Untitled Texas Attorney General Opinion ( 1950 )


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  • Hon. Robert S. Calvert
    Comptroller    of Public          Accounts
    Austin,  Texas                                    Opinion     No. V-1027.
    Re:   Classification  of the taxes
    levied by H.B. No. 3, Acts
    51st Leg., 1st C.S., to deter-
    mine which are occupation
    taxes.
    Dear    Sir:
    Your     letter    requesting    our opinion    relating    to the above
    captioned      matter     reads     as follows:
    “Article  XIV of House Bill Number      Three, Acts
    of the First Galled Session of the Fifty-first     Legisla-
    ture,  provides  in part as follows:
    “‘THE    STATE    HOSPITAL      FUND is created
    hereby.     All revenue   and funds derived    under and by
    virtue of the provisions      of this Act, save and except
    any portion required      by Section 3, Article    7 of the
    Constitution    of the State of Texas to be set apart for
    the benefit of the Public Free Schools,        shall be paid
    into such STATE        HOSPITAL     FUND,onything    in this
    Act or any other law of this State to the contrary          not-
    withstanding.’
    “I shall thank you to set out in detail,  of the
    revenue and funds derived     under  the above named
    Act, that portion required   by Section 3, Article   7
    of the Constitution  of the State of Texas to be set
    apart for the benefit of Public Free Schools.“
    Section     3, Article    VII, Constitution     of Texas,    provides:
    “One-fourth    of the revenue derived   from the
    State occupation   taxes. . . shall be set apart annu-,,
    ally for the benefit of the Public Free Schools;.    . .
    It follows that one-fourth of the revenue collected upon
    the taxes levied by H.B. No. 3 that are “occupation   taxes” must
    be set apart for the benefit of the Public Free Schools.
    Hon. Robert   S. Calvert   - Page   2   (V-1027)
    The following   in our opinion are occupation        taxes:
    Oil production,    aas production,    sulphur production,     telephone
    gross receipts,    gas, electric    and water company     gross re-
    coipts, carbon black production,        cement distributors’,     motor
    carrier   gross receipts,    oil tie11 ,servicing, insurance     gross
    receipts,   and chain store.
    The following  in our opinion are not occupation
    taxes:    Motor vehicle  sales and use, liquor and wine sales,
    franchise,   new radio, television   sets, cosmetics and playing
    cards sales, stock transfer,     and beer sales.
    Our opinion is based on the following      authorities:
    Producers’     Oil Co. v. Steohens.     
    99 S.W. 157
    (Tex. Civ. ADD.
    State v. Humphrey,      159 $g.    2d Id2 (T&.  Civ. App:’
    1941);‘mDovis,          Inc. v. State, 
    142 Tex. 637
    , 
    180 S.W.2d 429
    (leliver          Iron Mining Co. v. Lord, 
    262 U.S. 172
    , 43
    9. Ct. 6&6’m2)       Dallas Gas Co. v. 5;tate,261 S.W. 1063
    [l)Zl):  State Tai Commission        v. Hughes Drug CO., 
    293 S.W. 924
    [Ky. Civ. Ann.m:             UnitedNbrth   81South Dev.
    o. v. Shannon, 
    115 S.W. 361
    (Ttx. Civ. App.m;
    tk .CO. v. Sheppard, 219 S.W. Ld 1010 (Tex.
    . T 1 Ry Portmxi     Cement Co. v. State,
    jT:CI         Am   IWO)    Texas Consolidated
    Tramp.    Co. v. State, 21oV*fJ.W.id 891 ‘(T      Ci    A     194EJ;
    C&b v. HarQin+vk,        144 Ttx. 360, 190 Sf.2dv;90p(?$45);
    ~octtht`` RtaIty Corp. v. McCallum,        
    65 F.2d 934
    (1933);
    W88f8rn Co. v. Slm                          850 (Tex. Civ. App.
    5 Enainetrinn    Co.. 
    208 S.W.2d 656
                                             Lee Tiis. Co. v. Love,
    urt v. Coowr.      113 S.%‘.Ld
    ii9 (Tax. Civ. App. 1938; &t       k. Coo er 13dT A. 433.,
    110 S.W.Zd 696 (1937); Sec.37J-uOL, c ht.;         Attorney
    f38Urbl’t   @pinions O-4731 and O-4847; Edward Brown &I
    Sons v. McColgan.      
    128 P.2d 186
    , 53 Cal.App.Zd      504.
    SUMMARY
    One fourth of the revenue     collected   by virtue
    of H.B. No. 3, Slst Leg., 1st C.S., 1950, from the
    followirq  ttrts,  viz., oil production,     gas production,
    sulphur producLion,     telephone  gross receipts,     gas,
    Hon. Robert   S. Calvtrt   - Page    3   (V-1027)
    electric   and water company gross receipts,         carbon
    black production,    cement distributors’,      motor car-
    rier gross receipts,     oil well servicing,    insurance
    gross receipts,    and chain store, must be set apart
    for the benefit of the Public Fret       Schools,   as such
    taxes are occupation     taxes.   Section 3, Article     VII,
    Constitution   of Texas,
    Yours   very    truly,
    PRICE    DANIEL
    Attorney    General
    BY
    APPROVED:                                      Assistant
    Charles   D. Mathews
    Executive   Assistant
    WVG:amm
    

Document Info

Docket Number: V-1027

Judges: Price Daniel

Filed Date: 7/2/1950

Precedential Status: Precedential

Modified Date: 2/18/2017