Untitled Texas Attorney General Opinion

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December 7, 1949
Honorable A. C. Winborn Opinion No. k-954.
District Attorney
Harris County Re: Liability of flood control
Houston, Texas and navigation districts for
motor vehicle registration
fees and sales taxes.
Dear Mr. Winborn:
You request our opinion on the following
-. _.question:
“Are the Harris County Navigation District and
the Harris County Flood Control District. legally liable
for the one per, cent (1%) Motor Vehicle Retail Sales
Tax, also are these districts legally liable for the pay-
ment of the registration’fees o* license tax on motor
vehicles ,owned and operated by them,? ”
We appreciate the excellent brief submitted with your
request and agree with your conclusion.
By Section 2, Article VIII of the Texas Constitution. the
Legislature is authorized to exempt public property used for public
purposes from taxation. In pur.suance to this authorization the Leg-
islature has exempted all property, whether real or personal. be-
longing exc+sively to this State, or any political subdivisionthereof.
Art. 7150,~sec. 4, V.C.S.
The districts in question were created and incorporated
under laws enacted pursuant to Section 59, Article XVI of the Texas
Constitution, and are political subdivisions of the State. Lower Col-
orado River Authority v. Chemical Bank and Trust Co., 134 Tex.
326 190 S . W . 2d 48 (1945) I n fact, Section 59 Article VIII express+.
ly siates ‘which districts’s’lrali be governmenial agencies and bodies
politic. ”
You state in your question that the motor vehicles are
owned and operated by the districts in question, To be exempt they
have to be both owned by a political subdivision. that is, ‘public
property” and used exclusively for public purposes. If these dis-
tricts are operating these motor vehicles in the furtherance of the
purposes for .which they were created then the motor vehicles are
exempt from all taxation.
;p,98 Honorable A. C. Winborn. Page 2 (V-955)
The Supreme Court of Texas in Lower Colorado River
Authority v. Chemical Bank and Trust Co., supra, in construing
The validity of Section 4a, Article 7150, V.C.S., stated in part:
‘(5) Nor can the force of Art. XI, Sec. 9. of theA
Constitution of this state, be destroyed in this case by
any application of the doctrine of ejusdem generis. It
is contended that under that doctrine the fact that the
words ‘all other property devoted exclusively to the
use and benefit of the public’ follow the language ‘pub-
lic buildings and the sites therefor. fire engines and
the furniture thereof, and all property used, or intend-
ed for extinguishing fires, public grounds’ limits the
application of the exemption to public buildings.and
grounds and hnything used to fight fires. We do not be-
lieve the framers of the Constitution ever intended ‘that
the exemption should be so narrowly applied, otherwise
the purpose of the exemption wbuld.be largely-defeated.
To apply the doctrine of ejusdem generis in its strict
sense would mean that government in Texas could en-
gage m the -senseless process of taxing itsell, the net
result of which would be but to take its own money out
of one pocket for ‘the purpose of putting it into another,-
less the cost of assessing and’collecting the tax. Ob-
viously that procedure could never accomplish anything
but an idle expenditure of public funds. See State of
New Mexico v. Locke. 29 N. M. 148. 219 P. 790, 30 A.
L.R. 407. (Underscoring ours.)
‘To illustrate, parking meters are now maintained
in nearly every city of’any importance to assist in pro-
viding funds with which the cities may purchase and op-
erate fire fighting machinery, own public grounds, erect
public buildings and otherwise perform their functions.
To the extent of the revenues they yield, the meters re-
lieve the cities ‘of the necessity of raising those funds
by general direct taxation. Therefore, to tax them would
mean that what is taken by taxation, plus the cost inci-
dent to the orocess. would have to be made un in some
other~formbf taxation. Again, road machineiy owned
and used exclusively by a county in constructing and
maintaining public roads, trucks, owned by the state and
used exclusively by it in transporting food and other es-
sential supplies to its eleemosynary institutions and lit-
erally hundreds of other Items of personal proper
owned by the public and used exclusively for public pur-
oses would be liable to taxation at the will of the leg-
islature, merely because they cannot be classified as
public buildings, public grounds or tnstrumentallties for
extinguishing tires. (Underscoring ours.)
’
Honorable A. C. Winborn, Page 3 (V-955)
“Thus this court early and unequivocally denied
the doctrine that the legislature has the power to tax
all publtc pr’operty except courthouses, jails, fire fight-
ing apparatus, school buildings, playgrounds, libraries,
public parks, and the like. It announced in unmistakable
language that the iegislature is without power~‘to tax any
property publicly owned and held only for public pur-
poses and devoted exclusively to the use and benefit of
the public. Yet the Constitution has never been amend-
ed either to modify or overrule those clear declara-
tions; nor,~in sb far 9s we are’advised.‘has any attempt
ever been made’s’0 as to amend it. So’it is not for us
now to question them. We hold, therefore, that Sec. 4a.
of Art. 7150, Vernon’s Ann.’ Civ. St.. supra, is void.”
It’is therefore our opinion that neither the Harris Coun-
ty Navigation District nor the Harris County Flood Control District
is liable for. the payment of registration fees or license taxes or the
motor vehicles retail sales or use tax on motor vehicles owned by
them which are used exclusively for public purposes.
This office during a prior administration in 1940 ren-
dered Opinion O-2609 in which it held that water improvement dis-
tricts were not ellempt from payment of motor vehicle license fees.
This 0pinio.n recognized that such districts were political subdivi-
sions of the State:and were exempt from taxation, but based its hold-
ing on the proposition that the license fee exacted for the registra-
tion of motor vehicles was not a tax. It cited the case of Atkins v.
State Highway Department, 201 S.W. 226 (Tex. Civ. App. 1918, er-
ror ref. , as the authority for this holding. We have carefully stud-
ied this case and find that Atkins was resisting the payment of the
registration fee on the ground that it was a property tax and was in
violation of the equal and uniform provision of the Texas Constitu-
tion, Article VIII,. Section 1. The court, after a full discussion there-
of, held that the’ sum of money which Atkins was required to pay was
not a tax on ownership, but a license fee for the privilege of oper-
ating his automobile on the public highways of the State. It will be
noted that the court did not state that the license tee was not a%,
but that it was not a nronertv tax.
Subsequent thereto the Supreme Court of Texas, in Payne
v. Massey, 145 Tex. 237, 196 S.W.2d 493 (1946). stated:
“Article 6698 is a part of Section 2. of Title 116,
Chapter 1. Vernon’s Ann. Civ. Stat. dealing with the
regulation and registration of motor vehicles. Under
such title the State exacts a license or registration fee
rivile e tax in the nature of a license or
%ct?st~e%&h’&?%ghways of this State. Blash-
field’s Cyclopedia of Automobile Law and Practice,
Perm. Ed., Vol. 1, Sets. 212, 213. 214.”
Honorable A. C. Winborn. Page 4 (V-955)
In Louwein v. Moody. Tax Collector,:12 SrW.2d 989
(Comm. App. Ivzv) the court referred to the registration statutes
as imposing a ‘fee’ or ‘tax”.
We therefore overrule Opinion No. o-2609.
SUM~MARY
Neither the Harris County Navigation District ’
nor the Harris County Flood Control District is liable
for the payment of registration fees or license taxes
or the motor vehicle retail sales or use tax on motor
vehicles owned by them which are used exclusively for
public purposes. Tex. Const. Art. VIII, Sets. 2 and 59.
Art. 7150, Sec. 4. V.C.S.
Yours very truly
ATTORNEY GEN-L OF TEXAS
W. V. Geppert
Assistant
W VG/mwb
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