 S.W. 504
(1918); First State Bank & Trust
Company v. Starr Counte, 306 S.W.
2d 246 (Tex.Clv.App., 1957).
Yours very truly,
WAGGONER CARR
Attorney General
Assistant
WEA:dl
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
Roy Johnson
Pat Bailey
Paul Phy
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
-1999,